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461 U.S. 238 (1983) OLIM ET AL. v. WAKINEKONA No. 81-1581. Supreme Court of United States. Argued January 19, 1983. Decided April 26, 1983. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *239 Michael A. Lilly, First Deputy Attorney General of Hawaii, argued the cause for petitioners. With him on the brief was James H. Dannenberg, Deputy Attorney General. Robert Gilbert Johnston argued the cause for respondent. With him on the brief was Clayton C. Ikei.[*] *240 JUSTICE BLACKMUN delivered the opinion of the Court. The issue in this case is whether the transfer of a prisoner from a state prison in Hawaii to one in California implicates a liberty interest within the meaning of the Due Process Clause of the Fourteenth Amendment. I A Respondent Delbert Kaahanui Wakinekona is serving a sentence of life imprisonment without the possibility of parole as a result of his murder conviction in a Hawaii state court. He also is serving sentences for various other crimes, including rape, robbery, and escape. At the Hawaii State Prison outside Honolulu, respondent was classified as a maximum security risk and placed in the maximum control unit. Petitioner Antone Olim is the Administrator of the Hawaii State Prison. The other petitioners constituted a prison "Program Committee." On August 2, 1976, the Committee held hearings to determine the reasons for a breakdown in discipline and the failure of certain programs within the prison's maximum control unit. Inmates of the unit appeared at these hearings. The Committee singled out respondent and another inmate as troublemakers. On August 5, respondent received notice that the Committee, at a hearing to be held on August 10, would review his correctional program to determine whether his classification within the system should be changed and whether he should be transferred to another Hawaii facility or to a mainland institution. *241 The August 10 hearing was conducted by the same persons who had presided over the hearings on August 2. Respondent retained counsel to represent him. The Committee recommended that respondent's classification as a maximum security risk be continued and that he be transferred to a prison on the mainland. He received the following explanation from the Committee: "The Program Committee, having reviewed your entire file, your testimony and arguments by your counsel, concluded that your control classification remains at Maximum. You are still considered a security risk in view of your escapes and subsequent convictions for serious felonies. The Committee noted the progress you made in vocational training and your expressed desire to continue in this endeavor. However your relationship with staff, who reported that you threaten and intimidate them, raises grave concerns regarding your potential for further disruptive and violent behavior. Since there is no other Maximum security prison in Hawaii which can offer you the correctional programs you require and you cannot remain at [the maximum control unit] because of impending construction of a new facility, the Program Committee recommends your transfer to an institution on the mainland." App. 7-8. Petitioner Olim, as Administrator, accepted the Committee's recommendation, and a few days later respondent was transferred to Folsom State Prison in California. B Rule IV of the Supplementary Rules and Regulations of the Corrections Division, Department of Social Services and Housing, State of Hawaii, approved in June 1976, recites that the inmate classification process is not concerned with punishment. Rather, it is intended to promote the best interests *242 of the inmate, the State, and the prison community.[1] Paragraph 3 of Rule IV requires a hearing prior to a prison transfer involving "a grievous loss to the inmate," which the Rule defines "generally" as "a serious loss to a reasonable man." App. 21.[2] The Administrator, under ¶ 2 of the Rule, is required to establish "an impartial Program Committee" to conduct such a hearing, the Committee to be "composed of at least three members who were not actively involved in the process by which the inmate . . . was brought before the Committee." App. 20. Under ¶ 3, the Committee must give the inmate written notice of the hearing, permit him, with certain stated exceptions, to confront and cross-examine witnesses, afford him an opportunity to be heard, and apprise him of the Committee's findings. App. 21-24.[3] The Committee is directed to make a recommendation to the Administrator, who then decides what action to take: "[The Administrator] may, as the final decisionmaker: "(a) Affirm or reverse, in whole or in part, the recommendation; or "(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate *243. . . , other inmates . . . , institution, or community and refer the matter back to the Program Committee for further study and recommendation." Rule IV, ¶ 3d(3), App. 24. The regulations contain no standards governing the Administrator's exercise of his discretion. See Lono v. Ariyoshi, 63 Haw. 138, 144-145, 621 P. 2d 976, 980-981 (1981). C Respondent filed suit under 42 U. S. C. § 1983 against petitioners as the state officials who caused his transfer. He alleged that he had been denied procedural due process because the Committee that recommended his transfer consisted of the same persons who had initiated the hearing, this being in specific violation of Rule IV, ¶ 2, and because the Committee was biased against him. The United States District Court for the District of Hawaii dismissed the complaint, holding that the Hawaii regulations governing prison transfers do not create a substantive liberty interest protected by the Due Process Clause. 459 F. Supp. 473 (1978).[4] The United States Court of Appeals for the Ninth Circuit, by a divided vote, reversed. 664 F. 2d 708 (1981). It held that Hawaii had created a constitutionally protected liberty interest by promulgating Rule IV. In so doing, the court declined to follow cases from other Courts of Appeals holding that certain procedures mandated by prison transfer regulations do not create a liberty interest. See, e. g., Cofone v. Manson, 594 F. 2d 934 (CA2 1979); Lombardo v. Meachum, 548 F. 2d 13 (CA1 1977). The court reasoned that Rule IV gives Hawaii prisoners a justifiable expectation that they will not be transferred to the mainland absent a hearing, before an impartial committee, concerning the facts alleged in the *244 prehearing notice.[5] Because the Court of Appeals' decision created a conflict among the Circuits, and because the case presents the further question whether the Due Process Clause in and of itself protects against interstate prison transfers, we granted certiorari. 456 U. S. 1005 (1982). II In Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236 (1976), this Court held that an intrastate prison transfer does not directly implicate the Due Process Clause of the Fourteenth Amendment. In Meachum, inmates at a Massachusetts medium security prison had been transferred to a maximum security prison in that Commonwealth. In Montanye, a companion case, an inmate had been transferred from one maximum security New York prison to another as punishment for a breach of prison rules. This Court rejected "the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." Meachum, 427 U. S., at 224 (emphasis in original). It went on to state: "The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another. The conviction has sufficiently extinguished the defendant's liberty *245 interest to empower the State to confine him in any of its prisons. "Neither, in our view, does the Due Process Clause in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose." Id., at 224-225 (emphasis in original). The Court observed that, although prisoners retain a residuum of liberty, see Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974), a holding that "any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." 427 U. S., at 225 (emphasis in original). Applying the Meachum and Montanye principles in Vitek v. Jones, 445 U. S. 480 (1980), this Court held that the transfer of an inmate from a prison to a mental hospital did implicate a liberty interest. Placement in the mental hospital was "not within the range of conditions of confinement to which a prison sentence subjects an individual," because it brought about "consequences . . . qualitatively different from the punishment characteristically suffered by a person convicted of crime." Id., at 493. Respondent argues that the same is true of confinement of a Hawaii prisoner on the mainland, and that Vitek therefore controls. We do not agree. Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State.[6] Often, confinement *246 in the inmate's home State will not be possible. A person convicted of a federal crime in a State without a federal correctional facility usually will serve his sentence in another State. Overcrowding and the need to separate particular prisoners may necessitate interstate transfers. For any number of reasons, a State may lack prison facilities capable of providing appropriate correctional programs for all offenders. Statutes and interstate agreements recognize that, from time to time, it is necessary to transfer inmates to prisons in other States. On the federal level, 18 U. S. C. § 5003(a) authorizes the Attorney General to contract with a State for the transfer of a state prisoner to a federal prison, whether in that State or another. See Howe v. Smith, 452 U. S. 473 (1981).[7] Title 18 U. S. C. § 4002 (1976 ed. and Supp. V) permits the Attorney General to contract with any State for the placement of a federal prisoner in state custody for up to three years. Neither statute requires that the prisoner remain in the State in which he was convicted and sentenced. On the state level, many States have statutes providing for the transfer of a state prisoner to a federal prison, e. g., Haw. Rev. Stat. § 353-18 (1976), or another State's prison, e. g., Alaska Stat. Ann. § 33.30.100 (1982). Corrections compacts between States, implemented by statutes, authorize incarceration of a prisoner of one State in another State's prison. See, e. g., Cal. Penal Code Ann. § 11189 (West 1982) (codifying Interstate Corrections Compact); § 11190 (codifying Western Interstate Corrections Compact); Conn. Gen. *247 Stat. § 18-102 (1981) (codifying New England Interstate Corrections Compact); § 18-106 (codifying Interstate Corrections Compact); Haw. Rev. Stat. § 355-1 (1976) (codifying Western Interstate Corrections Compact); Idaho Code § 20-701 (1979) (codifying Interstate Corrections Compact); Ky. Rev. Stat. § 196.610 (1982) (same). And prison regulations such as Hawaii's Rule IV anticipate that inmates sometimes will be transferred to prisons in other States. In short, it is neither unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced, or to be transferred to an out-of-state prison after serving a portion of his sentence in his home State. Confinement in another State, unlike confinement in a mental institution, is "within the normal limits or range of custody which the conviction has authorized the State to impose." Meachum, 427 U. S., at 225.[8] Even when, as here, the transfer involves long distances and an ocean crossing, the confinement remains within constitutional limits. The difference between such a transfer and an intrastate or interstate transfer of *248 shorter distance is a matter of degree, not of kind,[9] and Meachum instructs that "the determining factor is the nature of the interest involved rather than its weight." 427 U. S., at 224. The reasoning of Meachum and Montanye compels the conclusion that an interstate prison transfer, including one from Hawaii to California, does not deprive an inmate of any liberty interest protected by the Due Process Clause in and of itself. III The Court of Appeals held that Hawaii's prison regulations create a constitutionally protected liberty interest. In Meachum, however, the State had "conferred no right on the *249 prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct," 427 U. S., at 226, and "ha[d] not represented that transfers [would] occur only on the occurrence of certain events," id., at 228. Because the State had retained "discretion to transfer [the prisoner] for whatever reason or for no reason at all," ibid., the Court found that the State had not created a constitutionally protected liberty interest. Similarly, because the state law at issue in Montanye "impose[d] no conditions on the discretionary power to transfer," 427 U. S., at 243, there was no basis for invoking the protections of the Due Process Clause. These cases demonstrate that a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show "that particularized standards or criteria guide the State's decisionmakers." Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 467 (1981) (BRENNAN, J., concurring). If the decisionmaker is not "required to base its decisions on objective and defined criteria," but instead "can deny the requested relief for any constitutionally permissible reason or for no reason at all," ibid., the State has not created a constitutionally protected liberty interest. See id., at 466-467 (opinion of the Court); see also Vitek v. Jones, 445 U. S., at 488-491 (summarizing cases). Hawaii's prison regulations place no substantive limitations on official discretion and thus create no liberty interest entitled to protection under the Due Process Clause. As Rule IV itself makes clear, and as the Supreme Court of Hawaii has held in Lono v. Ariyoshi, 63 Haw., at 144-145, 621 P. 2d, at 980-981, the prison Administrator's discretion to transfer an inmate is completely unfettered. No standards govern or restrict the Administrator's determination. Because the Administrator is the only decisionmaker under Rule IV, we need not decide whether the introductory paragraph *250 of Rule IV, see n. 1, supra, places any substantive limitations on the purely advisory Program Committee.[10] The Court of Appeals thus erred in attributing significance to the fact that the prison regulations require a particular kind of hearing before the Administrator can exercise his unfettered discretion.[11] As the United States Court of Appeals for the Seventh Circuit recently stated in Shango v. Jurich, 681 F. 2d 1091, 1100-1101 (1982), "[a] liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality."[12] Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. See generally Simon, Liberty and Property in the Supreme Court: A Defense of Roth and Perry, 71 Calif. L. Rev. 146, 186 (1983). If officials may transfer a prisoner "for whatever reason or for no reason at all," Meachum, 427 U. S., at 228, there is no such interest for process to protect. The State may choose to require procedures for reasons other than protection against deprivation of substantive *251 rights, of course,[13] but in making that choice the State does not create an independent substantive right. See Hewitt v. Helms, 459 U. S. 460, 471 (1983). IV In sum, we hold that the transfer of respondent from Hawaii to California did not implicate the Due Process Clause directly, and that Hawaii's prison regulations do not create a protected liberty interest.[14] Accordingly, the judgment of the Court of Appeals is Reversed. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, and with whom JUSTICE STEVENS joins as to Part I, dissenting. In my view, the transfer of respondent Delbert Kaahanui Wakinekona from a prison in Hawaii to a prison in California implicated an interest in liberty protected by the Due Process Clause of the Fourteenth Amendment. I respectfully dissent. I An inmate's liberty interest is not limited to whatever a State chooses to bestow upon him. An inmate retains a significant residuum of constitutionally protected liberty following his incarceration independent of any state law. As we stated in Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974): "[A] prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons *252 of this country. . . . [Prisoners] may not be deprived of life, liberty, or property without due process of law." In determining whether a change in the conditions of imprisonment implicates a prisoner's retained liberty interest, the relevant question is whether the change constitutes a sufficiently "grievous loss" to trigger the protection of due process. Vitek v. Jones, 445 U. S. 480, 488 (1980). See Morrissey v. Brewer, 408 U. S. 471, 481 (1972), citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). The answer depends in part on a comparison of "the treatment of the particular prisoner with the customary, habitual treatment of the population of the prison as a whole." Hewitt v. Helms, 459 U. S. 460, 486 (1983) (STEVENS, J., dissenting). This principle was established in our decision in Vitek, which held that the transfer of an inmate from a prison to a mental hospital implicated a liberty interest because it brought about "consequences . . . qualitatively different from the punishment characteristically suffered by a person convicted of crime." 445 U. S., at 493. Because a significant qualitative change in the conditions of confinement is not "within the range of conditions of confinement to which a prison sentence subjects an individual," ibid., such a change implicates a prisoner's protected liberty interest. There can be little doubt that the transfer of Wakinekona from a Hawaii prison to a prison in California represents a substantial qualitative change in the conditions of his confinement. In addition to being incarcerated, which is the ordinary consequence of a criminal conviction and sentence, Wakinekona has in effect been banished from his home, a punishment historically considered to be "among the severest."[1] For an indeterminate period of time, possibly the *253 rest of his life, nearly 2,500 miles of ocean will separate him from his family and friends. As a practical matter, Wakinekona may be entirely cut off from his only contacts with the outside world, just as if he had been imprisoned in an institution which prohibited visits by outsiders. Surely the isolation imposed on him by the transfer is far more drastic than that which normally accompanies imprisonment. I cannot agree with the Court that Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236, 243 (1976), compel the conclusion that Wakinekona's transfer implicates no liberty interest. Ante, at 248. Both cases involved transfers of prisoners between institutions located within the same State in which they were convicted, and the Court expressly phrased its holdings in terms of intrastate transfers.[2] Both decisions rested on the premise that no liberty interest is implicated by an initial decision to place a prisoner in one institution in the State rather than another. See Meachum, supra, at 224; Montanye, supra, at 243. On the basis of that premise, the Court concluded that the subsequent transfer of a prisoner to a different facility within the State likewise implicates no liberty interest. In this case, however, we cannot assume that a State's initial placement of an individual in a prison far removed from his family and residence would raise no due process questions. None of our *254 prior decisions has indicated that such a decision would be immune from scrutiny under the Due Process Clause. Actual experience simply does not bear out the Court's assumptions that interstate transfers are routine and that it is "not unusual" for a prisoner "to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced." Ante, at 247. In Hawaii less than three percent of the state prisoners were transferred to prisons in other jurisdictions in 1979, and on a nationwide basis less than one percent of the prisoners held in state institutions were transferred to other jurisdictions.[3] Moreover, the vast majority of state prisoners are held in facilities located less than 250 miles from their homes.[4] Measured against these norms, Wakinekona's transfer to a California prison represents a punishment "qualitively different from the punishment characteristically suffered by a person convicted of crime." Vitek v. Jones, supra, at 493. I therefore cannot agree that a State may transfer its prisoners at will, to any place, for any reason, without ever implicating any interest in liberty protected by the Due Process Clause. II Nor can I agree with the majority's conclusion that Hawaii's prison regulations do not create a liberty interest. This Court's prior decisions establish that a liberty interest *255 may be "created"[5] by state laws, prison rules, regulations, or practices. State laws that impose substantive criteria which limit or guide the discretion of officials have been held to create a protected liberty interest. See, e. g., Hewitt v. Helms, 459 U. S. 460 (1983); Wolff v. McDonnell, 418 U. S. 539 (1974); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979); Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff'd, 434 U. S. 1052 (1978). By contrast, a liberty interest is not created by a law which "imposes no conditions on [prison officials'] discretionary power," Montanye, supra, at 243, authorizes prison officials to act "for whatever reason or for no reason at all," Meachum, supra, at 228, or accords officials "unfettered discretion," Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 466 (1981). The Court misapplies these principles in concluding that Hawaii's prison regulations leave prison officials with unfettered discretion to transfer inmates. Ante, at 249-250. Rule IV establishes a scheme under which inmates are classified upon initial placement in an institution, and must subsequently be reclassified before they can be transferred to another institution. Under the Rule the standard for classifying inmates is their "optimum placement within the Corrections Division" in light of the "best interests of the individual, the State, and the community."[6] In classifying inmates, the Program *256 Committee may not consider punitive aims. It may consider only factors relevant to determining where the individual will be "best situated," such as "his history, his changing needs, the resources and facilities available to the Corrections Divisions, the other inmates/wards, the exigencies of the community, and any other relevant factors." Paragraph 3 of Rule IV establishes a detailed set of procedures applicable when, as in this case, the reclassification of a prisoner may lead to a transfer involving a "grievous loss," a phrase contained in the Rule itself.[7] The procedural rules are cast in mandatory language, and cover such matters as notice, access to information, hearing, confrontation and cross-examination, and the basis on which the Committee is to make its recommendation to the facility administrator. The limitations imposed by Rule IV are at least as substantial as those found sufficient to create a liberty interest in Hewitt v. Helms, supra, decided earlier this Term. In Hewitt an inmate contended that his confinement in administrative custody implicated an interest in liberty protected by the Due Process Clause. State law provided that a prison official could place inmates in administrative custody "upon his assessment of the situation and the need for control," or "where it has been determined that there is a threat of a serious disturbance, or a serious threat to the individual or others," and mandated certain procedures such as notice and a *257 hearing.[8] This Court construed the phrases " `the need for control,' or `the threat of a serious disturbance,' " as "substantive predicates" which restricted official discretion. Id., at 472. These restrictions, in combination with the mandatory procedural safeguards, "deman[ded] a conclusion that the State has created a protected liberty interest." Ibid. Rule IV is not distinguishable in any meaningful respect from the provisions at issue in Helms. The procedural requirements contained in Rule IV are, if anything, far more elaborate than those involved in Helms, and are likewise couched in "language of an unmistakably mandatory character." Id., at 471. Moreover, Rule IV, to no less an extent than the state law at issue in Helms, imposes substantive criteria restricting official discretion. In Helms this Court held that a statutory phrase such as "the need for control" constituted a limitation on the discretion of prison officials to place inmates in administrative custody. In my view Rule IV, which states that transfers are intended to ensure an inmate's "optimum placement" in accordance with considerations which include "his changing needs [and] the resources and facilities available to the Corrections Division," also restricts official discretion in ordering transfers.[9] The Court suggests that, even if the Program Committee does not have unlimited discretion in making recommendations for classifications and transfers, this cannot give rise to a state-created liberty interest because the prison Administrator retains "completely unfettered" "discretion to transfer *258 an inmate," ante, at 249. I disagree. Rule IV, ¶ 3(d)(3), provides for review by the prison Administrator of recommendations forwarded to him by the Program Committee.[10] Even if this provision must be construed as authorizing the Administrator to transfer a prisoner for wholly arbitrary reasons,[11] that mere possibility does not defeat the protectible expectation otherwise created by Hawaii's reclassification and transfer scheme that transfers will take place only if required to ensure an inmate's optimum placement. In Helms a prison regulation also left open the possibility that the Superintendent could decide, for any reason or no reason at all, whether an inmate should be confined in administrative custody.[12] This Court nevertheless held that the state scheme as a whole created an interest in liberty protected by the Due Process Clause. 459 U. S., at 471-472. Helms thus necessarily rejects the view that state laws which impose substantive *259 limitations and elaborate procedural requirements on official conduct create no liberty interest solely because there remains the possibility that an official will act in an arbitrary manner at the end of the process.[13] For the foregoing reasons, I dissent. NOTES [*] Briefs of amici curiae urging reversal were filed for the State of Alaska et al. by Paul L. Douglas, Attorney General of Nebraska, J. Kirk Brown, Assistant Attorney General, Judith W. Rogers, Corporation Counsel of the District of Columbia, and the Attorneys General for their respective jurisdictions as follows: Wilson L. Condon of Alaska, Aviata F. Fa'alevao of American Samoa, Robert K. Corbin of Arizona, Jim Smith of Florida, David H. Leroy of Idaho, William J. Guste, Jr., of Louisiana, William A. Allain of Mississippi, Michael T. Greely of Montana, Richard H. Bryan of Nevada, Irwin I. Kimmelman of New Jersey, Jeff Bingaman of New Mexico, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, William J. Brown of Ohio, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Kenneth O. Eikenberry of Washington, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Steven F. Freudenthal of Wyoming; and for the Commonwealth of Massachusetts et al. by Francis X. Bellotti, Attorney General of Massachusetts, Stephen R. Delinsky, Barbara A. H. Smith, and Leo J. Cushing, Assistant Attorneys General, Anthony Ching, Solicitor General of Arizona, and the Attorneys General for their respective jurisdictions as follows: Wilson L. Condon of Alaska, Aviata F. Fa'alevao of American Samoa, Robert K. Corbin of Arizona, Jim Smith of Florida, David H. Leroy of Idaho, William A. Allain of Mississippi, Michael T. Greely of Montana, Irwin I. Kimmelman of New Jersey, Jeff Bingaman of New Mexico, Rufus L. Edmisten of North Carolina, Robert O. Wefald of North Dakota, William J. Brown of Ohio, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, John J. Easton of Vermont, Chauncey H. Browning of West Virginia, and Bronson C. La Follette of Wisconsin. [1] Paragraph 1 of Rule IV states: "An inmate's . . . classification determines where he is best situated within the Corrections Division. Rather than being concerned with isolated aspects of the individual or punishment (as is the adjustment process), classification is a dynamic process which considers the individual, his history, his changing needs, the resources and facilities available to the Corrections Division, the other inmates . . . , the exigencies of the community, and any other relevant factors. It never inflicts punishment; on the contrary, even the imposition of a stricter classification is intended to be in the best interests of the individual, the State, and the community. In short, classification is a continuing evaluation of each individual to ensure that he is given the optimum placement within the Corrections Division." App. 20. [2] Petitioners concede, "for purposes of the argument," that respondent suffered a "grievous loss" within the meaning of Rule IV when he was transferred from Hawaii to the mainland. Tr. of Oral Arg. 9, 25. [3] Rule V provides that an inmate may retain legal counsel if his hearing concerns a "potential Interstate transfer." App. 25. [4] Respondent also had alleged that the transfer violated the Hawaii Constitution and state regulations and statutes. In light of its dismissal of respondent's federal claims, the District Court declined to exercise pendent jurisdiction over these state-law claims. 459 F. Supp., at 476. [5] Several months before the Court of Appeals handed down its decision, the Supreme Court of Hawaii had held that because Hawaii's prison regulations do not limit the Administrator's discretion to transfer prisoners to the mainland, they do not create any liberty interest. Lono v. Ariyoshi, 63 Haw. 138, 621 P. 2d 976 (1981). In a petition for rehearing in the present case, petitioners directed the Ninth Circuit's attention to the Lono decision. See 664 F. 2d, at 714. The Court of Appeals, however, concluded that the Hawaii court's interpretation of the regulations was not different from its own; the Hawaii court merely had reached a different result on the "federal question." The Court of Appeals thus adhered to its resolution of the case. Id., at 714-715. [6] Indeed, in Vitek itself the Court did not read Meachum and Montanye as stating a rule applicable only to intrastate transfers. The Court stated: "In Meachum v. Fano . . . and Montanye v. Haymes . . . we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest." 445 U. S., at 489 (emphasis added). The Court's other cases describing Meachum and Montanye also have eschewed the narrow reading respondent now proposes. See Hewitt v. Helms, 459 U. S. 460, 467-468 (1983); Moody v. Daggett, 429 U. S. 78, 88, n. 9 (1976). [7] This statute has been invoked to transfer prisoners from Hawaii state facilities to federal prisons on the mainland. See Anthony v. Wilkinson, 637 F. 2d 1130 (CA7 1980), vacated and remanded sub nom. Hawaii v. Mederios, 453 U. S. 902 (1981). [8] After the decisions in Meachum and Montanye, courts almost uniformly have held that an inmate has no entitlement to remain in a prison in his home State. See Beshaw v. Fenton, 635 F. 2d 239, 246-247 (CA3 1980), cert. denied, 453 U. S. 912 (1981); Cofone v. Manson, 594 F. 2d 934, 937, n. 4 (CA2 1979); Sisbarro v. Warden, 592 F. 2d 1, 3 (CA1), cert. denied, 444 U. S. 849 (1979); Fletcher v. Warden, 467 F. Supp. 777, 779-780 (Kan. 1979); Curry-Bey v. Jackson, 422 F. Supp. 926, 931-933 (DC 1976); McDonnell v. United States Attorney General, 420 F. Supp. 217, 220 (ED Ill. 1976); Goodnow v. Perrin, 120 N. H. 669, 671, 421 A. 2d 1008, 1010 (1980); Girouard v. Hogan, 135 Vt. 448, 449-450, 378 A. 2d 105, 106-107 (1977); In re Young, 95 Wash. 2d 216, 227-228, 622 P. 2d 373, 379 (1980); cf. Fajeriak v. McGinnis, 493 F. 2d 468 (CA9 1974) (pre-Meachum transfers from Alaska to other States); Hillen v. Director of Department of Social Services, 455 F. 2d 510 (CA9), cert. denied, 409 U. S. 989 (1972) (pre-Meachum transfer from Hawaii to California). But see In re Young, 95 Wash. 2d, at 233, 622 P. 2d, at 382 (concurring opinion); State ex rel. Olson v. Maxwell, 259 N. W. 2d 621 (N. D. 1977); cf. Tai v. Thompson, 387 F. Supp. 912 (Haw. 1975) (pre-Meachum transfer). [9] Respondent's argument to the contrary is unpersuasive. The Court in Montanye took note that among the hardships that may result from a prison transfer are separation of the inmate from home and family, separation from inmate friends, placement in a new and possibly hostile environment, difficulty in making contact with counsel, and interruption of educational and rehabilitative programs. 427 U. S., at 241, n. 4. These are the same hardships respondent faces as a result of his transfer from Hawaii to California. Respondent attempts to analogize his transfer to banishment in the English sense of "beyond the seas," arguing that banishment surely is not within the range of confinement justified by his sentence. But respondent in no sense has been banished; his conviction, not the transfer, deprived him of his right freely to inhabit the State. The fact that his confinement takes place outside Hawaii is merely a fortuitous consequence of the fact that he must be confined, not an additional element of his punishment. See Girouard v. Hogan, 135 Vt., at 449-450, 378 A. 2d, at 106-107. Moreover, respondent has not been exiled; he remains within the United States. In essence, respondent's banishment argument simply restates his claim that a transfer from Hawaii to the mainland is different in kind from other transfers. As has been shown in the text, however, respondent's transfer was authorized by his conviction. A conviction, whether in Hawaii, Alaska, or one of the contiguous 48 States, empowers the State to confine the inmate in any penal institution in any State unless there is state law to the contrary or the reason for confining the inmate in a particular institution is itself constitutionally impermissible. See Montanye, 427 U. S., at 242; id., at 244 (dissenting opinion); Cruz v. Beto, 405 U. S. 319 (1972); Fajeriak v. McGinnis, 493 F. 2d, at 470. [10] In Hewitt v. Helms, 459 U. S. 460 (1983), unlike this case, state law limited the decisionmakers' discretion. To the extent the dissent doubts that the Administrator's discretion under Rule IV is truly unfettered, post, at 258, and n. 11, it doubts the ability or authority of the Hawaii Supreme Court to construe state law. [11] In Meachum itself, the Court of Appeals had interpreted the applicable regulations as entitling inmates to a pretransfer hearing, see Fano v. Meachum, 520 F. 2d 374, 379-380 (CA1 1975), but this Court held that state law created no liberty interest. [12] Other courts agree that an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause. See, e. g., United States v. Jiles, 658 F. 2d 194, 200 (CA3 1981), cert. denied, 455 U. S. 923 (1982); Bills v. Henderson, 631 F. 2d 1287, 1298-1299 (CA6 1980); Pugliese v. Nelson, 617 F. 2d 916, 924-925 (CA2 1980); Cofone v. Manson, 594 F. 2d, at 938; Lombardo v. Meachum, 548 F. 2d 13, 14-16 (CA1 1977); Adams v. Wainwright, 512 F. Supp. 948, 953 (ND Fla. 1981); Lono v. Ariyoshi, 63 Haw., at 144-145, 621 P. 2d, at 980-981. [13] Petitioners assert that the hearings required by Rule IV not only enable the officials to gather information and thereby to exercise their discretion intelligently, but also have a therapeutic purpose: inmate participation in the decisionmaking process, it is hoped, reduces tension in the prison. See Tr. of Oral Arg. 52-53. [14] In light of this conclusion, respondent's claim of bias in the composition of the prison Program Committee becomes irrelevant. [1] 4 J. Elliott, Debates on the Federal Constitution 555 (1836). Whether it is called banishment, exile, deportation, relegation, or transportation, compelling a person "to quit a city, place, or country, for a specified period of time, or for life," has long been considered a unique and severe deprivation, and was specifically outlawed by "[t]he twelfth section of the English Habeas Corpus Act, 31 Car. II, one of the three great muniments of English liberty." United States v. Ju Toy, 198 U. S. 253, 269-270 (1905) (Brewer, J., dissenting). [2] Thus in Meachum the Court stated that the State, by convicting the defendant, was "empower[ed] to confine him in any of its prisons," 427 U. S., at 224 (emphasis deleted), that a "transfer from one institution to another within the state prison system" implicated no due process interest, id., at 225, and that "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose." Ibid. See also Montanye, 427 U. S., at 242 ("We held in Meachum v. Fano, that no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State"). [3] U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics - 1981, Table 6.27, pp. 478-479 (T. Flanagan, D. Van Alstyne, & M. Gottfredson eds. 1982). These figures reflect "all inmates who were transferred from one State's jurisdiction to another to continue sentences already in force," and "[d]oes not include the release if [the] State does not relinquish jurisdiction." Id., at 590. [4] U. S. Dept. of Justice, Profile of State Prison Inmates: Sociodemographic Findings from the 1974 Survey of Inmates of State Correctional Facilities 1 (1979). Over 70 percent of state inmates are held in institutions located less than 250 miles from their homes. [5] But see Hewitt v. Helms, 459 U. S. 460, 488 (1983) (STEVENS, J., dissenting) (Prison regulations "provide evidentiary support for the conclusion that the transfer affects a constitutionally protected interest in liberty," but they "do not create that interest" (emphasis in original)). [6] Paragraph 1 of Rule IV provides: "An inmate's/ward's classification determines where he is best situated within the Corrections Division. Rather than being concerned with isolated aspects of the individual or punishment (as is the adjustment process), classification is a dynamic process which considers the individual, his history, his changing needs, the resources and facilities available to the Corrections Division, the other inmates/wards, the exigencies of the community, and any other relevant factors. It never inflicts punishment; on the contrary, even the imposition of a stricter classification is intended to be in the best interests of the individual, the State, and the community. In short, classification is a continuing evaluation of each individual to ensure that he is given the optimum placement within the Corrections Division." App. 20. [7] While the term "grievous loss" is not explicitly defined, the prison regulations treat a transfer to the mainland as a grievous loss entitling an inmate to the procedural rights established in Rule IV, ¶ 3. This is readily inferred from Rule IV, ¶ 3, which states that intrastate transfers do not involve a grievous loss, and Rule V, which permits inmates to retain counsel only in specified circumstances, one of which is a reclassification that may result in an interstate transfer. App. 25. [8] See 459 U. S., at 470-471, n. 6. [9] See also Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff'd, 434 U. S. 1052 (1978). In that case, the District Court held that the language of a prison policy statement, stating that "[i]nmates may be segregated for medical, psychiatric, disciplinary, or administrative reasons," 462 F. Supp., at 403, was sufficient to create a protected expectation that an inmate would not be segregated for arbitrary reasons. See also Bills v. Henderson, 631 F. 2d 1287, 1293 (CA6 1980), cert. denied, 449 U. S. 1093 (1981); Winsett v. McGinnes, 617 F. 2d 996, 107 (CA3 1980) (en banc). [10] Rule IV, ¶ 3(d)(3), provides: "The facility administrator will, within a reasonable period of time, review the Program Committee's recommendation. He may, as the final decisionmaker: "(a) Affirm or reverse, in whole or in part, the recommendation; or "(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate/ward, other inmates/wards, institution, or community and refer the matter back to the Program Committee for further study and recommendation." App. 21. [11] I doubt that Rule IV would be construed to permit the Administrator to order a transfer for punitive reasons, since Rule IV expressly disallows punitive transfers. [12] That provision stated: "All decisions of the Program Review Committee shall be reviewed by the Superintendent for his sustaining the decision or amending or reversing the decision in favor of the inmate." Pennsylvania Bureau of Correction Administrative Directive BC-ADM 801, Rule III(H)(7). App. to Brief for Respondent in Hewitt v. Helms, O. T. 1982, No. 81-638, p. 12a. Because an inmate could be confined in administrative custody only if the Program Review Committee determined that such confinement is and continues to be "appropriate," id., at 18a, the Superintendent in Helms was the "decisionmaker," ante, at 249-250, who determined whether inmates would be held in administrative custody. [13] This view was also implicitly rejected in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979). The Court held that the Nebraska statute governing the decision whether or not to grant parole created a "protectible entitlement," id., at 12, even though the statute, which listed a number of factors to be considered in the parole decision, also authorized the Parole Board to deny parole on the basis of "[a]ny other factors the board determines to be relevant." Id., at 18. To the extent that Lono v. Ariyoshi, 63 Haw. 138, 144-145, 621 P. 2d 976, 980-981 (1981), on which the majority relies, ante, at 249, suggests that no liberty interest is created as state law has not entirely eliminated the possibility of arbitrary action, it is inconsistent with both Helms and Greenholtz.

538 U.S. 1002 BURTONv.DORMIRE, SUPERINTENDENT, JEFFERSON CITY CORRECTIONAL CENTER, ET AL. No. 02-9170. Supreme Court of United States. April 28, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 2 C. A. 8th Cir. Certiorari denied. Reported below: 295 F. 3d 839.

37 U.S. 507 12 Pet. 507 9 L.Ed. 1174 PIERRE CHOTEAU, SENIOR, PLAINTIFF IN ERRORv.MARGUERITE, A WOMAN OF COLOUR, DEFENDANT. January Term, 1838 ERROR to the supreme court of the third judicial district of the state of Missouri. In 1825, Marguerite, a woman of colour, by her next friend, Pierre Barrebeau, filed a declaration in the circuit court for the county of Jefferson, in the state of Missouri, alleging that Pierre Choteau, sr., had beat and bruised her, and unlawfully detained her in prison, against her will, &c. The object of this proceeding was to establish that the complainant, the descendant of an Indian woman, Marie Scipion, was free, and was unlawfully held as a slave by the defendant. Pierre Choteau appeared to the suit, and pleaded that Marguerite was a slave, in his lawful possession, and so detained by him. The case was submitted to a jury in Jefferson county, and a verdict was found for the plaintiff; which was afterwards set aside by the court, and a new trial ordered. The suit was afterwards tried before the same court, and a verdict was given for the defendant. The plaintiff filed a bill of exceptions; and on a writ of error to the supreme court of Missouri, the judgment of the circuit court was reversed, and the cause was remanded to that court. It was afterwards remanded to the circuit court of St. Charles county, and was there tried again before a jury; and a verdict and judgment were rendered in favor of the plaintiff. The defendant, on the trial, moved the court to instruct the . If the jury find, from the evidence, that the mother of Marie Scipion was an Indian woman, of the Natchez nation, taken captive in war by the French; and that she and her descendants were publicly and notoriously held as slaves, in the province of Louisiana, while the same was held by the French, prior to the year 1769; and that she and her descendants were so publicly and notoriously held as slaves, without interruption, in the said province, until the 30th April, 1803, and thence to the time of the commencement of this suit; the jury ought to find for the defendant. 2d. If the jury find, from the evidence, that the mother of Marie Scipion was an Indian woman, taken captive in war, and reduced to slavery by the French; and that from the time of her capture she and her descendants were publicly and notoriously held as slaves, in the province of Louisiana, while the same was held by the French, before the year 1769, and afterwards, while the same province was in the possession of, and held by Spain and France, until the 30th day of April, 1803, and thence until the commencement of this suit; they ought to find for the defendant. 3d. That Indians taken captive in war by the French, might, lawfully, be reduced and held in slavery in the province of Louisiana; whilst it was held by the crown of France. 4th. If the jury find, from the evidence, that the said Marie Scipion was born while her mother was so held in slavery, within the province of Louisiana, while the same was held by the French, prior to the year 1769; that the said mother was held in slavery, in the province of Louisiana, from the time of her birth until the 30th April, 1803, and thence until the time of her death; then the jury ought to find for the defendant. 5th. If the jury find, from the evidence, that Marie Scipion was born while her mother was held in slavery, and that she, she said Marie Scipion, was publicly and notoriously held as a slave, from the time of her birth until her death, within the territory ceded to the United States, by the treaty between the United States of America and the French Republic, bearing date the 30th April, 1803, and that, at the date of said treaty, the said Marie Scipion was so held as a slave, within the said ceded territory, by an inhabitant thereof; then the jury ought to find for the defendant. The court refused to give these instructions: and the defendant sued out a writ of error to the supreme court of Missouri, where the judgment of the circuit court of Jefferson county was affirmed. The defendant then sued out the writ of error to the Supreme Court of the United States, under the 25th section of the judiciary act of 1789, to the supreme court of Missouri. Mr. Butler, for the defendant in error, moved to dismiss the writ of error on the ground that the case is not within the provisions of the 25th section of the judiciary act. He contended that no question had arisen in the case, in which this Court could be called on to interfere with its revising powers. The plaintiff in error claimed that the treaty of Louisiana, of 30th April, 1803, protected him in his property in the defendant, as she was his slave. The question before the circuit court, and which was submitted to the jury, was, whether the plaintiff was a slave; and the jury found that she was free. Under the 25th sec. of the judiciary act, the jurisdiction of this Court in writs of error to the supreme courts of the state, prevails in those cases in which a treaty of the United States has been drawn in question, and has been misconstrued; or a statute of the United States has been misconstrued and disregarded. It has been supposed that this suit is within the class of cases cognizable in the Supreme Court of the United States; as the defendant claimed Marguerite as a slave, under the Louisiana treaty. The first instruction has no reference to the treaty. The counsel sought to have the instructions of the court, that if the plaintiff was always held as a slave, up to the time of the treaty, she continued such. The court held that she could not be a slave. Whether this opinion was right or not, the construction of the treaty was not drawn in question. The protection of the treaty was not denied; and the decision of the court was such as did not make the case within its provisions. The plaintiff had no property in Marguerite, which the treaty operated upon. But this Court decided that the general provisions of the ordinance of 1787, could not give to the Supreme Court jurisdiction, where rights of property were asserted to have been violated by the decision of a state court. Menard v. Aspasia, 5 Peters, 525. In the case of Crowell v. Randall, 10 Peters, 368, there is a review of all the cases on the question of the jurisdiction of this Court, in cases from the highest court of the states of the United States. In that, and in all the other cases, the law is laid down to be, that the appellate jurisdiction of this Court can only be sustained when it appears that the question over which the jurisdiction exists must appear to have been brought before the Court, and decided according to the provisions of the twenty-fifth section; or that by clear and necessary intendment, the question must have arisen and must have been decided. The very point involved in this case has been decided. In the case of the Mayor of New Orleans v. De Armas, it was held that the protection of the treaty existed, and its provisions were applicable and would be enforced by the courts of the United States, until the territory became a state; afterwards, that protection was given by the constitution and laws of the state. If such a case as this could be entertained, then all questions of property, arising in the states erected in the country acquired by the United States, by the Louisiana treaty, could be brought here; as the guaranty of the treaty applies to all property. Mr. Key, with whom was Mr. Benton, opposed the motion. He contended that the decision of this Court, in Crowell v. Randall, 10 Peters, 368, did not in any way enlarge the principles which had prevailed before. All the Court are required to do before they take jurisdiction, is to see that the case is such as presented a question cognizable by the Court. The Court, if its consideration was essential to the decision of the cause, will hold that it did arise, and was decided. He argued that the treaty of Louisiana must have been considered by the supreme court of Louisiana in this case. Mr. Justice STORY said that it had been thought that the decisions of the Court had been misunderstood: 1 and the Court, in the case of Crowell v. Randall, 10 Peters, had revised all the cases; and had laid down the law as they wished it should be universally understood. 2 The motion to dismiss the case was sustained.

494 U.S. 26 (1990) DOLE, SECRETARY OF LABOR, ET AL. v. UNITED STEELWORKERS OF AMERICA ET AL. No. 88-1434. Supreme Court of United States. Argued November 6, 1989 Decided February 21, 1990 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT *28 Jeffrey P. Minear argued the cause for petitioners. With him on the briefs were Acting Solicitor General Wallace, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Merrill, Leonard Schaitman, and Marleigh D. Dover. Laurence Gold argued the cause for respondents. With him on the brief for respondents United Steelworkers of America et al. were George H. Cohen, Jeremiah A. Collins, David C. Vladeck, Alan B. Morrison, and Elihu I. Leifer. Maurice Baskin filed a brief for respondents Associated Builders and Contractors, Inc., et al.[*] JUSTICE BRENNAN delivered the opinion of the Court. Among the regulatory tools available to Government agencies charged with protecting public health and safety are rules which require regulated entities to disclose information directly to employees, consumers, or others. Disclosure rules protect by providing access to information about what dangers exist and how these dangers can be avoided. Today we decide whether the Office of Management and Budget (OMB) has the authority under the Paperwork Reduction Act of 1980, 44 U. S. C. § 3501 et seq. (1982 ed. and Supp. V), to review such regulations. I In 1983, pursuant to the Occupational Safety and Health Act of 1970 (OSH Act), 84 Stat. 1590, 29 U. S. C. § 651 et seq. (1982 ed.), which authorizes the Department of Labor (DOL) to set health and safety standards for workplaces, DOL *29 promulgated a hazard communication standard. 29 CFR § 1910.1200 (1984). The standard imposed various requirements on manufacturers aimed at ensuring that their employees were informed of the potential hazards posed by chemicals found at their workplace. Specifically, the standard required chemical manufacturers to label containers of hazardous chemicals with appropriate warnings. "Downstream" manufacturers - commercial purchasers who used the chemicals in their manufacturing plants - were obliged to keep the original labels intact or else transfer the information onto any substitute containers. The standard also required chemical manufacturers to provide "material safety data sheets" to downstream manufacturers. The data sheets were to list the physical characteristics and hazards of each chemical, the symptoms caused by overexposure, and any pre-existing medical conditions aggravated by exposure. In addition, the data sheets were to recommend safety precautions and first aid and emergency procedures in case of over-exposure and provide a source for additional information. Both chemical manufacturers and downstream manufacturers were required to make the data sheets available to their employees and to provide training on the dangers of the particular hazardous chemicals found at each workplace. Respondent United Steelworkers of America, among others, challenged the standard in the Court of Appeals for the Third Circuit. That court held that the Occupational Safety and Health Administration (OSHA) had not adequately explained why the regulation was limited to the manufacturing sector, in view of the OSH Act's clear directive that, to the extent feasible, OSHA is to ensure that no employee suffers material impairment of health from toxic or other harmful agents. The court directed OSHA either to apply the hazard standard rules to workplaces in other sectors or to state reasons why such application would not be feasible. United *30 Steelworkers of America v. Auchter, 763 F. 2d 728, 739 (1985). When DOL responded by initiating an entirely new rulemaking proceeding, the union and its copetitioners sought enforcement of the earlier order. The Third Circuit directed DOL, under threat of contempt, to publish in the Federal Register within 60 days either a hazard communication standard applicable to all workers covered by the OSH Act or a statement of reasons why such a standard was not feasible, on the basis of the existing record, as to each category of excluded workers. United Steelworkers of America v. Pendergrass, 819 F. 2d 1263, 1270 (1987). DOL complied by issuing a revised hazard communication standard that applied to work sites in all sectors of the economy. See 52 Fed. Reg. 31852 (1987). At the same time, DOL submitted the standard to OMB for review of any paperwork requirements. After holding a public hearing, OMB approved all but three of its provisions. OMB rejected a requirement that employees who work at multiemployer sites (such as construction sites) be provided with data sheets describing the hazardous substances to which they were likely to be exposed, through the activities of any of the companies working at the same site. The provision permitted employers either to exchange data sheets and make them available at their home offices or to maintain all relevant data sheets at a central location on the work site. 29 CFR § 1910.1200(e)(2) (1988). OMB also disapproved a provision exempting consumer products used in the workplace in the same manner, and resulting in the same frequency and duration of exposure, as in normal consumer use. § 1910.1200(b)(6)(vii). Finally, OMB vetoed an exemption for drugs sold in solid, final form for direct administration to patients. § 1910.1200(b)(6)(viii). See 52 Fed. Reg. 46076 (1987). OMB disapproved these provisions based on its determination that the requirements were not necessary to protect employees.[1]*31 OMB's objection to the exemptions was that they were too narrow, and that the standard, therefore, applied to situations in which disclosure did not benefit employees.[2]Id., at 46077-46078. DOL disagreed with OMB's assessment, but it published notice that the three provisions were withdrawn. DOL added its reasons for believing that the provisions were necessary, proposed that they be retained, and invited public comment. 53 Fed. Reg. 29822 (1988). The union and its copetitioners responded by filing a motion for further relief with the Third Circuit. That court ordered DOL to reinstate the OMB-disapproved provisions. The court reasoned that the provisions represented goodfaith compliance by DOL with the court's prior orders, that *32 OMB lacked authority under the Paperwork Reduction Act to disapprove the provisions, and that, therefore, DOL had no legitimate basis for withdrawing them. United Steelworkers of America v. Pendergrass, 855 F. 2d 108 (1988). Petitioners sought review in this Court. We granted certiorari to answer the important question whether the Paperwork Reduction Act authorizes OMB to review and countermand agency regulations mandating disclosure by regulated entities directly to third parties. 490 U. S. 1064 (1989). We hold that the Paperwork Reduction Act does not give OMB that authority, and therefore affirm. II The Paperwork Reduction Act was enacted in response to one of the less auspicious aspects of the enormous growth of our federal bureaucracy: its seemingly insatiable appetite for data. Outcries from small businesses, individuals, and state and local governments, that they were being buried under demands for paperwork, led Congress to institute controls.[3] Congress designated OMB the overseer of other agencies with respect to paperwork and set forth a comprehensive scheme designed to reduce the paperwork burden. The Act charges OMB with developing uniform policies for efficient information processing, storage, and transmittal systems, both within and among agencies. OMB is directed to reduce federal collection of all information by set percentages, establish a Federal Information Locator System, and develop and implement procedures for guarding the privacy of those providing confidential information. See 44 U. S. C. §§ 3504, 3505, 3511 (1982 ed. and Supp. V). The Act prohibits any federal agency from adopting regulations which impose paperwork requirements on the public unless the information is not available to the agency from another source within the Federal Government, and the agency *33 must formulate a plan for tabulating the information in a useful manner. Agencies are also required to minimize the burden on the public to the extent practicable. See 44 U. S. C. § 3507(a)(1) (1982 ed. and Supp. V). In addition, the Act institutes a second layer of review by OMB for new paperwork requirements. After an agency has satisfied itself that an instrument for collecting information - termed an "information collection request" - is needed, the agency must submit the request to OMB for approval. See 44 U. S. C. § 3507(a)(2) (1982 ed., Supp. V). If OMB disapproves the request, the agency may not collect the information. See 44 U. S. C. § 3507(a)(3) (1982 ed.). Typical information collection requests include tax forms, Medicare forms, financial loan applications, job applications, questionaires, compliance reports, and tax or business records. See S. Rep., at 3-4. These information requests share at least one characteristic: The information requested is provided to a federal agency, either directly or indirectly.[4] Agencies impose the requirements on private parties in order to generate information to be used by the agency in pursuing some other purpose. For instance, agencies use these information requests in gathering background on a particular subject to develop the expertise with which to devise or finetune appropriate regulations, amassing diffuse data for processing into useful statistical form, and monitoring business records and compliance reports for signs or proof of nonfeasance to determine when to initiate enforcement measures. By contrast, disclosure rules do not result in information being made available for agency personnel to use. The promulgation of a disclosure rule is a final agency action that represents a substantive regulatory choice. An agency charged with protecting employees from hazardous chemicals has a *34 variety of regulatory weapons from which to choose: It can ban the chemical altogether; it can mandate specified safety measures, such as gloves or goggles; or it can require labels or other warnings alerting users to dangers and recommended precautions. An agency chooses to impose a warning requirement because it believes that such a requirement is the least intrusive measure that will sufficiently protect the public, not because the measure is a means of acquiring information useful in performing some other agency function. No provision of the Act expressly declares whether Congress intended the Paperwork Reduction Act to apply to disclosure rules as well as information-gathering rules. The Act applies to "information collection requests" by a federal agency which are defined as "a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information." 44 U. S. C. § 3502(11) (1982 ed., Supp. V). "Collection of information," in turn, is defined as "the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either - "(A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or "(B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes." 44 U. S. C. § 3502(4) (1982 ed.). Petitioners urge us to read the words "obtaining or soliciting of facts by an agency through . . . reporting or recordkeeping *35 requirements" as encompassing disclosure rules. They contend that an agency is "soliciting facts" when it requires someone to communicate specified data to a third party and that the hazard communication standard's rules are "reporting and recordkeeping requirements" within the meaning of the Act because the employer is required to report hazard information to employees. Petitioners submit that the provisions requiring labeling and employee training are "reporting requirements" and that the provision requiring accessible data sheets containing health and safety information is a "recordkeeping requirement." We believe, however, that the language, structure, and purpose of the Paperwork Reduction Act reveal that petitioners' position is untenable because Congress did not intend the Act to encompass these or any other third-party disclosure rules. "On a pure question of statutory construction, our first job is to try to determine congressional intent, using traditional tools of statutory construction." NLRB v. Food and Commercial Workers, 484 U. S. 112, 123 (1987). Our "starting point is the language of the statute," Schreiber v. Burlington Northern, Inc., 472 U. S. 1, 5 (1985), but " `in expounding a statute, we are not guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Massachusetts v. Morash, 490 U. S. 107, 115 (1989), quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987). See also K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988) (same). Petitioners' interpretation of "obtaining or soliciting facts by an agency through . . . reporting or recordkeeping requirements" is not the most natural reading of this language. The commonsense view of "obtaining or soliciting facts by an agency" is that the phrase refers to an agency's efforts to gather facts for its own use and that Congress used the word "solicit" in addition to the word "obtain" in order to cover information requests that rely on the voluntary cooperation of information suppliers as well as rules which make compliance *36 mandatory. Similarly, data sheets consisting of advisory material on health and safety do not fall within the normal meaning of "records," and a Government-imposed reporting requirement customarily requires reports to be made to the Government, not training and labels to be given to someone else altogether. That a more limited reading of the phrase "reporting and recordkeeping requirements" was intended derives some further support from the words surrounding it. The traditional canon of construction, noscitur a sociis, dictates that " `words grouped in a list should be given related meaning.' " Massachusetts v. Morash, supra, at 114-115, quoting Schreiber, supra, at 8. The other examples listed in the definitions of "information collection request" and "collection of information" are forms for communicating information to the party requesting that information. If "reporting and recordkeeping requirements" is understood to be analogous to the examples surrounding it, the phrase would comprise only rules requiring information to be sent or made available to a federal agency, not disclosure rules. The same conclusion is produced by a consideration of the object and structure of the Act as a whole. See Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 220-221 (1986) (concluding that the meaning of a phrase was clarified by the language and purpose of the Act as a whole). Particularly useful is the provision detailing Congress' purposes in enacting the statute. The Act declares that its purposes are: "(1) to minimize the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons; "(2) to minimize the cost to the Federal Government of collecting, maintaining, using, and disseminating information; "(3) to maximize the usefulness of information collected, maintained, and disseminated by the Federal Government; *37 "(4) to coordinate, integrate and, to the extent practicable and appropriate, make uniform Federal information policies and practices; "(5) to ensure that automatic data processing, telecommunications, and other information technologies are acquired and used by the Federal Government in a manner which improves service delivery and program management, increases productivity, improves the quality of decisionmaking, reduces waste and fraud, and wherever practicable and appropriate, reduces the information processing burden for the Federal Government and for persons who provide information to and for the Federal Government; and "(6) to ensure that the collection, maintenance, use and dissemination of information by the Federal Government is consistent with applicable laws relating to confidentiality, including . . . the Privacy Act." 44 U. S. C. § 3501 (1982 ed. and Supp. V) (emphasis added). Disclosure rules present none of the problems Congress sought to solve through the Paperwork Reduction Act, and none of Congress' enumerated purposes would be served by subjecting disclosure rules to the provisions of the Act. The statute makes clear that the first purpose - avoiding a burden on private parties and state and local governments - refers to avoiding "the time, effort, or financial resources expended by persons to provide information to a Federal agency." 44 U. S. C. § 3502(3) (1982 ed.) (defining "burden") (emphasis added). Because Congress expressed concern only for the burden imposed by requirements to provide information to a federal agency, and not for any burden imposed by requirements to provide information to a third party, OMB review of disclosure rules would not further this congressional aim. Congress' second purpose - minimizing the Federal Government's cost of handling information - also would not be advanced by review of disclosure rules because such rules do not impose any information processing costs on the Federal *38 Government. Because the Federal Government is not the consumer of information "requested" by a disclosure rule nor an intermediary in its dissemination, OMB review of disclosure rules would not serve Congress' third, fourth, fifth, or sixth purposes. Thus, nothing in Congress' itemized and exhaustive textual description of its reasons for enacting this particular Act indicates any legislative purpose to have OMB screen proposed disclosure rules. We find this to be strong evidence that Congress did not intend the Act to authorize OMB review of such regulations. This conclusion is buttressed by the language and import of other provisions of the Act. For instance, every federal agency is required to take three internal preliminary steps before adopting an information collection request. The agency must take action to "(A) eliminate, through the use of the Federal Information Locator System and other means, information collections which seek to obtain information available from another source within the Federal Government; "(B) reduce to the extent practicable and appropriate the burden on persons who will provide information to the agency; and "(C) formulate plans for tabulating the information in a manner which will enhance its usefulness to other agencies and to the public." 44 U. S. C. § 3507(a)(1) (1982 ed.) (emphasis added). These requirements affect agencies only when they gather information for their own use. The first directs an agency not to ask for information that it can acquire from another agency.[5] The second requires an agency to consider the burden it places on the public, but only as to information provided to the agency. The third encourages an agency to *39 make the information it has obtained useful to others as well. Significantly, no provision relates to disclosure rules. For example, no provision requires agencies to ensure that a paperwork requirement is effective or that its burden on one party is not disproportionate to the benefit afforded a third party. Also instructive are the provisions governing OMB's review of proposed agency information collection requests that cast that review in terms applicable to information-gathering regulations but not to disclosure rules. OMB's examination is limited to "determining whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency." 44 U. S. C. § 3504(c)(2) (1982 ed.) (emphasis added). "Practical utility" is defined in the statute as "the ability of an agency to use information it collects, particularly the capability to process such information in a timely and useful fashion." 44 U. S. C. § 3502(16) (1982 ed., Supp. V) (emphasis added). However, in reviewing the disclosure rules at issue in this case, OMB was unable to consider what OSHA planned to do with information regarding hazardous chemicals at the various work sites, because OSHA was not to be the recipient of this information. Nothing was to be given to OSHA to process - in a timely fashion or otherwise. OMB instead disapproved the three OSHA rules on the ground that the mandated disclosures would be of little benefit to the employees OSHA sought to protect. But there is no indication in the Paperwork Reduction Act that OMB is authorized to determine the usefulness of agency-adopted warning requirements to those being warned. To the contrary, Congress focused exclusively on the utility of the information to the agency. And the only criteria specified are whether the agency can process the information quickly and use it in pursuit of its substantive mandate. *40 Yet a third provision reinforcing our conclusion that disclosure rules are not subject to the Paperwork Reduction Act is the statute's mechanism for assuring agency compliance with its terms. When OMB approves an information collection request, it issues a control number which is placed on all forms. If a request does not receive OMB approval, it is not issued a control number and the agency is prohibited from collecting the information. See 44 U. S. C. §§ 3504(c)(3)(A), 3507(f) (1982 ed.). In addition, if the agency nevertheless promulgates the paperwork requirement, members of the public may ignore it without risk of penalty. See 44 U. S. C. § 3512 (1982 ed.).[6] However, this protection of the public is applicable only to information-gathering rules. Section 3512 provides that "no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved . . . does not display a current control number assigned by the [OMB] . . . ." Ibid. (emphasis added). While the grammar of this text can be faulted, its meaning is clear: the public is protected under the Paperwork Reduction Act from paperwork regulations not issued in compliance with the Act, only when those regulations dictate that a person maintain information for an agency or provide information to an agency. By its very terms, the statute's enforcement mechanism does not apply to rules which require disclosure to a third party rather than to a federal agency. Thus either Congress intended the Paperwork Reduction Act to cover information-gathering rules only, or Congress intended the Act to cover disclosure rules but intended to exempt them from this agency compliance mechanism. Because the latter is counterintuitive and contrary to clear legislative history,[7] § 3512 is further evidence that Congress did not intend the Act to cover disclosure rules. *41 III For the foregoing reasons, we find that the terms "collection of information" and "information collection request," when considered in light of the language and structure of the Act as a whole, refer solely to the collection of information by, or for the use of, a federal agency; they cannot reasonably be interpreted to cover rules mandating disclosure of information to a third party. In addition, we find unpersuasive petitioners' claims that there is a "clearly expressed legislative intention [to the] contrary," see INS v. Cardoza-Fonseca, 480 U. S. 421, 432, n. 12 (1987). Petitioners rely on statements from various stages of the Act's legislative history as evidence that Congress intended "collection of information" to include disclosure rules.[8] However, the statements show merely that the Act was intended *42 to reach not only statistical compilations but also information collected for law enforcement purposes and information filed with an agency for possible dissemination to the public (i. e., when the agency is an intermediary in the process of data dissemination). This sheds no light on the issue before this Court: Whether the Act reaches rules mandating disclosure by one party directly to a third party. Moreover, other statements in the Committee Reports reinforce respondents' position.[9] Because we find that the statute, as a whole, clearly expresses Congress' intention, we decline to defer to OMB's interpretation.[10] See Board of Governors of Federal Reserve *43 System v. Dimension Financial Corp., 474 U. S. 361, 368 (1986) ("The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress"); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984) ("If the intent of Congress is clear, that is the end of the matter"). We affirm the judgment of the Third Circuit insofar as it held that the Paperwork Reduction Act does not give OMB the authority to review agency rules mandating disclosure by regulated entities to third parties.[11] It is so ordered. JUSTICE WHITE, with whom THE CHIEF JUSTICE joins, dissenting. The Court's opinion today requires more than 10 pages, including a review of numerous statutory provisions and legislative history, to conclude that the Paperwork Reduction Act of 1980 (PRA or Act) is clear and unambiguous on the question whether it applies to agency directives to private parties to collect specified information and disseminate or make it available to third parties. On the basis of that questionable conclusion, the Court refuses to give any deference to the Office of Management and Budget's (OMB's) longstanding and consistently applied interpretation that such requirements fall within the Act's scope. Because in my view the Act is not clear in that regard and deference is due OMB under *44 Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), I respectfully dissent. In Chevron, supra, we set forth the general principles to be applied in cases such as this one: "When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id., at 842-843 (footnotes omitted). As the Court acknowledges, there is no question in this case that OMB is the agency charged with administering the PRA. Unless Congress has directly spoken to the issue whether an agency request that private parties disclose to, or maintain for, third parties information such as material safety data sheets (MSDS's) is an "information collection request" or a "recordkeeping requirement" within the Act's scope, OMB's interpretation of the Act is entitled to deference, provided of course that it is based on a permissible construction of the statute. The Court concedes that the Act does not expressly address "whether Congress intended the Paperwork Reduction Act to apply to disclosure rules as well as information-gathering rules." Ante, at 34. Curiously, the Court then almost immediately asserts that interpreting the Act to provide coverage for disclosure requests is untenable. Ante, at *45 35. The plain language of the Act, however, suggests the contrary. Indeed, the Court appears to acknowledge that petitioners' interpretation of the Act, although not the one the Court prefers, is nonetheless reasonable: "Petitioners' interpretation. . . is not the most natural reading of this language." Ibid. (emphasis added). The Court goes on to arrive at what it believes is the most reasonable of plausible interpretations; it cannot rationally conclude that its interpretation is the only one that Congress could possibly have intended. The Court neglects to even mention that the only other Court of Appeals besides the Third Circuit in this case to address a similar question rejected the interpretation that the Court now adopts.[1] In addition, there is evidence that *46 for years OMB has been reviewing proposals similar to the standard at issue in this case routinely and without objection from other agencies.[2] As I see it, by independently construing the statute rather than asking if the agency's interpretation is a permissible one and deferring to it if that is the case, the Court's approach is clearly contrary to Chevron. The hazard communication standards propounded by the Occupational Safety and Health Administration (OSHA) require chemical manufacturers to develop hazard information about their products, to adequately label such products, and to prepare for their products MSDS's to be sent to downstream employers who utilize those products. See 29 CFR §§ 1910.1200(d), (f) and (g) (1988). Those employers are directed to prepare written hazard communication programs that include a list of hazardous chemicals known to be present at the work site, § 1910.1200(e); to ensure that containers are properly labeled, § 1900.1200(f); and to collect, maintain, and make available to their employees copies of MSDS's with respect to hazardous chemicals that they use in their business, § 1910.1200(g). OMB, as I see it, reasonably concluded that these requirements were subject to its approval under the PRA, which *47 makes OMB responsible for implementing the statutory purpose of minimizing the burden and maximizing the usefulness of the Government's information collection requirements. OMB is instructed to do this through a process of reviewing agency "information collection requests" in order to determine whether "the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency." 44 U. S. C. § 3504(c)(2) (1982 ed.). An "information collection request" is defined as "a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or similar method calling for the collection of information." 44 U. S. C. § 3502(11) (1982 ed., Supp V). A "recordkeeping requirement" is defined as "a requirement imposed by an agency on persons to maintain specified records." § 3502(17). "Collection of information" is defined as "the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either - "(A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or "(B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes." 44 U. S. C. § 3502(4) (1982 ed.). "Reporting requirement" is not specifically defined by the statute. As it is directed to do by the PRA, see § 3516, OMB has issued regulations and rules for exercising its authority under the statute. Although the statute itself does not in so many *48 words reach agency directives to collect, disseminate, or make available to third parties specified information that is not delivered to the agency itself, OMB regulations so interpret the Act. The regulations also plainly reach the hazard communication standards that OSHA has presented for OMB's approval in this case.[3] *49 I cannot say that these regulations, so far as they are involved here, are inconsistent with the Act. It is not unreasonable to characterize as a "reporting requirement" an employer's obligation to disclose hazard information, by labeling or making MSDS's available, especially in light of the absence of a definition in the statute. Nor is it unreasonable to characterize the obligation to compile copies of MSDS's as a "recordkeeping requirement," or the directive to prepare a hazard communication program with its list of dangerous chemicals as an "information collection request" within the meaning of 44 U. S. C. § 3502 (1982 ed., Supp. V). Since that definitional section, after including reporting and recordkeeping requirements, concludes with the words "or other similar method calling for the collection of information," it is tenable to conclude that reporting and recordkeeping are among the information collection requests requiring OMB approval. Section 3502(4) likewise defines "collection of information" as including reporting and recordkeeping requirements, but that definition begins with the words "the obtaining or soliciting of facts or opinions by an agency" through written report forms, etc. The Court's argument is that this definition limits the PRA to facts or opinions obtained by an agency for its own use and hence excludes recordkeeping, reporting requirements, and information collection designed to inform or benefit third parties such as employees, customers, or the public. This argument, however, pays too little attention to the precise language of the provision. First, an agency does not "obtain" information when it imposes a recordkeeping requirement. Second, § 3502(4) not only speaks of "obtaining" facts and opinions by an agency but of the "soliciting" of facts and opinions by an agency. The word "soliciting" would appear to mean something beside "obtaining" and is commonly understood as including a request for another person to perform *50 some act. It is not unreasonable therefore to construe this language as extending OMB's authority to requests for recordkeeping, reporting, and information collection that is intended to benefit third parties but is not delivered to the agency itself. Furthermore, the Court does not explain why if "information collection requests" and the "collection of information" are limited to agency directives that information be provided to the agency, the statutory definitions of those terms explicitly include "recordkeeping requirement[s]." See 44 U. S. C. §§ 3502(4) and (11) (1982 ed. and Supp. V). One response might be that Congress intended to limit the term "recordkeeping requirement" to records prepared for the agency and which must be provided to the agency upon request. But Congress specifically defined the term "recordkeeping requirement" without including such a limitation and it is unlikely Congress intended to imply such a limitation. An agency can certainly "use" information without collecting and analyzing it or periodically auditing it for compliance or enforcement purposes. It can hardly be said that requiring recordkeeping and reporting for the benefit of employees is not useful to the agency or an appropriate means for the agency to carry out its obligation to provide a safe workplace. It is common ground in this case that if the information required to be reported or made available to employees were first sent to the agency and then distributed to employees, there would be no question about OMB's authority. Likewise, as I understand it, the mere fact that the records ordered to be kept are not physically delivered to the agency does not bar OMB jurisdiction, so long as the records are kept for examination and use by the agency. The Court concedes as much, noting that requests for information provided indirectly to an agency, such as requirements that tax and business records be kept on hand, fall within the PRA's scope because those documents are subject to "possible examination as part of a compliance review." Ante, at 33, n. 4. *51 In support of its argument that the Act applies only when information is actually transmitted to an agency, the Court points to language in the Act's general statement of purpose indicating that Congress was concerned with minimizing "the cost to the Federal Government,' " maximizing " `the usefulness of information collected, maintained, and disseminated by the Federal Government.' " and reducing the paperwork burdens " `for persons who provide information to and for the Federal Government.' " Ante, at 36-37 (emphasis deleted), quoting 44 U. S. C. § 3501 (1982 ed. and Supp. V). The Court ignores, however, the very first statement of purpose in the Act, which declares that Congress intends that the Act "minimize the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons." 44 U. S. C. § 3501(1) (1982 ed.). Reading the Court's discussion of the Act, one might think that Congress was only concerned with minimizing the Government's costs and reducing the paperwork burdens on federal agency employees who are forced to process massive amounts of information. Common sense and § 3501(1) clearly belie that conclusion.[4] Complaints from the private sector about bureaucratic red tape far predate the enactment of the PRA. Also curious is the Court's reliance on the statement that one purpose of the Act was to reduce the paperwork burden "for persons who provide information to and for the Federal Government." 44 U. S. C. § 3501(5) (1982 ed., Supp. V) (emphasis added). Aside from reiterating the point just made regarding the Act's focus on reducing the paperwork *52 burdens on the private sector, the natural reading of the statement is that Congress recognized that agencies may sometimes request that private parties provide information to others as part of an agency's administration of its duties. It is surely reasonable to conclude that the word "for" means something different than the word "to" and that it includes not only situations in which private parties must keep records available for use and review by an agency, but also requirements that private parties collect and provide information to third parties. Contrary to the Court's assertions, disclosure requests do present some of the problems Congress sought to solve through the PRA. The Court concedes that Congress intended the Act to apply when information is "filed with an agency for possible dissemination to the public (i. e., when the agency is an intermediary in the process of data dissemination)." Ante, at 42. But if that is true, how can it be so clear that Congress intended to permit agencies to bypass the Act by simply requesting private parties to submit information directly to third parties? From a policy perspective, and certainly from the private sector's perspective, it makes little difference whether an agency collects information and then disseminates it or requires those in possession of the information to submit it directly to the relevant third parties. In fact, the latter option generally will impose greater paperwork burdens on private parties, although either choice results in a federal agency imposing major paperwork burdens on the private sector. The Court's response is that one approach imposes costs on the Federal Government and the other does not. But that distinction is flawed because it promotes a secondary objective of the PRA and ignores what I consider to have been Congress' primary objective in enacting the statute. In addition, the legislative history on which the Court relies is unconvincing. Like the statute itself, the legislative history never expressly addresses the question of disclosure *53 requirements. Of course, the Court can find and cite to legislative history that is allegedly relevant to and supports its interpretation of the statute, but one can just as easily point to legislative history of similar quality supporting an alternative construction of the Act. See ante, at 41-42, and nn. 8, 9.[5] Since the statute itself is not clear and unambiguous, the legislative history is muddy at best, and OMB has given the statute what I believe is a permissible construction, I cannot agree with the outcome the Court reaches. If Chevron is to have meaning, it must apply when a statute is as ambiguous on the issue at hand as the PRA is on the subject of disclosure requirements. Contrary to the Court of Appeals and to the majority, I would defer to OMB's position that the obligation to compile copies of MSDS's and the labeling requirements are information collection requests subject to its approval. It follows that OMB was not acting contrary to the statute in disapproving the three provisions specifically involved in this case. But even accepting for the moment the Court's construction of the statute, it is notable that the Court fails to consider whether the requirement that employers at multiemployer work sites file all of the relevant MSDS's in a central location or exchange them and make them available at their home offices, see 29 CFR § 1910.1200(e)(2) (1988), might be considered a "recordkeeping requirement." Granted, one purpose of the multiemployer standard is to provide workers with an opportunity to learn the dangers associated with the handling of particular materials used on the work site; nonetheless, the proposed standard does not require employers to actually disseminate the MSDS's to their workers. Rather it requires them to physically compile and maintain massive quantities of paperwork at multiemployer job sites, such as construction sites, or their home offices. This requirement *54 certainly looks like a "recordkeeping requirement" in the plainest sense of the term. In addition, the Department of Labor may periodically check these records for compliance with substantive requirements, see §§ 1910.1200(e)(4) and (g)(11), a factor the Court emphasizes in describing which recordkeeping requests are subject to the Act. As I see it, even under the Court's interpretation of the Act, this portion of the standard should be subject to OMB review. Finally, an argument that the Court does not make but which the United Steelworkers do is that Chevron should not apply in this case because OMB's regulations actually determine the scope of its jurisdiction under the Act. This Court has never accepted that argument and in fact, as JUSTICE SCALIA pointed out in his lucid concurrence in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 377 (1988), there are good reasons not to accept it, reasons which JUSTICE SCALIA has adequately set forth and which I will not repeat here. I note, however, that Chevron itself and several of our cases decided since Chevron have deferred to agencies' determinations of matters that affect their own statutory jurisdiction.[6] See, e. g., Massachusetts v. Morash, 490 U. S. 107, 116-118 (1989); K mart Corp. v. Cartier, Inc., 486 U. S. 281, 292-293 (1988); EEOC v. Commercial Office Products Co., 486 U. S. 107, 114-116 (1988); NLRB v. Food and Commercial Workers, 484 U. S. 112, *55 123-128 (1987); Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 233 (1986); Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 845 (1986); Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125-126 (1985). The application of Chevron principles cannot be avoided on this basis. For the foregoing reasons, I respectfully dissent. NOTES [*] Briefs of amici curiae urging reversal were filed for the Business Council on the Reduction of Paperwork by Clark R. Silcox; for the National-American Wholesale Grocers' Association et al. by Arthur Y. Tsien; for the National Wholesale Druggists' Association by Lawrence W. Bierlein; and for Senator Lawton Chiles by Daniel J. Popeo, Paul D. Kamenar, and Wayne Hartke. Burton D. Fretz, Toby S. Edelman, and Edward F. Howard filed a brief for the Action Alliance of Senior Citizens et al. as amici curiae urging affirmance. [1] OMB concluded that workers on multiemployer sites would be adequately protected if each employer kept chemical manufacturers' labels intact, supplied data sheets to other employers on the site on request, and taught its own employees about the chemicals with which they worked directly and explained how to recognize hazards likely to be introduced by other employers. 52 Fed. Reg. 46077 (1987). [2] The standard promulgated by OSHA had exempted, from any otherwise applicable labeling requirements, all food and drugs subject to the labeling requirements of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq. (1982 ed.), and all consumer products or hazardous substances subject to a consumer product safety standard or labeling requirements of the Consumer Product Safety Act, 86 Stat. 1207, as amended, 15 U. S. C. § 2051 et seq., or the Federal Hazardous Substances Act, 74 Stat. 372, as amended, 15 U. S. C. § 1261 et seq., or regulations issued under those Acts by the Consumer Product Safety Commission. 29 CFR §§ 1910.1200(b)(5)(ii), 1910.1200(b)(5)(iv) (1988). OMB wanted OSHA to exempt, in addition, all products packaged in the same form and concentration as a consumer product, whether or not used for the same purpose or with the same exposure, as well as all Food and Drug Administration regulated drugs handled in the nonmanufacturing sector. 52 Fed. Reg. 46078 (1987). OMB drew its recommended exemption for consumer products from § 311(e)(3) of the Superfund Amendments and Reauthorization Act of 1986, 100 Stat. 1615, 42 U. S. C. § 9601 et seq. (1982 ed., Supp. V), a provision aimed at informing the general public about chemicals that could cause hazardous conditions during an emergency situation. [3] See S. Rep. No. 96-930, pp. 3-4, 8 (1980) (S. Rep.); H. R. Rep. No. 96-835, pp. 3, 17 (1980) (H. R. Rep.). [4] Tax and business records are examples of information provided only indirectly to an agency. In these cases, the governing regulations do not require records to be sent to the agency; they require only that records be kept on hand for possible examination as part of a compliance review. [5] See H. R. Rep., at 28 (the agency "is to eliminate any information collections which seek to obtain information available from other sources within the Federal Government"). [6] See id., at 20 (The Act "allow[s] the public, by refusing to answer these [information collection requests], to help control `outlaw forms' "). [7] See S. Rep., at 52-53 ("The only collections of information by a Federal agency which are exempted, and for which a person or persons could not claim protection under section 3512, are those collections of information which this chapter does not apply to and are exempted by section 3518 [certain law enforcement and national security exceptions]"). See also H. R. Rep., at 30. [8] See Report of Commission on Federal Paperwork, The Reports Clearance Process 1, 43 (Sept. 9, 1977) (explaining that the Federal Trade Commission did not interpret the Federal Reports Act of 1942, predecessor to the Paperwork Reduction Act, to apply to information it collected for law enforcement purposes nor did the Securities and Exchange Commission interpret that Act to apply to information the SEC collected for possible disclosure by the agency to the public); Paperwork and Redtape Reduction Act of 1979: Hearing on S. 1411 before the Subcommittee on Federal Spending Practices and Open Government of the Senate Committee on Governmental Affairs, 96th Cong., 1st Sess., 87 (1979) (testimony of SEC Commissioner Evans that the definition of collection of information in the Federal Reports Act was limited to collection for statistical purposes; testimony of Senator Chiles that Congress was not trying to cripple the mission of the agencies but was "trying to put some governor on this thirst for information"); S. Rep., at 39-40 (explaining that the Senate had rejected the SEC's attempt to limit "collection of information" to collection for statistical purposes, that the definition extended to documents filed with the SEC for possible disclosure to the public by the SEC, and that OMB's review of these filing requirements should consider whether the SEC could use the data either to carry out its regulatory functions or to make it available to the public). [9] See, e. g., H. R. Rep., at 3 (the Act resulted from "a growing concern that the way the Government collects, uses, and disseminates information must be improved") (emphasis added); id., at 22 (explaining the "practical utility" review as a response to the tendency of agencies to "collect reams of data on the basis of need only to store the data unused" thereby imposing "an unnecessary reporting burden on those individuals or organizations being asked to provide it"); S. Rep., at 11 ("[T]he essential purpose of the legislation [is] to reduce the burden on the public in providing information to the Federal Government") (emphasis added); id., at 46 ("A Federal agency is considered to `sponsor' the collection of information if the agency itself collects information or if it uses a procurement contract and the contractor collects information for the agency"); Senate Hearings, supra, at 40-41 (testimony of Wayne G. Granquist, Assoc. Dir., OMB) ("No one questions the basic need of the government for information to plan, make policy decisions, operate and evaluate programs, and perform necessary research. The question is rather how much information is essential"). [10] OMB's assumption of the authority to review the three provisions of the hazard communication standard at issue was consistent with its own regulations. See 5 CFR § 1320.7(c)(2) (1988) ("Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or to the public at large, through posting, notification, labeling, or similar disclosure requirements, constitute the `collection of information' whenever the same requirment to obtain or compile information would be a `collection of information' if the information were directly provided to the agency"); § 1320.7(q) (defining "reporting requirement" as "a requirement imposed by an agency on persons to provide information to another person or to the agency"). Petitioners' argument that we should defer to OMB's interpretation, as expressed in these regulations, is foreclosed by our finding of clear congressional intent. [11] We do not reach the question whether other provisions of the hazard communication standard might legitimately be subject to OMB review under the Paperwork Reduction Act. See 29 CFR § 1910.1200(e) (1988) (requiring employers to develop written programs describing their compliance and make them available to the agency on request); § 1910.1200(g)(11) (requiring employers to make their material safety data sheets available to the agency on request). Only the three provisions OMB disapproved are before us today. [1] In Action Alliance of Senior Citizens of Philadelphia v. Bowen, 269 U. S. App. D. C. 463, 846 F. 2d 1449 (1988), the court rejected an argument that the Federal Reports Act of 1942, 44 U. S. C. § 3501 et seq. (1976 ed.), the PRA's predecessor, did not cover an agency request that private parties conduct self-evaluations which should then be made available to the public and the agency upon request. The court stated: "The claim is pure pettifoggery. Appellants cannot seriously believe that in enacting the Reports Act Congress was concerned solely or primarily with private parties' costs of mailing data to Washington; it is the recordkeeping and data-gathering that constitute the burden. Moreover, OMB and its predecessor, the Bureau of the Budget, have interpreted the statutory term `collection of information' for nearly half a century to encompass `[a]ny general or specific requirement for the establishment or maintenance of records . . . which are to be used or be available for use in the collection of information.' Regulation A, Federal Reporting Services, Clearance of Plans and Reports Forms, Title I(1)(e) (February 13, 1943). . . . Even under the deference we owe the agency, Chevron U. S. A., Inc. v. Natural Resources Defense Council [, Inc., 467 U. S. 837, 842-845 (1984)], we doubt we could uphold a view of the Reports Act that made physical delivery to an agency essential to the notion of `collection of information.' Happily we confront no such oddity." 269 U. S. App. D. C., at 467-468, 846 F. 2d, at 1453-1454 (emphasis in original). Notably, by enacting the PRA Congress intended to expand the scope of authority OMB and its predecessor had been given under the Reports Act. See Paperwork and Redtape Reduction Act of 1979: Hearing on S. 1411 before the Subcommittee on Federal Spending Practices and Open Government of the Senate Committee on Governmental Affairs, 96th Cong., 1st Sess., 24-60, 119-125 (1979) (hereinafter S. 1411 Hearings) (comments of OMB and the Comptroller General noting that the proposed legislation would cure deficiencies in the coverage of the Federal Reports Act); S. Rep. No. 96-930. p. 13 (1980). [2] For example, OMB has reviewed Environmental Protection Agency community right-to-know disclosure requests, 52 Fed. Reg. 38344, 38364 (1987), Federal Trade Commission textile fiber products identification disclosure and fair packaging and fair labeling disclosure requests, 53 Fed. Reg. 5986, 5987 (1988), and Food and Drug Administration nutrition labels. 52 Fed. Reg. 28607 (1987). In this case, the Secretary of Labor and OMB have consistently agreed that the hazard communication standard is subject to review under the Act. See 47 Fed. Reg. 12092, 12111 (1982); 48 Fed. Reg. 53280 (1983); 52 Fed. Reg. 31852, 31870 (1987); 53 Fed. Reg. 29822, 29826, 29849-29850 (1988). Courts should be particularly reluctant to intervene in the regulatory process when the executive agencies have been able to cooperate effectively. [3] Relevant to this case are the following definitions promulgated by OMB as 5 CFR § 1320.7 (1989): "(c) `Collection of information' means the obtaining or soliciting of information by an agency from ten or more persons by means of identical questions, or identical reporting or recordkeeping requirements, whether such collection of information is mandatory, voluntary, or required to obtain a benefit. For purposes of this definition, the `obtaining or soliciting of information' includes any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information. In the Act, a `collection of information requirement' is a type of `information collection request.' As used in this part, a `collection of information' refers to the act of collecting information, to the information to be collected, to a plan and/or an instrument calling for the collection of information, or any of these, as appropriate. "(1) A `collection of information' includes the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods. Similar methods may include. . . disclosure requirements [and] labeling requirements . . . . "(2) Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or to the public at large, through posting, notification, labeling, or similar disclosure requirements, constitute the `collection of information' whenever the same requirement to obtain or compile information would be a `collection of information' if the information were directly provided to the agency. The public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public is not included within this definition. ..... "(p) `Recordkeeping requirement' means a requirement imposed by an agency on persons to maintain specified records and includes requirements that information be maintained or retained by persons but not necessarily provided to an agency. "(q) `Reporting requirement' means a requirement imposed by an agency on persons to provide information to another person or to the agency. Reporting requirements may implicitly or explicitly include related recordkeeping requirements." (Emphasis added.) [4] In this same vein, § 3504, in setting forth OMB's authority and functions in administering the Act, directs that the information collection request clearance and other paperwork control functions of the Office shall include "setting goals for reduction of the burdens of Federal information collection requests." 44 U. S. C. § 3504(c)(5) (1982 ed.). See also § 3505(1), which directs OMB to set goals to reduce the paperwork burdens by specified percentages, as well as § 3507(a)(1)'s requirement that agencies take action to reduce the paperwork burden of a proposal before submitting such proposals to OMB. [5] In particular, see S. 1411 Hearings, at 61-87; H. R. Rep. No. 96-835, pp. 18-23 (1980); S. Rep. No. 96-930, pp. 13, 39-40 (1980). [6] In any event, the PRA itself provides a check on OMB's ability to expand its jurisdiction, at least with respect to independent regulatory agencies. Section 3507(c) provides as follows: "Any disapproval by the Director, in whole or in part, of a proposed information collection request of an independent regulatory agency . . . may be voided, if the agency by a majority vote of its members overrides the Director's disapproval or exercise of authority. The agency shall certify each override to the Director, [and] shall explain the reasons for exercising the override authority. Where the override concerns an information collection request, the Director shall without further delay assign a control number to such request, and such override shall be valid for a period of three years."

482 U.S. 755 (1987) HEWITT ET AL. v. HELMS No. 85-1630. Supreme Court of United States. Argued March 4, 1987 Decided June 19, 1987 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT *756 Thomas G. Saylor, Jr., First Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were LeRoy S. Zimmerman, Attorney General, Allen C. Warshaw, Executive Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, and Gregory R. Neuhauser, Senior Deputy Attorney General. *757 Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Harriet S. Shapiro, and William Kanter. Robert H. Vesely argued the cause for respondent. With him on the brief was John M. Humphrey.[*] JUSTICE SCALIA delivered the opinion of the Court. This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a "prevailing party" for purposes of an award of attorney's fees. Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer's report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement. While still incarcerated, Helms brought suit under 42 U. S. C. § 1983 against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole. Nearly six months after Helms' release, the District Court rendered summary judgment against him on his constitutional *758 claims without passing on the defendants' assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that "Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of `risk' warranting administrative detention," Helms v. Hewitt, 655 F. 2d 487, 500 (1981) (Helms I), and that he "suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant." Id., at 502. The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense. Before the proceedings on remand could take place, we granted certiorari to determine whether Helms' administrative segregation violated the Due Process Clause. We concluded that the prison's informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Hewitt v. Helms, 459 U. S. 460 (1983). Certiorari was not sought on, and we did not decide, the question whether Helms' misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. Helms v. Hewitt, 712 F. 2d 48 (1983) (Helms II). In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not "clearly established," Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982), at the time of Helms' misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the *759 Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures § V(F) (1984), App. 101a-102a (Directive 801). The District Court's decision was affirmed without opinion. Helms v. Hewitt, 745 F. 2d 46 (1984) (Helms III). Helms then sought attorney's fees under 42 U. S. C. § 1988, which provides in relevant part: "In any action or proceeding to enforce a provision of [§ 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The District Court denied the claim on the ground that Helms was not a "prevailing party": the defendants' official immunity precluded a damages award, Helms' release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a "catalyst" for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms' constitutional rights were violated was "a form of judicial relief which serves to affirm the plaintiff's assertion that the defendants' actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future." 780 F. 2d 367, 370 (1986) (Helms IV). The court also directed the District Court to reconsider whether Helms' suit was a "catalyst" for the amendment of Directive 801. We granted certiorari. 476 U. S. 1181 (1986). In order to be eligible for attorney's fees under § 1988, a litigant must be a "prevailing party." Whatever the outer boundaries of that term may be, Helms does not fit within *760 them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Hanrahan v. Hampton, 446 U. S. 754, 757 (1980). Helms obtained no relief. Because of the defendants' official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment - for example, through a consent decree or settlement. See Maher v. Gagne, 448 U. S. 122, 129 (1980). The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. Hanrahan, supra, at 758-759. The Court of Appeals treated its 1981 holding that Helms' misconduct conviction was unconstitutional as "a form of judicial relief" - presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court "to determine the appropriateness and availability of the requested relief," 655 F. 2d, at 503; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms' nonmonetary claims were moot as a result of his release from prison. Even if that is not correct, and Helms' interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms' counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief. It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment - e. g., a monetary settlement or a *761 change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See Maher, supra, at 129. The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms' disciplinary proceeding was unconstitutional is a "vindication of . . . rights," Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces - the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement - what makes it a proper judicial resolution of a "case or controversy" rather than an advisory opinion - is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. The "equivalency" doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has "prevailed" in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing *762 from the defendants. The only "relief" he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had "prevailed," for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: "The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms' constitutional rights were violated." That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a "prevailing party" depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues. Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms' counsel, armed with the holding that his client's constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U. S. C. § 2201 (a court "may declare the rights and other legal relations of any interested party seeking such declaration") (emphasis added); Public Affairs Associates, Inc. v. Rickover, 369 U. S. 111, 112 (1962); Eccles v. Peoples Bank of Lakewood, 333 U. S. 426, *763 431 (1948). If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively "settle the controversy between the parties," 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2759, p. 648 (2d ed. 1983), because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions - or if they do, the court's decision is not appealable in the same manner as its entry of a declaratory judgment. We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a "prevailing party." Any other result strains both the statutory language and common sense. The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms' lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in 1984 to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this "catalyst" theory could justify a fee award under § 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State's amendment of its regulations, and can "prevail" by having the State take action that his complaint did not in terms request, he did not and could not get redress from promulgation of the informant-testimony regulations. When Directive 801 was amended, Helms had long since been released from prison. *764 Although he has subsequently been returned to prison, and is presumably now benefiting from the new procedures (to the extent that they influence prison administration even when not directly being applied), that fortuity can hardly render him, retroactively, a "prevailing party" in this lawsuit, even though he was not such when the final judgment was entered. For the reasons stated, the judgment of the court of appeals is Reversed. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. The Court makes a number of sweeping statements in its opinion, most of which are of no help in resolving the present case. In my view, the application of settled law to the facts of this case, tangled as they are, leads to conclusions other than those reached by the Court. I The Court's account of the history of this litigation is complete, but a summary may be helpful. Respondent originally claimed in the District Court both procedural and substantive violations of due process in connection with his prison misconduct conviction, and raised in addition a pendent state claim. He sought declaratory and injunctive relief, damages, and the expungement of his prison disciplinary record. App. 19a-21a. Petitioners alleged immunity defenses, as well as contesting the merits of the federal and state claims. The District Court initially dismissed both the procedural and substantive due process causes of action. The Court of Appeals reversed as to both claims. Helms v. Hewitt, 655 F. 2d 487 (CA3 1981). We granted certiorari only as to procedural due process and reversed, reinstating the District Court's grant of summary judgment for petitioners. Hewitt v. Helms, 459 U. S. 460 (1983). On remand from this Court, the Court of Appeals noted that its substantive due process *765 holding concerning the use of anonymous informant evidence was unaffected by our decision, and remanded for entry of judgment in favor of respondent unless petitioners were immune. Helms v. Hewitt, 712 F. 2d 48, 49 (1983); see 655 F. 2d, at 502-503 ("[O]n remand, if the defendants do not establish official immunity . . . the district court should enter summary judgment for Helms"). The District Court, on remand from the Court of Appeals, concluded that petitioners were immune from the payment of damages because the law concerning the use of anonymous informant evidence in prison disciplinary proceedings "was not so clear and well established" at the time of respondent's disciplinary proceeding as to overcome petitioners' qualified official immunity. App. 47a. Respondent appealed from this second order granting summary judgment for petitioners. During the pendently of this appeal the Commonwealth of Pennsylvania issued Administrative Directive 801, App. 85a-116a, which incorporated policies with respect to the use of anonymous informant evidence in prison misconduct proceedings consistent with the earlier holding of the Court of Appeals. Id., at 101a-102a. The Court of Appeals subsequently affirmed the District Court's judgment in a summary order. Helms v. Hewitt, 745 F. 2d 46 (CA3 1984). Respondent then moved for fees in the District Court pursuant to 42 U. S. C. § 1988. II Some aspects of the procedural development of this case may be difficult to fathom, but at the very least the case does not present, as the Court declares, a fee application by "a party who litigates to judgment and loses on all of his claims." Ante, at 757. Respondent's complaint alleged two federal causes of action. We held that respondent had not stated a viable cause of action for violation of his right to procedural due process. The final word on the substantive due process claim, however, was spoken by the Court of Appeals, which directed the District Court to enter summary judgment *766 for respondent on that claim unless the petitioners were immune. The Court devotes much of its opinion to demonstrating on theoretical grounds that this statement by the Court of Appeals was not a declaratory judgment. I think that effort unnecessary; it is plain from the language of the first opinion of the Court of Appeals that it was not entering judgment for respondent. Instead, consistent with the ordinary practice of appellate courts, it simply found respondent's cause of action good as a matter of law, and remanded with instructions to enter judgment for respondent insofar as such a judgment was not incompatible with petitioners' immunity, if any. 655 F. 2d, at 502-503. The District Court then found that petitioners were entitled to qualified immunity. This precluded any remedy in damages against petitioners, but by no means prevented the ordering of declaratory or injunctive relief or a grant of attorney's fees. See Pulliam v. Allen, 466 U. S. 522, 543-544 (1984). Respondent's complaint sought relief in the form of a declaratory judgment and an injunction expunging his prison disciplinary record.[1] Under the Court of Appeals' remand order, the District Court could, and probably should, have entered judgment granting the requested declaratory and injunctive relief. Instead, the District Court *767 first took up the question of immunity, and upon finding qualified immunity precipitately issued an order closing the case. App. 48a. No order was entered disposing of respondent's pending claims for equitable relief.[2] Respondent contends, and the Court of Appeals agreed, that the issuance of Administrative Directive 801 during the pendently of the subsequent appeal might be the sort of informal relief justifying a fee award, if the Commonwealth's change of policy was "catalyzed" by respondent's lawsuit. There is no dispute that informal relief may be sufficient to support a fee award under § 1988. See Maher v. Gagne, 448 U. S. 122, 129-130 (1980). The Court wisely leaves for another day any discussion of the general circumstances under which action "catalyzed" by a lawsuit may be characterized as informal relief for purposes of § 1988. Ante, at 763. But the Court errs in holding that Administrative Directive 801 cannot constitute relief, even under a "catalyst" theory, because respondent derived no benefit from it. The Directive does not, of course, provide an informal equivalent to respondent's request for injunctive relief, because it did not effect an expungement of his disciplinary record. But the Directive may be, in substance, functionally equivalent to respondent's requested declaratory relief. As the Court correctly states, in a declaratory judgment action "if the defendant, under pressure of the lawsuit, alters his conduct (or threatened *768 conduct) towards the plaintiff . . . the plaintiff will have prevailed." Ante, at 761. The Court observes that respondent is once again an inmate of the Commonwealth's prisons. Ante, at 764. The behavior of the Commonwealth's officials toward respondent is as effectively constrained by Directive 801 today as it would have been by a formal declaratory judgment.[3] In sum, respondent's claim for fees is based upon the following premises: that the Court of Appeals held his civil rights cause of action good as a matter of law; that at the time of the District Court's judgment on the issue of immunity, respondent had outstanding meritorious claims for equitable relief; that the judgment as to petitioners' immunity did not foreclose the granting of equitable relief or an award of attorney's fees; and that the issuance of Directive 801 during the pendently of litigation provided respondent, by the voluntary action of petitioners and those in privity with them, informal relief substantially equivalent to the relief sought in respondent's prayer for a declaratory judgment. None of these propositions is subject to serious dispute, and none is rejected by the Court today. The question remains, of course, whether there is any causal connection between the litigation instituted by respondent and the Commonwealth's promulgation of Directive 801. This is an issue of fact which can only be resolved in the District Court. Should the District Court find that the promulgation of Directive 801 was not "catalyzed" by this litigation, then the error of respondent's counsel in failing to move in the District Court for formal entry of a declaratory judgment, to which respondent was clearly entitled *769 under the Court of Appeals' two remand orders, would probably foreclose any fee award. But any such conclusion must await further factfinding. III The disposition of this chaotic case depends upon the procedural accidents of extended litigation conducted with less than exemplary precision by the parties and the District Court. While the Court sensibly declines to establish any broadly applicable doctrine upon a basis as unreliable as the present record, it nonetheless indulges in a theoretical exposition which varies substantially from the few ascertainable facts. If further review of this litigation was a prudent exercise of our certiorari jurisdiction, which I doubt, it should have occurred after the necessary facts had been found, and the general fog of confusion dispelled, by the District Court. I would affirm the judgment of the Court of Appeals insofar as it remanded to the District Court for factual findings on respondent's "catalyst" theory. NOTES [*] Benna Ruth Solomon, Joyce Holmes Benjamin, and Peter J. Kalis filed a brief for the National Governors' Association et al. as amici curiae urging reversal. [1] Petitioners have taken the position that these requests for declaratory and injunctive relief were somehow mooted by respondent's release on parole in the early stages of this litigation. Brief for Petitioners 24. Indeed, petitioners represent to the Court that the District Court found that "[respondent's] claim for injunctive relief had been rendered moot by his release from prison in 1980." Id., at 10. This statement is flagrantly inaccurate. The District Court in fact held that "plaintiff did not seek any relief which became mooted during the controversy." App. to Pet. for Cert 38a. Petitioners have offered no authority, nor can they, for the remarkable proposition that the request for expungement of respondent's record became moot upon his parole. Nor, since the expungement would have depended upon the finding that respondent's due process rights were violated, have they explained how the request for declaratory relief supposedly became moot. [2] The record does not contain the briefs, if any, filed with the Court of Appeals on respondent's appeal from the District Court's order. Accordingly it is not clear whether respondent challenged only the District Court's holding on immunity, or also its failure to award equitable relief. Nor is it clear, since the District Court's order did not dispose of all respondent's outstanding claims, whether respondent might not even now move in the District Court for the equitable relief requested in the complaint. The issuance of such equitable relief would, of course, support a fee award under 42 U. S. C. § 1988. The remand ordered by the Court of Appeals in the judgment presently before us would give the District Court an opportunity to rectify the substantial confusion engendered by its earlier proceedings. [3] The Court characterizes respondent's renewed incarceration as a "fortuity," evidently implying that it has no relevance to this case. But the record does not disclose whether respondent was imprisoned after parole revocation proceedings, or instead as the result of a subsequent criminal conviction. If respondent's parole was revoked, then it is his temporary release during the course of the litigation, rather than his reincarceration, which is a "fortuity" in determining respondent's entitlement to attorney's fees.

59 U.S. 418 (1855) 18 How. 418 RICHARD C. STOCKTON, APPELLANT, v. JAMES C. FORD. Supreme Court of United States. It was submitted, on printed arguments, by Mr. Stockton and Mr. Johnson, for appellant, and by Mr. Duncan, for appellee. *419 Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the circuit court of the United States for the eastern district of Louisiana. The bill was filed by the plaintiff to charge the plantation and slaves of the defendant with a judicial mortgage, originally obtained by one Prior, against the firm of N. and E. Ford and Co. The plaintiff claims an interest in this mortgage, first, by purchase on execution against Prior; and second, by a trust created in the assignment of the same by Prior, under which the defendant derived title to it. The bill sets out the sale of the mortgage and purchase by the plaintiff, and also the assignment of the same by Prior to Jones, and by him to the defendant. The assignment to Jones provided for the payment first of the attorney's fees and all other costs out of the proceeds of the judgment, and the balance to be applied to the debts of Prior for which Jones was responsible, and the surplus, if any, to the assignor. The plaintiff prayed that the defendant might be decreed to pay the attorney's fees and costs on obtaining the judicial mortgage, according to the condition of the assignment; and, also, any balance that might be found due after satisfying the debts for which Jones was responsible. The defendant, among other defences, set up a former suit in bar. A previous bill had been filed by the plaintiff against the defendant, seeking to foreclose this judicial mortgage, in which the same title as in this case under the execution and sale against Prior was relied on. And among other defences to that suit, the defendant set up the assignment of the mortgage by Prior to Jones previous to the said sale on execution, and by Jones to the defendant. This right of the plaintiff to the judicial mortgage under the sale on execution, and of the defendant under the assignments, were directly involved in that suit, and presented the principal questions in the case. The validity of the assignments over the claim of the plaintiff was maintained by the judgment of the court below, and which was affirmed on appeal to this court. 11 How. 232. This court, after a full examination of the pleadings and proof, say, "that in any view, therefore, that can be properly taken of the case, the plaintiff has shown no right or interest in the judicial mortgage, which he seeks to enforce against the plantation and slaves in question. The whole interest is in the defendant. The court also observed, "that the assignment (to Jones) was made upon, full consideration, without any concealment, or, for aught that appears, intent to hinder and delay creditors; and *420 was well known to the plaintiff long before he became the purchaser at the sheriff's sale. It passed the legal interest in the judicial mortgage out of Prior, and vested it in Jones, as early as the 12th of March, 1840, and we are wholly unable to perceive any ground of equity in the plaintiff, or of those under whom he holds, for disturbing it through a judgment against the assignor, rendered nearly two years afterwards. The sheriff's sale, therefore, could not operate to pass any interest in it to the plaintiff." One of the questions now sought to be agitated again is precisely the same as this one in the previous suit; namely, the right of the plaintiff to the judicial mortgage under the execution and sale against Prior. The other is somewhat varied; namely, the equitable right or interest in the mortgage of the plaintiff, as the attorney of Prior, for the fees and costs provided for in the assignment to Jones. But this question was properly involved in the former case, and might have been there raised and determined. The neglect of the plaintiff to avail himself of it, even if it were tenable, furnishes no reason for another litigation. The right of the respective parties to the judicial mortgage was the main question in the former suit. That issue, of course, involved the whole or any partial interest in the mortgage. We are satisfied, therefore, that the former suit constitutes a complete bar to the present. The court, in the former suit, also expressed the opinion that the plaintiff was not in a situation to maintain his claim of title to the mortgage under the execution and sale against Prior; as it appeared in that case that he was the attorney of Prior in the judicial mortgage, and stood in that relation to Jones at the time of the purchase, and, for aught that appears, had made the purchase without his knowledge or consent; and that, under such circumstances, the purchase would enure to the benefit of the client and those holding under him. It is due to the plaintiff to say, that the evidence in this case, explanatory of the point in the former, shows that he did not stand in the relation of attorney to Jones at the time of the sale; or, at least, had no reason to suppose that he stood in that relation; and that no just ground for censure exists in the transaction against him: the explanatory evidence has fully removed it. We think the decree below is right, and should be affirmed.

447 U.S. 54 (1980) NEW YORK GASLIGHT CLUB, INC., ET AL. v. CAREY. No. 79-192. Supreme Court of United States. Argued February 19, 1980. Decided June 9, 1980. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. *56 Albert N. Proujansky argued the cause for petitioners. With him on the brief was Marvin Luboff. James I. Meyerson argued the cause and filed a brief for respondent. Harriet S. Shapiro argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager.[*] MR. JUSTICE BLACKMUN delivered the opinion of the Court. This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney's fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke. I Respondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available. The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent a1-a3. As required by § 706 (c) of Title VII of the Civil *57 Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (c), respondent's complaint was forwarded to the New York State Division of Human Rights (Division). In May 1975, after an investigation during which respondent was represented by counsel,[1] the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979), recommended that a public hearing be held. Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission "reassume" jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent's matter as soon as possible. The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id., at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August 1974. Id., at 70-72. No attorney's fee was awarded. Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N. Y. Exec. Law § 297-a (McKinney 1972 and Supp. 1979). The Board held a hearing in December 1976 at which counsel for petitioners, respondent, and the Division appeared. *58 Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 706 (b), 42 U. S. C. § 2000e-5 (b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC's attempts at conciliation also failed. The Commission's General Counsel chose not to sue, and, as required by § 706 (f) (1), § 2000e-5 (f) (1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706 (f) (1), then had 90 days to file a Title VII action in federal district court. On August 26, the Appeal Board confirmed the Division's order. Petitioners immediately appealed the Board's decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order. On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U. S. C. § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 20-year existence. The complaint sought a declaratory judgment that petitioners' practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney's fees, and other appropriate relief. Petitioners' answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense. The Appellate Division of the New York Supreme Court on November 3 unanimously affirmed the Appeal Board's determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App. Div. 2d 852, 399 N. Y. S. 2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal. *59 On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that if the state court denied their motion for leave to appeal, they would comply with the Division's order. App. 73. One week later the New York Court of Appeals denied petitioners' motion. 43 N. Y. 2d 951 (1978). The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent's request for attorney's fees. See App. 75-79. Respondent sought an award for 82 hours of attorney's time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29 hours were spent in defending the Division's order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40. In July 1978, the District Court dismissed respondent's complaint, App. 35, but left pending the application for attorney's fees. After further briefing, the court denied the fee request. 458 F. Supp. 79 (SDNY 1978). The District Court found the propriety of the EEOC's issuance of a right-to-sue letter while state proceedings were pending "very doubtful." Id., at 80. Although the EEOC's action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney's fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id., at 81. The District Court also relied on its conclusion that respondent "had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services," since state law, N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one *60 of the attorneys for the Division. 458 F. Supp., at 81. The decision in Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977), upholding an award of attorney's fees for prosecution of a federal employee's Title VII claim in mandatory preliminary proceedings within the employee's agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F. Supp., at 81. A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F. 2d 1253 (1979). The court ruled: "A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney's fees in the same manner as a party who prevails in federal court." Id., at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute's strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute's fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings. We granted certiorari, 444 U. S. 897 (1979), to consider this question that is significant to the enforcement of the antidiscrimination provisions of Title VII. II Section 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k), provides: "In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs." *61 The question presented is whether, in the words of the statute, respondent was the "prevailing party" in an "action or proceeding under this title." An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title VII's enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney's fees to persons in respondent's situation. The words of § 706 (k) leave little doubt that fee awards are authorized for legal work done in "proceedings" other than court actions. Congress' use of the broadly inclusive disjunctive phrase "action or proceeding" indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706 (k) with another fee provision in the same Act, namely, § 204 (b) of Title II, 78 Stat. 244, 42 U. S. C. § 2000a-3 (b). The pertinent language of § 204 (b) is identical to that of § 706 (k) except that § 204 (b) permits an award only with respect to "any action commenced pursuant to this title." The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words "or proceeding" from § 204 (b) is understandable, since enforcement of Title II depends solely on court actions. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 401 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words "or proceeding" in § 706 (k) are mere surplusage. It might be argued that the words "or proceeding" authorize fee awards only for work done in federal administrative proceedings,[2] such as those before the EEOC, but not for *62 state administrative or state judicial proceedings. This reading at least would not render the words "or proceeding" a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706 (k); the purpose of § 706 (k); the humanitarian remedial policies of Title VII; and the statute's structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion. Section 706 (k) authorizes a fee award to the prevailing party in "any . . . proceeding under this title." (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word "proceeding" to describe the state and local remedies to which complainants are required to resort. For example, § 706 (c), 86 Stat. 104, provides: "[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. . . . If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent. . . ." (Emphasis added). Indeed, throughout Title VII the word "proceeding," or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, *63 administrative and judicial.[3] The conclusion that fees are authorized for work done at the state and local levels is inescapable. This Court recently examined the legislative history and purpose of § 706 (k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), it was noted that, although the legislative history of § 706 (k) is "sparse," 434 U. S., at 420, it is clear that one of Congress' primary purposes in enacting the section was to "make it easier for a plaintiff of limited means to bring a meritorious suit." Ibid., quoting 110 Cong. Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of "a private attorney general," vindicating a policy "of the highest priority," a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but special circumstances." 434 U. S., at 416, 417. See also Newman v. Piggie Park Enterprises, 390 U. S., at 402. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney's fee award to one in respondent's situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of a meritorious discrimination claim. Title VII establishes a comprehensive enforcement scheme in which state agencies are given "a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination." Oscar Mayer & Co. v. Evans, 441 U. S. 750, 755 (1979). Congress envisioned that Title VII's procedures and remedies would "mes[h] nicely, logically, and coherently with the State and city legislation," and that remedying employment *64 discrimination would be an area in which "[t]he Federal Government and the State governments could co-operate effectively." 110 Cong. Rec. 7205 (1964) (remarks of Sen. Clark). Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706 (c). In practice, § 706 (c) has resulted in EEOC's development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U. S. 522 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in "suspended animation." Id., at 526. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid.[4] Of course, the "ultimate authority" to secure compliance with Title VII resides in the federal courts. Alexander v. Gardner-Denver Co., 415 U. S. 36, 44-45 (1974). The statute *65 authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, "as promptly as possible" it determines whether there is probable cause to believe that the charge is true. § 706 (b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706 (f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a "right to sue" letter notifying the complainant of his right to bring an action within 90 days. Ibid.[5] It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U. S., at 48-50. The construction of § 706 (k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n. 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme. The District Court felt that granting a fee award to respondent would be a "windfall" based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F. Supp., at 81. We agree with the District Court that the *66 availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney's fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress' plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706 (f) (1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state and local proceedings.[6] III Against the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for *67 which the State does not authorize fees[7] infringes on the State's powers under the Tenth Amendment. Second, they argue that Congress' intent to pre-empt the state law has not been clearly expressed. Third, they contend that even if § 706 (k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court's discretion. We must reject petitioners' Tenth Amendment argument. Congress' power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U. S. 678 (1978); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Petitioners cite Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), Schwartz v. Texas, 344 U. S. 199 (1952), and Florida v. United States, 282 U. S. 194 (1931), in support of their argument that Congress' intent to pre-empt state regulation of the administration of state proceedings is not clearly expressed in § 706 (k) and should not be inferred. We find these cases inapposite. Section 706 (k) does not "pre-empt" state law. "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Co., 415 U. S., at 48-49. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. § 706 (f) (1). One aspect of complete relief is an *68 award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney's fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to "supplement" the state remedy. The state law which fails to authorize backpay has not been pre-empted. In any event, if it can be said that § 706 (k) pre-empts the state rule, we believe that Congress' intent to achieve this result is manifest. We also find no merit in petitioners' suggestion that denial of a fee award was within the District Court's discretion. As noted earlier, the court's discretion to deny a fee award to a prevailing plaintiff is narrow. Absent "special circumstances," see Newman v. Piggie Park Enterprises, 390 U. S., at 402; Christiansburg Garment Co. v. EEOC, 434 U. S., at 416-417, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the "case in support of the complaint" is a "special circumstance" which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel. The New York state procedure, to which respondent's charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N. Y. Exec. Law § 297 (2) (McKinney Supp. 1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297 (4) (a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attorney *69 at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 4-5. Following the investigation, the Division attempts to conciliate the complainant's grievance with the employer. N. Y. Exec. Law §§ 297 (3) (a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant's objections. § 297 (3) (c). If efforts at conciliation fail and a hearing is scheduled, state law provides: "The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney." § 297 (4) (a) (McKinney Supp. 1979). At the time of the hearing on respondent's complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5.[8] Complainants were "encouraged" to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59. At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N. Y. Exec. Law § 298 (McKinney Supp. 1979). The Division attorney does not *70 represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 5-6. It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible and is encouraged. A Division employee cannot act as the complainant's attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process. If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id., at 5; App. to Pet. for Cert. A59-A60. He presents the "case in support of the complaint," not in support of the complainant. N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings.[9] *71 In sum, we conclude that §§ 706 (f) and 706 (k) of Title VII authorize a federal-court action to recover an award of attorney's fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. THE CHIEF JUSTICE joins the Court's opinion except footnote 6 thereof; in his view, resolution of the issue dealt with in that footnote is not necessary. MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST would reverse the judgment essentially for the reasons given by Judge Mulligan in dissenting from the judgment of the Court of Appeals. MR. JUSTICE STEVENS, concurring in the judgment. While I agree with most of what is said in the Court's opinion, it is useful to emphasize that this federal litigation was commenced in order to obtain relief for respondent on the merits of her basic dispute with petitioners, and not simply to recover attorney's fees. Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney's fees, incurred in obtaining administrative relief in either a deferral or a nondeferral State is not only doubtful but is a question that is plainly not presented by this record. *72 On July 13, 1977, when the EEOC issued respondent a letter notifying her that she had a right to file an action in federal court, and on September 30, 1977, when she commenced her federal-court action, state judicial review of the state administrative proceedings had not yet been completed. It was not until sometime in February 1978, after the federal judicial proceeding had been pending for several months, that all questions other than the fee issue were finally removed from the federal case. It is clear, therefore, that under the plain language of § 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k),[*] the Federal District Court then had jurisdiction to allow the prevailing party to recover attorneys fees as a part of her costs. A quite different question would be presented if, before any federal litigation were commenced, an aggrieved-party had obtained complete relief in the administrative proceedings. It is by no means clear that the statute, which merely empowers a "court" to award fees, would authorize a fee allowance when there is no need for litigation in the federal court to resolve the merits of the underlying dispute. Indeed, it is not even clear that the EEOC has the authority to issue a "right to sue" letter, empowering the complainant to bring suit in federal court, after the complainant has obtained complete relief on the merits of his claim in administrative proceedings. See § 706 (f) (1) of the Civil Rights Act of 1964 as amended, 42 U. S. C. § 2000e-5 (f) (1). In any event, the facts of this case present no occasion for the Court's resolution of the issue, ante, at 66. All that needs to be decided is whether an allowance of fees may properly cover the work *73 performed in the administrative proceedings that were a prerequisite to the court action. I agree with the Court's disposition of that issue, and would also observe that the same analysis would apply to work performed in appearing before the federal agency in a nondeferral State. Accordingly, I concur in the judgment. NOTES [*] Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, Judith T. Kramer, Arnold Flescher, and Barbara Levy, Assistant Attorneys General, and Ann Thacher Anderson for the New York State Attorney General et al.; by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and Bill Lann Lee for the NAACP Legal Defense and Educational Fund, Inc.; and by Charles C. Parlin, Jr., and Peter Bienstock for the Puerto Rican Legal Defense & Education Fund, Inc. [1] Respondent was represented by counsel employed by the NAACP Special Contribution Fund. [2] In cases involving federal employees, all the Courts of Appeals that have considered the question have upheld fee awards under § 706 (k) for work done in federal administrative proceedings that must be exhausted as a condition to filing an action in federal court. E. g., Brown v. Bathke, 588 F. 2d 634, 638 (CA8 1978); Fischer v. Adams, 572 F. 2d 406 (CA1 1978); Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977); Foster v. Boorstin, 182 U. S. App. D. C. 342, 561 F. 2d 340 (1977); Johnson v. United States, 554 F. 2d 632 (CA4 1977). [3] See, e. g., § 706 (f) (1), 78 Stat. 260, as redesignated, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f) (1) (court may stay "further proceedings" pending the termination of "State or local proceedings"); § 706 (i), 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (i) (Commission may commence "proceedings" to compel compliance with court order). [4] Other provisions of Title VII also evidence the policy of promoting federal-state cooperation in enforcement. Section 706 (b), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (b), requires the EEOC to "accord substantial weight" to a state administrative determination, and § 709 (b), 78 Stat. 262, as amended, 86 Stat. 108, 42 U. S. C. § 2000e-8 (b), authorizes the EEOC to "cooperate with State and local agencies charged with the administration of State fair employment practices laws" in funding research and other mutually beneficial projects, and to enter into work-sharing agreements with those agencies to facilitate the processing of complaints. [5] We thus disagree with the District Court that the propriety of EEOC's issuance of the right-to-sue letter in this case is "very doubtful." 458 F. Supp. 79, 80 (SDNY 1978). As we read the statute, the Commission was required to issue the letter after 180 days, regardless of the posture of any state proceedings. [6] We note that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title VII, such a ground almost always could be found. Section 706 (f) (1) requires the EEOC to give the complainant a "right to sue" letter if, after it assumes concurrent jurisdiction over the complaint, it does not sue within 180 days. Thus, after waiting 240 days (60 days deferral to the state or local agency and 180 days for the EEOC to act after deferral), the complainant appears to have an absolute right to resort to an action in federal court. The federal court may stay the action for a maximum of 60 more days, to permit completion of state proceedings. § 706 (f) (1). It took three years for the New York proceedings in this case finally to provide respondent all the relief she desired other than attorney's fees. It is doubtful that the systems of many States could provide complete relief within 240 days. The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress' intent to encourage full use of state remedies. [7] The Human Rights Law of the State of New York does not authorize an award of counsel fees for work done in either state administrative or judicial proceedings. See State Commission for Human Rights v. Speer, 35 App. Div. 2d 107, 111-112, 313 N. Y. S. 2d 28, 33 (1970), rev'd on other grounds, 29 N. Y. 2d 555, 272 N. E. 2d 884 (1971); State Division of Human Rights v. Gorton, 32 App. Div. 2d 933, 934, 302 N. Y. S. 2d 966, 968 (1969). [8] On October 18, 1977, Division regulations were amended to provide for the presentation of the case in support of the complaint solely by the attorney for the complainant, upon consent of the Division. The regulation requires the Division attorney to submit a statement to the hearing examiner in lieu of appearance. 9 N. Y. C. R. R. § 465.11 (d) (2). [9] We also reject petitioners' argument, not suggested in the petition for certiorari, that respondent's representation by a public interest group is a "special circumstance" that should result in denial of counsel fees. Federal Courts of Appeals' decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F. 2d 1166 (CA1 1978); Torres v. Sachs, 538 F. 2d 10, 13 (CA2 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988, which is legislation similar in purpose and design to Title VII's fee provision. See H. R. Rep. No. 94-1558, pp. 5 and 8, n. 16 (1976). [*] That section provides in part: "In any action or proceeding under this title the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ."

94 U.S. 22 (1876) HUMES v. SCRUGGS. Supreme Court of United States. *23 Mr. Thomas C. Fullerton and Mr. F.P. Ward for the appellant. No counsel appeared for the appellee. MR. JUSTICE HUNT delivered the opinion of the court. It is not entirely certain what the court is called upon to review in the present case. By the decree of the court below it is recited that upon the hearing of the cause upon the pleadings it is adjudged that the bill be dismissed. The record, however, comes to us with voluminous evidence upon the merits, and we have not the advantage either of an opinion of the court or of a brief by the party obtaining the decree. It will be necessary, therefore, to give attention to the case in both of its aspects. The bill was filed by the assignee in bankruptcy of John W. Scruggs against the bankrupt's wife, alleging the adjudication of bankruptcy made upon a voluntary petition filed in June, 1868, and the fraudulent conveyance, in January, 1866, of property of the value of $50,000; that this covered all the property of the bankrupt, and that he was then insolvent. The defendant answered, admitting the conveyance, denying the fraud, alleging that the property conveyed to her was purchased and paid for with her money and for her, and that she believed for *24 several years that the title was taken in her name; that it was improved by her husband at an expense not exceeding $18,000, of which $4,400 belonged to her separate estate, and $2,400 was realized from the sale of a portion of the land. She denied that the deed to her conveyed all the property that her husband possessed, but did not state how much remained, or what it was, and she denied knowledge of his insolvency, if it existed. As a distinct defence in bar of the recovery sought, she further alleges that on the eleventh day of November, 1867, by her next friend, she filed a bill in the State court against her husband, to which he answered on the same day, in which proofs were taken; and that in December of that same year a decree was rendered, in which the said deed of Jan. 14, 1866, was in all things ratified and confirmed. A copy of the decree is annexed to her answer. To this answer the plaintiff, the assignee, filed a general replication. It is supposed that this suit and this decree, forming a part of the answer of Mrs. Scruggs, furnished the support to the decree dismissing the bill in the present suit on the pleadings. To this result there are two valid objections: - 1. By the interposition of a general replication, every allegation in the answer of Mrs. Scruggs not responsive to the bill was denied. No such allegation could be taken as true, but must be proved before it could be used by the party making it. The allegation of a former suit and of the decree therein came under this rule. It was denied that there was such a former suit, and that a decree was rendered therein affirming the transaction of May 14, 1866. How, then, can it be said with accuracy, upon the pleadings, when the answer was not responsive, and when a replication was filed, that there was a former suit and decree, and that by reason thereof the present bill must be dismissed? Jacks v. Nichols, 5 N.Y. 178. 2. Let it be assumed that the former suit and the decree therein are proved in a legal manner, still we cannot assent to the theory of its conclusiveness here. There would be little difficulty in making and sustaining fraudulent transfers of property, if the parties thereto could by a subsequent suit between themselves so fortify the deed that no others could attack it. *25 Mrs. Scruggs files her bill on the 11th November against her husband, to obtain a confirmation of the former proceeding. Her husband, nothing loth, files his answer on the same day. Twenty-one days thereafter, viz., Dec. 2, the term of the court opens. The papers are presented, proofs are filed, the counsel appear, and a decree of confirmation is adjudged. Certainly no one can complain in this instance of the delays of justice. But without reference to these indications of collusion, we are of the opinion that a decree between these parties alone, cannot bind the assignee in bankruptcy. The principle is well settled that a judgment binds only the parties to it and their privies. Bank v. Hodges, 12 Ala. 118, was a decision upon a case very similar to the one before us. In Mutual Benefit Life Ins. Co. v. Tisdale, 91 U.S. 244, the principle is thus laid down: "The books abound in cases which show that a judgment upon the precise point in controversy cannot be given in evidence in another suit against one not a party or privy to the record. This rule is applied not only to civil cases, but to criminal cases, and to public judicial proceedings which are of the nature of judgments in rem." Many cases are cited in illustration of the principle. This decree no doubt concluded Mr. Scruggs on the question of fraud. But he was already concluded by his deed, and we do not see that the estoppel by the decree is any more conclusive than that by the deed. Neither of them affect the assignee in bankruptcy, who is expressly authorized by the Bankrupt Act to attack any transfer made by the bankrupt in fraud of his creditors. Sect. 14. If we look at the case upon the merits, we also find the result to be in favor of the assignee. On the 14th of May, 1866, the husband conveys to his wife certain real estate in Huntsville, Ala., called the racecourse property. The value of this property is estimated by the witnesses on the one side as high as $25,000, and by one of those on the other as low as $10,000. Others put it at $15,000 and $20,000. He conveyed to her at the same time the interest of one-third of the profits of a hotel in Corinth for five years, and afterwards conveyed to her the fee of the premises, the consideration for which is recited to be the sum of *26 $25,000. What the actual value of this property was does not distinctly appear. At this time he was hopelessly insolvent. Large debts are proved against him, and in his answer he admits his indebtedness then to have amounted to $300,000. In a deed of the same date, executed by the husband and wife to Francis Sanders, it is recited as follows, viz.: - "Whereas the undersigned, John W. Scruggs, of the county and State aforesaid, is largely indebted to different persons residing in different localities and States; and whereas this indebtedness is individual and partnership indebtedness, being the partnership indebtedness of Scruggs, Donegan, & Co.; and whereas he is also largely involved as indorser for others, and likewise as surety, and as a member of the firm of Scruggs, Donegan, & Co., as acceptors of bills of exchange; and whereas, owing to the loss or displacement, resulting from the present civil war, of explanatory memoranda, schedules, &c., it is impossible for him at this time to state with accuracy the extent of his liabilities or their character, or to ascertain how much thereof has been remitted by the laches of creditors; and whereas he is anxious to adjust, settle, and discharge, to the extent of his ability, all just claims against him, but is unable at this time, for the reasons above stated, to nominate with accuracy his creditors." This deed conveyed to Sanders certain lands in Huntsville, and certain lands in Arkansas, among others the plantation called "the Island Place," in trust, to convey the same to such creditors as Scruggs himself should, within twelve months, nominate and appoint. We may safely assume the total insolvency of the husband at the time of the execution of the deed in question, and, if that is important, that the wife was aware of it. It is sought to sustain the deed to the wife upon the theory that the land in question was purchased by her husband for her and with her money, and that she believed for years that the title had been taken in her name. Such is the allegation of her answer. The proof is to the contrary. It is true, according to some of the testimony, that she was entitled to certain sums from her relations, which were received by her husband, viz., $3,100 in 1852, or thereabouts; $2,300 at about the same time; $1,200 for a carriage in 1853, and $400 from *27 Mr. Coxe. These are the sums as stated by herself in her testimony, amounting to $7,000. In the deed of May, 1866, when we may suppose that both the husband and wife would place the sum at the highest amount that truth would permit, it is given at $4,500. We take it, therefore, at that sum. These sums so received he held and used in his business until the year 1866, when his failure occurred. Neither the husband nor the wife testifies that there was any agreement that the husband should hold these sums as and for the estate of his wife, or that when the property in question was purchased it was agreed to be held as her estate. On the contrary, the moneys were held and used by the husband for nearly fifteen years as his own property, and mingled with his personal and partnership affairs. The explanation given by his brother, if true, which is very doubtful, is essentially vicious. He states that it was at his suggestion that the deed was taken to Scruggs instead of his wife. He adds: "At the time referred to, John W. Scruggs was about to open a commission house in Charleston, and was without means or credit, and my reason for giving him this advice was, that the conveyance to himself would give him a credit, whereas then he had none." But it is probably untrue in fact that this land was bought for her, as she alleges in the answer, or that she believed at any time that the title was taken in her name. As already suggested, the best possible case for the parties would be set forth in the deed which is the subject of the controversy. No such pretence is there set up. The consideration is based upon alleged indebtedness to the wife of a sum of $3,100 received on her account, of another like sum of $2,300, and of her release of dower in certain lands. The pretence that these sums had been agreed to be invested in these lands, and that she supposed it was done, is not suggested. We cannot but suppose this to be an afterthought. If the money which a married woman might have had secured to her own use is allowed to go into the business of her husband, and be mixed with his property, and is applied to the purchase of real estate for his advantage, or for the purpose of giving him credit in his business, and is thus used for a series of years, there being no specific agreement when the *28 same is purchased that such real estate shall be the property of the wife, the same becomes the property of the husband for the purpose of paying his debts. He cannot retain it until bankruptcy occurs, and then convey it to his wife. Such conveyance is in fraud of the just claims of the creditors of the husband. Fox v. Meyer, 54 N.Y. 125, 131; Savage v. Murphy, 34 id. 308; Babcock v. Gokler, 24 id. 623; Robinson v. Stewart, 10 id. 190; Carpenter v. Roe, id. 227; Hard's Lessees v. Longworth, 11 Wheat. 199. Fraud or no fraud is generally a question of fact to be determined by all the circumstances of the case. If the husband in a state of absolute bankruptcy conveys to his wife property fairly worth $15,000 to $20,000, with no present consideration passing, but with a recital of past indebtedness to her to less than a fifth of its value, the transaction is fraudulent and void as to creditors. Authorities supra. We attach no importance to the recited releases of dower as adding a value to the consideration. The lands sold to Derrich, in which it is recited that the wife was dowable, had been conveyed to him in 1860, and the wife had joined in the conveyance and acknowledged the same. Derrich also denies that, in May, 1866, any release of dower was made or was delivered to him. The lands sold to Peters do not appear ever to have been paid for by him, nor does it appear that they were ever conveyed to him. He had a bond for a title only. The lands conveyed to Sanders were so conveyed in trust, to be conveyed to such persons as Scruggs should, within twelve months, nominate and appoint. The pretended releases were mere devices to give color to a fraudulent deed. No benefit was given to the estate by means of them, nor did Mrs. Scruggs part with any thing of value. Decree reversed and cause remanded, with directions to enter a decree for the complainant in accordance with this opinion.

42 U.S. 289 1 How. 289 11 L.Ed. 135 JAMES TODD, APPELLANT,v.OTIS DANIELL, DEFENDANT. January Term, 1843 1 AN agreement in writing between the counsel, as well for the appellant as for the appellee, that the decree of the Circuit Court in this case shall be affirmed with legal damages and costs for the said Daniell, having been filed; it is thereupon considered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs and damages, at the rate of 6 per centum per annum; and also that the said appellee recover of the said appellant, the further sum of $125 for the costs of the transcript of the record in the Circuit Court according to the said agreement.

355 U.S. 80 (1957) ROSENBLOOM v. UNITED STATES. No. 451. Supreme Court of United States. Decided November 25, 1957. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Petitioner pro se. Solicitor General Rankin, Assistant Attorney General Rice and Joseph F. Goetten for the United States. PER CURIAM. The petition for a writ of certiorari is granted. The Court of Appeals has held, without opinion, that petitioner's notice of appeal from the District Court, filed on July 8, 1957, was untimely. The Government has conceded that the Clerk of the District Court did not mail to petitioner or his attorney a notice of the entry of the order of June 14 denying petitioner's motion for a new trial and judgment of acquittal, as required by Rule 49 (c), Federal Rules of Criminal Procedure. In our opinion the record in this case fails to show with sufficient certainty that petitioner or his attorney had actual notice of the entry of that order by reason of the proceedings which took place in the District Court on June 14.[*] Cf. *81 Huff v. United States, 192 F. 2d 911; Gonzalez v. United States, 233 F. 2d 825, 827, reversed on other grounds, 352 U. S. 978. What transpired at those proceedings is too ambiguous to permit the conclusion that petitioner and his attorney were not justified in believing that petitioner's time to appeal would begin to run on July 8. In these circumstances we think that the Court of Appeals erred in holding that petitioner's notice of appeal was untimely. Rule 37 (a) (2), Fed. Rules Crim. Proc.; see Carter v. United States, 168 F. 2d 310. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion. MR. JUSTICE BURTON, with whom MR. JUSTICE CLARK concurs, dissenting. Petitioner was present in open court with his attorney at the time the court overruled his motion for a new trial. He thus had actual notice of the denial of his motion and was not entitled to rely upon an additional notice in writing from the clerk to the same effect. The colloquy quoted by the court took place later, "after calling other motions in other cases." At that time this case "was again called by the Judge and the proceedings as indicated in the transcript of the official Court reporter took place." Especially in the light of the time interval *82 between the denial of the motion and the colloquy quoted in the opinion, I believe the Court of Appeals was justified in concluding that petitioner's counsel should have understood that his motion had been denied on June 14. NOTES [*] The record shows the following: "The COURT: . . . ..... "Do you want some time for your client before he turns in? "Mr. SHAW: Your Honor, I was going to ask for some time in which to get his affairs straightened out, and within which to file an appeal, should we so desire to do. "The COURT: Very well. If you file an appeal, of course, if you apply for bond, I will tell you now that I will grant you bond. Be permitted to go under the bond you are under now. How much time do you want? "Mr. SHAW: About two weeks, your Honor. "The COURT: How about Monday, July 1st, or do you want it the 8th, the following Monday? "Mr. SHAW: That will be all right. "The COURT: Be given until July 8th. "Mr. SHAW: Thank you."

392 U.S. 299 (1968) JONES v. UNITED STATES. No. 135. Supreme Court of United States. Decided June 10, 1968. ON PETITION FOR REHEARING. Herbert Monte Levy for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. PER CURIAM. The petition for rehearing is granted and the order denying the petition for writ of certiorari, 389 U. S. 835, is set aside. The petition for a writ of certiorari is granted. The judgment of the Court of Appeals for the Second Circuit is vacated and the case is remanded to that court for further consideration in light of Bruton v. United States, 391 U. S. 123. See Roberts v. Russell, ante, p. 293. MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, 391 U. S. 123, 138 (1968). MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

316 U.S. 572 (1942) OVERNIGHT MOTOR TRANSPORTATION CO., INC. v. MISSEL. No. 939. Supreme Court of United States. Argued April 6, 7, 1942. Decided June 8, 1942. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. *573 Messrs. J. Ninian Beall and John R. Norris for petitioner. Mr. George A. Mahone, with whom Messrs. W. Hamilton Whiteford and William O. Tydings were on the brief, for respondent. MR. JUSTICE REED delivered the opinion of the Court. This case involves the application of the overtime section of the Fair Labor Standards Act of 1938[1] to an employee working irregular hours for a fixed weekly wage. *574 Respondent, Missel, was an employee of the petitioner, Overnight Motor Transportation Company, a corporation engaged in interstate motor transportation as a common carrier. He acted as rate clerk and performed other incidental duties, none of which were connected with safety of operation. The work for which he was employed involved wide fluctuations in the time required to complete his duties. The employment of respondent began before the effective date of the Fair Labor Standards Act, October 24, 1938, and terminated October 19, 1940. Until November 1, 1938, his salary was $25.50 per week and thereafter $27.50. Time records are available for only a third of the critical period, and these show an average workweek of 65 hours, with a maximum of 80 for each of two weeks in the first year of the Act's operation and a maximum of 75 hours in each of three weeks in the second year. Nothing above the weekly wage was paid, because these maximum workweeks, computed at the statutory minimum rates with time and a half for overtime for the years in question, would not require an addition to the weekly wage. Respondent brought a statutory action to recover alleged unpaid overtime compensation in such sum as might be found due him, an additional equal amount as liquidated damages, and counsel fee.[2] The trial court, refusing *575 to hear evidence on the precise amount claimed, decided in favor of the petitioner on the ground that an agreement for a fixed weekly wage for irregular hours satisfied the requirements of the Act. Under such circumstances the court was of the view that pay would be adequate which amounted to the required minimum for the regular hours and time and a half the minimum for overtime. 40 F. Supp. 174. The Circuit Court of Appeals reversed with directions to enter judgment for the plaintiff in accordance with its opinion, an order which we interpret as authorizing a hearing in the trial court as to the amounts due. 126 F.2d 98. As the questions involved were important in the administration of the Fair Labor Standards Act, we granted certiorari. Petitioner renews here its contentions that the private right to contract for a fixed weekly wage with employees in commerce is restricted only by the requirement that the wages paid should comply with the minimum wage schedule of the Fair Labor Standards Act, § 6, with overtime pay at time and a half that minimum, that in any event the Act does not preclude lump sum salaries in excess of the minimum, and that a contrary interpretation of the statute would render it unconstitutional. It is plain that the respondent as a transportation worker was engaged in commerce within the meaning of the Act,[3] and unless specifically exempted was entitled to whatever benefits the overtime provisions conferred. While now conceding that United States v. Darby, 312 U.S. 100, settles the constitutional power of Congress to *576 legislate against labor conditions detrimental to a minimum standard of living required for the general well-being of workers, petitioner argues that there is no power under the Constitution to regulate the hours or wages of workers whose pay, in every instance, at least equals the minimum and whose hours are not injurious to health. Freedom of contract between employer and employee, it is urged, is destroyed by such an interpretation.[4] But hours or wages not patently burdensome to health may yet be subject to regulation to achieve other purposes. We assume here the statutory objectives discussed later, i.e., that the Act is aimed at hours as well as wages. The commerce power is plenary,[5] may deal with activities in connection with production for commerce,[6] and, as said in the Darby case, may extend "to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce." p. 118. Long hours may impede the free interstate flow of commodities by creating friction between production areas with different length work weeks, by offering opportunities for unfair competition, through undue extension of hours, and by inducing labor discontent apt to lead to interference with commerce through interruption of work. Overtime pay probably will not solve all problems of overtime work, but Congress may properly use it to lessen the irritations. Substandard labor conditions were deemed by Congress to be "injurious to the *577 commerce and to the states from and to which the commerce flows." United States v. Darby, 312 U.S. 100, 115. To protect that commerce from the consequences of production of goods under substandard conditions, it may choose means reasonably adapted to those ends, including regulation of intrastate activities, p. 121, by minimum wage and maximum hour requirements, p. 123. Compare Santa Cruz Co. v. Labor Board, 303 U.S. 453, 466. If overtime pay may have this effect upon commerce, private contracts made before or after the passage of legislation regulating overtime cannot take the overtime transactions "from the reach of dominant constitutional power." Norman v. B. & O.R. Co., 294 U.S. 240, 306-311. If, in the judgment of Congress, time and a half for overtime has a substantial effect on these conditions, it lies with Congress' power to use it to promote the employees' well-being. Statutory Construction. The petitioner attacks the basic conceptions upon which the Circuit Court of Appeals determined that the compensation paid by the respondent violated § 7 (a) of the Act.[7] That court felt that "one of the fundamental purposes of the Act was to induce work-sharing and relieve unemployment by reducing hours of work." We agree that the purpose of the Act was not limited to a scheme to raise substandard wages first by a minimum wage and then by increased pay for overtime work. Of course, this was one effect of the time and a half provision, but another and an intended effect was to require extra pay for overtime work by those covered by the Act even though their hourly wages exceeded the statutory minimum. The provision of § 7 (a) requiring this extra pay for overtime is clear and unambiguous. It calls for 150% of the regular, not the minimum, wage. By this requirement, although overtime was not flatly prohibited, *578 financial pressure was applied to spread employment to avoid the extra wage and workers were assured additional pay to compensate them for the burden of a workweek beyond the hours fixed in the Act. In a period of widespread unemployment and small profits, the economy inherent in avoiding extra pay was expected to have an appreciable effect in the distribution of available work. Reduction of hours was a part of the plan from the beginning. "A fair day's pay for a fair day's work" was the objective stated in the Presidential message which initiated the legislation.[8] That message referred to a "general maximum working week," "longer hours on the payment of time and a half for overtime" and the evil of "overwork" as well as "underpay." The message of November 15, 1937, calling for the enactment of this type of legislation referred again to protection from excessive hours.[9] Senate Report No. 884, just cited, page 4, the companion House Report[10] and the Conference report[11] all spoke of maximum hours as a separately desirable object. Indeed, the form of the Act itself in setting up two sections of standards, § 6 for wages and § 7 for hours, emphasizes the duality of the Congressional purpose. The existence of such a purpose is no less certain because Congress chose to use a less drastic form of limitation than outright prohibition of overtime. We conclude that the Act was designed to require payment for overtime at time and a half the regular pay, where that pay is above the minimum, as well as where the regular pay is at the minimum.[12] *579 We now come to the determination of the meaning of the words "the regular rate at which he is employed." Since we have previously determined in this opinion, in the discussion of petitioner's objection to the application of the Act on the ground of unconstitutionality, that the scope of the commerce power is broad enough to support federal regulation of hours, we are concerned at this point only with the method of finding the regular rate under the contract with respondent. Congress might have sought its objective of clearing the channel of commerce of the obstacles of burdensome labor disputes by minimum wage legislation only. We have seen that it added overtime pay. The wages for minimum pay are expressed in terms of so much an hour. See. 6 (a) (1) - "Not less than 25 cents an hour" with raises for succeeding years or by order of the Administrator under § 8. Cf. Opp Cotton Mills v. Administrator, 312 U.S. 126. Neither the wage, the hour nor the overtime provisions of §§ 6 and 7 on their passage spoke specifically of any other method of paying wages except by hourly rate.[13] But we have no doubt that pay by the week, to be reduced by some method of computation to hourly rates, was also covered by the Act.[14] It is likewise abundantly clear from the words of § 7 that the unit of time under that section within which to distinguish regular from overtime is the week. "No employer shall . . . employ any of his employees . . . (1) for a workweek longer than forty-four hours .. ." § 7 (a) (1).[15] *580 No problem is presented in assimilating the computation of overtime for employees under contract for a fixed weekly wage for regular contract hours which are the actual hours worked,[16] to similar computations for employees on hourly rates. Where the employment contract is for a weekly wage with variable or fluctuating hours the same method of computation produces the regular rate for each week. As that rate is on an hourly basis, it is regular in the statutory sense, inasmuch as the rate per hour does not vary for the entire week, though week by week the regular rate varies with the number of hours worked. It is true that the longer the hours, the less the rate and the pay per hour. This is not an argument, however, against this method of determining the regular rate of employment for the week in question. Apart from the Act, if there is a fixed weekly wage regardless of the length of the workweek, the longer the hours the less are the earnings per hour. This method of computation has been approved by each circuit court of appeals which has considered such problems. See Warren-Bradshaw Drilling Co. v. Hall, 124 F.2d 42, 44; Bumpus v. Continental Baking Co., 124 F.2d 549, 552, cf. Carleton Screw Products Co. v. Fleming, 126 F.2d 537, 541. It is this quotient which is the "regular rate at which an employee is employed" under contracts of the types described and applied in this paragraph for fixed weekly compensation for hours, certain or variable.[17] *581 Petitioner invokes the presumption that contracting parties contemplate compliance with law and contends that accordingly there is no warrant for construing the contract as paying the employee only his base pay or "regular rate," regardless of hours worked. It is true that the wage paid was sufficiently large to cover both base pay and fifty per cent additional for the hours actually worked over the statutory maximum without violating section six. But there was no contractual limit upon the hours which petitioner could have required respondent to work for the agreed wage, had he seen fit to do so, and no provision for additional pay in the event the hours worked required minimum compensation greater than the fixed wage. Implication cannot mend a contract so deficient in complying with the law. This contract differs from the one in Walling v. Belo Corp., post, p. 624, where the contract specified an hourly rate and not less than time and a half for overtime, with a guaranty of a fixed weekly sum, and required the employer to pay more than the weekly guaranty where the hours worked at the contract rate exceeded that sum. In the Circuit Court of Appeals[18] it was held that the liquidated damages provision, § 16(b) of the Act, 52 Stat. 1069, was mandatory on the courts, regardless of the good *582 faith of the employer or the reasonableness of his attitude. Petitioner attacks this conclusion as a denial of due process because, if the damage provision is mandatory, the employer is "without opportunity to test the issues before the courts," citing Ex parte Young, 209 U.S. 123, Wadley Southern Ry. Co. v. Georgia, 235 U.S. 651, and other similar cases. Petitioner points out that, if there was a failure to pay the statutory overtime, it resulted from an inability to determine whether the employee was covered by the Act. Section 13 (b) (1)[19] exempts from § 7 employees for whom the Interstate Commerce Commission has power to establish maximum hours of service. This exemption was derived from the Motor Carrier Act of 1935, 49 Stat. 543, which authorized the Commission to regulate "maximum hours of service of employees." A definitive order leaving employees with the duties of respondent subject to the Fair Labor Standards Act was not passed by the Commission until March 4, 1941,[20] after respondent's employment ended. This conclusion, however, was foreshadowed by the ruling of the Commission, December 29, 1937[21] that it would limit regulations concerning maximum hours to employees whose functions affected the safety of operations. Other orders, bulletins and opinions pointing to the final conclusion intervened.[22] These various determinations now make it clear that respondent *583 was subject at all times since the effective date of the Fair Labor Standards Act to its provisions. The Interstate Commerce Commission never had the power to regulate his hours. Perplexing as petitioner's problem may have been, the difficulty does not warrant shifting the burden to the employee. The wages were specified for him by the statute,[23] and he was no more at fault than the employer. The liquidated damages for failure to pay the minimum wages under §§ 6 (a) and 7 (a) are compensation, not a penalty or punishment by the Government.[24] Cf. Huntington v. Attrill, 146 U.S. 657, 667, 668, 674, 681; Cox v. Lykes Brothers, 237 N.Y. 376, 143 N.E. 226. The retention of a workman's pay may well result in damages too obscure *584 and difficult of proof for estimate other than by liquidated damages. Atchison, T. & S.F. Ry. Co. v. Nichols, 264 U.S. 348, 351; James-Dickinson Co. v. Harry, 273 U.S. 119. Nor can it be said that the exaction is violative of due process. It is not a threat of criminal proceedings or prohibitive fines, such as have been held beyond legislative power by the authorities cited by petitioner. Even double damages treated as penalties have been upheld as within constitutional power.[25] Affirmed. The CHIEF JUSTICE concurs in the result. MR. JUSTICE ROBERTS dissents. NOTES [1] "SEC. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce - (1) for a workweek longer than forty-four hours during the first year from the effective date of this section. (2) for a workweek longer than forty-two hours during the second year from such date, or (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 52 Stat. 1063; 29 U.S.C. § 207. [2] "SEC. 16. . . . "(b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 52 Stat. 1069, 29 U.S.C. § 216. [3] "SEC. 3. As used in this Act - ..... (b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." 52 Stat. 1060, 29 U.S.C. § 203. [4] "It is Petitioner's contention that though the constitutionality is clearly settled as to the question of correcting `sub-standard labor conditions,' a construction of the Act which has no relationship whatsoever to `sub-standard labor conditions' would nonetheless be unconstitutional, for the potentiality of such a construction is to destroy freedom of contract between employer and employee." [5] Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37. [6] Santa Cruz Co. v. Labor Board, 303 U.S. 453, 464. [7] Note 1 supra. [8] May 24, 1937, 81 Cong. Rec. 4983, 75th Cong., 1st Sess., Sen. Rep. No. 884 on S. 2475, July 6, 1937, p. 2. [9] 82 Cong. Rec. 11, 75th Cong., 2d Sess. [10] House Rep. 1452, 75th Cong., 1st Sess., pp. 14, 15. [11] 83 Cong. Rec. 9246, 9254. [12] Cf. Bumpus v. Continental Baking Co., 124 F.2d 549, 551; Carleton Screw Products Co. v. Fleming, 126 F.2d 537, 539; Tidewater Optical Co. v. Wittkamp, 179 Va. 545, 551, 19 S.E. 2d 897, 899; McMillan v. Wilson & Co., 212 Minn. 142, 2 N.W. 2d 838, 839; see United States v. Darby, 312 U.S. 100, 125. [13] Sec. 3 (m) defined wage to include board, lodging or other facility customarily furnished employees. The Joint Resolution of June 26, 1940, for work relief and relief for the fiscal year 1941, § 3 (f) deals with piece work in Puerto Rico or the Virgin Islands. 54 Stat. 611, 616. [14] Any other interpretation would render almost useless the exemptions from the Act of employees in "executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman." § 13 (a) (1). Such employees are rarely paid by the hour. [15] The legislative history of the Fair Labor Standards Act is inconclusive as to the intended meaning of the words "the regular rate at which he is employed." The committee reports do not discuss them. The bill which came out of the conference and was adopted changed "regular hourly rate" of previous bills (S. 2475, introduced May 24, 1937; H.R. 7200, introduced May 24, 1937; and S. 2475 in the Senate, April 20, Calendar Day May 25, 1938) to "regular rate." Conference Report, 83 Cong. Rec. 9247, 75th Cong., 3rd Sess. "Hourly" may have been omitted as not descriptive of piecework or salary payments. [16] Wage divided by hours equals regular rate. Time and a half regular rate for hours employed beyond statutory maximum equals compensation for overtime hours. [17] This has been the Administrator's interpretation of the Act. Interpretative Bulletin No. 4 issued October 21, 1938, revised November, 1940. While the interpretative bulletins are not issued as regulations under statutory authority, they do carry persuasiveness as an expression of the view of those experienced in the administration of the Act and acting with the advice of a staff specializing in its interpretation and application. Cf. United States v. American Trucking Assns., 310 U.S. 534, 549; United States v. Darby, 312 U.S. 100, 118, n. 2; Graves v. Armstrong Creamery Co., 154 Kan. 365, 370, 118 P.2d 613, 616. Even negative construction may be significant. Trade Comm'n v. Bunte Bros., 312 U.S. 349, 351, 352. Regulations on records issued pursuant to § 11 (a) have since September 15, 1941, referred to Interpretative Bulletin 4 for the method of computation. 6 Fed. Reg. 4695, n. 9. [18] 126 F.2d 98, 111, and cases cited which so construed the Act. [19] "SEC. 13. . . . (b) The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935; . . ." 52 Stat. 1068; 29 U.S.C. § 213 (b). [20] Ex parte MC-2, 28 M.C.C. 125. [21] Ex parte MC-2, 3 M.C.C. 665, 667. [22] March 25, 1939, Interpretative Bulletin, Wage & Hour Division No. 9; May 9, 1939, Ex parte MC-28, 13 M.C.C. 481, 488; June 15, 1939, Ex parte MC-C-139, 16 M.C.C. 497; May 27, 1940, United States v. American Trucking Assns., 310 U.S. 534. [23] Cf. Labor Board v. Electric Vacuum Cleaner Co., 315 U.S. 685, 697-698. [24] The Government has collected the cases under the Act upon the point: "One line of cases holds that the `double damages' do not constitute a penalty incurred under the laws of the United States within the meaning of §§ 24(9) and 256 of the Judicial Code (28 U.S.C. §§ 41 (9) and 371). Robertson v. Argus Hosiery Mills, 121 F.2d 285, 286 (C.C.A. 6th), certiorari denied, 314 U.S. 681; Stewart v. Hickman, 36 F. Supp. 861 (W.D. Mo.); Kuligowski v. Hart, 43 F. Supp. 207, 4 Wage Hour Rept. 203 (N.D. Ohio); Wingate v. General Auto Parts Co., 40 F. Supp. 364 (W.D. Mo.); Barron v. F.H.E. Oil Co., 4 Wage Hour Rept. 551 (W.D. Tex.); Hart v. Gregory, 218 N.C. 184, 10 S.E.2d 644; Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706; Graves v. Armstrong Creamery Co., 154 Kan. 365, 118 P.2d 613; Emerson v. Mary Lincoln Candies, 173 Misc. 531, 17 N.Y.S.2d 851; affirmed 261 App. Div. 879, 26 N.Y.S.2d 489; affirmed, 287 N.Y. 33, 38 N.E.2d 234; Abroe v. Lindsay Bros. Co., 300 N.W. 456 (S.Ct. Minn.); Tapp v. Price-Bass Co., 147 S.W.2d 107 (S.Ct. Tenn.); Duke v. Helena-Glendale Ferry Co., 159 S.W. 2d 74, 5 Wage Hour Rept. 206 (S.Ct. Ark.); Dennis v. Equitable Equipment Co., 7 So.2d 397 (Ct. App. La.); Adair v. Traco Division, 192 Ga. 59, 14 S.E.2d 466. . . . The other line of cases holding § 16 (b) to be remedial rather than penal involves determination of the applicable statute of limitations. Collins v. Hancock, 4 Wage Hour Rept. 522 (D. La. Caddo Parish); Tucker v. Hitchcock, No. 370, S.D. Fla., Oct. 2, 1941; Klotz v. Ippolito, 40 F. Supp. 422 (S.D. Texas)." [25] Cf. Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512; Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26; Kansas City Southern Ry. Co. v. Anderson, 233 U.S. 325.

316 U.S. 350 (1942) PEYTON v. RAILWAY EXPRESS AGENCY, INC. ET AL. No. 903. Supreme Court of United States. Submitted May 1, 1942. Decided May 25, 1942. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. Robert L. Peyton submitted pro se. Messrs. Harry S. Marx and Charles C. Evans submitted for respondents. PER CURIAM. Petitioner brought this suit in the District Court for the Western District of Texas, alleging that respondent, known to be an interstate carrier, had negligently failed to deliver to the addressee in California a package shipped from Waco, Texas, and claiming damages in the sum of $750,000. The trial court ordered petitioner to attach to his complaint a copy of the express receipt which he received *351 upon delivering the package to respondent. This receipt contained a $50 valuation. Thereupon the court granted respondent's motion to dismiss the complaint on the ground that the amount in controversy was less than the $3,000 necessary to sustain jurisdiction under 28 U.S.C. § 41(1), Jud. Code § 24(1). The Court of Appeals for the Fifth Circuit affirmed. We granted certiorari to inquire whether the suit could be maintained under 28 U.S.C. § 41(8), Jud. Code § 24(8), granting the district courts jurisdiction "Of all suits and proceedings arising under any law regulating commerce," irrespective of the amount involved. The pertinent act of Congress is 49 U.S.C. § 20(11), originally the Carmack Amendment of 1906, 34 Stat. 593, since amended several times to its present form. The section requires an interstate common carrier receiving property for shipment to issue a receipt or bill of lading. The carrier is made liable to the holder "for any loss, damage, or injury to such property caused by it" or connecting carriers. If the injury does not occur on the initial carrier's line, but it responds in damages, it is entitled to recover over from the responsible carrier. Further, the initial carrier is made liable to the shipper for full damages sustained, notwithstanding any limitation of liability in the receipt or bill of lading, with the exception, important here, that where a carrier by authority or direction of the Interstate Commerce Commission maintains rates dependent upon the value of the property declared in writing by the shipper, such declaration also limits liability of the carrier for loss or damage to an amount not in excess of the declared value. Following the Carmack Amendment, this Court in several cases upheld the power of the receiving carrier to limit its liability to an agreed valuation, made to obtain the lower of two or more rates. See Adams Express Co. v. *352 Croninger, 226 U.S. 491; Missouri, K. & T. Ry. Co. v. Harriman, 227 U.S. 657; Pierce Co. v. Wells, Fargo & Co., 236 U.S. 278. The so-called First Cummins Amendment of March 4, 1915, 38 Stat. 1196, prohibited in general any such limitation of liability. By the Second Cummins Amendment of August 9, 1916, 39 Stat. 441, Congress adopted the present provisions authorizing limitation of liability in the manner already noted, and substantially restored the rule of Adams Express Co. v. Croninger, supra. Respondent, confessing error, asserts that under § 20 (11) as it now stands, a suit brought against a single interstate carrier for its negligent non-delivery, is one not merely to enforce a common law liability limited by an Act of Congress; but that petitioner's cause of action has its origin in and is controlled by such Act, and so "arises under" it. Any doubts as to the correctness of this position[1] are resolved by the Act of January 20, 1914, c. 11, 38 Stat. 278, 28 U.S.C. § 71, regulating removal to the federal courts of suits brought under the Carmack Amendment in the state courts. After the Carmack Amendment a conflict of decisions had developed in the lower federal courts on the question whether suits for damages brought against interstate carriers under the amendment were suits "arising under" an act regulating commerce, so that their removal from state to federal district courts would be permitted. McGoon v. Northern Pacific Ry. Co., 204 F. 998; Storm Lake Tub & Tank Factory v. Minneapolis & St. L.R. Co., 209 F. 895; Adams v. Chicago G.W. Ry. Co., 210 F. 362. The decision *353 in the McGoon case, sustaining removal jurisdiction irrespective of the amount in controversy, was followed by the removal of many small suits against carriers to the federal district courts. Congress ended this practice by the Act of January 20, 1914, which forbade removal of suits under the Carmack Amendment involving less than $3,000. The report of the House Judiciary Committee on H.R. 9994, 63d Cong., 2d Sess. (which was the same in substance as S. 3484, which became the 1914 law), expressly recognized the effect and authority of the decision in the McGoon case. In prohibiting removals where less than $3,000 is in controversy, instead of imposing the $3,000 limitation directly on all suits brought in the federal courts under the Carmack Amendment, Congress recognized that such suits arise under a law regulating commerce within the meaning of 28 U.S.C. § 41 (8), and sanctioned the exercise of original jurisdiction by the district courts in such cases. See H. Rep. No. 120, 63d Cong., 2d Sess.; also 51 Cong. Rec. 1327, 1544-1548. Whether a suit arises under a law of the United States must appear from the plaintiff's pleading, not the defenses which may be interposed to, or be anticipated by it. Petitioner's pleading, which we have summarized, satisfies this requirement, since it adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute. See Tennessee v. Union & Planters' Bank, 152 U.S. 454; Louisville & Nashville Ry. Co. v. Mottley, 211 U.S. 149; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25; Taylor v. Anderson, 234 U.S. 74; Gully v. First National Bank, 299 U.S. 109, 113. Reversed. NOTES [1] Compare Cincinnati, N.O. & T.P. Ry. Co. v. Rankin, 241 U.S. 319, 326; Chicago & E.I.R. Co. v. Collins Co., 249 U.S. 186, 191, with Adams Express Co. v. Croninger, 226 U.S. 491, 505; Missouri, K. & T. Ry. Co. v. Harriman, 227 U.S. 657, 672; Southern Ry. Co. v. Prescott, 240 U.S. 632, 639-40.

271 U.S. 303 (1926) MISSOURI, KANSAS & TEXAS RAILWAY COMPANY ET AL. v. OKLAHOMA ET AL. No. 205. Supreme Court of United States. Submitted March 5, 1926. Decided May 24, 1926. ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA. Messrs. Joseph M. Bryson, Charles S. Burg, Maurice D. Green, and Howard L. Smith for plaintiffs in error. Messrs. William J. Horton, E.S. Ratliff, and Jackman A. Gill for defendants in error. MR. JUSTICE BUTLER delivered the opinion of the Court. The railroad of plaintiff in error runs through the city of McAlester, Oklahoma. At Comanche Avenue the main *304 line is on a fill, and at least one industrial or sidetrack is on a lower level. In September, 1921, the city applied to the state Corporation Commission for an order requiring the railway company to provide at that place a pass under its tracks and a highway across its right of way. The commission ordered that the company prepare a plan and an estimate of quantities and cost for a reinforced concrete subway, having two openings of specified dimensions; that the plan show the location of industrial tracks, and that these tracks conform to the street grade; that the plan and estimate be filed with the mayor of the city and the Corporation Commission; and that if the company and the city failed to agree on an apportionment of cost of the underpass, the commission would hear evidence on that subject. The company was ordered to have the underpass constructed and open for traffic within 90 days after arrangement by the city to pay its portion of the cost. The company filed its petition in the supreme court to have the order set aside on the grounds, among others, that it is repugnant to the due process clause of the Fourteenth Amendment, and impairs the obligation of a contract in violation of § 10 of Article I of the Constitution of the United States. The court affirmed the order (107 Okla. 23), and the case is here on writ of error. § 237, Judicial Code. The line was built about 1873 on land granted by Congress to the company - then known as the Union Pacific Railroad Company, southern branch - for the construction of its railroad. Act of July 26, 1866, § 8, c. 270, 14 Stat. 289, 291. The city of South McAlester and the townsite of McAlester were laid out subsequently, pursuant to the Act of Congress of June 28, 1898, § 14, c. 517, 30 Stat. 495, 499. In platting these townsites, streets were laid out to the boundary line on each side of the land constituting the company's right of way. November 8, 1901, the city passed Ordinance No. 74. At *305 that time there were a number of unauthorized crossings in use by the public; but the city had not acquired by purchase or condemnation the right of way for the extension of any street across the railroad. The ordinance was accepted by the company and is in form a contract. It provided for the immediate extension of certain platted streets across the right of way, tracks and station grounds of the company in lieu of the unauthorized crossings then in use. Some of the new crossings were to be constructed by the company at its own expense, and the cost of others was to be borne equally by the parties. Terms and conditions for the construction of other crossings were set forth in the ordinance. It was declared that thereafter the city would open no other street across the right of way and tracks of the company except upon payment of amounts specified in the ordinance as stipulated damages for a right of way across the railroad, any determination in condemnation proceedings instituted by the city, whether more or less than the agreed sum, to the contrary notwithstanding. It was stated that nothing contained in the ordinance should constitute a waiver of the company's right to contest the opening of additional streets. But there is no provision purporting to limit power or authority of the city to establish or regulate street crossings over, under or upon the tracks and other property of the company. And it was specifically agreed that, if at any time the city should desire to extend and open Comanche Avenue across the company's right of way and station grounds, the crossing should be constructed under the tracks located upon the fill and at grade across tracks laid at the street level, according to plans and specifications approved by the company and at the sole cost and expense of the city. The company, for this and other considerations mentioned in the ordinance, agreed to waive all claims for damages caused by the opening and establishing of this crossing. *306 Pursuant to the Act of Congress of March 29, 1906, c. 1351, 34 Stat. 91, the city of McAlester was created by the consolidation of the city of South McAlester and the town of McAlester. In performance of the agreements contained in the ordinance, the city of McAlester in 1909, and again in 1912, assumed and paid portions of the cost of construction of some of the crossings covered by the ordinance. And ever since the consolidation it has been recognized and treated as the successor of the city of South McAlester and as a party to the contract. The present city is bound to the same extent as was its predecessor that passed the ordinance. The court held that the state laws gave the commission full jurisdiction over all highways where they cross railways; that the commission had authority to order the crossing in question and to assess the cost of it against the city and the railway company, but not more than 50 per cent. against the city; that the company was the owner in fee of its right of way lands; that they could not be appropriated or damaged for public use without just compensation, and that the commission could not enforce obedience to its order to construct the grade crossing until the question of damage to the fee had been determined either by amicable settlement or by condemnation proceedings. The order, as interpreted and affirmed, directly contravenes the provisions of the ordinance in respect of the Comanche Avenue crossing. It sets at naught the undertaking of the city to bear the cost of construction and the agreement of the company to give the city the right of way for the street crossing and to waive all claims for damages. The effect is to require the company forthwith to prepare the plan and estimate, and to direct the company - upon the determination of its just compensation and the consummation of arrangements by the city to pay the portion of the cost, if any, that may be imposed upon *307 it - to proceed to construct the underpass and to have it open for traffic within the time specified. If a contract exists between the parties in respect of this crossing, it is manifest that it would be impaired by the enforcement of the commission's order. But defendants in error contend that the ordinance is void because it attempts to surrender police power; and therefore that there is no such contract. It is elementary that for the safety and convenience of the public, the State, either directly or through its municipalities, may reasonably regulate the construction and use of highways where they cross railroads. The legitimate exertion of police power to that end does not violate the constitutional rights of railroad companies. They may be required at their own expense to construct bridges or viaducts whenever the elimination of grade crossings reasonably may be required, whether constructed before or after the building of the railroads. Northern Pacific Railway v. Duluth, 208 U.S. 583, 597; Chi., Mil. & St. P. Ry. v. Minneapolis, 232 U.S. 430, 438; Mo. Pac. Ry. v. Omaha, 235 U.S. 121, 127; Erie R.R. Co. v. Public Utilities Comm'rs, 254 U.S. 394, 409, 412. And such costs are not included in the just compensation which the railroad companies are entitled to receive. Cincinnati, I. & W. Ry. v. Connersville, 218 U.S. 336, 343; Chi., Mil. & St. P. Ry. v. Minneapolis, supra, 440. If the enforcement of its provisions operates to hamper the State's power reasonably to regulate the construction and use of the Comanche Avenue crossing, then undoubtedly the ordinance is void. Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 76; Atlantic Coast Line v. Goldsboro, 232 U.S. 548, 558; Denver & R.G.R.R. Co. v. Denver, 250 U.S. 241, 244. The precise question is whether the agreement of the city to bear the cost of construction is inconsistent with the proper exertion of the police power. *308 When the ordinance was passed, it was the purpose of the parties to get rid of unauthorized crossings then in use and to arrange for the extension of platted streets across the tracks and station grounds. It was necessary for the city to obtain rights of way for that purpose; and it was empowered to acquire them by contract, purchase or condemnation. §§ 11, 14, c. 517, 30 Stat. 498, 499; Mansfield's Digest of the Statutes of Arkansas (1884), §§ 749, 760, 907-912. It could not take them without making just compensation to the owner. The company owned its right of way lands and station grounds in fee. Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U.S. 114. It was entitled to compensation for any of its property that might be taken or damaged by the construction and use of the crossings. Chicago, Burlington, &c., R.R. Co. v. Chicago, 166 U.S. 226, 251; Cincinnati, I. & W. Ry. v. Connersville, supra. The ordinance did not purport to limit the number of crossings that might be opened. Retention by the company of the right to resort to litigation to determine whether the opening of additional streets across the railroad is reasonably necessary does not at all impinge upon police power. Quite independently of the ordinance, the opening and regulation of such crossings is subject to judicial scrutiny, and action that is arbitrary or capricious will be held invalid. Denver & R.G.R.R. Co. v. Denver, supra, 244. Indeed, the reservation contemplates the exertion of the police power and plainly implies that the parties did not intend to restrict the authority of the city to open crossings. The agreement of the city to pay the amounts stipulated for the opening of certain crossings does not involve or contemplate any surrender of the power of eminent domain. It was authorized to contract, purchase or condemn as it saw fit. The opinion of the state court rightly approves amicable settlement of the compensation *309 to be given the owner. The parties were not bound to resort to litigation. It was competent for them in advance to settle the form and amount of compensation. The company's agreement to grant a right of way for the crossing was a valid consideration for the city's undertaking to bear the cost of construction. This case is not like Northern Pacific Railroad v. Duluth, supra, cited by defendants in error. There the city had the right of way for the street, and a grade crossing existed for many years. The elimination of that crossing became necessary. The company refused to comply with the city's demands in that respect. Then a contract was made. The city agreed to build a bridge to carry the street over the railroad tracks and the company agreed to contribute $50,000 to its cost. The city undertook to maintain the bridge over the tracks for 15 years and to maintain the approaches perpetually. The city built the bridge at a cost of $23,000 in addition to the amount paid by the company. Years later, when repairs were needed, the company refused to make them. This court following the decision of the Minnesota supreme court (98 Minn. 429) held that the contract was without consideration, against public policy and void. The Northern Pacific Company gave up nothing. The city already had the right of way. The company might have been required to build the bridge. The contract relieved it of a part of the cost, and attempted for all time to suspend the proper exertion of the police power in respect of maintenance. The ordinance now before us is very different from the situation and contract considered in that case. There is nothing in the ordinance that involves any attempt to interfere with or hinder the proper exertion of police power. Evidently it was the intention of the parties to make a permanent settlement in respect of the crossings covered by the ordinance. The city was empowered *310 to open the Comanche Avenue crossing at any time without condemnation or other proceedings. Neither party could terminate the contract without the consent of the other. Western Union Telegraph Co. v. Pennsylvania Co., 129 Fed. 849, 862. The city's agreement to bear the cost of construction of the Comanche Avenue crossing does not infringe the police power. The enforcement of the commission's order would deprive plaintiff in error of its property without due process of law and would impair the obligation of the contract in violation of the Constitution of the United States. Judgment reversed.

456 U.S. 431 (1982) FINNEGAN ET AL. v. LEU ET AL. No. 80-2150. Supreme Court of United States. Argued February 24, 1982. Decided May 17, 1982. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. *432 Samuel G. Bolotin argued the cause and filed a brief for petitioners. Ted Iorio argued the cause for respondents. With him on the brief was Jack Gallon and Jeffrey Julius.[*] CHIEF JUSTICE BURGER delivered the opinion of the Court. The question presented in this case is whether the discharge of a union's appointed business agents by the union president, following his election over the candidate supported by the business agents, violated the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U. S. C. *433 § 401 et seq. The Court of Appeals held that the Act did not protect the business agents from discharge. We granted certiorari to resolve Circuit conflicts,[1] 454 U. S. 813 (1981), and we affirm. I In December 1977, respondent Harold Leu defeated Omar Brown in an election for the presidency of Local 20 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a labor organization representing workers in a 14-county area of northwestern Ohio.[2] During the vigorously contested campaign, petitioners, then business agents of Local 20, openly supported the incumbent president, Brown. Upon assuming office in January 1978, Leu discharged petitioners and the Local's other business agents, all of whom had been appointed by Brown *434 following his election in 1975.[3] Leu explained that he felt the agents were loyal to Brown, not to him, and therefore would be unable to follow and implement his policies and programs. Local 20's bylaws - which were adopted by, and may be amended by, a vote of the union membership - provide that the president shall have authority to appoint, direct, and discharge the Union's business agents. Bylaws of Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 20, Art. IX, § 3 D, Joint Exhibit 1, p. 15 (1975). The duties of the business agents include participation in the negotiating of collective-bargaining agreements, organizing of union members, and processing of grievances. In addition, the business agents, along with the president, other elected officers, and shop stewards, sit as members of the Stewards Council, the legislative assembly of the Union. Petitioners had come up through the union ranks, and as business agents they were also members of Local 20. Discharge from their positions as business agents did not render petitioners ineligible to continue their union membership. Petitioners filed suit in the United States District Court, alleging that they had been terminated from their appointed positions in violation of the Labor-Management Reporting and Disclosure Act, 29 U. S. C. §§ 411(a)(1), 411(a)(2), 412, and 529. The District Court granted summary judgment for respondents Leu and Local 20, holding that the Act does not protect a union employee from discharge by the president of the union if the employee's rights as a union member are not affected. Navarro v. Leu, 469 F. Supp. 832 (1979). The United States Court of Appeals for the Sixth Circuit affirmed, concluding "that a union president should be able to work with those who will cooperate with his program and carry out his directives, and that these business agents, who *435 served at the pleasure of the union president, and actively supported the president's opponent could be removed from their employment as union business agents." App. to Pet. for Cert. A3. II The Labor-Management Reporting and Disclosure Act of 1959 was the product of congressional concern with widespread abuses of power by union leadership. The relevant provisions of the Act had a history tracing back more than two decades in the evolution of the statutes relating to labor unions. Tensions between union leaders and the rank-and-file members and allegations of union wrongdoing led to extended congressional inquiry. As originally introduced, the legislation focused on disclosure requirements and the regulation of union trusteeships and elections. However, various amendments were adopted, all aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution; not surprisingly, these amendments - ultimately enacted as Title I of the Act, 29 U. S. C. §§ 411-415 - were introduced under the title of "Bill of Rights of Members of Labor Organizations."[4] The amendments placed emphasis on the rights of union members to freedom of expression without fear of sanctions by the union, which in many instances could mean loss of union membership and in *436 turn loss of livelihood. Such protection was necessary to further the Act's primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships. See 105 Cong. Rec. 6471-6472, 6476, 15530 (1959), 2 Leg. Hist. 1098-1099, 1103, 1566. Sections 101(a)(1) and (2) of the Act, 29 U. S. C. §§ 411(a) (1) and (2), on which petitioners rely, guarantee equal voting rights, and rights of speech and assembly, to "[e]very member of a labor organization" (emphasis added).[5] In addition, § 609 of the Act, 29 U. S. C. § 529, renders it unlawful for a union or its representatives "to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act." (Emphasis added.)[6] It is readily apparent, both from the *437 language of these provisions and from the legislative history of Title I, that it was rank-and-file union members - not union officers or employees, as such - whom Congress sought to protect.[7] Petitioners held a dual status as both employees and members of the Union. As members of Local 20, petitioners undoubtedly had a protected right to campaign for Brown and support his candidacy. At issue here is whether they were thereby immunized from discharge at the pleasure of the president from their positions as appointed union employees. III Petitioners contend that discharge from a position as a union employee constitutes "discipline" within the meaning of § 609; and that termination of union employment is therefore unlawful when predicated upon an employee's exercise of rights guaranteed to members under the Act. However, we conclude that the term "discipline," as used in § 609, refers only to retaliatory actions that affect a union member's rights or status as a member of the union. Section 609 speaks in terms of disciplining "members"; and the three disciplinary sanctions specifically enumerated - fine, suspension, and expulsion - are all punitive actions taken against union members *438 as members.[8] In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees. See Sheridan v. Carpenters Local No. 626, 306 F. 2d 152, 156 (CA3 1962). We discern nothing in § 609, or its legislative history, to support petitioners' claim that Congress intended to establish a system of job security or tenure for appointed union employees. Congress used essentially the same language elsewhere in the Act with the specific intent not to protect a member's status as a union employee or officer. Section 101(a)(5), 29 U. S. C. § 411(a)(5), states that "[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined" without enumerated procedural protections. The Conference Report accompanying S. 1555 as finally enacted, H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959), 1 Leg. Hist. 935, explains that this "prohibition on suspension without observing certain safeguards applies only to suspension of membership in the union; it does not refer to suspension of a member's status as an officer of the union" (emphasis added). This too is a persuasive indication that the virtually identical language in § 609 was likewise meant to refer only to punitive actions diminishing membership rights, and not to termination of a member's status as an appointed union employee.[9] *439 We hold, therefore, that removal from appointive union employment is not within the scope of those union sanctions explicitly prohibited by § 609. IV Our analysis is complicated, however, by the fact that § 102, 29 U. S. C. § 412, provides independent authority for a suit against a union based on an alleged violation of Title I of the Act. Section 102 states that "[a]ny person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate." Although the intended relationship between §§ 102 and 609 is not entirely clear, it seems evident that a litigant may maintain an action under § 102 - to redress an "infringement" of "rights secured" under Title I - without necessarily stating a violation of § 609.[10] *440 The question still remains, however, whether petitioners' "rights secured" under Title I were "infringed" by the termination of their union employment. Petitioners, as union members, had a right under §§ 101(a)(1) and (2) to campaign for Brown and to vote in the union election, but they were not prevented from exercising those rights. Rather, petitioners allege only an indirect interference with their membership rights, maintaining that they were forced to "choos[e] between their rights of free expression . . . and their jobs." See Retail Clerks Union Local 648 v. Retail Clerks International Assn., 299 F. Supp. 1012, 1021 (DC 1969). We need not decide whether the retaliatory discharge of a union member from union office - even though not "discipline" prohibited under § 609 - might ever give rise to a cause *441 of action under § 102. For whatever limits Title I places on a union's authority to utilize dismissal from union office as "part of a purposeful and deliberate attempt . . . to suppress dissent within the union," cf. Schonfeld v. Penza, 477 F. 2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own.[11] Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage.[12] To the contrary, the Act's overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections. See Wirtz v. Hotel Employees, 391 U. S. 492, 497 (1968). Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election. Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect. Petitioners - appointed by the defeated candidate - campaigned openly against respondent Leu, who was elected by a substantial margin. The Union's bylaws, adopted, and subject to amendment, by a vote of the union membership, grant the president plenary authority to appoint, suspend, discharge, and direct the Union's business agents, who have significant *442 responsibility for the day-to-day conduct of union affairs. Nothing in the Act evinces a congressional intent to alter the traditional pattern which would permit a union president under these circumstances to appoint agents of his choice to carry out his policies. No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure, and by supporting him risk the displeasure of his successor. However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president's freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers. We therefore conclude that petitioners have failed to establish a violation of the Act. Accordingly, the decision of the Court of Appeals is Affirmed. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins, concurring. I am not prepared to hold that a newly elected president of a local union may discipline, without violating the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U. S. C. § 401 et seq., and as a matter of retaliation, all union member-employees who opposed his candidacy. As the Court notes, a union member possesses, under the Act, rights to freedom of expression and of speech and assembly, ante, at 436-437, and a right to support the candidate of his choice. I must assume that what the Court holds today is that the newly elected president may discharge the union's appointed business agents and other appointed union member-employees who will be instrumental in evolving the president's administrative *443 policies. See Elrod v. Burns, 427 U. S. 347 (1976); Branti v. Finkel, 445 U. S. 507 (1980). Indeed, the Court uses the terms "staff," ante, at 441, and "his own administrators," ibid. In addition, this particular union's bylaws expressly give the president plenary authority over the business agents. With that much, I have no difficulty. On the understanding, but only on the understanding, that the Court by its opinion is not reaching out further to decide the same issue with respect to nonpolicymaking employees, that is, rank-and-file member-employees (a matter which, for me, presents another case for another day), I join the Court's opinion. NOTES [*] Alan Hyde and Paul Alan Levy filed a brief for the Association for Union Democracy et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Marsha Berzon, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Amy Gladstein and James Reif for the National Labor Law Center of the National Lawyers Guild. [1] See, e. g., Lamb v. Miller, 212 U. S. App. D. C. 393, 660 F. 2d 792 (1981); Maceira v. Pagan, 649 F. 2d 8 (CA1 1981); Newman v. Local 1101, Communications Workers, 570 F. 2d 439 (CA2 1978); Bradford v. Textile Workers Local 1093, 563 F. 2d 1138 (CA4 1977); Gabauer v. Woodcock, 520 F. 2d 1084 (CA8 1975), cert. denied, 423 U. S. 1061 (1976); Wambles v. International Brotherhood of Teamsters, 488 F. 2d 888 (CA5 1974); Wood v. Dennis, 489 F. 2d 849 (CA7 1973) (en banc), cert. denied, 415 U. S. 960 (1974); Grand Lodge of International Assn. of Machinists v. King, 335 F. 2d 340 (CA9), cert. denied, 379 U. S. 920 (1964); Sheridan v. Carpenters Local No. 626, 306 F. 2d 152 (CA3 1962). [2] Brown challenged the election results and, following an investigation, the Secretary of Labor determined that unlawful employer contributions had affected the outcome of the election. The Secretary filed suit in the United States District Court for the Northern District of Ohio, and that court ordered a rerun election under the Secretary's supervision; the Court of Appeals for the Sixth Circuit affirmed. Marshall v. Local 20, Teamsters, 611 F. 2d 645 (1979). In the second election, Leu again defeated Brown. Brown and Leu had previously opposed each other in the 1974 election for the presidency. Although Leu defeated Brown by a slight margin, the election was set aside by the International Union because of irregularities at the polling places. Brown won the second election, which was held in 1975 under the supervision of a panel from the International Union. [3] When Brown was elected president in 1975, see n. 2, supra, the incumbent business agents resigned. [4] The original "Bill of Rights" amendment was introduced on the floor of the Senate by Senator McClellan and adopted by a vote of 47-46. 105 Cong. Rec. 6469-6493 (1959), 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1096-1119 (1959) (hereafter Leg. Hist.). However, a compromise version of the amendment introduced by Senator Kuchel was substituted shortly thereafter, 105 Cong. Rec. 6716-6727 (1959), 2 Leg. Hist. 1229-1239, and later approved by the House of Representatives as part of the Landrum-Griffin bill, H. R. 8400, 86th Cong., 1st Sess. (1959), 1 Leg. Hist. 628-633. See 105 Cong. Rec. 15711, 15859-15860, 1692-1702 (1959), 2 Leg. Hist. 1645, 1691-1692, 1693-1702. [5] Section 101(a)(1) provides: "Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws." Section 101(a)(2) provides: "Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations." [6] Section 609 provides: "It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act. The provisions of section 102 shall be applicable in the enforcement of this section." [7] The provisions of Title I consistently refer to the rights of union "members." As originally passed by the Senate, § 101(a)(4) - which in its present form protects the right of "any member" to institute legal proceedings against the union, 29 U. S. C. § 411(a)(4) - applied to "any member or officer" of a labor organization (emphasis added). S. 1555, 86th Cong., 1st Sess., § 101(a)(4) (1959), 1 Leg. Hist. 520. However, the words "or officer" were deleted from the Landrum-Griffin bill, H. R. 8400, 86th Cong., 1st Sess., § 101(a)(4) (1959), 1 Leg. Hist. 630-631, and the House version was retained in Conference, see H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959), 1 Leg. Hist. 935. See also Sheridan v. Carpenters Local No. 626, 306 F. 2d, at 156-157. [8] Compare § 201(a)(5)(H) of the Act, 29 U. S. C. § 431(a)(5)(H), which requires reporting on the procedures for "discipline or removal of officers or agents for breaches of their trust" (emphasis added). [9] In Grand Lodge of International Assn. of Machinists v. King, 335 F. 2d, at 344, the court held that Congress had used the "identical words . . . with quite different meanings" in the two sections. The court found that the "legislative gloss" on the words "otherwise disciplined" in § 101(a)(5) stemmed primarily from congressional concern that "wrongdoing union officials" - and particularly those guilty of misappropriating union funds - might be permitted "to remain in control while the time-consuming `due process' requirements of the section were met." Id., at 341-342. See 105 Cong. Rec. 17899 (1959) (remarks of Sen. Kennedy). However, viewing this concern as inapplicable with regard to § 609, the court concluded that "although Congress did not intend the words `otherwise discipline' to include removal from union office in section 101(a)(5), it did intend the words to include such action in section 609." 335 F. 2d, at 345. See also Maceira v. Pagan, 649 F. 2d, at 14; Wood v. Dennis, 489 F. 2d, at 853-854. We agree that the purposes of the two sections are different, and that the distinction drawn in King is one Congress plausibly could have chosen to make. However, we are hard pressed to discern any such distinction from either the language or legislative history of the Act. Certainly one would expect that if Congress had intended identical language to have substantially different meanings in different sections of the same enactment it would have manifested its intention in some concrete fashion. See Wood v. Dennis, supra, at 858 (Stevens, J., concurring in result). [10] Section 609, of course, applies to disciplinary action taken in retaliation for the exercise of any right secured under the Act, whereas § 102 protects only rights secured by Title I. Although the two sections may be somewhat duplicative as regards union discipline imposed in retaliation for the exercise of Title I rights, this seems due in large part to the fact that the provisions derived from different sources and were originally intended to serve quite different purposes. Section 102 was first included as part of the so-called Kuchel Amendment, see n. 4, supra, and was designed to enforce the provisions of Title I by creating an individual right of action for union members. 105 Cong. Rec. 6719 (1959), 2 Leg. Hist. 1232. In contrast, the precursor of § 609 created criminal penalties for retaliatory discipline, and was included in the Senate bill prior to the addition of the bill of rights, see S. 1555, 86th Cong., 1st Sess., § 506 (1959) (as reported), 2 Leg. Hist. 390; it apparently was thought to be primarily applicable to violations of the election provisions. See 105 Cong. Rec. 6534 (1959), 2 Leg. Hist. 1140; Rothman, Legislative History of the "Bill of Rights" for Union Members, 45 Minn. L. Rev. 199, 218 (1960). The Landrum-Griffin bill retained this provision, but "temper[ed] the remedy," 105 Cong. Rec. 15531 (1959), 2 Leg. Hist. 1567 (remarks of Rep. Griffin), providing for civil enforcement by the Secretary of Labor instead of criminal sanctions. H. R. 8400, 86th Cong., 1st Sess., § 609 (1959), 1 Leg. Hist. 676. Finally, one day before passage of the Landrum-Griffin bill, § 609 was amended to authorize private suits by making "[t]he provisions of section 102 . . . applicable in the enforcement of this section." The amendment was promoted by Congressmen who thought that enforcement by the Secretary would lead to "unnecessary injection of the executive branch on the Federal level into law enforcement matters," 105 Cong. Rec. 15830 (1959), 2 Leg. Hist. 1662 (remarks of Rep. Cramer). See Rothman, supra, at 219. [11] We leave open the question whether a different result might obtain in a case involving nonpolicymaking and nonconfidential employees. [12] We think it virtually inconceivable that Congress would have prohibited the longstanding practice of union patronage without any discussion in the legislative history of the Act. See Wood v. Dennis, 489 F. 2d, at 858 (Stevens, J., concurring in result). Had such a result been contemplated, it undoubtedly would have encountered substantial resistance. Moreover, Congress likely would have made some express accommodation to the needs of union employers to appoint and remove policymaking officials. See ibid.

239 U.S. 502 (1916) HAPAI v. BROWN. No. 120. Supreme Court of United States. Argued December 17, 1915. Decided January 10, 1916. ERROR TO THE SUPREME COURT OF THE TERRITORY OF HAWAII. *503 Mr. Lorrin Andrews for plaintiff in error. Mr. A.A. Wilder, with whom Mr. Alexander Britton, Mr. Evans Browne and Mr. F.W. Clements were on the brief, for defendant in error. MR. JUSTICE HOLMES delivered the opinion of the court. This is a bill to quiet title to an undivided 29/36 of the ahupuaa of Koanoulu, a large tract of land in the Island of Maui, Territory of Hawaii. The plaintiffs claim through the children of one Keaka other than one daughter, Paakuku, through whom the defendants claim the whole tract. One of the defences was res judicata. The proceeding relied upon as having decided the relative rights of the parties was a bill brought in November, 1871, by the plaintiffs' predecessors against Paakuku and others, alleging title in Keaka during her life; a devise by her to her heirs, followed by joint possession on the part of the plaintiffs and of Paakuku as quasi-trustee; and waste, a wrongful sale and a wrongful lease by Paakuku. The bill prayed for an account from Paakuku, that the sale and lease be ordered to be cancelled as against the plaintiffs, and that a partition be decreed. Paakuku's answer set up a conveyance of the premises by Keaka to her in fee and continuous possession by her since the date of the same. It also alleged that Keaka's will, if not overriden by the subsequent deed, devised the land to Paakuku in fee, subject to some merely personal and revocable rights in some of the plaintiffs. *504 The case was tried in the Supreme Court before the Chief Justice. On October 1, 1874, a Minute was entered: "The opinion of the Court is that the Petitioners have no title to the lands of Kaonoulu and Kaluapulu and so adjudge. There is no controversy about the title of the land at Wailuku and the petition for partition of that land is hereby granted and decreed accordingly." An opinion filed two days later discusses the title, decides that the deed alleged by Paakuku is freed from every suspicion, and repeats the language of the Minute. On October 12 it was decreed that the plaintiffs take nothing by their bill. The Supreme Court in the present case expressed the opinion which, apart from the deference due to it upon a local matter, does not require argument to support it, that the intention and meaning of the decree of October 12 was to dismiss the bill on the ground that the plaintiffs had not the title alleged. It therefore affirmed a judgment for the defendants holding that the plaintiffs were concluded by the former decree. The only point, if any, that can be argued, is that in general a bill for partition cannot be made a means of trying a disputed title, Clark v. Roller, 199 U.S. 541, 545, and that therefore the decree should be taken to be a dismissal for want of jurisdiction, or at least allowed no greater effect than if it had gone on that ground. But, as we cannot doubt the import of the decree when rendered, we are narrowed in our inquiry to the question of jurisdiction in an accurate sense. Unless we are prepared to pronounce the decree void for want of power to pass it and open to collateral attack, the decision in this case must stand. But there was no inherent difficulty, no impossibility in the nature of things or for want of physical power, in the attempt to decide title in the suit of 1871. And as was observed at the last term, it would seem surprising to suggest that the highest Court in the Hawaiian Islands did not know its own powers, or decide in accordance *505 with the requirements of the law of which that Court was the final mouthpiece. John Ii Estate v. Brown, 235 U.S. 342, 349. The plaintiffs in the former case in no way protested against the trial of their title, but on the contrary sought relief distinct from partition, that made the trial necessary. Even if we were disposed to go behind the decisions of the Chief Justice of the Kingdom and of the highest Court of the Territory upon a matter like this it would seem to us as unreasonable to hold the adjudication of title void because partition was prayed as to hold it void because the decree was made upon a multifarious bill. The cases where objections to the jurisdiction, though taken in the cause, have been held to have been waived go farther than we have to go here. We will not speculate as to how extreme a case must be to produce a different result; it is enough that this is far from the line. The defendants in error filed a motion to dismiss, which, in view of our opinion upon the merits they probably would not care to press but which we are not at liberty to disregard. The case is brought here by writ of error, whereas, it is said, it should have been brought up by appeal. By § 246 of the Judicial Code of March 3, 1911, c. 231, 36 Stat. 1087, 1158, writs of error and appeals from the final judgments and decrees of the Supreme Court of Hawaii may be taken `in the same manner, under the same regulations, and in the same classes of cases, in which' they may be taken from the final judgments and decrees of the court of a State, `and also in all cases wherein the amount involved, exclusive of costs, . . . exceeds the sum or value of five thousand dollars.' The present suit comes here under the last clause, at the trial a jury was waived, and the proposition is that the earlier provisions of the section do not govern this clause but that except when there is a trial by jury, the cases there mentioned must be brought to this Court by appeal under the Act of April 7, 1874, c. 80, § 2, 18 Stat. 27. It is said that *506 this has been the practice. See, e.g. Wm. W. Bierce, Ltd., v. Hutchins, 205 U.S. 340. Whether or not the incidental assumption in that decision that an appeal would lie was correct, we are of opinion that the proceeding by writ of error was justified by the plain meaning of § 246. So far as the policy of Congress might permit, (see Act of March 3, 1915, c. 90, § 274b, 38 Stat. 956,) we should be disposed to be a little astute to save a party's rights from being lost through mistakes upon a technical matter in the somewhat confused condition of the statutes. But we cannot doubt that the path adopted was right. Judgment affirmed.

53 U.S. 111 (1851) 12 How. 111 NATHANIEL WILLIAMS, AS PERMANENT TRUSTEE FOR THE CREDITORS OF JAMES WILLIAMS, AN INSOLVENT DEBTOR, PLAINTIFF IN ERROR, v. CHARLES OLIVER, ROBERT M. GIBBES, AND THOMAS OLIVER, EXECUTORS OF ROBERT OLIVER, AND JOHN GLENN, AND DAVID M. PERINE, TRUSTEES. Supreme Court of United States. *114 It was argued by Mr. Dulany and Mr. Schley, for the plaintiff in error, and Mr. Campbell and Mr. Johnson, for the defendants in error. *119 Mr. Justice NELSON delivered the opinion of the court. This case is not distinguishable from the case decided at the last term of Gill v. Oliver's Executors, and which was dismissed for want of jurisdiction. *120 It is reported in 11 How. 529. That case involved the right to the share of Lyde Goodwin as a member of the "Baltimore Mexican Company" in the fund that had been awarded to the members of that company by the commissioners under the convention of 1839 with Mexico. Gill claimed it as permanent trustee under the insolvent laws of Maryland, the benefit of which Goodwin had obtained in 1817, on the assignment of all his property for the use of his creditors. The executors of Oliver claimed the right of Goodwin to this fund under an assignment made by himself 30th May, 1829. The money awarded by the commissioners to this company under the treaty, had, by the agreement of all parties claiming an interest in the same, been deposited in the Mechanics' Bank of Baltimore, to be distributed according to the rights of the respective parties claiming it. The Court of Appeals of Maryland decided against the right of Gill, as the permanent trustee of Goodwin, under the insolvent proceedings, and in favor of the right of the executors of Oliver. The case was brought here by writ of error for review, and was dismissed as we have stated for want of jurisdiction. The Court of Appeals of Maryland had decided against the right of Gill, on the ground that the contract made by the "Baltimore Mexican Company" with General Mina, in 1816, by which means were furnished him to carry on a military expedition against the territories and dominions of the King of Spain, a foreign prince with whom the United States were at peace, was in violation of our Neutrality Act of 1794, and consequently illegal and void, and could not be the foundation of any right of property, or interest existing in Goodwin in 1817, the date of the insolvent proceedings, and hence, that no interest in the subject-matter passed to the permanent trustees, setting up a title under them. After the revolutionary party in Mexico had achieved their independence, and about the year 1825 the public authorities, under the new government, recognized this claim of the Baltimore Company, as valid and binding upon it, and as such it was brought before the board of commissioners, under the convention of 1839, and allowed. It was not denied on the argument, and, indeed, could not have been successfully, that the contract with General Mina in 1816, was illegal and void, having been made in express violation of law: and hence that no interest in, or right of property arising out of it, legal or equitable, could pass, in 1817, the date of the insolvent proceedings of Goodwin, to the trustee, for the benefit of his creditors. But, it was urged, that the subsequent *121 recognition and adoption of the obligation by the new government, had relation back, so as to confirm and legalize the original transaction, and thereby give operation and effect to the title of the trustee at the date mentioned. And upon this ground it was insisted that the decision of the court below, denying the right of Gill, the permanent trustee, was a decision against a right derived under the treaty and award of the commissioners, which therefore brought the case within the 25th section of the Judiciary Act. Undoubtedly, upon this aspect of the case, and assuming that there was any well-founded ground to be found in the record for maintaining it, jurisdiction might have been very properly entertained; and the question as to the effect of the recognition of the obligation by Mexico, and award under the treaty in pursuance thereof, upon the right claimed by the trustee under the insolvent proceedings, examined and decided. The decision below, in this aspect of the case, must have involved the effect and operation of the treaty, and award of the commissioners under it. But, a majority of the court were of opinion that no such question existed in the case, or was decided by the court below; and that the only one properly arising, or that was decided, was the one growing out of the contract with General Mina of 1816, and of the effect and operation to be given to it under the insolvent laws of Maryland. The money awarded to the Mexican Company was a fund in court, and had been brought in by the consent of all parties concerned, for distribution according to their respective rights. The plaintiff in error claimed the share of Goodwin, under the insolvent proceedings of 1817, as trustee for the creditors through the contract with Mina - the defendants by virtue of an assignment from Goodwin himself in 1829, after Mexico had recognized and acknowledged the claim as valid. The money had been awarded to certain persons "in trust for whom it may concern," without undertaking to settle the rights of the several claimants. The court, in giving effect and operation to the insolvent laws of Maryland, as to the vesting of the property and estate of the insolvent in the hands of the trustee, for the benefit of the creditors, held, that no interest or right could be claimed under them through the contract of 1816, but that the right of Goodwin to the fund passed by his assignment in 1829 to the defendants. Mr. Justice Grier, in delivering the opinion of the majority of the court, speaking of that decision, observes, that in deciding the question, the courts of Maryland have put no construction on the treaty or award asserted by one party to be the true one, and denied by the other. It was before them as a fact only, and *122 not for the purpose of construction. Whether this money paid into the court under the award, and first acknowledged by Mexico as a debt in 1825, existed as a debt transferable by the Maryland insolvent laws in 1817, or whether it, for the first time, assumed the nature of a chose in action transferable by assignment after 1825, when acknowledged of record by Mexico, and passed by the assignment of Lyde Goodwin to Robert Oliver, was a question wholly dehors the treaty and award, and involving the construction of the laws of Maryland only, and not of any treaty, or statute, or commission, under the United States. And Mr. Justice Woodbury, who dissented on the question of jurisdiction, observes, that the claim, so far as it regards the enforcement of the treaty with Mexico, does not seem to have been overruled in terms by the State Court. That court did not decide that the treaty was corrupt or illegal, or in any way a nullity, when they held that the original contract violated the laws of neutrality. So far, too, as regards the award made by the commissioners, that the Baltimore Mexican Company, and their legal representatives, had a just claim under the treaty for the amount awarded, it was not overruled at all. Again, he observes, that all must concede, that the State court speaks in language against the Mina contract alone as illegal, and in terms do not impugn either the treaty or the award; and it is merely a matter of inference or argument that either of these was assailed, or any right properly claimed under them overruled. But it is true the court held that Oliver's executors, rather than the appellant, were entitled to the fund furnished by Mexico, and long subsequent to Mina's contract; but in coming to that conclusion, they seem to have been governed by their own views as to their own laws and the principles of general jurisprudence. The treaty or award contained nothing as to the point whether Gill or Oliver's executors had the better right to his share, but only that the Mexican Company and their legal representatives should receive the fund. This last the court did not question. The decision of the court below, therefore, not involving the validity of the treaty, or award of the commissioners, or lawfulness or character of the fund, but simply the right and title to the respective shares claimed in it, after the fund had been paid over by the government, and brought into court for distribution according to the agreement of all concerned, and which distribution depended upon the laws of the State, a majority of the court, taking this view of the case, held, that there was a want of jurisdiction, and dismissed the writ of error; and that the decision, whether right or wrong, could not be the subject of review under the 25th section of the Judiciary Act, as it involved *123 no question, either directly or by necessary intendment, arising upon the treaty or award, or connected with the validity of either; and if this court were right in the view thus taken of the case, there can be no doubt as to the correctness of the conclusion arrived at. A different view of the case might, of course, lead to a different conclusion. Now, in the case before us, the plaintiff in error claims the share of John Gooding, one of the members of the Mexican Company, as permanent trustee under the insolvent laws of Maryland, having been appointed 29th January, 1842, Gooding having taken the benefit of these acts, and assigned his property for the benefit of the creditors as early as 1819. George Winchester had been previously appointed provisional trustee on the 23d June, 1819, to whom all property had been assigned, and on the 2d May, 1823, had been appointed permanent trustee, and gave a bond for the faithful execution of his duties without surety, and on the 2d April, 1825, sold the interest of Gooding in this share to Robert Oliver, under an order of sale made by the Baltimore County Court, having jurisdiction in the matter, for the consideration of $2,000. And in 1841 the Legislature of Maryland passed a law confirming this sale, a doubt having been suggested as to its validity, for want of a surety to the official bond of the trustee. In this state of the case the Court of Appeals of Maryland held, that the interest of Gooding in the Mexican contract did not pass, under their insolvent laws, to the plaintiff in error as permanent trustee, for the reasons assigned in the previous case of Gill v. Oliver's Executors. And that if it did or could have passed under these laws, it passed to Winchester, the previous trustee, in connection with the confirming act of the legislature of 1841. It is apparent, therefore, if the decision in the case of Gill v. Oliver's executors involved no question that gave to this court jurisdiction to revise it here, as has already been decided, none exists in the case before us; for, as it respects the question of jurisdiction, the two stand upon the same footing, and involve precisely the same principles. The counsel for the plaintiff in error sought to distinguish this case from the previous one, and to maintain the jurisdiction of the argument, upon the ground that the act of the Legislature of Maryland of 1841, confirming the authority of Winchester, the permanent trustee, was in contravention of a provision of the Constitution of the United States, as a "law impairing the obligation of contracts." But, admitting this to be so, (which we do not,) still the admission would not affect the result. For the decision upon the *124 previous branch of the case denied to the plaintiff any right to, or interest in, the fund in question, as claimed under the insolvent proceedings, as permanent trustee, and hence he was deemed disabled from maintaining any action founded upon that claim. It was of no importance, therefore, as it respected the plaintiff in the distribution of the fund, whether it was rightfully or wrongfully awarded to Oliver's executors. He had no longer any interest in the question. In order to give jurisdiction to this court to revise the judgment of a State court, under the 25th section of the Judiciary Act, a question must not only exist on the record, actually or by necessary intendment, as mentioned in that section and the decision of the court as there stated, but the decision must be controlling in the disposition of the case; or, in the language of some of the cases on the subject, "the judgment of the State court would not have been what it is, if there had not been a misconstruction of some act of Congress, or a decision against the validity of the right, title, privilege, or exemption set up under it." 3 Pet. 292, 302. Or, as stated by Mr. Justice Story, in Crowell v. Randell, (10 Pet. 392,) where he reviewed all the cases, it must appear "from the facts stated by just and necessary inference, that the question was made, and that the court below must, in order to have arrived at the judgment pronounced by it, have come to the very decision of that question as indispensable to that judgment." And in a recent case, (5 How. 341,) following out the doctrine of the previous cases, "It is not enough that the record shows that the plaintiff in error contended and claimed that the judgment of the court impaired the obligation of a contract, and violated the provisions of the Constitution of the United States, and that this claim was overruled by the court; but it must appear by clear and necessary intendment, that the question must have been raised, and must have been decided, in order to induce the judgment." It is not intended, nor to be understood, from these cases, that the question, thus material to the decision arrived at, must be confined exclusively and specially to the construction of the treaty, act of Congress, &c., in order to give the jurisdiction, as this would be too narrow a view of it. Points may arise growing out of, and connected with the general question, and so blended with it as not to be separated, and, therefore, falling equally within the decision contemplated by the 25th section. The cases of Smith v. the State of Maryland, 6 Cranch, 281, and Martin v. Hunter's Lessee, 1 Wheat. 305, 355, afford illustrations of this principle. Now, as the decision of the question involving the right and *125 title of the plaintiff in error to Gooding's interest in this fund under the insolvent proceedings was against him in the court below, and was one which, in our judgment, involved only a question of State law, and, therefore, not the subject of revision here, and was conclusive upon his rights, and decisive of the case, it follows that we have no jurisdiction within the principle of the cases to which we have referred; for the determination of the court upon the validity of the act of the legislature of 1841 in no way controlled the judgment at which the court arrived, as respected the plaintiff. That turned upon the decision as to the right of the plaintiff to the fund under the insolvent proceedings, as permanent trustee of Gooding, and whatever might have been the opinion of the court upon the other question, the result of their judgment would have been the same. For the reason, therefore, that this case falls directly within the decision of Gill v. Oliver's Executors, and is not distinguishable from it, the case must take the same direction, and be dismissed for want of jurisdiction. Order. This cause came on to be heard on the transcript of the record from the Court of Appeals of the State of Maryland for the Western Shore, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, for the want of jurisdiction.

(Slip Opinion) OCTOBER TERM, 2010 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SMITH ET AL. v. BAYER CORP. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 09-1205. Argued January 18, 2011 - Decided June 16, 2011 Respondent (Bayer) moved in Federal District Court for an injunction ordering a West Virginia state court not to consider a motion for class certification filed by petitioners (Smith), who were plaintiffs in the state-court action. Bayer thought such an injunction warranted be cause, in a separate case, Bayer had persuaded the same Federal District Court to deny a similar class-certification motion that had been filed against Bayer by a different plaintiff, George McCollins. The District Court had denied McCollins' certification motion under Fed. Rule Civ. Proc. 23. The court granted Bayer's requested injunction against the state court proceedings, holding that its denial of certification in McCollins' case precluded litigation of the certification issue in Smith's case. The Court of Appeals for the Eighth Circuit affirmed. It first noted that the Anti-Injunction Act (Act) generally prohibits federal courts from enjoining state court proceedings. But it found that the Act's re litigation exception authorized this injunction because ordinary rules of issue preclusion barred Smith from seeking certification of his pro posed class. In so doing, the court concluded that Smith was invok ing a State Rule, W. Va. Rule Civ. Proc. 23, that was sufficiently similar to the Federal Rule McCollins had invoked, such that the cer tification issues presented in the two cases were the same. The court further held that Smith, as an unnamed member of McCollins' puta tive class action, could be bound by the judgment in McCollins' case. Held: In enjoining the state court from considering Smith's class certifi cation request, the federal court exceeded its authority under the "re litigation exception" to the Act. Pp. 5-18. (a) Under that Act, a federal court "may not grant an injunction to stay proceedings in a State court except" in rare cases, when neces 2 SMITH v. BAYER CORP. Syllabus sary to "protect or effectuate [the federal court's] judgments." 28 U. S. C. §2283. The Act's "specifically defined exceptions," Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 286, "are narrow and are 'not [to] be enlarged by loose statutory construction,' " Chick Kam Choo v. Exxon Corp., 486 U. S. 140, 146. Indeed, "[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed." Atlantic Coast Line R. Co., 398 U. S., at 297. The excep tion at issue in this case, known as the "relitigation exception," au thorizes an injunction to prevent state litigation of a claim or issue "that previously was presented to and decided by the federal court." Chick Kam Choo, 486 U. S., at 147. This exception is designed to im plement "well-recognized concepts" of claim and issue preclusion. Ibid. Because deciding whether and how prior litigation has preclu sive effect is usually the bailiwick of the second court - here, the West Virginia court - every benefit of the doubt goes toward the state court, see Atlantic Coast Line, 398 U. S., at 287, 297; an injunction can issue only if preclusion is clear beyond peradventure. For the federal court's class-action determination to preclude the state court's adjudication of Smith's motion, at least two conditions must be met. First, the issue the federal court decided must be the same as the one presented in the state tribunal. And second, Smith must have been a party to the federal suit or must fall within one of a few discrete ex ceptions to the general rule against binding nonparties. Pp. 5-7. (b) The issue the federal court decided was not the same as the one presented in the state tribunal. This case is little more than a rerun of Chick Kam Choo. There, a federal court dismissed a suit involving Singapore law on forum non conveniens grounds and then enjoined the plaintiff from pursuing the "same" claim in Texas state court. However, because the legal standards for forum non conveniens dif fered in the two courts, the issues before those courts differed, mak ing an injunction unwarranted. Here, Smith's proposed class mir rored McCollins', and the two suits' substantive claims broadly overlapped. But the federal court adjudicated McCollins' certification motion under Federal Rule 23, whereas the state court was poised to consider Smith's proposed class under W. Va. Rule 23. And the State Supreme Court has generally stated that it will not necessarily inter pret its Rule 23 as coterminous with the Federal Rule. Absent clear evidence that the state courts had adopted an approach to State Rule 23 tracking the federal court's analysis in McCollins' case, this Court could not conclude that they would interpret their Rule the same way and, thus, could not tell whether the certification issues in the two courts were the same. That uncertainty would preclude an injunc tion. And indeed, the case against an injunction here is even  Cite as: 564 U. S. ____ (2011) 3 Syllabus stronger, because the State Supreme Court has expressly disap proved the approach to Rule 23(b)(3)'s predominance requirement embraced by the Federal District Court. Pp. 8-12. (c) The District Court's injunction was independently improper be cause Smith was not a party to the federal suit and was not covered by any exception to the rule against nonparty preclusion. Generally, a party "is '[o]ne by or against whom a lawsuit is brought,' " United States ex rel. Eisenstein v. City of New York, 556 U. S. ___, ___, or who "become[s] a party by intervention, substitution, or third-party practice," Karcher v. May, 484 U. S. 72, 77. The definition of "party" cannot be stretched so far as to cover a person like Smith, whom McCollins was denied leave to represent. The only exception to the rule against nonparty preclusion potentially relevant here is the ex ception that binds non-named members of "properly conducted class actions" to judgments entered in such proceedings. Taylor v. Stur gell, 553 U. S. 880, 894. But McCollins' suit was not a proper class action. Indeed, the very ruling that Bayer argues should have pre clusive effect is the District Court's decision not to certify a class. Absent certification of a class under Federal Rule 23, the precondi tion for binding Smith was not met. Neither a proposed, nor a re jected, class action may bind nonparties. See id., at 901. Bayer claims that this Court's approach to class actions would permit class counsel to try repeatedly to certify the same class simply by changing plaintiffs. But principles of stare decisis and comity among courts generally suffice to mitigate the sometimes substantial costs of simi lar litigation brought by different plaintiffs. The right approach does not lie in binding nonparties to a judgment. And to the extent class actions raise special relitigation problems, the federal Class Action Fairness Act of 2005 provides a remedy that does not involve depart ing from the usual preclusion rules. Pp. 12-18. 593 F. 3d 716, reversed. KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and in which THOMAS, J., joined as to Parts I and II-A.  Cite as: 564 U. S. ____ (2011) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 09-1205 _________________ KEITH SMITH, ET AL., PETITIONERS v. BAYER CORPORATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [June 16, 2011] JUSTICE KAGAN delivered the opinion of the Court.* In this case, a Federal District Court enjoined a state court from considering a plaintiff's request to approve a class action. The District Court did so because it had earlier denied a motion to certify a class in a related case, brought by a different plaintiff against the same defen dant alleging similar claims. The federal court thought its injunction appropriate to prevent relitigation of the issue it had decided. We hold to the contrary. In issuing this order to a state court, the federal court exceeded its authority under the "relitigation exception" to the Anti-Injunction Act. That statutory provision permits a federal court to enjoin a state proceeding only in rare cases, when necessary to "pro tect or effectuate [the federal court's] judgments." 28 U. S. C. §2283. Here, that standard was not met for two reasons. First, the issue presented in the state court was not identical to the one decided in the federal tribunal. And second, the plaintiff in the state court did not have the requisite connection to the federal suit to be bound by - - - - - - * JUSTICE THOMAS joins Parts I and II-A of this opinion. 2 SMITH v. BAYER CORP. Opinion of the Court the District Court's judgment. I Because the question before us involves the effect of a former adjudication on this case, we begin our statement of the facts not with this lawsuit, but with another. In August 2001, George McCollins sued respondent Bayer Corporation in the Circuit Court of Cabell County, West Virginia, asserting various state-law claims arising from Bayer's sale of an allegedly hazardous prescription drug called Baycol (which Bayer withdrew from the market that same month). McCollins contended that Bayer had vio lated West Virginia's consumer-protection statute and the company's express and implied warranties by selling him a defective product. And pursuant to West Virginia Rule of Civil Procedure 23 (2011), McCollins asked the state court to certify a class of West Virginia residents who had also purchased Baycol, so that the case could proceed as a class action. Approximately one month later, the suit now before us began in a different part of West Virginia. Petitioners Keith Smith and Shirley Sperlazza (Smith for short) filed state-law claims against Bayer, similar to those raised in McCollins' suit, in the Circuit Court of Brooke County, West Virginia. And like McCollins, Smith asked the court to certify under West Virginia's Rule 23 a class of Baycol purchasers residing in the State. Neither Smith nor McCollins knew about the other's suit. In January 2002, Bayer removed McCollins' case to the United States District Court for the Southern District of West Virginia on the basis of diversity jurisdiction. See 28 U. S. C. §§1332, 1441. The case was then transferred to the District of Minnesota pursuant to a preexisting order of the Judicial Panel on Multi-District Litigation, which had consolidated all federal suits involving Baycol (num bering in the tens of thousands) before a single District  Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court Court Judge. See §1407. Bayer, however, could not remove Smith's case to federal court because Smith had sued several West Virginia defendants in addition to Bayer, and so the suit lacked complete diversity. See §1441(b).1 Smith's suit thus remained in the state court house in Brooke County. Over the next six years, the two cases proceeded along their separate pretrial paths at roughly the same pace. By 2008, both courts were preparing to turn to their respec tive plaintiffs' motions for class certification. The Federal District Court was the first to reach a decision. Applying Federal Rule of Civil Procedure 23,2 the Dis trict Court declined to certify McCollins' proposed class of West Virginia Baycol purchasers. The District Court's reasoning proceeded in two steps. The court first ruled that, under West Virginia law, each plaintiff would have to prove "actual injury" from his use of Baycol to recover. App. to Pet. for Cert. 44a. The court then held that be cause the necessary showing of harm would vary from plaintiff to plaintiff, "individual issues of fact predomi nate[d]" over issues common to all members of the pro posed class, and so the case was not suitable for class treatment. Id., at 45a. In the same order, the District Court also dismissed McCollins' claims on the merits in light of his failure to demonstrate physical injury from his use of Baycol. McCollins chose not to appeal. Although McCollins' suit was now concluded, Bayer asked the District Court for another order based upon it, - - - - - - 1 The Class Action Fairness Act of 2005, 119 Stat. 4, which postdates and therefore does not govern this lawsuit, now enables a defendant to remove to federal court certain class actions involving nondiverse parties. See 28 U. S. C. §§1332(d), 1453(b); see also infra, at 17. 2 Although McCollins had originally sought certification under West Virginia Rule of Civil Procedure 23 (2011), federal procedural rules govern a case that has been removed to federal court. See Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. ___ (2010). 4 SMITH v. BAYER CORP. Opinion of the Court this one affecting Smith's case in West Virginia. In a motion - receipt of which first apprised Smith of McCol lins' suit - Bayer explained that the proposed class in Smith's case was identical to the one the federal court had just rejected. Bayer therefore requested that the federal court enjoin the West Virginia state court from hearing Smith's motion to certify a class. According to Bayer, that order was appropriate to protect the District Court's judgment in McCollins' suit denying class certification. The District Court agreed and granted the injunction. The Court of Appeals for the Eighth Circuit affirmed. In re Baycol Prods. Litigation, 593 F. 3d 716 (2010). The court noted that the Anti-Injunction Act generally prohib its federal courts from enjoining state court proceedings. But the court held that the Act's relitigation exception authorized the injunction here because ordinary rules of issue preclusion barred Smith from seeking certification of his proposed class. According to the court, Smith was invoking a similar class action rule as McCollins had used to seek certification "of the same class" in a suit alleging "the same legal theories," id., at 724; the issue in the state court therefore was "sufficiently identical" to the one the federal court had decided to warrant preclusion, ibid. In addition, the court held, the parties in the two proceedings were sufficiently alike: Because Smith was an unnamed member of the class McCollins had proposed, and because their "interests were aligned," Smith was appropriately bound by the federal court's judgment. Ibid. We granted certiorari, 561 U. S. __ (2010), because the order issued here implicates two circuit splits arising from application of the Anti-Injunction Act's relitigation excep tion. The first involves the requirement of preclusion law that a subsequent suit raise the "same issue" as a previous case.3 The second concerns the scope of the rule that a - - - - - - 3 Compare In re Baycol Prods. Litigation, 593 F. 3d 716, 723 (CA8  Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court court's judgment cannot bind nonparties.4 We think the District Court erred on both grounds when it granted the injunction, and we now reverse. II The Anti-Injunction Act, first enacted in 1793, provides that "A court of the United States may not grant an injunc tion to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U. S. C. §2283. The statute, we have recognized, "is a necessary concomi tant of the Framers' decision to authorize, and Congress' decision to implement, a dual system of federal and state courts." Chick Kam Choo v. Exxon Corp., 486 U. S. 140, 146 (1988). And the Act's core message is one of respect for state courts. The Act broadly commands that those tribunals "shall remain free from interference by federal courts." Atlantic Coast Line R. Co. v. Locomotive Engi - - - - - - 2010) (case below) (holding that two cases involve the same issue when "[t]he state and federal [class] certification rules . . . are not signifi cantly different"), with J. R. Clearwater Inc. v. Ashland Chemical Co., 93 F. 3d 176, 180 (CA5 1996) (holding that two cases implicate different issues even when "[the state rule] is modeled on . . . the Federal Rules" because a "[state] court might well exercise [its] discretion in a different manner"). 4 Compare 593 F. 3d, at 724 ("[T]he denial of class certification is binding on unnamed [putative] class members" because they are "in privity to [the parties] in the prior action") and In re Bridge stone/Firestone, Inc., Tires Prods. Liability Litigation, 333 F. 3d 763, 768-769 (CA7 2003) (same), with In re Ford Motor Co., 471 F. 3d 1233, 1245 (CA11 2006) (holding that "[t]he denial of class certification" prevents a court from "binding" anyone other than "the parties appear ing before it") and In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litigation, 134 F. 3d 133, 141 (CA3 1998) (holding that putative "class members are not parties" and so cannot be bound by a court's ruling when "there is no class pending"). 6 SMITH v. BAYER CORP. Opinion of the Court neers, 398 U. S. 281, 282 (1970). That edict is subject to only "three specifically defined exceptions." Id., at 286. And those exceptions, though designed for important purposes, "are narrow and are 'not [to] be enlarged by loose statutory construction.' " Chick Kam Choo, 486 U. S., at 146 (quoting Atlantic Coast Line, 398 U. S., at 287; alteration in original). Indeed, "[a]ny doubts as to the propriety of a federal injunction against state court pro ceedings should be resolved in favor of permitting the state courts to proceed." Id., at 297. This case involves the last of the Act's three exceptions, known as the relitigation exception. That exception is de signed to implement "well-recognized concepts" of claim and issue preclusion. Chick Kam Choo, 486 U. S., at 147. The provision authorizes an injunction to prevent state litigation of a claim or issue "that previously was pre sented to and decided by the federal court." Ibid. But in applying this exception, we have taken special care to keep it "strict and narrow." Id., at 148. After all, a court does not usually "get to dictate to other courts the preclu sion consequences of its own judgment." 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4405, p. 82 (2d ed. 2002) (hereinafter Wright & Miller). Deciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court (here, the one in West Virginia). So issuing an injunction under the relitigation exception is resorting to heavy artillery.5 For that reason, every benefit of the doubt goes toward the state court, see Atlantic Coast Line, 398 U. S., at 287, 297; an injunction can issue only if preclusion is clear beyond - - - - - - 5 That is especially so because an injunction is not the only way to correct a state trial court's erroneous refusal to give preclusive effect to a federal judgment. As we have noted before, "the state appellate courts and ultimately this Court" can review and reverse such a ruling. See Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 287 (1970).  Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court peradventure. The question here is whether the federal court's rejec tion of McCollins' proposed class precluded a later adjudi cation in state court of Smith's certification motion. For the federal court's determination of the class issue to have this preclusive effect, at least two conditions must be met.6 First, the issue the federal court decided must be the same as the one presented in the state tribunal. See 18 Wright & Miller §4417, at 412. And second, Smith must have been a party to the federal suit, or else must fall within one of a few discrete exceptions to the general rule against binding nonparties. See 18A id., §4449, at 330. In fact, as we will explain, the issues before the two courts were not the same, and Smith was neither a party nor the ex ceptional kind of nonparty who can be bound. So the courts below erred in finding the certification issue pre cluded, and erred all the more in thinking an injunction appropriate.7 - - - - - - 6 We have held that federal common law governs the preclusive effect of a decision of a federal court sitting in diversity. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 508 (2001). Smith assumes that federal common law should here incorporate West Virginia's preclusion law, see Brief for Petitioners 15-16, whereas Bayer favors looking only to federal rules of preclusion because of the federal inter ests at stake in this case, see Brief for Respondent 18. We do not think the question matters here. Neither party identifies any way in which federal and state principles of preclusion law differ in any relevant respect. Nor have we found any such divergence. Compare, e.g., Montana v. United States, 440 U. S. 147, 153-154 (1979) (describing elements of issue preclusion), with State v. Miller, 194 W. Va. 3, 9, 459 S. E. 2d 114, 120 (1995) (same). We therefore need not decide whether, in general, federal common law ought to incorporate state law in situations such as this. 7 Because we rest our decision on the Anti-Injunction Act and the principles of issue preclusion that inform it, we do not consider Smith's argument, based on Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985), that the District Court's action violated the Due Process Clause. 8 SMITH v. BAYER CORP. Opinion of the Court A In our most recent case on the relitigation exception, Chick Kam Choo v. Exxon, we applied the "same issue" requirement of preclusion law to invalidate a federal court's injunction. 486 U. S., at 151. The federal court had dismissed a suit involving Singapore law on grounds of forum non conveniens. After the plaintiff brought the same claim in Texas state court, the federal court issued an injunction barring the plaintiff from pursuing relief in that alternate forum. We held that the District Court had gone too far. "[A]n essential prerequisite for applying the relitigation exception," we explained, "is that the . . . is sues which the federal injunction insulates from litigation in state proceedings actually have been decided by the federal court." Id., at 148. That prerequisite, we thought, was not satisfied because the issue to be adjudicated in state court was not the one the federal court had resolved. The federal court had considered the permissibility of the claim under federal forum non conveniens principles. But the Texas courts, we thought, "would apply a significantly different forum non conveniens analysis," id., at 149; they had in prior cases rejected the strictness of the federal doctrine. Our conclusion followed: "[W]hether the Texas state courts are an appropriate forum for [the plaintiff's] Singapore law claims has not yet been litigated." Ibid. Because the legal standards in the two courts differed, the issues before the courts differed, and an injunction was unwarranted. The question here closely resembles the one in Chick Kam Choo. The class Smith proposed in state court mir rored the class McCollins sought to certify in federal court: Both included all Baycol purchasers resident in West Virginia. Moreover, the substantive claims in the two suits broadly overlapped: Both complaints alleged that Bayer had sold a defective product in violation of the State's consumer protection law and the company's war  Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court ranties. So far, so good for preclusion. But not so fast: a critical question - the question of the applicable legal standard - remains. The District Court ruled that the proposed class did not meet the requirements of Federal Rule 23 (because individualized issues would predominate over common ones). But the state court was poised to consider whether the proposed class satisfied West Vir ginia Rule 23. If those two legal standards differ (as federal and state forum non conveniens law differed in Chick Kam Choo) - then the federal court resolved an issue not before the state court. In that event, much like in Chick Kam Choo, "whether the [West Virginia] state cour[t]" should certify the proposed class action "has not yet been litigated." 486 U. S., at 149. The Court of Appeals and Smith offer us two competing ways of deciding whether the West Virginia and Federal Rules differ, but we think the right path lies somewhere in the middle. The Eighth Circuit relied almost exclusively on the near-identity of the two Rules' texts. See 593 F. 3d, at 723. That was the right place to start, but not to end. Federal and state courts, after all, can and do apply iden tically worded procedural provisions in widely varying ways. If a State's procedural provision tracks the lan guage of a Federal Rule, but a state court interprets that provision in a manner federal courts have not, then the state court is using a different standard and thus deciding a different issue. See 18 Wright & Miller §4417, at 454 (stating that preclusion is "inappropriate" when "different legal standards . . . masquerad[e] behind similar legal labels"). At the other extreme, Smith contends that the source of law is all that matters: a different sovereign must in each and every case "have the opportunity, if it chooses, to construe its procedural rule differently." Brief for Petitioners 22 (quoting ALI, Principles of the Law, Aggregate Litigation §2.11, Reporters' Notes, cmt. b, p. 181 (2010)). But if state courts have made crystal clear 10 SMITH v. BAYER CORP. Opinion of the Court that they follow the same approach as the federal court applied, we see no need to ignore that determination; in that event, the issues in the two cases would indeed be the same. So a federal court considering whether the relitiga tion exception applies should examine whether state law parallels its federal counterpart. But as suggested earlier, see supra, at 6, the federal court must resolve any uncer tainty on that score by leaving the question of preclusion to the state courts. Under this approach, the West Virginia Supreme Court has gone some way toward resolving the matter before us by declaring its independence from federal courts' inter pretation of the Federal Rules - and particularly of Rule 23. In In re W. Va. Rezulin Litigation, 214 W. Va. 52, 585 S. E. 2d 52 (2003) (In re Rezulin), the West Virginia high court considered a plaintiff's motion to certify a class - coincidentally enough, in a suit about an allegedly defec tive pharmaceutical product. The court made a point of complaining about the parties' and lower court's near exclusive reliance on federal cases about Federal Rule 23 to decide the certification question. Such cases, the court cautioned, " 'may be persuasive, but [they are] not binding or controlling.' " Id., at 61, 585 S. E. 2d, at 61. And lest anyone mistake the import of this message, the court went on: The aim of "this rule is to avoid having our legal analysis of our Rules 'amount to nothing more than Pav lovian responses to federal decisional law.' " Ibid. (italics omitted). Of course, the state courts might still have adopted an approach to their Rule 23 that tracked the analysis the federal court used in McCollins' case. But absent clear evidence that the state courts had done so, we could not conclude that they would interpret their Rule in the same way. And if that is so, we could not tell whether the certification issues in the state and federal courts were the same. That uncertainty would preclude an injunction. But here the case against an injunction is even stronger,  Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court because the West Virginia Supreme Court has disap proved the approach to Rule 23(b)(3)'s predominance requirement that the Federal District Court embraced. Recall that the federal court held that the presence of a single individualized issue - injury from the use of Baycol - prevented class certification. See supra, at 3. The court did not identify the common issues in the case; nor did it balance these common issues against the need to prove individual injury to determine which predominated. The court instead applied a strict test barring class treat ment when proof of each plaintiff's injury is necessary.8 By contrast, the West Virginia Supreme Court in In re Rezulin adopted an all-things-considered, balancing inquiry in interpreting its Rule 23. Rejecting any "rigid test," the state court opined that the predominance re quirement "contemplates a review of many factors." 214 W. Va., at 72, 585 S. E. 2d, at 72. Indeed, the court noted, a " 'single common issue' " in a case could outweigh " 'nu merous . . . individual questions.' " Ibid. That meant, the court further explained (quoting what it termed the "lead ing treatise" on the subject), that even objections to certifi cation " 'based on . . . causation, or reliance' " - which typi cally involve showings of individual injury - " 'will not bar predominance satisfaction.' " Ibid. (quoting 2 A. Conte & H. Newberg, Newberg on Class Actions §4.26, p. 241 (4th ed. 2002)). So point for point, the analysis set out in In re Rezulin diverged from the District Court's interpretation of Federal Rule 23. A state court using the In re Rezulin standard would decide a different question than the one - - - - - - 8 The District Court's approach to the predominance inquiry is consis tent with the approach employed by the Eighth Circuit. See In re St. Jude Medical, Inc., 522 F. 3d 836, 837-840 (2008) (holding that most commercial misrepresentation cases are "unsuitable for class treat ment" because individual issues of reliance necessarily predominate). We express no opinion as to the correctness of this approach. 12 SMITH v. BAYER CORP. Opinion of the Court the federal court had earlier resolved.9 This case, indeed, is little more than a rerun of Chick Kam Choo. A federal court and a state court apply differ ent law. That means they decide distinct questions. The federal court's resolution of one issue does not preclude the state court's determination of another. It then goes with out saying that the federal court may not issue an injunc tion. The Anti-Injunction Act's re-litigation exception does not extend nearly so far. B The injunction issued here runs into another basic premise of preclusion law: A court's judgment binds only the parties to a suit, subject to a handful of discrete and limited exceptions. See, e.g., 18A Wright & Miller §4449, at 330. The importance of this rule and the narrowness of its exceptions go hand in hand. We have repeatedly "em phasize[d] the fundamental nature of the general rule" that only parties can be bound by prior judgments; accord ingly, we have taken a "constrained approach to nonparty preclusion." Taylor v. Sturgell, 553 U. S. 880, 898 (2008). Against this backdrop, Bayer defends the decision below by arguing that Smith - an unnamed member of a pro - - - - - - 9 Bayer argues that In re Rezulin does not preclude an injunction in this case because the West Virginia court there decided that common issues predominated over individual issues of damages, not over indi vidual issues of liability (as exist here). See Brief for Respondent 25- 26. We think Bayer is right about this distinction, but wrong about its consequence. Our point is not that In re Rezulin dictates the answer to the class certification question here; the two cases are indeed too dissimilar for that to be true. The point instead is that In re Rezulin articulated a general approach to the predominance requirement that differs markedly from the one the federal court used. Minor variations in the application of what is in essence the same legal standard do not defeat preclusion; but where, as here, the State's courts "would apply a significantly different . . . analysis," Chick Kam Choo v. Exxon Corp., 486 U. S. 140, 149 (1988), the federal and state courts decide different issues.  Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court posed but uncertified class - qualifies as a party to the McCollins litigation. See Brief for Respondent 32-34. Alternatively, Bayer claims that the District Court's judgment binds Smith under the recognized exception to the rule against nonparty preclusion for members of class actions. See id., at 34-39. We think neither contention has merit. Bayer's first claim ill-comports with any proper under standing of what a "party" is. In general, "[a] 'party' to litigation is '[o]ne by or against whom a lawsuit is brought,' " United States ex rel. Eisenstein v. City of New York, 556 U. S. ___, ___ (2009) (slip op., at 4), or one who "become[s] a party by intervention, substitution, or third party practice," Karcher v. May, 484 U. S. 72, 77 (1987). And we have further held that an unnamed member of a certified class may be "considered a 'party' for the [particu lar] purpos[e] of appealing" an adverse judgment. Devlin v. Scardelletti, 536 U. S. 1, 7 (2002). But as the dissent in Devlin noted, no one in that case was "willing to advance the novel and surely erroneous argument that a non named class member is a party to the class-action litiga tion before the class is certified." Id., at 16, n. 1 (opinion of SCALIA, J.). Still less does that argument make sense once certification is denied. The definition of the term "party" can on no account be stretched so far as to cover a person like Smith, whom the plaintiff in a lawsuit was denied leave to represent.10 If the judgment in the McCollins - - - - - - 10 In support of its claim that Smith counts as a party, Bayer cites two cases in which we held that a putative member of an uncertified class may wait until after the court rules on the certification motion to file an individual claim or move to intervene in the suit. See Brief for Respon dent 32-33 (citing United Airlines, Inc. v. McDonald, 432 U. S. 385 (1977); American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974)). But these cases, which were specifically grounded in policies of judicial administration, demonstrate only that a person not a party to a class suit may receive certain benefits (such as the tolling of a limitations period) related to that proceeding. See id., at 553; McDonald, 432 14 SMITH v. BAYER CORP. Opinion of the Court litigation can indeed bind Smith, it must do so under principles of nonparty preclusion. As Bayer notes, see Brief for Respondent 37, one such principle allows unnamed members of a class action to be bound, even though they are not parties to the suit. See Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 874 (1984) ("[U]nder elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation"); see also Taylor, 553 U. S., at 894 (stating that nonparties can be bound in "properly conducted class actions"). But here Bayer faces a conundrum. If we know one thing about the McCollins suit, we know that it was not a class action. Indeed, the very ruling that Bayer argues ought to be given preclusive effect is the District Court's decision that a class could not properly be certi fied. So Bayer wants to bind Smith as a member of a class action (because it is only as such that a nonparty in Smith's situation can be bound) to a determination that there could not be a class action. And if the logic of that position is not immediately transparent, here is Bayer's attempt to clarify: "[U]ntil the moment when class certi fication was denied, the McCollins case was a properly conducted class action." Brief for Respondent 37. That is true, according to Bayer, because McCollins' interests were aligned with the members of the class he proposed and he "act[ed] in a representative capacity when he sought class certification." Id., at 36. But wishing does not make it so. McCollins sought class certification, but he failed to obtain that result. Because the District Court found that individual issues predomi - - - - - - U. S., at 394, n. 15. That result is consistent with a commonplace of preclusion law - that nonparties sometimes may benefit from, even though they cannot be bound by, former litigation. See Parklane Ho siery Co. v. Shore, 439 U. S. 322, 326-333 (1979); Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313 (1971).  Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court nated, it held that the action did not satisfy Federal Rule 23's requirements for class proceedings. In these circum stances, we cannot say that a properly conducted class action existed at any time in the litigation. Federal Rule 23 determines what is and is not a class action in federal court, where McCollins brought his suit. So in the absence of a certification under that Rule, the precondition for binding Smith was not met. Neither a proposed class action nor a rejected class action may bind nonparties. What does have this effect is a class action approved under Rule 23. But McCollins' lawsuit was never that. We made essentially these same points in Taylor v. Sturgell just a few Terms ago. The question there con cerned the propriety of binding nonparties under a theory of "virtual representation" based on "identity of interests and some kind of relationship between parties and non parties." 553 U. S., at 901. We rejected the theory unanimously, explaining that it "would 'recogniz[e], in effect, a common-law kind of class action.' " Ibid. Such a device, we objected, would authorize preclusion "shorn of [Rule 23's] procedural protections." Ibid. Or as otherwise stated in the opinion: We could not allow "circumvent[ion]" of Rule 23's protections through a "virtual representation doctrine that allowed courts to 'create de facto class ac tions at will.' " Ibid. We could hardly have been more clear that a "properly conducted class action," with bind ing effect on nonparties, can come about in federal courts in just one way - through the procedure set out in Rule 23. Bayer attempts to distinguish Taylor by noting that the party in the prior litigation there did not propose a class action. But we do not see why that difference matters. Yes, McCollins wished to represent a class, and made a motion to that effect. But it did not come to pass. To allow McCollins' suit to bind nonparties would be to adopt 16 SMITH v. BAYER CORP. Opinion of the Court the very theory Taylor rejected.11 Bayer's strongest argument comes not from established principles of preclusion, but instead from policy concerns relating to use of the class action device. Bayer warns that under our approach class counsel can repeatedly try to certify the same class "by the simple expedient of changing the named plaintiff in the caption of the com plaint." Brief for Respondent 47-48. And in this world of "serial relitigation of class certification," Bayer contends, defendants "would be forced in effect to buy litigation peace by settling." Id., at 2, 12; see also In re Bridge stone/Firestone, Inc., Tires Prods. Liability Litigation, 333 F. 3d 763, 767 (CA7 2003) (objecting to an "an asym metric system in which class counsel can win but never lose" because of their ability to relitigate the issue of certification). But this form of argument flies in the face of the rule against nonparty preclusion. That rule perforce leads to relitigation of many issues, as plaintiff after plaintiff after plaintiff (none precluded by the last judgment because none a party to the last suit) tries his hand at establishing some legal principle or obtaining some grant of relief. We confronted a similar policy concern in Taylor, which in volved litigation brought under the Freedom of Infor - - - - - - 11 The great weight of scholarly authority - from the Restatement of Judgments to the American Law Institute to Wright and Miller - agrees that an uncertified class action cannot bind proposed class members. See Restatement (Second) of Judgments §41(1), p. 393 (1980) (A nonparty may be bound only when his interests are adequately represented by "[t]he representative of a class of persons similarly situated, designated as such with the approval of the court"); ALI, Principles of the Law Aggregate Litigation §2.11, Reporters' Notes, cmt. b, p. 181 (2010) ("[N]one of [the exceptions to the rule against nonparty preclusion] extend generally to the situation of a would-be absent class member with respect to a denial of class certification"); 18A Wright & Miller §4455, at 457-458 ("[A]bsent certification there is no basis for precluding a nonparty" under the class-action exception).  Cite as: 564 U. S. ____ (2011) 17 Opinion of the Court mation Act (FOIA). The Government there cautioned that unless we bound nonparties a " 'potentially limitless' " number of plaintiffs, perhaps coordinating with each other, could "mount a series of repetitive lawsuits" de manding the selfsame documents. 553 U. S., at 903. But we rejected this argument, even though the payoff in a single successful FOIA suit - disclosure of documents to the public - could "trum[p]" or "subsum[e]" all prior losses, just as a single successful class certification motion could do. In re Bridgestone/Firestone, 333 F. 3d, at 766, 767. As that response suggests, our legal system generally relies on principles of stare decisis and comity among courts to mitigate the sometimes substantial costs of similar litiga tion brought by different plaintiffs. We have not thought that the right approach (except in the discrete categories of cases we have recognized) lies in binding nonparties to a judgment. And to the extent class actions raise special problems of relitigation, Congress has provided a remedy that does not involve departing from the usual rules of preclusion. In the Class Action Fairness Act of 2005 (CAFA), 28 U. S. C. §§1332(d), 1453 (2006 ed. and Supp. III), Congress enabled defendants to remove to federal court any sizable class action involving minimal diversity of citizenship. Once removal takes place, Federal Rule 23 governs certification. And federal courts may consolidate multiple overlapping suits against a single defendant in one court (as the Judi cial Panel on Multi-District Litigation did for the many actions involving Baycol). See §1407. Finally, we would expect federal courts to apply principles of comity to each other's class certification decisions when addressing a common dispute. See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U. S. 193, 198 (2000) (citing Landis v. North American Co., 299 U. S. 248, 254 (1936)). CAFA may be cold comfort to Bayer with respect to suits like this one beginning before its enactment. But Con 18 SMITH v. BAYER CORP. Opinion of the Court gress's decision to address the relitigation concerns associ ated with class actions through the mechanism of removal provides yet another reason for federal courts to adhere in this context to longstanding principles of preclusion.12 And once again, that is especially so when the federal court is deciding whether to go so far as to enjoin a state proceeding. * * * The Anti-Injunction Act prohibits the order the District Court entered here. The Act's relitigation exception au thorizes injunctions only when a former federal adjudica tion clearly precludes a state-court decision. As we said more than 40 years ago, and have consistently maintained since that time, "[a]ny doubts . . . should be resolved in favor of permitting the state courts to proceed." Atlantic Coast Line, 398 U. S., at 297. Under this approach, close cases have easy answers: The federal court should not issue an injunction, and the state court should decide the preclusion question. But this case does not even strike us as close. The issues in the federal and state lawsuits differed because the relevant legal standards differed. And the mere proposal of a class in the federal action could not bind persons who were not parties there. For these reasons, the judgment of the Court of Appeals is Reversed. - - - - - - 12 By the same token, nothing in our holding today forecloses legisla tion to modify established principles of preclusion should Congress decide that CAFA does not sufficiently prevent relitigation of class certification motions. Nor does this opinion at all address the permis sibility of a change in the Federal Rules of Civil Procedure pertaining to this question. Cf. n. 7, supra (declining to reach Smith's due process claim).

130 U.S. 674 (1889) LAKE COUNTY v. GRAHAM.[1] No. 1265. Supreme Court of United States. Submitted January 2, 1889. Decided May 13, 1889. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. *675 Mr. Daniel E. Parks and Mr. H.B. Johnson for plaintiff in error. Mr. Robert E. Foot and Mr. Willard Teller for defendant in error. MR. JUSTICE LAMAR delivered the opinion of the court. This action was instituted in the Circuit Court of the United States for the District of Colorado. It is a suit against the county of Lake, in that State, and is based on one hundred and ninety-eight coupons, aggregating the sum of $7280, and being for interest on certain bonds issued by the county on the 2d of January, 1882. The case was tried in the court below on an agreed statement of facts, which is in the bill of exceptions. From that agreement it appears that the bonds, from which the coupons sued on were detached, were executed in exchange for divers warrants of the county, to the amount of five hundred thousand dollars; that they were executed in compliance with an act of the General Assembly of Colorado, entitled "An act to enable the several counties of the State to fund their floating *676 indebtedness;" that the indebtedness of the county on the 6th day of September, 1881, the day the first notice was published under the act, as evidenced by county warrants, was $500,000, and the assessed valuation of the property of said county on said day was $16,423,403, afterwards rebated, in 1882, to $5,017,000, in accordance with a decision of the Supreme Court; and that such was the indebtedness and valuation on the day the bonds and coupons were issued. There is also in the record an agreement between the parties that if section six of article eleven of the constitution of the State of Colorado be construed to be a limitation upon the power of the defendant county to contract any and all indebtedness, including all such as that sued upon in this action, then it is admitted that the claimed indebtedness sued on herein was incurred after the limitation prescribed by said constitution had been reached and exceeded by the said defendant, the county of Lake, and in the event of such a construction by the Circuit Court, or the Supreme Court of the United States, then and in that case, and for the purposes of the action, it is also admitted that the defendant is entitled to judgment thereon, unless the defendant is estopped from making such defence by the recitals contained on the face of the bonds and coupons sued on in this action. In the case of Commissioners of Lake County v. Rollins, ante, 662, we have set forth said section six, and have decided that it does impose "a limitation upon the power of the defendant county to contract any and all indebtedness." That decision disposes of the first condition in the agreement recited above. It only remains to decide whether the county is estopped from making such defence by the recitals contained on the face of such bonds and coupons. The bonds and coupons are as follows: "No. ____. $____. "United States of America, County of Lake, State of Colorado. Funding bond. Series ____. "The county of Lake, in the State of Colorado, acknowledges itself indebted, and promises to pay to ____ ____, *677 or bearer, ____ dollars, lawful money of the United States, for value received, redeemable at the pleasure of the said county, after ten years, and absolutely due and payable twenty years from the date hereof, at the office of the treasurer of the said county, in the city of Leadville, or at the banking house of Jesup, Paton & Co., in the city of New York, at the option of the holder, with interest thereon at the rate of eight per cent per annum, payable semi-annually, on the first day of January and the first day of July in each year, at the office of the county treasurer aforesaid, or at the banking house of Jesup, Paton & Co., in the city of New York, at the option of the holder, upon the presentation and surrender of the annexed coupons as they severally become due. "This bond is one of 710 funding bonds each of like date, comprised in three series, designated `A,' `B,' and `C,' respectively, series `A' consisting of 450 bonds for the sum of one thousand dollars each, numbered from 1 to 450, both numbers inclusive; series `B' consisting of 60 bonds for the sum of five hundred dollars each, numbered from 451 to 510, both numbers inclusive; and series `C' consisting of 200 bonds for the sum of one hundred dollars each, numbered from 511 to 710, both numbers inclusive; the whole amounting to five hundred thousand dollars, which the board of county commissioners of said Lake County have issued under and by virtue of and in full compliance with an act of the general assembly of the State of Colorado entitled `An act to enable the several counties of the State to fund their floating indebtedness,' approved February 21, 1881; and it is hereby certified that all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond. It is further certified that this issue of bonds has been authorized by a vote of a majority of the duly qualified electors of said county of Lake, voting on the question at a general election duly held in said county on the 8th day of November, A.D. 1881. "The faith and credit of the county of Lake are hereby pledged for the punctual payment of the principal and interest of this bond. *678 "In testimony whereof the board of county commissioners of the said county of Lake has caused this bond to be signed by its chairman, countersigned by the county treasurer, and attested by the county clerk, under the seal of the county, this second day of January, A.D. 1882. "Attest: ____ ____, "[County seal.] County Clerk. ____ ____, "Chairman Board of County Commissioners." Section one of the act under which the bonds were issued is as follows: "SEC. 1. It shall be the duty of the county commissioners of any county having a floating indebtedness exceeding ten thousand dollars upon the petition of fifty of the electors of said counties (county) who shall have paid taxes upon property assessed to them in said county in the preceding year, to publish for the period of thirty days, in a newspaper within said county, a notice requesting the holders of the warrants of such county to submit, in writing, to the board of county commissioners, within thirty days from the date of the first publication of such notice, a statement of the amount of the warrants of such county which they will exchange, at par and accrued interest, for the bonds of such county, to be issued under the provisions of this act, taking such bonds at par. It shall be the duty of such board of county commissioners, at the next general election occurring after the expiration of thirty days from the date of the first publication of the notice aforementioned, upon the petition of fifty of the electors of such county, who shall have paid taxes upon property assessed to them in said county in the preceding year, to submit to the vote of the qualified electors of such county, who shall have paid taxes on property assessed to them in said county in the preceding year, the question whether the board of county commissioners shall issue bonds of such county, under the provisions of this act, in exchange, at par, for the warrants of such county, issued prior to the date of the first publication of the aforesaid notice; or they may submit such question at a *679 special election, which they are hereby empowered to call for that purpose, at any time after the expiration of thirty days from the date of the first publication of the notice aforementioned, on the petition of fifty qualified electors as aforesaid; and they shall publish, for the period of at least thirty days immediately preceding such general or special election, in some newspaper published within such county, a notice that such question will be submitted to the duly qualified electors as aforesaid at such election. The county treasurer of such county shall make out and cause to be delivered to the judges of election, in each election precinct in the county, prior to the said election, a certified list of the taxpayers in such county who shall have paid taxes upon property assessed to them in such county in the preceding year; and no person shall vote upon the question of the funding of the county indebtedness unless his name shall appear upon such list, or unless he shall have paid all county taxes assessed against him in such county in the preceding year. If a majority of the votes lawfully cast upon the question of such funding of the county indebtedness shall be for the funding of such indebtedness, the board of county commissioners may issue to any person or corporation holding any county warrant or warrants, issued prior to the date of the first publication of the aforementioned notice, coupon bonds of such county in exchange therefor at par. No bonds shall be issued of less denomination than one hundred dollars, and if issued for a greater amount, then for some multiple of that sum, and the rate of interest shall not exceed eight per cent per annum. The interest to be paid semi-annually, at the office of the county treasurer, or in the city of New York, at the option of the holders thereof. Such bonds to be payable at the pleasure of the county, after ten years from the date of their issuance, but absolutely due and payable twenty years after date of issue. The whole amount of bonds issued under this act shall not exceed the sum of the county indebtedness at the date of the first publication of the aforementioned notice, and the amount shall be determined by the county commissioners, and a certificate made of the same, and made a part of the records of the county; and any bond issued in excess *680 of said sum shall be null and void; and all bonds issued under the provisions of this act shall be registered in the office of the state auditor, to whom a fee of ten cents shall be paid for recording each bond." Nothing is better settled than this rule - that the purchaser of bonds, such as these, is held to know the constitutional provisions and the statutory restrictions bearing on the question of the authority to issue them; also the recitals of the bonds he buys; while, on the other hand, if he act in good faith and pay value, he is entitled to the protection of such recitals of facts as the bonds may contain. In this case the constitution charges each purchaser with knowledge of the fact that, as to all counties whose assessed valuation equals one million of dollars, there is a maximum limit, beyond which those counties can incur no further indebtedness under any possible conditions, provided, that in calculating that limit, debts contracted before the adoption of the constitution are not to be counted. The statute, on the other hand, charges the purchaser with knowledge of the fact that the county commissioners were to issue bonds, at par, in exchange for such warrants of the county as were themselves issued prior to the date of the first publication of the notice provided for; that the only limitation on the issue of bonds in the statute was, that the bonds should not exceed in amount the sum of the county indebtedness on the day of notice aforesaid; that while the commissioners were empowered to determine the amount of such indebtedness, yet the statute does not refer that board, for the elements of its computation to the constitution or to the standards prescribed by the constitution, but leaves it open to them, without departing from any direction of the statute, to adopt solely the basis of the county warrants. The recitals of the bonds were merely to the effect that the issue was "under, and by virtue of, and in full compliance with," the statute; "that all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond;" and that the issuing was "authorized by a vote of a majority of the duly qualified electors," etc.; no express reference being made *681 to the constitution, nor any statement made that the constitutional requirements had been observed. There is, therefore, no estoppel as to the constitutional question, because there is no recital in regard to it. Carroll County v. Smith, 111 U.S. 556. It is true, it might be said, that inasmuch as the bonds recite that all the requirements of the statute had been fully complied with by the proper officers, and inasmuch as one of those requirements was that the officers should determine the amount of the county debt, the inference is fair and reasonable that the statute meant only that they should count what was a just and actual debt, not claims that were void, and therefore no debt; and that the recital made was in effect a statement that the whole matter had been examined by the board, and that they had issued bonds for only such warrants as were found to be issued in conformity to the law, the whole law - fundamental as well as statute. Waiving the question as to whether such a conclusion, persuasive as it might be in other aspects of a cause, is not too remote and indirect for the basis of an estoppel, the avowed object of which is to exclude from consideration the truth, still how could the case be any better for the defendant in error? Had the bond expressly stated that the board canvassed the debt, and found the same to be binding and valid under the law and the constitution, and that the same was $500,000, the recital would not be an estoppel. It must be remembered that these bonds show on their face an issue of $500,000. In the case of Dixon County v. Field, 111 U.S. 83, 92, this court said: "Recurring, then, to a consideration of the recitals in the bonds, we assume, for the purposes of this argument, that they are in legal effect equivalent to a representation, or warranty, or certificate on the part of the county officers, that everything necessary by law to be done has been done, and every fact necessary by law to have existed did exist, to make the bonds lawful and binding. Of course, this does not extend to or cover matters of law. All parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, when, *682 judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law. Otherwise it would always be in the power of a municipal body, to which power was denied, to usurp the forbidden authority, by declaring that its assumption was within the law. This would be the clear exercise of legislative power, and would suppose such corporate bodies to be superior to the law itself." Now, while it is true that the bonds show on their face an issue of $500,000, yet it is also true that neither the constitution nor the statute nor the bond shows the amount of the valuation of the county; and it therefore might be said that, for this reason, and notwithstanding the purchaser's knowledge of the limit, and his knowledge that $500,000 of debt was incurred, yet he might not have known that the limit had been exceeded, being ignorant of the other term in the calculation, that of the amount of the assessed values, and that the recital of conformity, misleading him, would operate as an estoppel. This question is settled in the case of Dixon County v. Field, supra. The court there say, p. 93: "If the fact necessary to the existence of the authority was by law to be ascertained, not officially by the officers charged with the execution of the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be, that the authority to act at all depended upon the actual objective existence of the requisite fact, as shown by the record, and not upon its ascertainment and determination by any one; and the consequence would necessarily follow, that all persons claiming under the exercise of such a power might be put to proof of the fact made a condition of its lawfulness, notwithstanding any recitals in the instrument." "The amount of the bonds issued was known. It is stated in the recital itself. It was $87,000. The holder of each bond was apprised of that fact. The amount of the assessed value of the taxable property in the county is not stated; but, ex vi termini, it was ascertainable in one way only, and that was by reference to the assessment itself, a public record equally accessible *683 to all intending purchasers of bonds, as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. No recital involving the amount of the assessed taxable valuation of the property to be taxed for the payment of the bonds can take the place of the assessment itself, for it is the amount as fixed by reference to that record that is made by the constitution the standard for measuring the limit of the municipal power. Nothing in the way of inquiry, ascertainment, or determination as to that fact is submitted to the county officers. They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exercise of their functions and the performance of their duty; but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. The fact, as it is recorded in the assessment itself, is extrinsic, and proves itself by inspection, and concludes all determinations that contradict it." To the suggestion that the purchaser was not chargeable with knowledge of the fact that the maximum of 12 mills on the dollar had been exceeded - for the $500,000 of debt ascertained to be due on the day of notice, and for which bonds were issued, might have been partly or wholly created before the constitution was adopted, and therefore be excluded from the rule by the very terms of the constitution itself - there are two decisive answers. First, the bill of exceptions shows that the debt was not so created either in whole or in part. Second, the defendant in error is not entitled to an estoppel even if such an inference might have been drawn from the recital of conformity. The cases just cited show that the records are the only source of information. The question here is distinguishable from that in the cases relied on by counsel for defendant in error. In this case the standard of validity is created by the constitution. In that standard two factors are to be considered; one the amount of assessed value, and the other the ratio between that assessed value and the debt proposed. These being *684 exactions of the constitution itself, it is not within the power of a legislature to dispense with them, either directly or indirectly, by the creation of a ministerial commission whose finding shall be taken in lieu of the facts. In the case of Sherman County v. Simons, 109 U.S. 735, and others like it, the question was one of estoppel as against an exaction imposed by the legislature; and the holding was, that the legislature, being the source of exaction, had created a board authorized to determine whether its exaction had been complied with, and that its finding was conclusive to a bona fide purchaser. So also in Oregon v. Jennings, 119 U.S. 74, the condition violated was not one imposed by the constitution, but one fixed by the subscription contract of the people. For these reasons, and under the stipulation above recited, The judgment of the court below is reversed, and the case is remanded to that court, with a direction to enter judgment for the defendant. NOTES [1] The docket title of this case is The Board of County Commissioners of the County of Lake v. Graham.

29 U.S. 514 (____) 4 Pet. 514 THE PROVIDENCE BANK, PLAINTIFFS IN ERROR vs. ALPHEUS BILLINGS AND THOMAS G. PITTMAN. Supreme Court of United States. *517 The case was argued by Mr Whipple, for the plaintiffs in error; and by Mr Hazzard and Mr Jones, for the defendants. Mr Hazzard, for the defendants. *559 Mr Chief Justice MARSHALL delivered the opinion of the Court. This is a writ of error to a judgment rendered in the highest court for the state of Rhode Island, in an action of trespass brought by the plaintiff in error against the defendant. In November 1791 the legislature of Rhode Island grant-a charter of incorporation to certain individuals, who had associated themselves together for the purpose of forming a banking company. They are incorporated by the name of the "President, Directors, and Company of the Providence Bank;" and have the ordinary powers which are supposed to be necessary for the usual objects of such associations. In 1822 the legislature of Rhode Island passed "an act imposing a duty on licensed persons and others, and bodies corporate within the state;" in which, among other things, it is enacted that there shall be paid, for the use of the state, by each and every bank within the state, except the Bank of the United States, the sum of fifty cents on each and every thousand dollars of the capital stock actually paid in." This tax was afterwards augmented to one dollar and twenty-five cents. The Providence Bank, having determined to resist the payment of this tax, brought an action of trespass against the officers by whom a warrant of distress was issued against and served upon the property of the bank, in pursuance of the law. The defendants justify the taking set out in the declaration under the act of assembly imposing the tax; to which plea the plaintiffs demur, and assign for cause of demurrer that the act is repugnant to the constitution of the United States, inasmuch as it impairs the obligation of the contract created by their charter of incorporation. Judgment *560 was given by the court of common pleas in favour of the defendants; which judgment was, on appeal, confirmed by the supreme judicial court of the state: that judgment has been brought before this court by a writ of error. It has been settled that a contract entered into between a state and an individual, is as fully protected by the tenth section of the first article of the constitution, as a contract between two individuals; and it is not denied that a charter incorporating a bank is a contract. Is this contract impaired by taxing the banks of the state? This question is to be answered by the charter itself. It contains no stipulation promising exemption from taxation. The state, then, has made no express contract which has been impaired by the act of which the plaintiffs complain. No words have been found in the charter, which, in themselves, would justify the opinion that the power of taxation was in the view of either of the parties; and that an exemption of it was intended, though not expressed. The plaintiffs find great difficulty in showing that the charter contains a promise, either express or implied, not to tax the bank. The elaborate and ingenious argument which has been urged amounts, in substance, to this. The charter authorises the bank to employ its capital in banking transactions, for the benefit of the stockholders. It binds the state to permit these transactions for this object. Any law arresting directly the operations of the bank would violate this obligation, and would come within the prohibition of the constitution. But, as that cannot be done circuitously which may not be done directly, the charter restrains the state from passing any act which may indirectly destroy the profits of the bank. A power to tax the bank may unquestionably be carried to such an excess as to take all its profits, and still more than its profits for the use of the state; and consequently destroy the institution. Now, whatever may be the rule of expediency, the constitutionality of a measure depends, not on the degree of its exercise, but on its principle. A power therefore which may in effect destroy the charter, is inconsistent with it; and is impliedly renounced by granting it. Such a power cannot be exercised without impairing *561 the obligation of the contract. When pushed to its extreme point, or exercised in moderation, it is the same power, and is hostile to the rights granted by the charter. This is substantially the argument for the bank. The plaintiffs cite and rely on several sentiments expressed, on various occasions by this court, in support of these positions. The claim of the Providence Bank is certainly of the first impression. The power of taxing moneyed corporations has been frequently exercised; and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argument against it. That the taxing power is of vital importance; that it is essential to the existence of government; are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist: but as the whole community is interested in retaining it undiminished; that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear. The plaintiffs would give to this charter the same construction as if it contained a clause exempting the bank from taxation on its stock in trade. But can it be supposed that such a clause would not enlarge its privileges? They contend that it must be implied; because the power to tax may be so wielded as to defeat the purpose for which the charter was granted. And may not this be said with equal truth of other legislative powers? Does it not also apply with equal force to every incorporated company? A company may be incorporated for the purpose of trading in goods as well as trading in money. If the policy of the state should lead to the imposition of a tax on unincorporated companies, could those which might be incorporated claim an exemption, in virtue of a charter which does not indicate such an intention? The time may come when a duty may be imposed on *562 manufactures. Would an incorporated company be exempted from this duty, as the mere consequence of its charter? The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist. If the power of taxation is inconsistent with the charter, because it may be so exercised as to destroy the object for which the charter is given; it is equally inconsistent with every other charter, because it is equally capable of working the destruction of the objects for which every other charter is given. If the grant of a power to trade in money to a given amount, implies an exemption of the stock in trade from taxation, because the tax may absorb all the profits; then the grant of any other thing implies the same exemption; for that thing may be taxed to an extent which will render it totally unprofitable to the grantee. Land, for example, has, in many, perhaps in all the states, been granted by government since the adoption of the constitution. This grant is a contract, the object of which is that the profits issuing from it shall enure to the benefit of the grantee. Yet the power of taxation may be carried so far as to absorb these profits. Does this impair the obligation of the contract? The idea is rejected by all; and the proposition appears so extravagant, that it is difficult to admit any resemblance in the cases. And yet if the proposition for which the plaintiffs contend be true, it carries us to this point. That proposition is, that a power which is in itself capable of being exerted to the total destruction of the grant, is inconsistent with the grant; and is therefore impliedly relinquished by the grantor, though the language of the instrument contains no allusion to the subject. If this be an abstract truth, it may be supposed universal. But it is not universal; and therefore its truth cannot be admitted, in these broad terms, in any case. We must look for the exemption in the language of the instrument; and if we do *563 not find it there, it would be going very far to insert it by construction. The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens; and that portion must be determined by the legislature. This vital power may be abused; but the constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation; as well as against unwise legislation generally. This principle was laid down in the case of M'Cullough vs. The State of Maryland, and in Osborn et al. vs. The Bank of the United States. Both those cases, we think, proceeded on the admission that an incorporated bank, unless its charter shall express the exemption, is no more exempted from taxation, than an unincorporated company would be, carrying on the same business. The case of Fletcher vs. Peck has been cited; but in that case the legislature of Georgia passed an act to annul its grant. The case of the State of New Jersey vs. Wilson has been also mentioned; but in that case the stipulation exempting the land from taxation, was made in express words. The reasoning of the court in the case of M'Cullough vs. The State of Maryland has been applied to this case; but the court itself appears to have provided against this application. Its opinion in that case, as well as in Osborn et al. vs. The Bank of the United States, was founded, expressly, on the supremacy of the laws of congress, and the necessary consequence of that supremacy to exempt its instruments employed *564 in the execution of its powers, from the operation of any intefering power whatever. In reasoning on the argument that the power of taxation was not confined to the people and property of a state, but might be exercised on every object brought within its jurisdiction, this court admitted the truth of the proposition; and added, that "the power was an incident of sovereignty, and was co-extensive with that to which it was an incident. All powers, the court said, over which the sovereign power of a state extends, are subjects of taxation. The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think not. So in the case of Osborn vs. The Bank of the United States, the court said, "the argument" in favour of the right of the state to tax the bank, "supposes the corporation to have been originated for the management of an individual concern, to be founded upon contract between individuals, having private trade and private profit for its great end and principal object. If these premises were true, the conclusion drawn from them would be inevitable. This mere private corporation, engaged in its own business, would certainly be subject to the taxing power of the state as any individual would be." The court was certainly not discussing the question whether a tax imposed by a state on a bank chartered by itself, impaired the obligation of its contract; and these opinions are not conclusive as they would be had they been delivered in such a case: but they show that the question was not considered as doubtful, and that inferences drawn from general expressions pointed to a different subject cannot be correctly drawn. We have reflected seriously on this case, and are of opinion that the act of the legislature of Rhode Island, passed in 1822, imposing a duty on licensed persons and others, and bodies corporate within the state, does not impair the obligation of the contract created by the charter granted to the *565 plaintiffs in error. It is therefore the opinion of this court, that there is no error in the judgment of the supreme judicial court for the state of Rhode Island, affirming the judgment of the circuit court in this case; and the same is affirmed; and the cause is remanded to the said supreme judicial court, that its judgment may be finally entered. This cause came on to be heard on the transcript of the record from the supreme judicial court of the state of Rhode Island and Providence plantations, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said supreme judicial court in this cause be, and the same is hereby affirmed, with costs.

273 U.S. 45 (1927) INTERSTATE BUSSES CORPORATION v. HOLYOKE STREET RAILWAY COMPANY. No. 343. Supreme Court of United States. Argued October 27, 28, 1926. Decided January 3, 1927. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. *46 Mr. Edward H. Kelly for the appellant. Mr. David H. Keedy, with whom Mr. William H. Brooks was on the brief, for the appellees. *48 MR. JUSTICE BUTLER delivered the opinion of the Court. This suit was brought by appellant against the Holyoke Street Railway Company, its president and general manager, police and prosecuting officers of a number of cities and towns, the chief of the state police, and the district attorneys of the Western and Northern Districts of Massachusetts. Its purpose is to restrain the enforcement of a state statute relating to common carriers of passengers by motor vehicles as in conflict with the commerce clause of the Constitution of the United States and with the due process clause of the Fourteenth Amendment. The case was heard before a court of three judges (§ 266, Judicial Code) on an agreed statement of facts; and a final decree dismissing the complaint was entered. Sections 45, 48A and 49 of c. 159, General Laws, as amended by c. 280. Acts of 1925, contain the provisions attacked: No person shall operate a motor vehicle upon a public way in any city or town for the carriage of passengers for hire so as to afford a means of transportation similar to that afforded by a railway company by indiscriminately receiving and discharging passengers along the route on which the vehicle is operated, or as a business between fixed and regular termini, without first obtaining a license. The licensing authority in a city is its council, *49 in a town is its selectmen; and, as to public ways under its control, is the metropolitan district commission. No person shall operate a motor vehicle under such license unless he has also obtained from the Department of Public Utilities a certificate that public convenience and necessity require such operation. Anyone operating under a license from local authority and a certificate from the department is declared to be a common carrier and subject to regulation as such. Violations of §§ 45-48 or of any order, rule or regulation made under them are punishable by fine or imprisonment or both. And the Act gives to the Supreme Judicial and Superior Courts jurisdiction in equity to restrain any violation upon petition of the department, any licensing authority, ten citizens of a city or town affected by the violation, or any interested party. Neither license nor certificate is required in respect of such carriage as may be exclusively interstate. The material facts stipulated are: For many years, the appellee Holyoke Street Railway Company has been a common carrier of passengers by street railway in Massachusetts through Holyoke, South Hadley, Granby, Amherst and into Sunderland. Appellant is engaged in the business of transporting passengers for hire by motor vehicle, and operates busses between Hartford, Connecticut, and Greenfield, Massachusetts. It has operated its busses between Hartford and Springfield since December 1, 1924, and north of Springfield to Greenfield since about December 15, 1925. Its route in Massachusetts passes through Springfield, West Springfield, Holyoke, Granby, Amherst, Sunderland, Deerfield and Greenfield. With certain exceptions not here material, all its busses run the whole distance between Hartford and Greenfield. It transports persons from one State into the other, and also those whose journeys begin and end in Massachusetts. Both classes of passengers, intrastate and interstate, *50 are carried in the same vehicles. Intrastate passengers constitute a very substantial part of the whole number carried in Massachusetts. Appellant maintains an office and garage at Springfield and advertises its route and rates. The busses are operated between fixed termini in Massachusetts. They operate regularly on public ways parallel to and alongside the tracks of the street railway company and afford means of transportation similar to those furnished by that company. They stop regularly and also on signal to receive and discharge passengers. The operation of the busses in competition with the street railway has resulted in substantial loss to the latter. Appellant has not obtained a license from any of the cities or towns served by the street railway company. And that company, its president and counsel have caused plaintiff's employees to be arrested and prosecuted and intend to continue to prosecute them for operating without obtaining the licenses and certificate required by the statute. The statutory provisions in question have been sustained by the highest court of Massachusetts. New York, N.H. & H. Railroad v. Deister, 253 Mass. 178; Barrows v. Farnum's Stage Lines, 254 Mass. 240; Boston & M.R.R. v. Cate, 254 Mass. 248; Boston & M.R.R. v. Hart, 254 Mass. 253; Commonwealth v. Potter, 254 Mass. 520. And these decisions were followed by the district court in this case. Appellant's principal contention is that the Act contravenes the commerce clause. If as applied it directly interferes with or burdens appellant's interstate commerce, it cannot be sustained regardless of the purpose for which it was passed. See Shafer v. Farmers Grain Co., 268 U.S. 189, 199; Real Silk Mills v. Portland, 268 U.S. 325, 336; Colorado v. United States, 271 U.S. 153, 163; Di Santo v. Pennsylvania, ante, p. 34. The Act existed in some form before interstate transportation of passengers *51 for hire by motor vehicle was undertaken. Its purpose is to regulate local and intrastate affairs. Barrows v. Farnum's Stage Lines, supra. No license from local authorities or certificate of public convenience and necessity is required in respect of transportation that is exclusively interstate. Cf. Buck v. Kuykendall, 267 U.S. 307; Bush Co. v. Maloy, 267 U.S. 317. The burden is upon appellant to show that enforcement of the Act operates to prejudice interstate carriage of passengers. The stipulated facts do not so indicate. The threatened enforcement is to prevent appellant from carrying intrastate passengers without license over that part of its route which is parallel to the street railway. Its right to use the highways between Springfield and Hartford is not in controversy. While it appears that in Massachusetts both classes of passengers are carried in the same vehicles, it is not shown what part of the total number are intrastate or interstate. The record contains no information as to the number of persons, if any, travelling in interstate commerce on appellant's busses over the part of the route competing with the street railway. It is not shown that the two classes of business are so commingled that the separation of one from the other is not reasonably practicable or that appellant's interstate passengers may not be carried efficiently and economically in busses used exclusively for that purpose or that appellant's interstate business is dependent in any degree upon the local business in question. Appellant may not evade the Act by the mere linking of its intrastate transportation to its interstate or by the unnecessary transportation of both classes by means of the same instrumentalities and employees. The appellant relies on Western Union Tel. Co. v. Kansas, 216 U.S. 1; and Pullman Co. v. Kansas, 216 U.S. 56. But there the State was using its authority as a means to accomplish a result beyond its constitutional power. *52 There is no support for the contention that the enforcement of the Act deprives it of its property without due process of law. Undoubtedly, the State has power in the public interest reasonably to control and regulate the use of its highways so long as it does not directly burden or interfere with interstate commerce. Packard v. Banton, 264 U.S. 140, 144; Kane v. New Jersey, 242 U.S. 160; Hendrick v. Maryland, 235 U.S. 610. Cf. Opinion of the Justices, 251 Mass. 594, 596. The terms of the Act are not arbitrary or unreasonable. Appellant has not applied for and does not show that it is entitled to have a license from the local authorities or a certificate of public necessity and convenience from the department. Plainly, it has no standing to attack the validity of the statute as a violation of the due process clause. Decree affirmed.

346 U.S. 324 (1953) ROSENBERG ET AL. v. UNITED STATES. No. ___. Supreme Court of United States. Decided June 19, 1953. MOTION TO VACATE A STAY. Fyke Farmer submitted the motion. No. ___, June 18 Special Term, 1953. PER CURIAM. The motion for reconsideration of the question of the Court's power to vacate MR. JUSTICE DOUGLAS' stay order and hear oral argument is denied. MR. JUSTICE BLACK dissents. MR. JUSTICE FRANKFURTER desires that it be noted that he too would deny the motion to reconsider the power of this Court to review MR. JUSTICE DOUGLAS' order to stay the execution, but not because he thinks the matter is free from doubt. See his dissenting opinion in Ex parte Peru, 318 U. S. 578, 590, in connection with Lambert v. Barrett, 157 U. S. 697, and Carper v. Fitzgerald, 121 U. S. 87.

396 U.S. 275 (1970) ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET AL. v. UNITED STATES ET AL. No. 741. Supreme Court of United States. Decided January 12, 1970. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. James E. Nisbet, Ed White, and Jeremiah C. Waterman for appellants. Solicitor General Griswold, Assistant Attorney General McLaren, Fritz R. Kahn, and Jerome Nelson for the United States et al., and Warren Price, Jr., and John W. McConnell, Jr., for Sea-Land Service, Inc., appellees. PER CURIAM. The motions to affirm are granted and the judgment is affirmed.

382 U.S. 366 (1966) INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD ET AL. No. 87. Supreme Court of United States. Decided January 17, 1966. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. Irving Abramson, Benjamin C. Sigal and Winn I. Newman for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli, Norton J. Come and Laurence S. Gold for National Labor Relations Board, and David L. Benetar and Sanford Browde for General Electric Co., respondents. PER CURIAM. The petition for a writ of certiorari to the United States Court of Appeals for the Second Circuit is granted, the judgments are vacated and the case is remanded to that court for further consideration in light of Automobile Workers v. Scofield, ante, p. 205.

304 U.S. 27 (1938) UNITED STATES v. BEKINS ET AL., TRUSTEES, ET AL. LINDSAY-STRATHMORE IRRIGATION DISTRICT v. BEKINS ET AL., TRUSTEES, ET AL. Nos. 757 and 772. Supreme Court of United States. Argued April 7, 1938. Decided April 25, 1938. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA. *28 Mr. Hatton W. Sumners for the Committee on Judiciary of the House of Representatives of the United States. as amicus curiae, by special leave of Court. Messrs. W. Coburn Cook and Charles L. Childers, with whom Mr. Maurice E. Harrison was on the briefs, for appellees. *45 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. These are direct appeals from the judgment of the District Court for the Southern District of California under the Act of August 24, 1937, c. 754, 50 Stat. 751. They present the question of the constitutional validity of the Act of August 16, 1937, 50 Stat. 653, amending the Bankruptcy Act by adding Chapter X providing for the composition of indebtedness of the taxing agencies or instrumentalities therein described. A certificate was issued to the Attorney General and the United States intervened. The District Court held the statute invalid as applied to the appellant and dismissed its petition for composition. The court considered itself bound by the decision in Ashton v. Cameron County District, 298 U.S. 513. Appellant, the Lindsay-Strathmore Irrigation District, was organized in the year 1915 under the California Irrigation District Act of March 31, 1897 (Cal. Stat. 1897, p. 254). It comprises about 15,260 acres in Tulare County. It is an irrigation district and taxing agency created for the purpose of constructing and operating irrigation projects and works devoted to the improvement of lands for *46 agricultural purposes. On September 21, 1937, it presented its petition for the confirmation of a plan of composition. The petition alleged insolvency; that its indebtedness consisted of outstanding bonds aggregating $1,427,000 in principal, with unpaid interest of $439,085.15; that no interest or principal falling due since July 1, 1933. had been paid; that the low price of agricultural products had prevented the owners of land within the irrigation district from meeting their assessments; that upon the assessment levied by the District in the year 1932 there was a delinquency of 47 per cent. and that since that year there had been levied only an assessment of sufficient amount to maintain and operate its works; that the District's plan for the composition of its debts provided for the payment in cash of a sum equal to 59.978 cents for each dollar of the principal amount of its outstanding bonds in satisfaction of all amounts due; that creditors owning about 87 per cent. in the principal amount of the bonds had accepted the plan and consented to the filing of the petition; and that payment of the amount required was to be made from the proceeds of a loan which the Reconstruction Finance Corporation had agreed to make upon new refunding serial bonds equal to the amount borrowed and bearing interest at four per cent. The District Court approved the petition as filed in good faith and directed the creditors to show cause why an injunction should not issue staying the commencement of suits upon the securities affected by the plan. The appellees as bondholders appeared and moved to dismiss the petition upon the ground that Chapter X of the Bankruptcy Act violated the Fifth and Tenth Amendments of the Federal Constitution. It appeared from the return to the order to show cause that these creditors had obtained an alternative writ of mandate from the state court directing the county board of supervisors to levy an assessment upon the lands within the District sufficient to pay *47 the amounts due the complaining creditors, and that the proceedings in that court had been suspended pending the proceeding in the bankruptcy court. First. Chapter X of the Bankruptcy Act is limited to voluntary proceedings for the composition of debts. Aside from the question as to the power of the Congress to provide this method of relief for the described taxing agencies, it is well settled that a proceeding for composition is in its nature within the federal bankruptcy power. Compositions were authorized by the Bankruptcy Act of 1867, as amended by the Act of 1874, c. 390, § 17, 18 Stat. 182. It is unnecessary to the validity of such a proceeding that it should result in an adjudication of bankruptcy. In re Reiman, 20 Fed. Cas. 490, 496, 497; Continental National Bank v. Chicago, R.I. & P. Ry. Co., 294 U.S. 648, 672, 673. In the Continental Bank case, in the course of a full consideration of the scope of the federal bankruptcy power and of the evolution of its exercise, we said: "The constitutionality of the old provision for a composition is not open to doubt. In re Reiman, 20 Fed. Cas. 490, 496-497, cited with approval in Hanover National Bank v. Moyses, supra. [186 U.S. at p. 187.] That provision was there sustained upon the broad ground that the `subject of bankruptcies' was nothing less than `the subject of the relations between an insolvent or nonpaying or fraudulent debtor, and his creditors, extending to his and their relief.' That it was not necessary for the proceedings to be carried through in bankruptcy was held not to warrant the objection that the provision did not constitute a law on the subject of bankruptcies." Second. It is unnecessary to consider the question whether Chapter X would be valid as applied to the irrigation district in the absence of the consent of the State which created it, for the State has given its consent. We think that this sufficiently appears from the statute of California enacted in 1934. Laws of 1934, Ex. Sess., *48 ch. 4. This statute (§ 1) adopts the definition of "taxing districts" as described in an amendment of the Bankruptcy Act, to wit Chapter IX approved May 24, 1934, and further provides that the Bankruptcy Act and "acts amendatory and supplementary thereto, as the same may be amended from time to time, are herein referred to as the `Federal Bankruptcy Statute'." Chapter X of the Bankruptcy Act is an amendment and appears to be embraced within the state's definition. We have not been referred to any decision to the contrary. Section 3 of the state act then provides that any taxing district in the State is authorized to file the petition mentioned in the "Federal Bankruptcy Statute." Subsequent sections empower the taxing district upon the conditions stated to consummate a plan of readjustment in the event of its confirmation by the federal court. The statute concludes with a statement of the reasons for its passage, as follows: "There exist throughout the State of California economic conditions which make it impossible for property owners to pay their taxes and special assessments levied upon real or taxable property. The burden of such taxes and special assessments is so onerous in amount that great delinquencies have occurred in the collection thereof and seriously affect the ability of taxing districts to obtain the revenue necessary to conduct governmental functions and to pay obligations represented by bonds. It is essential that financial relief, as set forth in this act, be immediately afforded to such taxing districts in order to avoid serious impairment of their taxing systems, with consequent crippling of the local governmental functions of the State. This act will aid in accomplishing this necessary result and should therefore go into effect immediately." While the facts thus stated related to conditions in California, similar conditions existed in other parts of the *49 country and it was this serious situation which led the Congress to enact Chapter IX and later Chapter X.[1] Our attention has been called to the difference between § 80 (k) of Chapter IX and § 83 (i) of Chapter X of the Bankruptcy Act in the omission from the latter of the provision requiring the approval of the petition by a governmental agency of the State whenever such approval is necessary by virtue of the local law. We attach no importance to this omission. It is immaterial, if the consent of the State is not required to make the federal plan effective, and it is equally immaterial if the consent of the State has been given, as we think it has in this case. It should also be observed that Chapter X, § 83 (e) provides as a condition of confirmation of a plan of composition that it must appear that the petitioner "is authorized by law to take all action necessary to be taken by it to carry out the plan," and, if the judge is not satisfied on that point as well as on the others mentioned, he must enter an order dismissing the proceeding. The phrase "authorized by law" manifestly refers to the law of the State. Third. We are thus brought to the inquiry whether the exercise of the federal bankruptcy power in dealing with a composition of the debts of the irrigation district, upon its voluntary application and with the State's consent, must be deemed to be an unconstitutional interference with the essential independence of the State as preserved by the Constitution. In Ashton v. Cameron County District, supra, the court considered that the provisions of Chapter IX authorizing *50 the bankruptcy court to entertain proceedings for the "readjustment of the debts" of "political subdivisions" of a State "might materially restrict its control over its fiscal affairs," and was therefore invalid; that if obligations of States or their political subdivisions might be subjected to the interference contemplated by Chapter IX, they would no longer be "free to manage their own affairs." In enacting Chapter X the Congress was especially solicitous to afford no ground for this objection. In the report of the Committee on the Judiciary of the House of Representatives,[2] which was adopted by the Senate Committee on the Judiciary,[3] in dealing with the bill proposing to enact Chapter X, the subject was carefully considered. The Committee said: "Compositions are approvable only when the districts or agencies file voluntary proceedings in courts of bankruptcy, accompanied by plans approved by 51 per cent of all the creditors of the district or agency, and by evidence of good faith. Each proceeding is subject to ample notice to creditors, thorough hearings, complete investigations, and appeals from interlocutory and final decrees. The plan of composition cannot be confirmed unless accepted in writing by creditors holding at least 66 2/3 percent of the aggregate amount of the indebtedness of the petitioning district or taxing agency, and unless the judge is satisfied that the taxing district is authorized by law to carry out the plan, and until a specific finding by the court that the plan of composition is fair, equitable, and for the best interests of the creditors. . . . "The Committee on the Judiciary is not unmindful of the sweeping character of the holding of the Supreme Court above referred to [in the Ashton case], and believes *51 that H.R. 5969 is not invalid or contrary to the reasoning of the majority opinion. . . . "The bill here recommended for passage expressly avoids any restriction on the powers of the States or their arms of government in the exercise of their sovereign rights and duties. No interference with the fiscal or governmental affairs of a political subdivision is permitted. The taxing agency itself is the only instrumentality which can seek the benefits of the proposed legislation. No involuntary proceedings are allowable, and no control or jurisdiction over that property and those revenues of the petitioning agency necessary for essential governmental purposes is conferred by the bill. . . . "There is no hope for relief through statutes enacted by the States, because the Constitution forbids the passing of State laws impairing the obligations of existing contracts. Therefore, relief must come from Congress, if at all. The committee are not prepared to admit that the situation presents a legislative no-man's land. . . . It is the opinion of the committee that the present bill removes the objections to the unconstitutional statute, and gives a forum to enable those distressed taxing agencies which desire to adjust their obligations and which are capable of reorganization, to meet their creditors under necessary judicial control and guidance and free from coercion, and to affect such adjustment on a plan determined to be mutually advantageous." We are of the opinion that the Committee's points are well taken and that Chapter X is a valid enactment. The statute is carefully drawn so as not to impinge upon the sovereignty of the State. The State retains control of its fiscal affairs. The bankruptcy power is exercised in relation to a matter normally within its province and only in a case where the action of the taxing agency in carrying out a plan of composition approved by the bankruptcy court is authorized by state law. It is of the essence *52 of sovereignty to be able to make contracts and give consents bearing upon the exertion of governmental power. This is constantly illustrated in treaties and conventions in the international field by which governments yield their freedom of action in particular matters in order to gain the benefits which accrue from international accord. Oppenheim, International Law, 4th ed., vol. 1, §§ 493, 494; Hyde, International Law, vol. 2, § 489; Perry v. United States, 294 U.S. 330, 353; Steward Machine Co. v. Davis, 301 U.S. 548, 597. The reservation to the States by the Tenth Amendment protected, and did not destroy, their right to make contracts and give consents where that action would not contravene the provisions of the Federal Constitution. The States with the consent of Congress may enter into compacts with each other and the provisions of such compacts may limit the agreeing States in the exercise of their respective powers. Const., Art. I, § 10, subd. 3. Poole v. Fleeger, 11 Pet. 185, 209; Rhode Island v. Massachusetts, 12 Pet. 657, 725; Hinderlider v. La Plata River Co., post, p. 92. The State is free to make contracts with individuals and give consents upon which the other contracting party may rely with respect to a particular use of governmental authority. See Fletcher v. Peck, 6 Cranch 87, 137; New Jersey v. Wilson, 7 Cranch 164; Dartmouth College v. Woodward, 4 Wheat. 518, 643, 644; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 549; Jefferson Branch Bank v. Skelly, 1 Black 436, 446. While the instrumentalities of the national government are immune from taxation by a State, the State may tax them if the national government consents (Baltimore National Bank v. State Tax Comm'n, 297 U.S. 209, 211, 212) and by a parity of reasoning the consent of the State could remove the obstacle to the taxation by the federal government of state agencies to which the consent applied. *53 Nor did the formation of an indestructible Union of indestructible States make impossible cooperation between the Nation and the States through the exercise of the power of each to the advantage of the people who are citizens of both. We had recent occasion to consider that question in the case of Steward Machine Co. v. Davis, supra, in relation to the operation of the Social Security Act of August 14, 1935. 49 Stat. 620. The question was raised with special emphasis in relation to § 904 of the statute and the parts of § 903, complementary thereto, by which the Secretary of the Treasury is authorized to receive and hold in the Unemployment Trust Fund all moneys deposited therein by a state agency for a state unemployment fund and to invest in obligations of the United States such portion of the Fund as is not in his judgment required to meet current withdrawals. The contention was that Alabama in consenting to that deposit had "renounced the plenitude of power inherent in her statehood." 301 U.S. at pp. 595, 596. We found the contention to be unsound. As the States were at liberty upon obtaining the consent of Congress to make agreements with one another, we saw no room for doubt that they may do the like with Congress if the essence of their statehood is maintained without impairment. And we added that "Nowhere in our scheme of government - in the limitations express or implied of our federal constitution - do we find that she [the State] is prohibited from assenting to conditions that will assure a fair and just requital for benefits received." In the instant case we have cooperation to provide a remedy for a serious condition in which the States alone were unable to afford relief. Improvement districts, such as the petitioner, were in distress. Economic disaster had made it impossible for them to meet their obligations. As the owners of property within the boundaries of the district could not pay adequate assessments, the power of *54 taxation was useless. The creditors of the district were helpless. The natural and reasonable remedy through composition of the debts of the district was not available under state law by reason of the restriction imposed by the Federal Constitution upon the impairment of contracts by state legislation. The bankruptcy power is competent to give relief to debtors in such a plight and, if there is any obstacle to its exercise in the case of the districts organized under state law it lies in the right of the State to oppose federal interference. The State steps in to remove that obstacle. The State acts in aid, and not in derogation, of its sovereign powers. It invites the intervention of the bankruptcy power to save its agency which the State itself is powerless to rescue. Through its cooperation with the national government the needed relief is given. We see no ground for the conclusion that the Federal Constitution, in the interest of state sovereignty, has reduced both sovereigns to helplessness in such a case. Fourth. As the bankruptcy power may be exerted to give effect to a plan for the composition of the debts of an insolvent debtor, we find no merit in appellant's objections under the Fifth Amendment. In re Reiman, supra; Continental National Bank v. Chicago, R.I. & P. Ry. Co., supra. The judgment of the District Court is reversed and the cause is remanded for further proceedings in conformity with this opinion. Reversed. MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER are of the opinion that the principle approved in Ashton v. Cameron County District, 298 U.S. 513, is controlling here and requires affirmation of the questioned decree. MR. JUSTICE CARDOZO took no part in the consideration and decision of this case. NOTES [1] See Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 1868 and H.R. 5950, 1934, 73rd Cong., 2nd Sess.; Hearings before the House Committee on the Judiciary on H.R. 1670, etc., 1933, 73rd Cong., 1st Sess.; Ashton v. Cameron County District, 298 U.S. 513, 533, 534. [2] H. Rep. No. 517, 75th Cong., 1st Sess. [3] Sen. Rep. No. 911, 75th Cong., 1st Sess.

232 U.S. 598 (1914) UNITED STATES EX REL. BROWN v. LANE, SECRETARY OF THE INTERIOR.[1] No. ___. Supreme Court of United States. Submitted February 24, 1914. Decided March 2, 1914. APPLICATION FOR ALLOWANCE OF WRIT OF ERROR. Mr. Andrew Wilson, Mr. Albert L. Wilson and Mr. James P. Schick for plaintiff in error. *599 Memorandum opinion by direction of the court. By MR. CHIEF JUSTICE WHITE. The act of June 28, 1906, c. 3572, 34 Stat. 539, 545, entitled "An Act for the division of the lands and funds of the Osage Indians in Oklahoma Territory, and for other purposes" in its ninth section provided among other things for a tribal council composed of eight persons. The members of this council were to be chosen at an election whose date was fixed and which was to be conducted in the manner directed by the Commissioner of Indian Affairs, provision being made for the biennial recurrence of such election and consequently for a two years' term for the members of the council. The provision, however, creating the council contained this express qualification: "And the Secretary of the Interior is hereby authorized to remove from the council any member or members thereof for good cause, to be by him determined." On January 2, 1913, the Secretary of the Interior, in the exertion of the power thus conferred, by a formal order removed "each and every member of the council." It was declared in the order that the power exercised was exerted for good cause, and this statement was followed by a specification of various acts of misfeasance or nonfeasance, which it was deemed rendered the removal necessary. Among those who were thus removed, was A.H. Brown, the relator, who shortly after the action of the Secretary, that is, in February, 1913, commenced proceedings by mandamus to vacate the order on the ground that it had been made without previous notice and without affording an opportunity to be heard and to defend, and therefore was not authorized by the statute, and if it was authorized was void because repugnant to the due process clause of the Fifth Amendment. The trial court denied the relief and the Court of *600 Appeals of the District in affirming such action held that the statute conferred upon the Secretary power to remove without necessity of notice or hearing and moreover that as so construed the statute was not in conflict with the Constitution (40 App. D.C. 533). This application for the allowance of a writ of error is before us because of the reference of the same to the court by the Chief Justice to whom it was primarily presented. The asserted right to the writ is based upon the third, fifth and sixth paragraphs of § 250 of the Judicial Code: the third conferring the right to review "in cases involving the construction or application of the Constitution of the United States, or the constitutionality of any law of the United States"; the fifth giving such right "in cases in which the validity of any authority exercised under the United States, or the existence or scope of any power or duty of an officer of the United States is drawn in question"; and the sixth also giving the right to review in cases "in which the construction of any law of the United States is drawn in question by the defendant." On the face of the record from a merely formal point of view it is apparent that the case as presented is embraced within both the third and fifth paragraphs. But it is elementary that where the jurisdiction depends upon the presence of controversies of a particular character or the existence of prescribed questions or conditions, substance and not mere form is the test of power and therefore even in a case where the requisite for jurisdiction formally exists the right to review does not obtain where it is evident that the formal questions as presented by the record are so wanting in substance as to cause them to be frivolous and devoid of all merit. Consolidated Turnpike Co. v. Norfolk &c. Ry. Co., 228 U.S. 596, 600, and cases cited. It is true that the doctrine has generally found expression in considering the right to review cases coming from state courts, but the principle is here directly and necessarily applicable *601 in consequence of the nature and character of the limitations imposed by the statute upon the right to review cases decided by the Court of Appeals of the District of Columbia. Coming to test the existence of jurisdiction to review the controversy and consequently to determine whether the writ prayed for should be allowed we are clear that the propositions upon which it is asserted jurisdiction to review exists are so wholly unsubstantial and frivolous and devoid of all merit as to afford no ground whatever for the exercise of jurisdiction and the consequent allowance of the writ. This conclusion is reached because we are of the opinion that on the face of the statute it plainly vested the Secretary of the Interior with the power and discretion to remove without the necessity of giving notice or affording a hearing and because we are unable to perceive any basis whatever for the contention that if the statute gives such power it conflicts with the Fifth Amendment. The right to membership in the council which the statute created and the power to remove at discretion which it conferred on the Secretary of the Interior were indissolubly united, and it is impossible to admit the existence of the one without recognizing the other and therefore to adopt the premise upon which the proposition must rest would be but to destroy the right to continue in office which the proposition is urged to maintain, since the office may not be treated as existing free from the safeguards concerning the discharge of its duties which the statute provides. The argument is not strengthened by confounding the asserted right of the relator to continue to be a member of the tribal council with rights of property assumed to exist in favor of the members of the tribe, and upon the resulting confusion to urge that the assumed rights of property will be taken without due process if the authority of the Secretary to remove a member of the tribal council without notice and hearing be upheld. On the contrary, if the *602 possession of the asserted property rights be assumed, it must follow that the power to remove, given by the statute, must be sustained. Considering the context of the act, the limitation which it imposes upon the members of the tribe and the tribe itself to contract and the large administrative supervision over such subjects which the statute confers upon the Secretary, it is not disputable that the right to remove for "good cause to be by him determined" which the statute gives to the Secretary is but an appropriate means provided for the accomplishment of the duties cast upon him with reference to the subject-matters stated. Under these circumstances the proposition could not be maintained without holding that although the duty existed to protect by appropriate legislation the tribe and its members, such legislation if enacted, would be repugnant to the Constitution. Writ denied. NOTES [1] Original docket title United States ex rel. Brown v. Fisher, Secretary of the Interior.

(Slip Opinion) OCTOBER TERM, 2016 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus EXPRESSIONS HAIR DESIGN ET AL. v. SCHNEIDERMAN, ATTORNEY GENERAL OF NEW YORK, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 15-1391. Argued January 10, 2017 - Decided March 29, 2017 New York General Business Law §518 provides that "[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means." Petitioners, five New York businesses and their owners who wish to impose surcharges for credit card use, filed suit against state offi- cials, arguing that the law violates the First Amendment by regulat- ing how they communicate their prices, and that it is unconstitution- ally vague. The District Court ruled in favor of the merchants, but the Court of Appeals vacated the judgment with instructions to dis- miss. The Court of Appeals concluded that in the context of single- sticker pricing - where merchants post one price and would like to charge more to customers who pay by credit card - the law required that the sticker price be the same as the price charged to credit card users. In that context, the law regulated a relationship between two prices. Relying on this Court's precedent holding that price regula- tion alone regulates conduct, not speech, the Court of Appeals con- cluded that §518 did not violate the First Amendment. The Court of Appeals abstained from reaching the merits of the constitutional challenge to pricing practices outside the single-sticker context. Held: 1. This Court's review is limited to whether §518 is unconstitution- al as applied to the particular pricing scheme that, before this Court, petitioners have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge. Pp. 5-6. 2 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN Syllabus 2. Section 518 prohibits the pricing regime petitioners wish to em- ploy. Section 518 does not define "surcharge." Relying on the term's ordinary meaning, the Court of Appeals concluded that a merchant imposes a surcharge when he posts a single sticker price and charges a credit card user more than that sticker price. This Court "generally accord[s] great deference to the interpretation and application of state law by the courts of appeals." Pembaur v. Cincinnati, 475 U. S. 469, 484, n. 13. Because the interpretation of the Court of Appeals is not "clearly wrong," Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500, n. 9, this Court follows that interpretation. Pp. 6-8. 3. Section 518 regulates speech. The Court of Appeals concluded that §518 posed no First Amendment problem because price controls regulate conduct, not speech. Section 518, however, is not like a typi- cal price regulation, which simply regulates the amount a store can collect. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regu- lates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves, §518 regu- lates speech. Because the Court of Appeals concluded otherwise, it did not de- termine whether §518 survives First Amendment scrutiny. On re- mand the Court of Appeals should analyze §518 as a speech regula- tion. Pp. 8-10. 4. Section 518 is not vague as applied to petitioners. As explained, §518 bans the single-sticker pricing petitioners argue they wish to employ, and "a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim," Holder v. Humanitarian Law Project, 561 U. S. 1, 20. Pp. 10-11. 808 F. 3d 118, vacated and remanded. ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, GINSBURG, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which ALITO, J., joined.  Cite as: 581 U. S. ____ (2017) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash­ ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 15-1391 _________________ EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF NEW YORK, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [March 29, 2017] CHIEF JUSTICE ROBERTS delivered the opinion of the Court. Each time a customer pays for an item with a credit card, the merchant selling that item must pay a transac­ tion fee to the credit card issuer. Some merchants balk at paying the fees and want to discourage the use of credit cards, or at least pass on the fees to customers who use them. One method of achieving those ends is through differential pricing - charging credit card users more than customers using cash. Merchants who wish to employ differential pricing may do so in two ways relevant here: impose a surcharge for the use of a credit card, or offer a discount for the use of cash. In N. Y. Gen. Bus. Law §518, New York has banned the former practice. The question presented is whether §518 regulates merchants' speech and - if so - whether the statute violates the First Amendment. We conclude that §518 does regulate speech and remand for the Court of Appeals to determine in the first instance whether that regulation is unconstitutional. 2 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN Opinion of the Court I A When credit cards were first introduced, contracts be­ tween card issuers and merchants barred merchants from charging credit card users higher prices than cash cus­ tomers. Congress put a partial stop to this practice in the 1974 amendments to the Truth in Lending Act (TILA). The amendments prohibited card issuers from contractu­ ally preventing merchants from giving discounts to cus­ tomers who paid in cash. See §306, 88 Stat. 1515. The law, however, said nothing about surcharges for the use of credit. Two years later, Congress refined its dissimilar treat­ ment of discounts and surcharges. First, the 1976 version of TILA barred merchants from imposing surcharges on customers who use credit cards. Act of Feb. 27, 1976, §3(c)(1), 90 Stat. 197. Second, Congress added definitions of the two terms. A discount was "a reduction made from the regular price," while a surcharge was "any means of increasing the regular price to a cardholder which is not imposed upon customers paying by cash, check, or similar means." §3(a), ibid. In 1981, Congress further delineated the distinction between discounts and surcharges by defining "regular price." Where a merchant "tagged or posted" a single price, the regular price was that single price. Cash Dis­ count Act, §102(a), 95 Stat. 144. If no price was tagged or posted, or if a merchant employed a two-tag approach - posting one price for credit and another for cash - the regular price was whatever was charged to credit card users. Ibid. Because a surcharge was defined as an in­ crease from the regular price, there could be no credit card surcharge where the regular price was the same as the amount charged to customers using credit cards. The effect of all this was that a merchant could violate the surcharge ban only by posting a single price and charging  Cite as: 581 U. S. ____ (2017) 3 Opinion of the Court credit card users more than that posted price. The federal surcharge ban was short lived. Congress allowed it to expire in 1984 and has not renewed the ban since. See §201, ibid. The provision preventing credit card issuers from contractually barring discounts for cash, however, remained in place. With the lapse of the federal surcharge ban, several States, New York among them, immediately enacted their own surcharge bans. Passed in 1984, N. Y. Gen. Bus. Law §518 adopted the operative language of the federal ban verbatim, providing that "[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means." N. Y. Gen. Bus. Law Ann. §518 (West 2012); see also 15 U. S. C. §1666f(a)(2) (1982 ed.). Unlike the federal ban, the New York legisla­ tion included no definition of "surcharge." In addition to these state legislative bans, credit card companies - though barred from prohibiting discounts for cash - included provisions in their contracts prohibiting merchants from imposing surcharges for credit card use. For most of its history, the New York law was essentially coextensive with these contractual prohibitions. In recent years, however, merchants have brought antitrust chal­ lenges to contractual no-surcharge provisions. Those suits have created uncertainty about the legal validity of such contractual surcharge bans. The result is that otherwise redundant legislative surcharge bans like §518 have in­ creasingly gained importance, and increasingly come under scrutiny. B Petitioners, five New York businesses and their owners, wish to impose surcharges on customers who use credit cards. Each time one of their customers pays with a credit card, these merchants must pay some transaction fee to the company that issued the credit card. The fee is gener­ 4 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN Opinion of the Court ally two to three percent of the purchase price. Those fees add up, and the merchants allege that they pay tens of thousands of dollars every year to credit card companies. Rather than increase prices across the board to absorb those costs, the merchants want to pass the fees along only to their customers who choose to use credit cards. They also want to make clear that they are not the bad guys - that the credit card companies, not the merchants, are responsible for the higher prices. The merchants believe that surcharges for credit are more effective than discounts for cash in accomplishing these goals. In 2013, after several major credit card issuers agreed to drop their contractual surcharge prohibitions, the mer­ chants filed suit against the New York Attorney General and three New York District Attorneys to challenge §518 - the only remaining obstacle to their charging sur­ charges for credit card use. As relevant here, they argued that the law violated the First Amendment by regulating how they communicated their prices, and that it was unconstitutionally vague because liability under the law "turn[ed] on the blurry difference" between surcharges and discounts. App. 39, Complaint ¶51. The District Court ruled in favor of the merchants. It read the statute as "draw[ing a] line between prohibited 'surcharges' and permissible 'discounts' based on words and labels, rather than economic realities." 975 F. Supp. 2d 430, 444 (SDNY 2013). The court concluded that the law therefore regulated speech, and violated the First Amendment under this Court's commercial speech doc­ trine. In addition, because the law turned on the "virtually incomprehensible distinction between what a vendor can and cannot tell its customers," the District Court found that the law was unconstitutionally vague. Id., at 436. The Court of Appeals for the Second Circuit vacated the judgment of the District Court with instructions to dismiss the merchants' claims. It began by considering single­  Cite as: 581 U. S. ____ (2017) 5 Opinion of the Court sticker pricing, where merchants post one price and would like to charge more to customers who pay by credit card. All the law did in this context, the Court of Appeals ex­ plained, was regulate a relationship between two prices - the sticker price and the price charged to a credit card user - by requiring that the two prices be equal. Relying on our precedent holding that price regulation alone regu­ lates conduct, not speech, the Court of Appeals concluded that §518 did not violate the First Amendment. The court also considered other types of pricing re­ gimes - for example, posting separate cash and credit prices. The Court of Appeals thought it "far from clear" that §518 prohibited such pricing schemes. 808 F. 3d 118, 137 (CA2 2015). The federal surcharge ban on which §518 was modeled did not apply outside the single-sticker con­ text, and the merchants had not clearly shown that §518 had a "broader reach" than the federal law. Ibid. Decid­ ing that petitioners' challenge in this regard "turn[ed] on an unsettled question of state law," the Court of Appeals abstained from reaching the merits of the constitutional question beyond the single-sticker context. Id., at 135 (citing Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941)). We granted certiorari. 579 U. S. ___ (2016). II As a preliminary matter, we note that petitioners pre­ sent us with a limited challenge. Observing that the merchants were not always particularly clear about the scope of their suit, the Court of Appeals deemed them to be bringing a facial attack on §518 as well as a challenge to the application of the statute to two particular pricing regimes: single-sticker pricing and two-sticker pricing. Before us, however, the merchants have disclaimed a facial challenge, assuring us that theirs is an as-applied challenge only. See Tr. of Oral Arg. 4-5, 18. 6 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN Opinion of the Court There remains the question of what precise application of the law they seek to challenge. Although the merchants have presented a wide array of hypothetical pricing re­ gimes, they have expressly identified only one pricing scheme that they seek to employ: posting a cash price and an additional credit card surcharge, expressed either as a percentage surcharge or a "dollars-and-cents" additional amount. See, e.g., App. 101-102, 104; Tr. of Oral Arg. 4-5, 18. Under this pricing approach, petitioner Expressions Hair Design might, for example, post a sign outside its salon reading "Haircuts $10 (we add a 3% surcharge if you pay by credit card)." Or, petitioner Brooklyn Farmacy & Soda Fountain might list one of the sundaes on its menu as costing "$10 (with a $0.30 surcharge for credit card users)." We take petitioners at their word and limit our review to the question whether §518 is unconstitutional as applied to this particular pricing practice.1 III The next question is whether §518 prohibits the pricing regime petitioners wish to employ. The Court of Appeals concluded that it does. The court read "surcharge" in §518 to mean "an additional amount above the seller's regular - - - - - - 1 Petitioner Expressions Hair Design currently posts separate dollars­ and-cents prices for cash and credit - that is, it posts something like "$10 cash, $10.30 credit." It displays its prices in this way, however, only because it considers itself compelled to do so by the challenged law if it wants to charge different prices. Prior to becoming aware of the law, Expressions posted single prices along with a notice informing customers that a three percent surcharge would be added to their bill if they paid by credit card. Expressions has indicated that it would prefer to return to its prior practice. See App. 19, Complaint ¶3; id., at 103- 104. Given petitioners' representations about the narrow scope of their as-applied challenge, we limit our consideration to the single-sticker pricing regime for present purposes. Petitioners' affidavits and briefing reference other potential pricing schemes, which may be considered by the Court of Appeals to the extent it deems appropriate. See, e.g., id., at 56; Brief for Petitioners 50.  Cite as: 581 U. S. ____ (2017) 7 Opinion of the Court price," and found it "basically self-evident" how §518 applies to sellers who post a single sticker price: "the sticker price is the 'regular' price, so sellers may not charge credit-card customers an additional amount above the sticker price that is not also charged to cash custom­ ers." 808 F. 3d, at 128. Under this interpretation, signs of the kind that the merchants wish to post - "$10, with a $0.30 surcharge for credit card users" - violate §518 be­ cause they identify one sticker price - $10 - and indicate that credit card users are charged more than that amount. "We generally accord great deference to the interpreta­ tion and application of state law by the courts of appeals." Pembaur v. Cincinnati, 475 U. S. 469, 484, n. 13 (1986). This deference is warranted to "render unnecessary review of their decisions in this respect" and because lower fed­ eral courts "are better schooled in and more able to interpret the laws of their respective States." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500 (1985) (quoting Cort v. Ash, 422 U. S. 66, 73, n. 6 (1975); internal quotation marks omitted). "[W]e surely have the authority to differ with the lower federal courts as to the meaning of a state statute," and have done so in instances where the lower court's construction was "clearly wrong" or "plain error." 472 U. S., at 500, and n. 9 (internal quotation marks omitted). But that is not the case here. Section 518 does not define "surcharge," but the Court of Appeals looked to the ordinary meaning of the term: "a charge in excess of the usual or normal amount." 808 F. 3d, at 127 (quoting Webster's Third New International Dictionary 2299 (2002); internal quotation marks omitted). Where a seller posts a single sticker price, it is reasonable to treat that sticker price as the "usual or normal amount" and con­ clude, as the court below did, that a merchant imposes a surcharge when he charges a credit card user more than that sticker price. In short, we cannot dismiss the Court of Appeals' interpretation of §518 as "clearly wrong." 8 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN Opinion of the Court Accordingly, consistent with our customary practice, we follow that interpretation. IV Having concluded that §518 bars the pricing regime petitioners wish to employ, we turn to their constitutional arguments: that the law unconstitutionally regulates speech and is impermissibly vague. A The Court of Appeals concluded that §518 posed no First Amendment problem because the law regulated conduct, not speech.2 In reaching this conclusion, the Court of Appeals began with the premise that price controls regu­ late conduct alone. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 507 (1996) (plurality opinion); id., at 524 (THOMAS, J., concurring in part and concurring in judgment); id., at 530 (O'Connor, J., concurring in judg­ ment). Section 518 regulates the relationship between "(1) the seller's sticker price and (2) the price the seller charges to credit card customers," requiring that these two amounts be equal. 808 F. 3d, at 131. A law regulating the relationship between two prices regulates speech no more than a law regulating a single price. The Court of Ap- peals concluded that §518 was therefore simply a conduct regulation. But §518 is not like a typical price regulation. Such a regulation - for example, a law requiring all New York delis to charge $10 for their sandwiches - would simply regulate the amount that a store could collect. In other - - - - - - 2 Relying fully on their claim that §518 regulated speech, petitioners did not advance any argument before the Court of Appeals that §518 was constitutionally problematic even if deemed a regulation of con­ duct. See 808 F. 3d 118, 135 (CA2 2015) (noting that petitioners had not challenged §518 under United States v. O'Brien, 391 U. S. 367 (1968)).  Cite as: 581 U. S. ____ (2017) 9 Opinion of the Court words, it would regulate the sandwich seller's conduct. To be sure, in order to actually collect that money, a store would likely have to put "$10" on its menus or have its employees tell customers that price. Those written or oral communications would be speech, and the law - by deter­ mining the amount charged - would indirectly dictate the content of that speech. But the law's effect on speech would be only incidental to its primary effect on conduct, and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evi­ denced, or carried out by means of language, either spo­ ken, written, or printed." Rumsfeld v. Forum for Aca- demic and Institutional Rights, Inc., 547 U. S. 47, 62 (2006) (quoting Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949); internal quotation marks omitted); see also Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011). Section 518 is different. The law tells merchants noth­ ing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say "$10, with a 3% credit card surcharge" or "$10, plus $0.30 for credit" because both of those displays identify a single sticker price - $10 - that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship be­ tween a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, 10 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN Opinion of the Court §518 regulates speech. Because it concluded otherwise, the Court of Appeals had no occasion to conduct a further inquiry into whether §518, as a speech regulation, survived First Amendment scrutiny. On that question, the parties dispute whether §518 is a valid commercial speech regulation under Cen- tral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980), and whether the law can be upheld as a valid disclosure requirement under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985). "[W]e are a court of review, not of first view." Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 14) (internal quotation marks omitted). Ac­ cordingly, we decline to consider those questions in the first instance. Instead, we remand for the Court of Ap­ peals to analyze §518 as a speech regulation.3 B Given the way the merchants have presented their case, their vagueness challenge gives us little pause. Before this Court, the only pricing practice they express an inter­ est in employing is a single-sticker regime, listing one price and a separate surcharge amount. As we have ex­ plained, §518 bars them from doing so. "[A] plaintiff whose speech is clearly proscribed cannot raise a success­ ful vagueness claim." Holder v. Humanitarian Law Pro- ject, 561 U. S. 1, 20 (2010). Although the merchants argue that "no one can seem to put a finger on just how far the law sweeps," Brief for Petitioners 51, it is at least clear - - - - - - 3 To assess the statute's constitutionality, the Court of Appeals may need to consider a question we need not answer here: whether the statute permits two-sticker pricing schemes like the one petitioner Expressions currently uses, see n. 1, supra. Respondents' argument that §518 is a constitutionally valid disclosure requirement rests on an interpretation of the statute that allows such two-sticker schemes.  Cite as: 581 U. S. ____ (2017) 11 Opinion of the Court that §518 proscribes their intended speech. Accordingly, the law is not vague as applied to them.4 C The judgment of the Court of Appeals for the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. - - - - - - 4 For similar reasons, petitioners' related argument regarding absten­ tion is no longer at issue. The Court of Appeals abstained from decid­ ing whether §518 was constitutional outside of the single-sticker context, but the merchants have disavowed any intent to challenge the law outside of this context.  Cite as: 581 U. S. ____ (2017) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 15-1391 _________________ EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF NEW YORK, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [March 29, 2017] JUSTICE BREYER, concurring in the judgment. I agree with the Court that New York's statute regu- lates speech. But that is because virtually all government regulation affects speech. Human relations take place through speech. And human relations include community activities of all kinds - commercial and otherwise. When the government seeks to regulate those activities, it is often wiser not to try to distinguish between "speech" and "conduct." See R. Post, Democracy, Expertise, and Academic Freedom 3-4 (2012). Instead, we can, and normally do, simply ask whether, or how, a challenged statute, rule, or regulation affects an interest that the First Amendment protects. If, for example, a challenged government regulation negatively affects the processes through which political discourse or public opinion is formed or expressed (interests close to the First Amend- ment's protective core), courts normally scrutinize that regulation with great care. See, e.g., Boos v. Barry, 485 U. S. 312, 321 (1988). If the challenged regulation re- stricts the "informational function" provided by truthful commercial speech, courts will apply a "lesser" (but still elevated) form of scrutiny. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 563- 564 (1980). If, however, a challenged regulation simply 2 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN BREYER, J., concurring in judgment requires a commercial speaker to disclose "purely factual and uncontroversial information," courts will apply a more permissive standard of review. Zauderer v. Office of Dis- ciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985). Because that kind of regulation normally has only a "minimal" effect on First Amendment interests, it normally need only be "reasonably related to the State's interest in preventing deception of consumers." Ibid. Courts apply a similarly permissive standard of review to "regulatory legislation affecting ordinary commercial transactions." United States v. Carolene Products Co., 304 U. S. 144, 152 (1938). Since that legislation normally does not significantly affect the interests that the First Amendment protects, we normally look only for assurance that the legislation "rests upon some rational basis." Ibid. I repeat these well-known general standards or judicial approaches both because I believe that determining the proper approach is typically more important than trying to distinguish "speech" from "conduct," see Sorrell v. IMS Health Inc., 564 U. S. 552, 582 (2011) (BREYER, J., dissent- ing), and because the parties here differ as to which ap- proach applies. That difference reflects the fact that it is not clear just what New York's law does. On its face, the law seems simply to tell merchants that they cannot charge higher prices to credit-card users. If so, then it is an ordinary piece of commercial legislation subject to "rational basis" review. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 507 (1996) (opinion of Stevens, J.). It may, however, make more sense to interpret the statute as working like the expired federal law that it replaced. If so, it would require a merchant, who posts prices and who wants to charge a higher credit-card price, simply to dis- close that credit-card price. See 15 U. S. C. §§1602(q), (x), 1666f(a)(2) (1982 ed.); see also post, at 9 (SOTOMAYOR, J., concurring in judgment). In that case, though affecting the merchant's "speech," it would not hinder the transmis-  Cite as: 581 U. S. ____ (2017) 3 BREYER, J., concurring in judgment sion of information to the public; the merchant would remain free to say whatever it wanted so long as it also revealed its credit-card price to customers. Accordingly, the law would still receive a deferential form of review. See Zauderer, supra, at 651. Nonetheless, petitioners suggest that the statute does more. See, e.g., Brief for Petitioners 28 (arguing that the statute forbids "[f ]raming the price difference . . . as a credit surcharge"). Because the statute's operation is unclear and because its interpretation is a matter of state law, I agree with the majority that we should remand the case to the Second Circuit. I also agree with JUSTICE SOTOMAYOR that on remand, it may well be helpful for the Second Circuit to ask the New York Court of Appeals to clarify the nature of the obligations the statute imposes. See N. Y. Comp. Code, Rules & Regs., tit. 22, Rule 500.27(a) (2016) (permitting "any United States Court of Appeals" to certify "dispositive questions of [New York] law to the [New York] Court of Appeals").  Cite as: 581 U. S. ____ (2017) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 15-1391 _________________ EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF NEW YORK, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [March 29, 2017] JUSTICE SOTOMAYOR, with whom JUSTICE ALITO joins, concurring in the judgment. The Court addresses only one part of one half of peti- tioners' First Amendment challenge to the New York statute at issue here. This quarter-loaf outcome is worse than none. I would vacate the judgment below and re- mand with directions to certify the case to the New York Court of Appeals for a definitive interpretation of the statute that would permit the full resolution of petitioners' claims. I thus concur only in the judgment. I New York prohibits its merchants from "impos[ing] a surcharge on a [customer] who elects to use a credit card in lieu of payment by cash, check, or similar means." N. Y. Gen. Bus. Law Ann. §518 (West 2012). A merchant who violates this prohibition commits a misdemeanor and risks "a fine not to exceed five hundred dollars or a term of imprisonment up to one year, or both." Ibid. A Section 518 can be interpreted in several ways. On first read, its prohibition on "impos[ing] a surcharge" on credit card customers appears to prohibit charging customers who pay with a credit card more than those who pay by other 2 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN SOTOMAYOR, J., concurring in judgment means. See Black's Law Dictionary 1579 (9th ed. 2009) ("surcharge" means "[a]n additional tax, charge, or cost"). That is, §518 may require a merchant to charge all cus- tomers the same price, no matter the form of payment. An earlier federal law containing an almost identical prohibition muddies the path to this plain text reading. A 1976 amendment to the Truth in Lending Act set out a temporary prohibition barring a "seller in any sales trans- action" from "impos[ing] a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means." §3(c)(1), 90 Stat. 197. The amendment also defined a "surcharge" as "any means of increasing the regular price to a cardholder which is not imposed upon customers paying by cash, check, or similar means." §3(a), ibid. "[R]egular price" was later defined to mean the displayed price if a merchant displayed only one price or the credit card price if the merchant either did not display prices or displayed both cash and credit card prices. §102(a), 95 Stat. 144. Under that definition, a merchant violated the federal prohibition on "impos[ing] a sur- charge" by displaying in dollars-and-cents form only one price - the cash price - and then charging credit card customers a higher price.1 When the federal law lapsed in 1984, New York enacted §518, which sets out the same ban on "impos[ing] a sur- charge." New York borrowed the federal prohibition al- most verbatim. But it chose, without explanation, not to borrow the federal definitions or to enact clarifying defini- tions of its own. The difference between the laws leaves §518 open to at least three interpretations. It could be read in line with its plain text to require that a merchant charge the same - - - - - - 1 This is the interpretation of the lapsed federal ban offered by the United States and accepted by the majority. For purposes of this opinion, I assume that this interpretation is correct.  Cite as: 581 U. S. ____ (2017) 3 SOTOMAYOR, J., concurring in judgment price to all his customers. It could be read in line with the lapsed federal ban to permit a merchant to charge differ- ent prices to cash and credit card customers but to prohibit a merchant from displaying in dollars-and-cents form only the cash price and then charging credit card customers a higher price. On this reading, §518 would not apply where a merchant displays in dollars-and-cents form only the credit card price and then charges a lower price to cash customers, or where a merchant displays both the cash and credit card prices in dollars-and-cents form. Or it could be read more broadly, based on the omission of the definitions that had limited the federal ban's scope. On this reading, §518 might prohibit a merchant from charac- terizing the difference between the cash and credit card prices as a "surcharge," no matter how he displays his prices.2 - - - - - - 2 Section 518's sparse enforcement history does not clear up the am- biguity. New York has pursued one §518 prosecution, which resulted in a conviction later set aside on appeal. The decision supports, but does not require, giving §518 a broader reading than the lapsed federal ban. See People v. Fulvio, 136 Misc. 2d 334, 344-345, 517 N. Y. S. 2d 1008, 1015 (1987) (stating that §518 permits a conviction for being "careless enough to describe the higher price in terms which amount to the 'credit price' having been derived from adding a charge to the lower price" (emphasis deleted)). A more recent enforcement spree is more opaque. A group of merchants state that when a customer called asking for their prices, they would quote the cash price and tell the customers they charged, for example, "a $.05 surcharge" for payment with a credit card. See, e.g., App. 107. They state that in 2009 the New York Attorney General's Office told them that they had violated §518, directed them to stop, and explained that they could comply with §518 by quoting the credit card price and offering a "discoun[t]" for payment with cash. Ibid. While these merchants' acts would have violated the lapsed federal ban - by stating a single cash price and then charging a higher price to credit card customers - the recent enforcement actions do not demonstrate that §518 prohibits only those acts and stretches no further. And because the New York attorney general lacks the author- ity to adopt an interpretation of §518 that binds other prosecutorial entities in the State, these enforcement actions speak only to how the 4 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN SOTOMAYOR, J., concurring in judgment Confirming the elusive nature of §518, New York has pressed almost all of these interpretations during this litigation. Before the District Court, it viewed §518 as mirroring the lapsed federal ban. See 975 F. Supp. 2d 430, 442 (SDNY 2013). Before the Second Circuit, it of- fered the lapsed federal ban as a narrowing interpretation, thus suggesting that §518 applies more broadly than that provision. See 808 F. 3d 118, 140, n. 13 (2015). And be- fore this Court, it explained that other prosecutorial enti- ties in New York are not bound by its interpretation of §518 (or the interpretations of the state district attorneys who are parties to this case), leaving open the possibility of still other interpretations. See Tr. of Oral Arg. 40.3 B Petitioners here are five New York merchants. When a customer pays with a credit card, petitioners (like all merchants) are charged a processing fee by the card issuer. Petitioners want to pass that fee on to their credit card paying customers, but not their cash paying customers. They want to charge cash customers one price and credit card customers a higher price that includes the processing fee. One petitioner, Expressions Hair Design, currently does pass the costs of credit card processing fees on to its credit card paying customers. The other four charge one price to all customers. They set their prices to account for the processing fees they predict they will incur. All five would prefer to use a different pricing system or display than the ones they use now. Expressions Hair Design and Five Points Academy would like to charge cash and credit card customers two different prices and to - - - - - - attorney general may interpret §518. See Tr. of Oral Arg. 40-41. 3 The multiple available interpretations of §518 do not render §518 so vague as to violate the Due Process Clause. But they do render §518 ambiguous enough to warrant asking the New York Court of Appeals to resolve the statute's meaning.  Cite as: 581 U. S. ____ (2017) 5 SOTOMAYOR, J., concurring in judgment display a dollars-and-cents cash price alongside the extra charge for credit card customers - say, "$100 with a 3% credit card charge" or "$100 with a $3 credit card charge." Brooklyn Farmacy & Soda Fountain, Brite Buy Wines & Spirits, and Patio.com want to charge cash and credit card customers two different prices and to characterize the difference in prices as a "surcharge" when they display or convey their prices to customers. App. 47-48, 51, 57. All five do not use their preferred pricing systems or displays for fear of violating §518. Expressions Hair Design and Five Points Academy believe §518 prohibits their pricing display because it would convey the credit card processing costs impermissibly as a surcharge, rather than permissibly as a discount - say, "$103 with a 3% discount for cash payment" or "$103 with a $3 discount for cash payment." The other three petitioners believe that §518 regulates how they can describe the difference be- tween cash and credit card prices. Because §518 does not, in their view, clearly state just how it regulates those descriptions, they have decided that the uncertainty coun- sels against a change. Petitioners view §518 as an unconstitutional restriction on their ability to display and describe their prices to their customers. And so they sued and challenged the law on First Amendment grounds. II Resolving petitioners' challenge to §518 requires an accurate picture of how, exactly, the statute works. That understanding is needed both to decide whether §518 prohibits petitioners' preferred pricing systems and dis- plays and, if so, whether that prohibition is consistent with the First Amendment. See 808 F. 3d, at 141; ante, at 10, n. 3. But the Second Circuit did not decide just how far §518 extends. It instead decided how §518 applies to part of the 6 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN SOTOMAYOR, J., concurring in judgment petitioners' challenge - the pricing display Expressions Hair Design and Five Points Academy wish to use - and declined to decide how, or even if, §518 applies to the rest of the challenge. While §518 evades easy interpretation, a partial decision was neither required nor right. The court below erred by not asking the New York Court of Appeals for a definitive interpretation of §518, and this Court errs by not correcting it. A Given a constitutional challenge that turned on the interpretation of an ambiguous state statute not yet defin- itively interpreted by the state courts, the Second Circuit faced a problem. Any interpretation it gave §518 would not be authoritative since state courts, not federal courts, have the final word on the interpretation of state statutes. But it had before it two routes - abstention and certifica- tion - to a solution. Both would have allowed it to secure an authoritative interpretation of §518 before resolving the constitutional challenge. In this context, abstention and certification serve the same goals. Both recognize that when the outcome of a constitutional challenge turns on the proper interpretation of state law, a federal court's resolution of the constitu- tional question may turn out to be unnecessary. The state courts could later interpret the state statute differently. And the state court's different interpretation might result in a statute that implicates no constitutional question, or that renders the federal court's constitutional analysis irrelevant. See, e.g., Arizonans for Official English v. Arizona, 520 U. S. 43, 79 (1997); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 507-509 (1985) (O'Connor, J., concurring). Abstention and certification avoid this risk by deferring a federal court's decision on the constitution- ality of the state statute until a state court has authorita- tively resolved the antecedent state-law question.  Cite as: 581 U. S. ____ (2017) 7 SOTOMAYOR, J., concurring in judgment Abstention is a blunt instrument. Under Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941), a federal court's decision to abstain sends the plaintiff to state court. Once the plaintiff obtains the state courts' views on the statute, he may return to federal court, state- court decision in hand, for resolution of the constitutional question. Pullman abstention thus "entail[s] a full round of litigation in the state court system before any resump- tion of proceedings in federal court." Arizonans for Offi- cial English, 520 U. S., at 76. Certification offers a more precise tool. In States that have authorized certification, a federal court may "put the [state-law] question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response." Ibid. The rule relevant here is typical of certification statutes. New York allows a federal court of appeals to certify "de- terminative questions of New York law . . . involved in a case pending before that court for which no controlling precedent of the Court of Appeals exists . . . to the [New York] Court of Appeals." N. Y. Comp. Code, Rules & Regs., tit. 22, Rule 500.27(a) (2016).4 - - - - - - 4 The New York Court of Appeals regularly accepts and answers certi- fied questions. See, e.g., Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N. Y. 3d 583, ___ N. E. 3d ___ (Dec. 20, 2016) (certified Apr. 13, 2016); Pasternack v. Laboratory Corp. of Am. Holdings, 27 N. Y. 3d 817, 59 N. E. 3d 485 (June 30, 2016) (certified Nov. 17, 2015); Matter of Viking Pump, Inc., 27 N. Y. 3d 244, 52 N. E. 3d 1144 (May 3, 2016) (certified June 10, 2015); Beck Chevrolet Co. v. General Motors LLC, 27 N. Y. 3d 379, 53 N. E. 3d 706 (May 3, 2016) (certified May 19, 2015); Ministers & Missionaries Benefit Bd. v. Snow, 26 N. Y. 3d 466, 45 N. E. 3d 917 (Dec. 15, 2015) (certified Mar. 5, 2015). The Second Circuit has "actively and vigorously employed" certification. Kaye, Tribute to Judge Guido Calabresi, 70 N. Y. U. Annual Survey Am. L. 33, 34 (2014) (noting, based on service as the Chief Judge of the New York Court of Appeals, that certification by the Second Circuit "has done an enormous amount to bridge the gap between our state and federal court systems"). 8 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN SOTOMAYOR, J., concurring in judgment While the decision to certify "rests in the sound discre- tion of the federal court," Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974), this Court has repeatedly empha- sized that certification offers clear advantages over ab- stention. "[M]ere difficulty in ascertaining local law is no excuse for" abstaining and "remitting the parties to a state tribunal for the start of another lawsuit." Id., at 390. Keeping the case, waiting for an answer on the certified question, and then fully resolving the issues "in the long run save[s] time, energy, and resources and helps build a cooperative judicial federalism." Id., at 391. As a result, "the availability of certification greatly simplifies the analysis" of whether to abstain. Bellotti v. Baird, 428 U. S. 132, 151 (1976); see also Arizonans for Official Eng- lish, 520 U. S., at 75 ("Certification today covers territory once dominated by a deferral device called Pullman ab- stention" (internal quotation marks omitted)). And this Court has described abstention as particularly problematic where, as here, a challenge to a state statute rests on the First Amendment. Cf. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 396 (1988) ("Certification, in contrast to the more cumbersome and (in this context) problematic abstention doctrine, is a method by which we may expeditiously obtain that construction"); Houston v. Hill, 482 U. S. 451, 467-468 (1987). The court below chose a convoluted course: It rejected certification, abstained in part, and decided the question in part. It did so by dividing petitioners' challenge into two parts. As to the first part, it held that §518 did pro- hibit the pricing display that Expressions Hair Design and Five Points Academy prefer: displaying the cash price alongside the credit card charge.5 It found this application - - - - - - 5 The court below did not truly engage with the plain text reading of §518, under which a merchant may not charge different prices to cash and credit card customers. See 808 F. 3d 118, 128 (CA2 2015). It is  Cite as: 581 U. S. ____ (2017) 9 SOTOMAYOR, J., concurring in judgment of §518 consistent with the First Amendment. See 808 F. 3d, at 130. As to the second part, it declined to address whether §518 speaks to, or unconstitutionally restricts, how petitioners who wish to display both the cash and credit card prices in dollars-and-cents form can describe the difference between those prices. See id., at 136. It doubted whether §518 did reach that broadly and assumed that, even if it did, the New York state courts would con- strue the statute more narrowly - in line with the lapsed federal provision. And so the court declined to certify the question and chose instead to abstain from deciding this part of petitioners' challenge. See id., at 137-139. It did so even though New York, responsible for enforcing §518, had "never quite abandon[ed]" its position that §518 might reach more broadly than the lapsed federal provision. Id., at 140, n. 13. The Second Circuit should have exercised its discretion to certify the antecedent state-law question here: What pricing schemes or pricing displays does §518 prohibit? Certification might have avoided the need for a constitu- tional ruling altogether. If the state court reads §518 only as a price regulation, no constitutional concerns are impli- cated. Compare 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 507 (1996) (plurality opinion) ("direct regula- tion" of prices does "not involve any restriction on speech"), with Virginia Bd. of Pharmacy v. Virginia Citi- zens Consumer Council, Inc., 425 U. S. 748, 761 (1976) (price advertisements contain protected speech because they convey a merchant's " 'idea' " that " 'I will sell you the X prescription drug at the Y price' "). Or certification might have limited the scope of the constitutional chal- lenge in the case. If the state court reads §518 to mirror the lapsed federal ban, that would eliminate the need for a - - - - - - free to consider that reading on remand in light of the Court's constitu- tional holding. 10 EXPRESSIONS HAIR DESIGN v. SCHNEIDERMAN SOTOMAYOR, J., concurring in judgment constitutional ruling on the second part of petitioners' challenge (premised on a reading of §518 that prohibits more than the lapsed federal ban). At the very least, certification would have allowed the court to resolve peti- tioners' entire challenge in one go. The Second Circuit declined to exercise its discretion to certify because it viewed the "state of the record" as too underdeveloped. 808 F. 3d, at 141. It thought that the New York Court of Appeals could not interpret §518, and that it could not resolve the challenge to §518, based on that record. Both issues are pure questions of law: whether §518 prohibits petitioners' preferred pricing sys- tems and displays (a statutory interpretation question for the New York Court of Appeals) and whether §518 survives petitioners' First Amendment challenge (a constitutional question for the Second Circuit). And both issues turn on only a limited set of facts - the pricing systems and dis- plays that petitioners wish to use. As discussed above, the record contains those facts. The "state of the record" thus does not counsel against certification. Given the signifi- cant benefits certification offered and given the absence of persuasive downsides identified by the Second Circuit, the decision not to certify was an abuse of discretion. B The consequences of the decision not to certify reverber- ate throughout the Court's opinion today. For lack of a definitive interpretation of §518, it chooses to address only the first part of petitioners' challenge and to defer to the Second Circuit's partial interpretation of §518.6 Ante, at - - - - - - 6 It does so by invoking an interpretive rule of deference to a lower federal court's construction of the law of a State within its jurisdiction, in line with the general principle that this Court does not resolve issues of state law. I do not read the Court's deference to the Second Circuit as holding that this Court will defer to a lower federal court's interpre- tation of state law even where doing so would cast serious constitutional  Cite as: 581 U. S. ____ (2017) 11 SOTOMAYOR, J., concurring in judgment 6-8. It then holds that §518 does restrict constitutionally protected speech. Ante, at 8-10. But it does not decide whether §518's restriction is constitutionally permissible because doing so would require it to answer the ever- present question in this case: "whether the statute permits . . . pricing schemes like the one . . . Expressions currently uses." Ante, at 10, n. 3. And so it sends this case back to the Second Circuit for further proceedings. Ante, at 10. III "The complexity" of this case "might have been avoided," Arizonans for Official English, 520 U. S., at 79, had the Second Circuit certified the question of §518's meaning when the case was first before it. The Court's opinion does not foreclose the Second Circuit from choosing that route on remand. But rather than contributing to the piecemeal resolution of this case, I would vacate the judgment below and remand with instructions to certify the case to the New York Court of Appeals to allow it to definitively interpret §518. I thus concur only in the judgment. - - - - - - doubt on, or invalidate, a state law. Such a rule would be incorrect. See Frisby v. Schultz, 487 U. S. 474, 483 (1988) (describing lower courts' interpretation as "plain error . . . [t]o the extent they endorsed a broad reading of the" law at issue because "the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties"). The Court's silence on the relevance of the avoidance canon to the Second Circuit's interpretation is consistent with an unexpressed conclusion, with which I disagree, that no narrow- ing construction is available that would avoid constitutional concerns or that a broader constriction raises no constitutional concerns.

317 U.S. 264 (1942) DEPARTMENT OF BANKING OF NEBRASKA, RECEIVER, v. PINK, SUPERINTENDENT OF INSURANCE OF THE STATE OF NEW YORK. No. 466. Supreme Court of United States. Decided December 21, 1942. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW YORK. *265 Messrs. Walter R. Johnson, Attorney General of Nebraska, Morris Amchan and Howard Saxton were on the brief for petitioner. Mr. Edward F. Keenan was on the brief for respondent. PER CURIAM. This case is here on a petition for certiorari to the Supreme Court of New York. It appears from the record that a judgment of that court was affirmed by an order of the Appellate Division, which was on June 18, 1942 ordered affirmed by the Court of Appeals, whose remittitur to the Supreme Court was issued the same day. On June 25 the order and judgment of the Court of Appeals were made the order and judgment of the Supreme Court. *266 A motion was afterwards filed in the Court of Appeals to amend its remittitur by adding to it the statement that a federal question, on which the petition for certiorari relies, was presented and necessarily passed upon in that court. So far as appears, the motion did not seek a reargument or rehearing of any part of the case; it was no more than a request that the Court of Appeals declare what had in fact occurred upon its previous decision of the case. On July 29 the Court of Appeals granted the motion and amended its remittitur accordingly. On September 16, the Supreme Court directed that the order amending the remittitur be made the order of the Supreme Court. The petition for certiorari was filed in this Court on October 20. Under the three-months limitation imposed by the statute, 28 U.S.C. § 350, the petition for certiorari is timely only if the amendment of the remittitur extended the time within which to apply for certiorari. We are unable to conclude that it had such effect. Unlike a motion for reargument or rehearing, it did not seek to have the Court of Appeals reconsider any question decided in the case. The final judgment already rendered was not challenged; what was sought was merely the court's certification that a federal question had been presented to it for decision, and this could have no different effect on the finality of the judgment than a like amendment of the court's opinion. A timely petition for rehearing tolls the running of the three-months period because it operates to suspend the finality of the state court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties. Here no such alteration of the rights adjudicated was asked, and the finality of the court's first order was never suspended. Accordingly we must deny the petition *267 for certiorari on the ground that it was not filed within the time provided by law. Certain questions with respect to the timeliness of applications for review of state court judgments, which are now pending before us in petitions for rehearing in two cases, have recurred so frequently that we think it appropriate to add a word for the guidance of the Bar. It is true that our writ to review a judgment of the highest court of a state may properly run to a lower court where the record is physically lodged, and where under New York practice a judgment is entered upon the remittitur of the Court of Appeals. It is nevertheless immaterial whether the record is physically lodged in the one court or the other, since we have ample power to obtain it from either. Atherton v. Fowler, 91 U.S. 143, 146. In reliance upon the early decision in Green v. Van Buskerk, 3 Wall. 448, the period for appeal or application for certiorari has on occasion been computed not from the judgment or order of the New York Court of Appeals, but from the judgment subsequently entered by the lower court upon the Court of Appeals' remittitur. This practice, which is a departure from the rule applied to cases from other states, is inconsistent with our many decisions on the nature of a final judgment under § 237 of the Judicial Code, 28 U.S.C. § 344, and cannot be sanctioned. See especially Chief Justice Waite's opinion in Mower v. Fletcher, 114 U.S. 127, where a state appellate court's judgment was held to be final and reviewable when it ended the litigation by fully determining the rights of the parties, so that nothing remained to be done by the lower court except the ministerial act of entering the judgment which the appellate court had directed. See also Wurts v. Hoagland, 105 U.S. 701, 702, and Clark v. Williard, 292 U.S. 112, 117-118. This rule applies with equal force to cases from New York, *268 in which the judgment or order of the Court of Appeals is reviewable here as a final judgment when the record reveals that it leaves nothing to be done by the lower court except the ministerial act of entering judgment on the remittitur. Such an order is, within the meaning of § 237 of the Judicial Code, a final judgment reviewable here. For the purpose of the finality which is prerequisite to a review in this Court, the test is not whether under local rules of practice the judgment is denominated final (Wick v. Superior Court, 278 U.S. 575; Cheltenham & Abington Sewerage Co. v. Pennsylvania Public Utility Comm'n, post, p. 588), but rather whether the record shows that the order of the appellate court has in fact fully adjudicated rights and that that adjudication is not subject to further review by a state court (see Gorman v. Washington University, 316 U.S. 98). Where the order or judgment is final in this sense, the time for applying to this Court runs from the date of the appellate court's order, since the object of the statute is to limit the applicant's time to three months from the date when the finality of the judgment for purposes of review is established. It was for this reason that we recently held that the three-months requirement had not been complied with in Monks v. Lee, post, p. 590, and Bunn v. Atlanta, post, p. 666, in which cases judgments were brought here for review from the courts of California and Georgia, and in each of which a petition for rehearing is today denied, post, p. 711. The petition for certiorari in this case must likewise be denied for want of jurisdiction. So ordered.

177 U.S. 419 20 S.Ct. 701 44 L.Ed. 829 WILLIAM CRAWFORD, Appt.,v.WILLIAM L. HUBBELL, as Treasurer of the Adams Express Company. No. 248. Argued November 8, 9, 1899. Decided April 16, 1900. Messrs. Frederic R. Kellogg, Allan L. McDermott, Harvey L. Christie, and Dill, Seymour, & Baldwin for appellant. Messrs. Charles Steele, C. B. Alexander, William D. Guthrie, and Theodore S. Beecher for appellee. Mr. Justice White delivered the opinion of the court: 1 The certificate and the questions which arise from it are as follows: 2 'This cause came before this court on February 2, 1899, upon an appeal taken by the complainant to review a decree of the circuit court, southern district of New York, sitting in equity. Such decree dismissed the bill. As to a question of law arising upon said appeal this court desires the instruction of the Supreme Court for its proper decision. 3 'Statement of Facts. 4 'This suit is for an injunction to restrain the express company from refusing to accept express packages from complainant for transportation, except upon the condition that complainant either pay for or provide the war revenue stamp required to be affixed to each receipt in addition to its usual and ordinary charges for transportation as the same existed on and for a long time prior to July 1, 1898. The defendant company since July 1, 1898, has fixed rates of compensation which it offers to accept for services rendered by it, whereby, in addition to the amount of its charges as the same existed on and for a long time prior to July 1, 1898, it requires the shipper either to provide or pay for the cost of the stamp on the bill of lading or receipt required to be issued by the act of Congress of June 13, 1898, known as the 'War Revenue Act.' It has made known these charges to shippers, and particularly to complainant, and refuses to accept packages for transportation except upon payment thereof. The pleadings are annexed to this certificate. 5 'Questions Certified. 6 'Upon the facts set forth, the questions of law concerning which this court desires the instruction of the Supreme Court for its proper decision are: 7 '(1) Does the war revenue act of June 13, 1898, impose upon the carrier exclusively the tax represented by the stamp to be affixed to each bill of lading, manifest, or other evidence of receipt required to be issued to each shipper of goods accepted by the carrier for transportation, or does it impose the tax merely upon the transaction of shipment, leaving it to be paid indifferently by either party thereto? 8 '(2) If the war revenue act of June 13, 1898, does impose such tax exclusively upon the carrier, does it preclude the carrier, who is by such act required to issue to each shipper a bill of lading, manifest, or other evidence of receipt, from relieving itself of the expense of affixing and canceling the stamp required to be attached to such bill of lading, manifest, or other evidence of receipt? 9 'In accordance with the provisions of § 6 of the act of March 3, 1891, establishing courts of appeal, etc., the foregoing questions of law are by the circuit court of appeals hereby certified to the Supreme Court.' 10 The subject to which the certificate relates and the matter embraced in the questions submitted has been considered, and was passed on in an opinion this day announced in the case of American Exp. Co. v. Maynard ex rel. Moore, No. 220 of the docket of this term (177 U. S. 404, 44 L. ed. - - , 20 Sup. Ct. Rep. 695). 11 For the reasons given in the opinion in the case just referred to, it is unnecessary to answer the first question submitted, and a negative answer to the second question is required; and it is so ordered.

274 U.S. 619 (1927) FEDERAL TRADE COMMISSION v. EASTMAN KODAK COMPANY ET AL. No. 215. Supreme Court of United States. Argued March 10, 11, 1927. Decided May 31, 1927. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. *620 Mr. Adrien F. Busick, with whom Solicitor General Mitchell and Mr. Bayard T. Hainer were on the brief, for petitioner. Mr. John W. Davis, with whom Messrs. Clarence P. Moser and Harold G. Hathaway were on the brief, for respondents. MR. JUSTICE SANFORD delivered the opinion of the Court. This writ brings up for review a decree of the Circuit Court of Appeals setting aside in part an order of the Federal Trade Commission, entered after a due hearing in a proceeding instituted by it under § 5 of the Federal Trade Commission Act,[1] by which the Eastman Kodak Company, the Allied Laboratories Association, Inc., and others were required to desist from acts held by the Commission to constitute unfair methods of competition in the manufacture and sale of positive cinematograph films in interstate and foreign commerce. These positive films are raw materials used by film laboratories in making positive prints of motion pictures that are thrown upon the screen. The Eastman Company originated the commercial manufacture of such films many years ago. In 1920 it manufactured and sold 94 per cent. of those used in the United States; but in 1921, owing to competition by importers of films manufactured in foreign countries, its sales decreased to 81 per cent. Upon an agreed statement of facts, and the inferences which it drew therefrom, the Commission found, in effect, that thereafter the Eastman Company, with the purpose and intent of maintaining its monopoly and lessening competition in the sale of such films, acquired three laboratories used in making motion picture prints, whose combined capacity exceeded that of all the other laboratories *621 east of Chicago, and announced its intention of entering upon the manufacture of such prints; that this constituted an effective threat of overpowering competitive force which compelled the members of the Allied Laboratories - an association of manufacturers of such prints - to enter into an agreement or understanding with the Eastman Company that the members of the Allied Laboratories would use American-made films only, to the exclusion of foreign-made films, so long as the Company did not compete with them in manufacturing prints, and that the company - which continued to maintain its laboratories in readiness for operation - would not manufacture prints in competition with them so long as they used American-made films exclusively; that this agreement or understanding had the effect of lessening competition in the sale of the films in interstate and foreign commerce and sustaining the monopoly of the Company therein; and that its ownership of the three laboratories and their maintenance in condition for operation, continued to have the effect of inducing and compelling the manufacturers of prints to use only the films made by the Company. On these and subsidiary findings, the Commission entered an order requiring the defendants to cease and desist from combining and cooperating in restraining competition in the manufacture and sale of positive films and maintaining the monopoly of the Eastman Company in their sale in interstate and foreign commerce, by the agreement and understanding that the members of the Allied Laboratories would use American-made films exclusively, provided the Company would not operate its laboratories in competition with them, and that the Company would not operate its laboratories for the manufacture of prints in competition with them, provided they used and continued to use American-made films exclusively; and by other incidental means. And the Commission *622 further ordered that for the purpose of preventing the maintenance of the monopoly of the Eastman Company in the manufacture and sale of positive films and restoring competitive freedom in their distribution and sale, the Company should with due diligence sell and convey its three laboratories to parties not directly connected, or indirectly interested, with it. On a petition by the Eastman Company and the Allied Laboratories for a review of this order, the Circuit Court of Appeals - without referring specifically to the purpose for which the Eastman Company acquired and maintained the three laboratories - held, in substance, that the reciprocal agreement or understanding between the Eastman Company and the Allied Laboratories that their members would use only American-made films in the manufacture of prints, and the Company would not operate its laboratories for the manufacture of prints, was an unfair method of competition which the Commission had authority to prevent; but that - one judge dissenting - it was not unlawful for the Eastman Company to equip itself to enter upon the business of manufacturing prints, there being nothing unfair in its going into this business, and the Commission had no authority to order the Company to divest itself of the laboratories which it had lawfully acquired. 7 Fed. (2d) 994. A decree was accordingly entered affirming the order of the Commission in so far as it required the Eastman Company and the Allied Laboratories to desist from their agreement or understanding in reference to the use of American-made films and the operation of the Eastman Company's laboratories, but setting aside the order in so far as it required the Eastman Company to sell its laboratories, and in other incidental respects. This writ of certiorari was then granted on a petition by the Commission which challenged the correctness of the decree of the Court of Appeals only in respect to the *623 setting aside of so much of the order as required the Eastman Company to dispose of its laboratories. For present purposes we do not find it necessary to determine the questions whether the finding of the Commission as to the purpose for which the Eastman Company acquired the three laboratories - based in part at least upon inferences from the agreed statement of facts - was correct, and whether, in any event, it was conclusive upon the Court of Appeals; but, in the absence of any specific reference to this matter by the Court of Appeals, we shall assume the correctness of the Commission's finding, and proceed, on that assumption, to the consideration of the only other question presented in the petition for the writ of certiorari and pressed in this Court, namely, whether the Commission had authority to order the Eastman Company to sell and convey its laboratories to other parties. The proceeding before the Commission was instituted under § 5 of the Federal Trade Commission Act, and its authority did not go beyond the provisions of that section. By these the Commission is empowered to prevent the using of "unfair methods of competition" in interstate and foreign commerce, and, if it finds that "any unfair method of competition." is being used, to issue an order requiring the offender "to cease and desist from using such method of competition." The Commission exercises only the administrative functions delegated to it by the Act, not judicial powers. National Harness, etc. Association v. Federal Trade Commission (C.C.A.), 268 Fed. 705, 707; Chamber of Commerce v. Federal Trade Commission (C.C.A.), 280 Fed. 45, 48. It has not been delegated the authority of a court of equity. And a Circuit Court of Appeals on a petition to review its order is limited to the question whether or not it has properly exercised the administrative authority given it by the Act, and may not sustain or award relief beyond *624 the authority of the Commission; such review being appellate and revisory merely, and not an exercise of original jurisdiction by the court itself. The question here presented is in effect ruled by Federal Trade Commission v. Western Meat Co., 272 U.S. 554, 561, 563, in which the decisions in Federal Trade Commission v. Thatcher Mfg. Co. (C.C.A.), 5 F. (2d) 615, and Swift & Co. v. Federal Trade Commission (C.C.A.), 8 F. (2d) 595, that were relied upon by the Commission in its petition for the writ of certiorari, were reversed by this Court. In that case it was held that - although the Commission, having been granted specific authority by § 11 of the Clayton Act[2] to require a corporation that had acquired the stock of a competitive corporation in violation of law "to cease and desist from such violations, and divest itself of the stock held," might require the corporation to divest itself of such stock in a manner preventing its use for the purpose of securing the competitor's property - it could not, after the corporation by the use of such stock had acquired the property of the competitor, require it to divest itself of the property thus acquired so as to restore the prior lawful condition. As to this we said: "The Act has no application to ownership of a competitor's property and business obtained prior to any action by the Commission, even though this was brought about through stock unlawfully held. The purpose of the Act was to prevent continued holding of stock and the peculiar evils incident thereto. If purchase of property has produced an unlawful status a remedy is provided through the courts." And they "must administer whatever remedy there may be in such situation." Distinct reference was there made (p. 561) to § 15 of the Clayton Act, where express provision is made for the invocation of judicial remedies as need therefore may arise. *625 So here, the Commission had no authority to require that the Company divest itself of the ownership of the laboratories which it had acquired prior to any action by the Commission. If the ownership or maintenance of these laboratories has produced any unlawful status, the remedy must be administered by the courts in appropriate proceedings therein instituted. The decree of the Circuit Court of Appeals is accordingly Affirmed. MR. JUSTICE STONE, dissenting. I am unable to agree that the Federal Trade Commission, in the performance of its duties under the Federal Trade Commission Act, lacks the power to order the divestment of physical property, or that the decision in Federal Trade Commission v. Western Meat Company, 272 U.S. 554, forecloses our consideration of that question here. In the Thatcher and Swift cases considered in that opinion, the stock of competing corporations had been acquired in violation of § 7 of the Clayton Act, which prohibits the acquisition by one corporation of the capital stock of another "where the effect of such acquisition may be to substantially lessen competition." The stock control having been followed by purchase of the physical assets of the competing corporations, the Commission, proceeding under §§ 7 and 11, ordered the offending corporations to divest themselves of both the stock and the physical property. In deciding that the Commission had exceeded its authority, so far as the property was concerned, the Court expressly limited its consideration to the grant of power under §§ 7 and 11 of the Clayton Act, § 11 in terms authorizing the Commission to make an order "requiring such person to cease and desist from such violations, and divest itself of the stock held . . . contrary to the provisions of section 7 . . ." *626 The effect of § 5 of the Federal Trade Commission Act, dealing with the different subject of unfair competition, was put to one side, the Court saying: "This section (referring to § 5) is not presently important; the challenged orders sought to enforce obedience to § 7 of the Clayton Act." (p. 557.) The scope of the decision was thus stated: "When the Commission institutes a proceeding based upon the holding of stock contrary to § 7 of the Clayton Act, its power is limited by § 11 to an order requiring the guilty person to cease and desist from such violation, effectually to divest itself of the stock, and to make no further use of it." (p. 561.) It was not held that the Commission under no circumstances could compel the sale of physical property, and there was in fact a clear intimation in the opinion that under § 7 of the Clayton Act the acquisition of the property after a complaint had been filed against the corporation for illegal stock purchases would not find the Commission powerless. Section 5 of the Trade Commission Act, with which we are now concerned, declares unlawful "unfair methods of competition in commerce," and empowers and directs the Commission to prevent the use of such methods. The Commission is directed upon finding that the method of competition under investigation is prohibited by the Act, to issue its order "requiring such person, partnership or corporation to cease and desist from using such method of competition." The powers thus broadly given sharply contrast with the specific enumeration of §§ 7 and 11 of the Clayton Act. As was pointed out in the Western Meat Co. case, the Clayton Act prohibits only the acquisition of stock and not the assets of the competing corporation, and in terms merely authorizes an order requiring the corporation "to cease and desist from such violations, and divest itself of the stock held. . . ." For that reason alone, *627 the majority of the Court thought that the language of these provisions was not broad enough to enable the Commission to order the corporation to divest itself of the physical assets thus acquired, although their acquisition aggravated and brought to its final consummation the very evil aimed at by the statute. The comprehensive language of § 5 neither invites nor supports a narrow construction. It is general in terms, and in the authorized prevention of unfair methods of competition the Commission is not limited to any particular method of making its orders effective. The power does not any the less exist because the Commission framed the present order in part in affirmative terms specifying the manner in which the company should abandon the unfair method of competition it found had been practiced. Nor does the fact that the Commission is not a court of equity lessen the power conferred upon it by the statute. It is of course essentially an administrative agency. Its orders never have the effect of an injunction and are enforcible only by proceedings instituted in the appropriate circuit court of appeals. Its powers are not enhanced by the circumstance that its orders are enforcible in courts having in their own right equity powers. But it is likewise true that it cannot be denied powers granted by Congress merely because its orders resemble in form familiar equitable decrees. To make its want of equity powers ground for limiting those expressly conferred by the statute is to condemn all the orders ever made by the Commission. Orders compelling the sale of stock, preventing price cutting, local price discrimination, resale price maintenance, exclusive dealing arrangements, boycotting, blacklisting, disparagement of competitor's wares, misrepresentation, misbranding, adulteration, dishonest advertising, espionage, commercial bribery, coercion, threats, intimidation, the use of "fighting brands" or bogus independents, to mention *628 only a few of the practices which the Commission has forbidden, remind of equitable relief no less than an order compelling the sale of physical property, the very acquisition and continued possession of which may be the indispensable element in a scheme of unfair competition. The conclusion seems to me unavoidable, therefore, that this case cannot be disposed of without determining whether the acquisition and retention of the film laboratories by the Eastman Company, under the circumstances disclosed by the record, constituted in itself or was a part of or a step in an unfair method of competition. Until that is determined we cannot say that the Commission was without power under § 5 to make any appropriate order to prevent the use of such methods. That ruinous competition, or the threat of it, when the aim is monopoly or the suppression of competition, may be the dominant factor in a violation of the Sherman Act is no longer fairly open to question. But, in determining the meaning of "unfair methods of competition," it should be borne in mind that the Trade Commission's function is to discourage certain trade tendencies before violations of the Sherman Act have occurred. The advised use of the phrase "unfair methods of competition" for the more familiar "unfair competition" of the common law indicates an unmistakable Congressional intent to confer on the Commission the power, subject of course to the judicial review provided for in the Act, to prevent unfair trade practices not included in the prohibition of the Sherman Act and of the common law. See Henderson, Federal Trade Commission, 36; cf. Federal Trade Commission v. Winsted Hosiery Co., 258 U.S. 483. In that part of its order which now remains undisturbed, and which is not questioned here, the Commission has found and forbidden the agreement between the Eastman Company and the Association that the members of the Association would use American raw film, of which *629 it appears ninety-four per cent. of that used in the United States is produced by the Eastman Company, to the exclusion of foreign-manufactured film, provided the Eastman Company would not operate its laboratories commercially to produce positive prints in competition with the members of the Association. The majority, not having found it necessary to consider whether the stipulated facts established unfair methods of competition because of the Commission's supposed want of power, any extended review of them here is uncalled for. But the evidence is sufficient to justify the inference drawn by the Commission that suppression of competition in the sale of foreign films, consummated by this agreement, was accomplished in part at least by the acquisition and retention of these laboratories as a constant and imminent threat to members of the Association of competition in the business field they occupy. Superficial examination might suggest that the respondent's course of conduct involves nothing more than the innocuous process of extending its business to include an allied trade, but the matter may not be thus lightly disposed of. We may lay aside the question whether one already possessing monopoly powers in one field, especially where as here there is no available substitute for his products, may make use of his strategic position to dominate all phases of the industry from production to consumption. For here it seems fairly inferable from the stipulated facts that there was no intention of permanent expansion. The Eastman Company threatened to engage in temporary competition with the manufacturers of prints in order to attain its objective - the suppression of foreign competition in raw film. When that was attained, the laboratories were allowed to remain idle, and the assumed advantages to the public from permanent competition were lacking. I have no difficulty in concluding that this threat of temporary competition was unfair to the Eastman Company's purchasers and to its *630 foreign competitors, and was an unfair method of competition within the meaning of § 5. Compare Tuttle v. Buck, 107 Minn. 145; Dunshee v. Standard Oil Co., 152 Ia. 618, 626-627; United States v. Corn Products Refining Co., 234 Fed. 964, 984, 1010; United States v. Central West Publishing Co., Decrees and Judgments in Federal Anti-Trust Cases, 359, 360, 362; Thomsen v. Cayser, 243 U.S. 66, 87; for cases which, although not exactly in point, lend support to this view. It would seem that that part of the order which still stands, forbidding the agreement for the suppression of competition, is futile if the Eastman Company may retain the laboratories as a threat to compel the manufacturers of prints to do that which they could not lawfully agree to do. In my view, the decree below should be reversed and the order of the Commission upheld. MR. JUSTICE BRANDEIS joins in this dissent. NOTES [1] 38 Stat. 717, c. 311; U.S.C., Tit. 15, § 45. [2] 38 Stat. 730, c. 311; U.S.C., Tit. 15, § 21.

513 U.S. 504 (1995) HARRIS v. ALABAMA No. 93-7659. United States Supreme Court. Argued December 5, 1994. Decided February 22, 1995. CERTIORARI TO THE SUPREME COURT OF ALABAMA *506 O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 515. Ruth E. Friedman argued the cause for petitioner. With her on the brief was Bryan A. Stevenson. P. David Bjurberg, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was James H. Evans, Attorney General. Justice O'Connor, delivered the opinion of the Court. Alabama law vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict. We granted certiorari to consider petitioner's argument that Alabama's capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury's recommendation and thus permits arbitrary imposition of the death penalty. *506 I A defendant convicted of capital murder in Alabama is entitled to a sentencing hearing before the trial jury, Ala. Code § 13A-5-46 (1994), unless jury participation is waived by both parties and approved by the court, § 13A-5-44. The State must prove statutory aggravating factors beyond a reasonable doubt and must disprove, by a preponderance of the evidence, any mitigating circumstance the defendant may proffer. § 13A-5-45(g). The jury then renders an advisory verdict. If it finds that aggravating factors, if any, outweigh mitigating circumstances, then the jury recommends death; otherwise, the verdict is life imprisonment without parole. § 13A-5-46(e). The jury may recommend death only if 10 jurors so agree, while a verdict of life imprisonment requires a simple majority. § 13A-5-46(f). The recommendation and vote tally are reported to the judge. The judge then must consider all available evidence and file a written statement detailing the defendant's crime, listing specific aggravating and mitigating factors, and imposing a sentence. Section 13A-5-47(e) provides: "In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or 13A-5 - 46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court." If the defendant is sentenced to death, his conviction and sentence are automatically reviewed by an appellate court and, if affirmed, a writ of certiorari is granted by the Alabama Supreme Court as a matter of right. In addition to reviewing the record for errors, the appellate courts must *507 independently weigh aggravating and mitigating circumstances and determine whether the death penalty is disproportionate to sentences rendered in comparable cases. § 13A-5-53(b). Petitioner Louise Harris was married to the victim, a deputy sheriff, and was also having an affair with Lorenzo McCarter. She asked McCarter to find someone to kill her husband, and McCarter to that end approached a co-worker, who refused and reported the solicitation to his supervisor. McCarter then found willing accomplices in Michael Sockwell and Alex Hood, who were paid $100 and given a vague promise of more money upon performance. On the appointed night, as her husband left for work on the night shift, Harris called McCarter on his beeper to alert him. McCarter and Hood sat in a car parked on a nearby street, and Sockwell hid in the bushes next to a stop sign. As the victim stopped his car at the intersection, Sockwell sprang forth and shot him, point blank, with a shotgun. Harris was arrested after questioning, and McCarter agreed to bear witness to the conspiracy in exchange for the prosecutor's promise not to seek the death penalty. McCarter testified that Harris had asked him to kill her husband so they could share in his death benefits, which totaled about $250,000. The jury convicted Harris of capital murder. At the sentencing hearing, a number of witnesses attested to her good background and strong character. She was rearing seven children, held three jobs simultaneously, and participated actively in her church. The jury recommended, by a 7 to 5 vote, that she be imprisoned for life without parole. The trial judge then considered her sentence, finding the existence of one aggravating circumstance, that the murder was committed for pecuniary gain, and one statutory mitigator, that Harris had no prior criminal record. The trial judge also found as nonstatutory mitigating circumstances that Harris was a hardworking, respected member of her church and community. Noting that Harris had planned the crime *508 and financed its commission and stood to benefit the most from her husband's murder, the judge concluded that "the one statutory aggravating circumstance found and considered far outweighs all of the non-statutory mitigating circumstances, and that the sentence ought to be death." App. 7. In separate proceedings, all the conspirators were convicted of capital murder. McCarter and Hood received prison terms of life without parole; Sockwell, the triggerman, was sentenced to death after the trial judge rejected a jury recommendation, again by a 7 to 5 vote, of life imprisonment. The Alabama Court of Criminal Appeals affirmed Harris' conviction and sentence. 632 So. 2d 503 (1992). It noted that Alabama's death penalty statute is based on Florida's sentencing scheme, which we have held to be constitutional, see Spaziano v. Florida, 468 U. S. 447, 457-467 (1984); Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). One difference is that jury recommendations are to be given "great weight" by the sentencing judge in Florida, see Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), whereas Alabama only requires the judge to "consider" the advisory verdict. The Court of Criminal Appeals rejected Harris' contention that Florida's so-called Tedder standard is constitutionally required, however. 632 So. 2d, at 538. As the statute prescribes, the court then reviewed the record for prejudicial errors and independently weighed the aggravating and mitigating circumstances. Finding no errors and concluding that death was the proper sentence, the court affirmed. Id., at 542 - 543. The Alabama Supreme Court also affirmed, discussing an unrelated claim. 632 So. 2d 543 (1993). We granted certiorari. 512 U. S. 1234 (1994). II Alabama's capital sentencing scheme is much like that of Florida. Both require jury participation in the sentencing process but give ultimate sentencing authority to the *509 trial judge. Ala. Code § 13A-5-47(e) (1994); Fla. Stat. § 921.141(3) (1985). A sentence of death in both States is subject to automatic appellate review. Ala. Code § 13A - 5-55 (1994); Fla. Stat. § 921.141(4) (1985). In Florida, as in Alabama, the reviewing courts must independently weigh aggravating and mitigating circumstances to determine the propriety of the death sentence, Ala. Code § 13A-5-53(b)(2) (1994); Harvard v.State, 375 So. 2d 833 (Fla.), cert. denied, 441 U. S. 956 (1977), and must decide whether the penalty is excessive or disproportionate compared to similar cases, Ala. Code § 13A-5-53(b)(3) (1994); Williams v. State, 437 So. 2d 133 (Fla. 1983), cert. denied, 466 U. S. 909 (1984). The two States differ in one important respect. The Florida Supreme Court has opined that the trial judge must give "great weight" to the jury's recommendation and may not override the advisory verdict of lifeunless "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder v. State, supra, at 910. The same deference inures to a jury recommendation of death. See Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988) (collecting cases). The Alabama capital sentencing statute, by contrast, requires only that the judge "consider" the jury's recommendation, and Alabama courts have refused to read the Tedder standard into the statute. See Ex parte Jones, 456 So. 2d 380, 382-383 (Ala. 1984). This distinction between the Alabama and Florida schemes forms the controversy in this case - whether the Eighth Amendment to the Constitution requires the sentencing judge to ascribe any particular weight to the verdict of an advisory jury. We have held Florida's capital sentencing statute to be constitutional. See Proffitt v. Florida, supra; Spaziano v. Florida, supra. In Spaziano, we addressed the specific question whether Florida could, consistent with the Constitution, vest sentencing authority in the judge and relegate the jury to an advisory role. While acknowledging that sentencing *510 power resides with the jury in most States, we made clear that the "Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws." Id. , at 464. We therefore rejected the contention that "placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision." Id., at 465; see also Walton v. Arizona, 497 U. S. 639, 648 (1990); Clemons v. Mississippi, 494 U. S. 738, 745 (1990). Asserting that the death penalty serves no function in "rehabilitation," "incapacitation," or "deterren[ce]," Justice Stevens argues that a jury "should bear the responsibility to express the conscience of the community on the ultimate question of life or death in particular cases." Post, at 517, 518 (internal quotation marks omitted). What purpose is served by capital punishment and how a State should implement its capital punishment scheme - to the extent that those questions involve only policy issues - are matters over which we, as judges, have no jurisdiction. Our power of judicial review legitimately extends only to determine whether the policy choices of the community, expressed through its legislative enactments, comport with the Constitution. As we have noted elsewhere, "while we have an obligation to insure that constitutional bounds are not overreached, we may not act as judges as we might as legislators." Gregg v. Georgia, 428 U. S. 153, 174-175 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). In various opinions on the Florida statute we have spoken favorably of the deference that a judge must accord the jury verdict under Florida law. While rejecting an ex post facto challenge in Dobbert v. Florida, 432 U. S. 282, 294 (1977), we noted the "crucial protection" provided by the standard of Tedder v. State, supra, at 910. In the same fashion, in *511 dismissing Spaziano's argument that the Tedder standard was wrongly applied by the lower courts in his case, we stated: "This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury's role." Spaziano, supra, at 465. These statements of approbation, however, do not mean that the Tedder standard is constitutionally required. As we stated in Spaziano immediately following the passage quoted above: "Our responsibility, however, is not to secondguess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." 468 U. S., at 465. We thus made clear that, our praise for Tedder notwithstanding, the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice, but whether the scheme adequately channels the sentencer's discretion so as to prevent arbitrary results. See also Proffitt, 428 U. S., at 252-253 (joint opinion of Stewart, Powell, and Stevens, JJ.). Consistent with established constitutional law, Alabama has chosen to guide the sentencing decision by requiring the jury and judge to weigh aggravating and mitigating circumstances. Harris does not challenge this legislative choice. And she objects to neither the vesting of sentencing authority in the judge nor the requirement that the advisory verdict be considered in the process. What she seeks instead is a constitutional mandate as to how that verdict should be considered; relying on Florida's standard, she suggests that the judge must give "great weight" to the jury's advice. *512 We have rejected the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." Franklin v. Lynaugh, 487 U. S. 164, 179 (1988). Equally settled is the corollary that the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer. See, e. g., Blystone v. Pennsylvania, 494 U. S. 299, 306-307 (1990); Eddings v. Oklahoma, 455 U. S. 104, 113-115 (1982); Proffitt, supra, at 257-258 (joint opinion of Stewart, Powell, and Stevens, JJ.). To require that "great weight" be given to the jury recommendation here, one of the criteria to be considered by the sentencer, would offend these established principles and place within constitutional ambit micro management tasks that properly rest within the State's discretion to administer its criminal justice system. We therefore hold that the Eighth Amendment does not require the State to define the weight the sentencing judge must accord an advisory jury verdict. Harris argues that, under Alabama law, the verdict is more than advisory and that the jury in fact enjoys the key sentencing role, subject only to review by the judge. For support, she points to Alabama cases reversing death sentences where prejudicial errors were committed before the advisory jury. See Ex parte Williams, 556 So. 2d 744, 745 (Ala. 1987). Unless the jury played a key role, so goes the argument, reversal would not be warranted because the sentencing judge was not exposed to the same harmful error. The flaw in this contention is that reversal is proper so long as the jury recommendation plays a role in the judge's decision, not necessarily a determinative one. If the judge must consider the jury verdict in sentencing a capital defendant, as the statute plainly requires, then it follows that a sentence is invalid if the recommendation upon which it partially rests was rendered erroneously. In Espinosa v. Florida, 505 U. S. 1079 (1992), the advisory jury, but not the sentencing *513 judge, was presented with an invalid aggravating factor. We summarily reversed the death sentence, explaining that "Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." Id., at 1082. Error is committed when the jury considers an invalid factor and its verdict is in turn considered by the judge: "This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, and the result, therefore, was error." Ibid. (citation omitted). Such consequential error attaches whenever the jury recommendation is considered in the process, not only when it is given great weight by the judge. We have observed in the Florida context that permitting the trial judge to reject the jury's advisory verdict may afford capital defendants "a second chance for life with the trial judge," Dobbert, 432 U. S., at 296. In practice, however, Alabama's sentencing scheme has yielded some ostensibly surprising statistics. According to the Alabama Prison Project, there have been only 5 cases in which the judge rejected an advisory verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life. Statistics compiled by the Alabama Prison Project (Nov. 29, 1994) (lodged with the Clerk of this Court). But these numbers do not tell the whole story. We do not know, for instance, how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice. Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers afford at best an incomplete picture. Even assuming that these statistics reflect a true view of capital sentencing in Alabama, they say little about *514 whether the scheme is constitutional. That question turns not solely on a numerical tabulation of actual death sentences as compared to a hypothetical alternative, but rather on whether the penalties imposed are the product of properly guided discretion and not of arbitrary whim. If the Alabama statute indeed has not had the effect that we or its drafters had anticipated, such unintended results would be of little constitutional consequence. An ineffectual law is for the state legislature to amend, not for us to annul. Harris draws our attention to apparent disparities in the weight given to jury verdicts in different cases in Alabama. For example, the trial judge here did not specify his reason for rejecting the jury's advice but in another case wrote that he accorded "great weight" to the recommendation, State v. Coral, No. CC-88-741 (Montgomery Cty., June 26, 1992), Alabama Capital Sentencing Orders, p. 72 (lodged with the Clerk of this Court). In rejecting the jury verdict, other judges have commented variously that there was a "reasonable basis" to do so, State v. Parker, No. CC-88-105 (Colbert Cty., Dec. 3, 1991), Alabama Capital Sentencing Orders, at 408, that the verdict was "unquestionably a bizarre result," Ex parte Hays, 518 So. 2d 768, 777 (Ala. 1986), or that "if this were not a proper case for the death penalty to be imposed, a proper case can scarcely be imagined," State v. Frazier, No. CC-85-3291 (Mobile Cty., July 31, 1990), Alabama Capital Sentencing Orders, at 139. Juxtaposing these statements, Harris argues that the Alabama statute permits judges to reject arbitrarily the advisory verdict, thereby abusing their sentencing discretion. But these statements do not indicate that the judges have divergent understandings of the statutory requirement that the jury verdicts be considered; they simply illustrate how different judges have "considered" the jury's advice. There is no reason to expect that the advisory verdicts will be treated uniformly in every case. The Alabama statute provides that the weighing process "shall not be defined to mean *515 a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison," Ala. Code § 13A - 5-48 (1994), which is no less than what the Constitution requires, see Proffitt, 428 U. S., at 258 (joint opinion of Stewart, Powell, and Stevens, JJ.). The disparate treatment of jury verdicts simply reflects the fact that, in the subjective weighing process, the emphasis given to each decisional criterion must of necessity vary in order to account for the particular circumstances of each case. See Eddings v. Oklahoma, 455 U. S., at 112 ("[A] consistency produced by ignoring individual differences is a false consistency"). In any event, Harris does not show how the various statements affect her case. She does not bring an equal protection claim, and she does not contest the lower courts' conclusion that her sentence is proportionate to that imposed in similar cases. The sentiments expressed in unrelated cases do not render her punishment violative of the Eighth Amendment. The Constitution permits the trial judge, acting alone, to impose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight. Accordingly, we affirm the judgment of the Alabama Supreme Court. It is so ordered. Justice Stevens, dissenting. Alabama's capital sentencing statute is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to death - even though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence. Even if I accepted the reasoning of Spaziano v. Florida, 468 U. S. 447, 457-465 (1984), which I do not, see id., at 467 (Stevens, J., concurring in part and dissenting in part), I would conclude that the complete *516 absence of standards to guide the judge's consideration of the jury's verdict renders the statute invalid under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. I Our opinions have repeatedly emphasized that death is a fundamentally different kind of penalty from any other that society may impose.[1] State legislatures' assignments of sentencing authority exemplify the distinction. In every State except Oklahoma, the trial judge rather than the jury is responsible for sentencing in noncapital cases. The opposite consensus, however, prevails in capital cases. In 33 of the 37 States that authorize capital punishment, the jury participates in the sentencing decision. In 29 of those States, the jury's decision is final; in the other 4 - Alabama, Delaware, Florida, and Indiana - the judge has the power to override the jury's decision. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, 46 Ala. L. Rev. 5, 9-10 (1994). Thus, 33 of the 37 state legislatures that have enacted death penalty statutes have given the jury sentencing responsibilities that differ from the prevailing view of the jury's role in noncapital cases. The Federal Government also provides for jury sentencing in capital cases.[2] These legislative decisions reflect the same judgment expressed in England in 1953 after a 4-year study by the Royal Commission on Capital Punishment: "The question whether there are grounds for relieving the prisoner from the liability to be sentenced to death *517 is a question of quite a different order from the question whether he should serve a shorter or a longer term of imprisonment, and involves much deeper moral and social issues. The lesson of history is that, when a criminal offence is punishable by death, in practice juries will not confine their attention to the issue of guilt and ignore the sentence which conviction entails. In the past, British juries, by perverse verdicts and by petitions, did at leastas much as the campaigns of the reformers to bring the law into conformity with the developing moral conceptions of the community, especially in the field of capital punishment. It may well be argued that the men and women of the jury may be regarded as a microcosm of the community, who will reflect the changing attitudes of society as a whole to the infliction of capital punishment, and that there could therefore be no more appropriate body to decide whether the fellow-citizen whom they have found guilty of murder should suffer the penalty of death prescribed by the law or should receive a lesser punishment." Royal Commission on Capital Punishment 1949-1953, Report 200 (1953). In ordinary, noncapital sentencing decisions, judges consider society's interests in rehabilitating the offender, in incapacitating him from committing offenses in the future, and in deterring others from committing similar offenses. In capital sentencing decisions, however, rehabilitation plays no role; incapacitation is largely irrelevant, at least when the alternative of life imprisonment without possibility of parole is available;[3] and the assumption that death provides a greater deterrent than other penalties is unsupported by *518 persuasive evidence.[4] Instead, the interest that we have identified as the principal justification for the death penalty is retribution: "[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct." Gregg v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);see Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 54-56 (1980). A capital sentence expresses the community's judgment that no lesser sanction will provide an adequate response to the defendant's outrageous affront to humanity. Gregg, 428 U. S., at 184. A representative cross section of the community should bear the responsibility to "express the conscience of the community on the ultimate question of life or death" in particular cases. Witherspoon v. Illinois, 391 U. S. 510, 519 (1968) (footnote omitted). An expression of community outrage carries the legitimacy of law only if it rests on fair and careful consideration, as free as possible from passion or prejudice. Although the public's apparent zeal for legislation authorizing capital punishment might cast doubt on citizens' capacity to apply such legislation fairly, I am convinced that our jury system provides reliable insulation against the passions of the polity. Voting for a political candidate who vows to be "tough on crime" differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death. Jurors' responsibilities terminate when their case ends; they answer only to their own consciences; they rarely have any concern about possible reprisals after their work is done. More importantly, they focus their attention on a particular case involving the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. A jury verdict expresses a collective judgment *519 that we may fairly presume to reflect the considered view of the community. The Constitution does not permit judges to determine the guilt or innocence of an accused without her consent. The same reasons that underlie that prohibition apply to life-ordeath sentencing decisions. The Framers of our Constitution "knew from history and experience that it was necessary to protect . . . against judges too responsive to the voice of higher authority." Duncan v. Louisiana, 391 U. S.145, 156 (1968). As we explained in Duncan: "[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Ibid. Community participation is as critical in life-or-death sentencing decisions as in those decisions explicitly governed by the constitutional guarantee of a jury trial. The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher office - or who merely wish to remain judges - must constantly profess their fealty to the death penalty.[5] Alabama *520 trial judges face partisan election every six years. Ala. Code § 17-2 - 7 (1987). The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III. II In my opinion, total reliance on judges to pronounce sentences of death is constitutionally unacceptable. See Walton v. Arizona, 497 U. S. 639, 708 (1990) (Stevens, J., dissenting). While the addition of an advisory jury may ameliorate concerns about judicial sentencing in some cases, more often that addition makes the scheme much worse, especially when, as in Alabama, the jury's verdict carries no necessary weight. If Alabama's statute expressly provided for a death sentence upon a verdict by either the jury or the judge, I have no doubt it would violate the Constitution's command that no defendant "be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5; cf. Bullington v. Missouri, 451 U. S. 5; The 430, 444-446 (1981). Alabama scheme has the same practical effect. As the Court recognizes, ante, at 513, Alabama trial judges almost always adopt jury verdicts recommending death; a prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity to secure a death sentence. She may present the judge with exactly the same evidence and arguments *521 that the jury rejected. The defendant's life is twice put in jeopardy, once before the jury and again in the repeat performance before a different, and likely less sympathetic, decisionmaker. A scheme that we assumed would "provid[e] capital defendants with more, rather than less, judicial protection," Dobbert v. Florida, 432 U. S. 282, 295 (1977),[6] has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo sentencing hearings. Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case,[7] and the recent experience of judicial overrides confirms it. Alabama judges have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have spared.[8] The Court acknowledges this "ostensibly surprising" *522 fact, ante, at 513, but dismisses it as inconclusive, because "[w]e do not know . . . how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice," ibid. This attempt to shrug off the reality of Alabama capital sentencing misses the point. Perhaps Alabama judges would be even more severe, and their sentences even more frequently inconsistent with the community's sense of justice, if Alabama provided for no jury verdicts at all. But the proper frame of reference is not a sentencing scheme with no jury; rather, it is a sentencing scheme with no judge - the scheme maintained by 29 of 37 States with capital punishment. In that comparison, the fact that Alabama trial judges have overridden more than nine juries' life recommendations for every vetoed death recommendation is conclusive indeed. Death sentences imposed by judges, especially against jury recommendations, sever the critical "link between contemporary community values and the penal system." Witherspoon, 391 U. S., at 519, n. 15. They result in the execution of defendants whom the community would spare. Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: They express contempt for that judgment. Judicial overrides undermine the jury system's central tenet that "sharing in the administration of justice is a phase of civic responsibility." Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting). Overrides also sacrifice the legitimacy of jury verdicts, at potentially great cost. Whereas the public presumes that a death sentence imposed by a jury reflects the community's judgment that death is the appropriate response to the defendant's crime, the same presumption does not attach to a lone government *523 official's decree. Indeed, government-sanctioned executions unsupported by judgments of a fair cross section of the citizenry may undermine respect for the value of human life itself and unwittingly increase tolerance of killing.[9] As Justice Brandeis reminded us, "Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious." Olmstead v. United States, 277 U. S. 438, 485 (1928) (dissenting opinion). Unless the imposition of the death penalty consistently rests on the most scrupulous regard for fair procedure and the application of accepted community standards, it may well teach a lesson that aggravates the very dangers it was intended to deter. *524 III If the Court correctly held in Spaziano that the Constitution's concerns with regularity and fairness do not bar judges from imposing death sentences over contrary jury verdicts, one would at least expect the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that such schemes maintain strict standards to regularize and constrain the judge's discretion. The Court today refuses to impose any standard, holding that to do so would be "micro management." Ante, at 512. But this case involves far more than a mundane administrative detail. Alabama stands alone among the States in its refusal to constrain its judges' power to condemn defendants over contrary jury verdicts. The Florida statute upheld in Spaziano, as interpreted by the Florida Supreme Court, requires the prosecutor to satisfy a more stringent standard before the judge than before the jury, prohibiting a judicial override unless the facts supporting the death sentence are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (1975). If that standard is satisfied, a judge may rationally presume that the jury's verdict did not fairly reflect the judgment of the community. Delaware and Indiana impose similar requirements for overrides. See Pennell v. State, 604 A. 2d 1368, 1377-1378 (Del. 1992); Martinez-Chavez v. State, 534 N. E. 2d 731, 735 (Ind. 1989). We have repeatedly cited the Tedder standard with approval, suggesting that the Constitution requires such a constraint on a jury override provision. See Spaziano, 468 U. S., at 465; Dobbert v. Florida, 432 U. S., at 294-295; Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Today the Court dismisses those statements. After Justice Blackmun stated in his opinion for the Court in Spaziano that "[w]e are satisfied that the Florida Supreme Court takes [Tedder] seriously *525 and has not hesitated to reverse a trial court if it derogates the jury's role," he added, as the majority notes, that "[o]ur responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." 468 U. S., at 465. The majority reads this second statement to mean that "the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice." Ante, at 511. That reading is overly ambitious at best. The question whether the Constitution requires the Tedder rule goes squarely to "the result of the process." The Spaziano Court declined to upset the result in the "particular case" before it based on the way the Florida Supreme Court had applied Tedder in that case. It did not announce that it would have reached the same result had Florida abjured Tedder entirely; rather, it appears to have made Tedder `s role in the Florida scheme a necessary consideration in its evaluation of Florida overrides. The Court's reading of Justice Blackmun's opinion in Spaziano is tenable, but a more likely reading is that his opinion meant to echo our previous suggestions that a jury override scheme is unconstitutional without Tedder. I would follow those suggestions and recognize Tedder as a constitutional imperative. As I have explained, an unfettered judicial override of a jury verdict for life imprisonment cannot be taken to represent the judgment of the community. A penalty that fails to reflect the community's judgment that death is the appropriate sentence constitutes cruel and unusual punishment under our reasoning in Gregg. Remarkably, the Court attempts to bolster its holding by citing our reversal of a Florida death sentence for error before the advisory jury. Ante, at 512-513, citing Espinosa v. Florida, 505 U. S. 1079 (1992). The Court forgets that the difference between Florida and Alabama is precisely what is at stake in this case. The Constitution compelled Espinosa for the *526 same ultimate reason it compels Tedder: The community's undistorted judgment must decide a capital defendant's fate.[10] Proper attention to Espinosa would lead the Court to reject the conclusion it reaches today. In reaching its result the Court also fails to consider our longstanding principle that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958). The Spaziano Court held that the rejection of capital jury sentencing by all but seven States, and of capital jury overrides by all but (at that time) three, did not demonstrate an "evolving standard" disfavoring overrides. Spaziano , 468 U. S., at 463-464. Surely, however, the rejection of standardless overrides by every State in the Union but Alabama is a different matter. Cf. Enmund v. Florida, 458 U. S. 782, 789-793 (1982). The Court today casts a cloud over the legitimacy of our capital sentencing jurisprudence. The most credible justification for the death penalty is its expression of the community's outrage. To permit the State to execute a woman in spite of the community's considered judgment that she should not die is to sever the death penalty from its only legitimate mooring. The absence of any rudder on a judge's free-floating power to negate the community's will, in my judgment, renders Alabama's capital sentencing scheme fundamentally unfair and results in cruel and unusual punishment. I therefore respectfully dissent. NOTES [1] See, e. g., Lankford v. Idaho, 500 U. S. 110, 125 (1991); Clemons v. Mississippi, 494 U. S. 738, 750, n. 4 (1990); Booth v. Maryland, 482 U. S. 496, 509, n. 12 (1987); Solem v. Helm, 463 U. S. 277, 289, 294 (1983); Enmund v. Florida, 458 U. S. 782, 797 (1982); Beck v. Alabama, 447 U. S. 625, 637 - 638 (1980);Gardner v. Florida, 430U. S. 349,357-358 (1977)(plurality opinion). [2] SeeViolent Crime Controland Law Enforcement Act of1994, 108 Stat. 1966-1967. [3] In Gregg v. Georgia, 428 U. S. 153 (1976), although we noted that incapacitation had been advanced as a rationale for upholding the death penalty,id., at 183, n.28 (joint opinion of Stewart,Powell, and Stevens, JJ.), the joint opinion placed no reliance on incapacitation as an acceptable justification.See California v. Ramos, 463 U. S. 992, 1023, and n. 9 (1983) (Marshall, J., dissenting). [4] See, e. g., Spaziano v. Florida, 468 U. S. 447, 478-479 (1984) (Stevens, J., concurring in part and dissenting in part); H. Zeisel, The Limits of Law Enforcement 60-63 (1982); Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 49-54 (1980). [5] This climate is evident in political attacks on candidates with reservations about the death penalty.For example, challengers for United States Senate seatsin the recent electionsroutinelysavaged their incumbent opponents for supporting federal judicial nominees perceived to be "soft" on capital punishment. See, e. g., Lehigh & Phillips, Romney, Kennedy Air Another Round of Attack Ads, Boston Globe,Oct. 31, 1994,Metro/ Region section,p. 21;Lesher, Huffington Attacks Rival on Judges, Los Angeles Times, Sept. 30, 1994, p. A3; Political Notebook, Memphis CommercialAppeal, Oct. 8,1994, p.3B (Frist-Sasser race).Some Senators have also made the death penalty a litmustest injudicial confirmation hearings. See, e. g., Lewis, G. O. P. To Challenge Judicial Nominees Who Oppose Death Penalty, N. Y. Times, Oct. 15, 1993, p. A26; Vick, Barkett's Foes Show Strength Even in Defeat, St. Petersburg Times, Mar. 18, 1994, p. 5B. As one commentator has written: "Most experts on penal systems agree that capital punishment does not deter capital crime. But the public believes that it does, and politicians have been switching longstanding positions to accommodate that view. . . . This . . . is the democratic system." Wills, Read Polls, Heed America, N. Y. Times, Nov. 6, 1994, section 6 (magazine), p. 48. [6] I have always believed the legislative decision to authorize an override was intended to protect the defendant from the risk of an erroneous jury decision to impose the death penalty. See Proffitt v. Florida, 428 U. S. 242, 252-253 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). States have in the past argued that the override would serve to protect defendants. See, e. g., Brief for Respondent in Dobbert v. Florida, O. T. 1976, No. 76-5306, p. 17 ("It cannot be said that Florida's new [override] procedure reduces the possibility of mercy. In fact, it is enhanced"). [7] See H. Zeisel, Some Data on Juror Attitudes Towards Capital Punishment 37-50 (1968). [8] Statistics from Florida and Indiana confirm that judges tend to override juries' life recommendations far more often than their death recommendations. Between 1972 and early 1992, Florida trial judges imposed death sentences over 134 juries' recommendations of life imprisonment. See Radelet and Mello, Death-to-Life Overrides: Saving the Resources of the Florida Supreme Court, 20 Fla. St. U. L. Rev. 195, 196 (1992). During the same period, Florida judges overrode only about 51 death recommendations. Id., at 210-211. In Indiana, between 1980 and early 1994, judges had used overrides to impose eight death sentences and only four life sentences. Memorandum from Paula Sites, Legal Director, Indiana Public Defender Council, to Supreme Court Library (Feb. 8, 1994) (lodged with the Clerk of this Court). The even more extreme disparity in Alabama may well be attributable to Alabama's unique failure to adopt the more stringent standard that governs overrides in the other States. See infra, at Part III. [9] Research has provided evidence that executions actually increase the level of violence in society. For example, a controlled, 56-year study in New York State revealed that an average of two additional homicides occurred in the month following an execution. See Bowers & Pierce, Deterrence or Brutalization: What Is the Effect of Executions?, 26 Crime and Delinquency 453 (1980). A 10-year study in California produced less conclusive but similar results. See Graves, The Deterrent Effect of Capital Punishment in California, in The Death Penalty in America 322, 327-331 (H. Bedau ed. 1967). Experienced prosecutors recognize this reality. Morgenthau, What Prosecutors Won't Tell You, N. Y. Times, Feb. 7, 1995, p. A25 ("[B]y their brutalizing and dehumanizing effect on society, executions cause more murders than they prevent"). A court's unilateral decree of a death sentence surely magnifies the risk of such perverse consequences. This Court's recent refusal to stay an execution provides an illustration. After a jury had sentenced the defendant, the prosecutor announced that a different person had pulled the trigger. Nevertheless, the State executed the condemned man without giving him a chance to present this information to a jury. See Jacobs v. Scott, post, at 1067 (Stevens, J., dissenting from denial of stay of execution). Six days later, a news account described death penalty supporters' lack of concern about the danger of executing innocent people. "One [proponent of capital punishment] likened the death penalty to a childhood vaccine approved by the government with full knowledge that at least one child, somewhere, would die from an adverse reaction." Verhovek, When Justice Shows Its Darker Side, N. Y. Times, Jan. 8, 1995, section 4, p. 6. [10] Of course, the majority is correct to reaffirm the importance of remedying prejudicial error before advisory juries. When the Court next has occasion to review an Alabama jury-related error and the sentencing judge has not revealed the degree of her reliance on the jury's advice, the majority apparently will be content to presume that the error, and the jury decision it tainted, mattered to the result.

258 U.S. 219 (1922) IRWIN v. WRIGHT, COUNTY TREASURER OF MARICOPA COUNTY, STATE OF ARIZONA, ET AL. No. 110. Supreme Court of United States. Submitted January 24, 1922. Decided March 20, 1922. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ARIZONA. *220 Mr. Patrick H. Loughran and Mr. Ernest W. Lewis for appellant. Mr. M.J. Dougherty, Mr. G.A. Rodgers and Mr. F.H. Swenson were also on the brief. Mr. James M. Sheridan, Mr. Geo. D. Christy, Mr. R.E.L. Shepherd and Mr. Joseph E. Noble for appellees. MR. CHIEF JUSTICE TAFT delivered the opinion of the court. The appellant Irwin, a citizen of California, filed his bill of complaint in the District Court against the Treasurer, the Assessor, the Attorney, the Sheriff, and the members of the Board of Supervisors, of Maricopa County, Arizona, citizens of Arizona. He averred that he had an interest, as a homestead entryman, under the General Homestead Act of Congress of May 20, 1862, c. 75, 12 Stat. 392, and the Reclamation Act of June 17, 1902, c. 1093, 32 Stat. 388, in land included within the Salt River Reclamation project in Maricopa County, that he had not fulfilled many of the conditions by him to be performed before the title to the land would vest in him, that meantime it was the property of the United States and not subject to taxation by a State, that he brought the suit in behalf of himself and also in behalf of other reclamation homestead entrymen within the Salt River Project in Maricopa County, and their assigns, similarly situated, desiring to *221 avail themselves of the benefits of it, that the defendants had levied and assessed taxes against these homestead premises of plaintiff and the others in whose interest he sues, for several years, and had demanded payment of them, and threatened to collect them by suit and sale of such lands, and to assess them in the future, that such action was in contravention of Article IV, § 3, of the Federal Constitution, deprived him and his fellow entrymen of a privilege and immunity secured to them as citizens of the United States, deprived them of property without due process of law, and denied them the equal protection of the laws, all under the Fourteenth Amendment. He prayed for an injunction against the defendants and their successors in office and each of them as taxing authorities of Maricopa County from further assessing said lands, collecting the taxes already assessed, or bringing suit to collect the taxes as delinquent or to sell such interests. After answer and reply, the case was heard on an agreed statement of facts. The District Court dismissed the bill on its merits without opinion. This is a direct appeal from the District Court under § 238 of the Judicial Code, as amended January 28, 1915, c. 22, 38 Stat. 804, because the suit is one involving the construction or application of the Constitution of the United States. On January 24th last, the cause was submitted to the court by counsel for the appellant upon brief, counsel for appellees not appearing. Since that day, a brief has been filed on behalf of appellees and considered by the court. When the case was called, counsel for appellant submitted a motion, suggesting that all the appellees, county officers of Maricopa County, Arizona, who at the time of bringing, hearing and deciding the suit below were charged with the duty of assessing and collecting taxes therein, had, with exception of the sheriff and one of the three members of the Board of Supervisors, retired from office, and that *222 their successors had been elected and qualified. These successors, the present officers of the county, the appellant asked to have substituted as appellees in this case. The motion was inadvertently granted. The order granting it must be in part vacated. A suit to enjoin a public officer from enforcing a statute is personal and in the absence of statutory provision for continuing it against his successor, abates upon his death or retirement from office. Pullman Co. v. Croom, 231 U.S. 571. In United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, substitution was refused, although consent was given by the successor in office. This court said (p. 605): "In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that Congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method." In response to the suggestion, Congress passed the Act of February 8, 1899, c. 121, 30 Stat. 822, under which successors of United States officers who have been sued may be substituted for them upon proper showing. In Caledonian Coal Co. v. Baker, 196 U.S. 432, 442, it was held that the statute authorized such procedure in the case of a territorial judge appointed under a law of the United States. But no authority exists for the substitution of successors of state officers in such cases. We have examined the statutes of Arizona and find none in them. The Arizona Civil Code, 1913, contains the following: "Sec. 461. An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on *223 motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action." This does not permit the substitution of a successor for a public official sued personally. In the Butterworth Case, supra, it was sought to justify substitution under an act which read as follows: "No action, brought or to be brought, in any court of this State shall abate by the death of either of the parties to such action, but upon the death of any defendant, in a case where the action by such death would have abated before this act, the action shall be continued, and the heir, devisee, executor or administrator of the defendant, as the case may require, or other person interested on the part of the defendant, may appear to such action." This court said (p. 605): ". . . We are unable to perceive that this statute, either in its terms or its spirit, is applicable to cases like the present one. Neither the heir, devisee, executor or administrator of a deceased official would have any legal interest in such a controversy. Nor, in the case of a resignation, could the successor be said to be `a person interested on the part of the defendant.'" What we have said applies to the motion for substitution so far as it relates to Sam F. Webb, sued as County Treasurer, C.W. Cummins, sued as County Assessor, and L.M. Laney, sued as County Attorney, and the order granting the motion as to them is vacated, the motion is denied and the cause is dismissed as against them without prejudice, of course, to new suits against their successors. It may not be improper to say that it would promote justice if Congress were to enlarge the scope of the Act *224 of February 8, 1899, so as to permit the substitution of successors for state officers suing or sued in the federal courts, who cease to be officers by retirement or death, upon a sufficient showing in proper cases. Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because, in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure. J.G. Montgomery, county sheriff, still remains as appellee in the case but, as his taxing duties are only connected with the service of process in tax suits, it is doubtful whether, were he the only party here, an injunction against him would give the relief sought. It is not necessary to decide this, however, as will be seen from what follows. So far as the order already entered substitutes for C.W. Peterson and W.K. Bowen sued as County Supervisors, C.S. Steward and Guy F. Vernon, who have been elected to be their successors, as appellees, it will stand, for the principle to be applied in their case is different. The rule requiring abatement of such suits against officials on their retirement and forbidding substitution of their successors, does not apply when they constitute a board, having a continuing existence. Marshall v. Dye, 231 U.S. 250; Richardson v. McChesney, 218 U.S. 487, 492; Murphy v. Utter, 186 U.S. 95. An examination of the statutes of Arizona as to the composition and duties of this board leaves no doubt that it is a continuing one. A county in Arizona is a body politic and corporate. Section 2388 of the Arizona Civil Code of 1913 provides that "its powers can be exercised only by the board of supervisors or by lawful agents and officers acting under their authority and authority of law." The Board has three members and is vested with very wide and varied powers, acting as a *225 Board. Code, Title 10, c. IV. Its members exercise official duties only as members of the Board, and a quorum of two may act. Code, § 2408. Every two years, either one or two members are elected, but the retiring members hold until their successors are elected and qualified. Code, §§ 2399, 2400. The motion should be granted so far as it asks the substitution in case of the two supervisors, unless it appears that under the averments and prayer of the bill an injunction against the Board of Supervisors alone will not aid the plaintiff. Warner Valley Stock Co. v. Smith, 165 U.S. 28, 35, 36. The bill prays an injunction against the collection of taxes already assessed for each of twelve years and against future assessments. Are the functions of the Board of Supervisors such that an injunction against them would prevent such collection and assessment? Under the Arizona statutes the procedure in the assessment and collection of taxes is that the county assessor makes the original assessment roll against the owners, and files it with the Board of Supervisors. Code, §§ 4860, 4874. The Supervisors or a majority of them constitute a board of equalization, and revise the assessment roll and send it to the State Board of Equalization. Upon its return from the state board, § 4892 provides that the Board of Supervisors shall then proceed to assess taxes according to the valuation specified in the assessment roll, and upon completion of such assessment, the chairman of the Board of Supervisors shall annex to the roll a warrant commanding the county treasurer to collect from the several persons named in the roll the total taxes set opposite their respective names. It is the duty of the Board of Supervisors to levy the taxes, to direct all suits to which the county is a party, to supervise the official conduct of all county officials charged with assessing and collecting the public revenues, to see that they discharge their duties faithfully, to direct *226 prosecutions for delinquencies (Code, § 2418), to receive report of the treasurer and ex officio tax collector each year of delinquent lists of real estate taxes, to examine and compare them, and to correct them if any property therein reported is not subject to taxation, and to return them to the treasurer for collection (Code, §§ 4909, 4912), and to exercise the same authority with respect to the "back tax book" for previous years. In view of these various duties of the Board of Supervisors not only in respect of the levying of future assessments but in the matter of correction and collection of delinquent taxes, it is clear that an injunction restraining the Board from future assessments on the lands in question, or from taking any steps to collect the back taxes, would be substantially to secure the relief the plaintiff seeks. Coming now to the merits of the controversy, the point at issue is whether when the plaintiff and his fellows completed all that they had to do under the original Homestead Act to perfect their right to a patent, they had an equity against the Government which was taxable by the Territory of Arizona and its successor the State. On the pleadings and the agreed statement of facts, it is admitted that the plaintiff and his associates performed all the conditions under the Homestead Act and that they duly took all the preliminary steps enjoined under the Reclamation Act; but it is averred, and not denied in the answer of the defendants, that a number of important steps remained to be taken by plaintiff and those for whom he sues in perfecting their claims under the Reclamation Act at the times these taxes were levied, and in the case of the plaintiff and some of the class, at the time of bringing this suit. Under the Homestead Act, Rev. Stats., § 2291, every person making a homestead entry was required among other things to establish a residence upon the tract of *227 land entered and maintain a residence thereon and cultivate it for a period of not less than five years, and to submit final proof thereof upon which patent ultimately issued in due course, within seven years after the date of entry. The act was amended June 6, 1912, c. 153, 37 Stat. 123, to reduce residence to three years. Under the third section of the Reclamation Act, 32 Stat. 388, the Secretary of the Interior is authorized to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from the works he is about to initiate, and all homestead entries on such lands are made subject to all the provisions, limitations, charges, terms and conditions of the Reclamation Act. The act further provides (§ 5) that the entryman upon lands to be irrigated from the government works shall, in addition to compliance with the homestead laws, reclaim at least half of the total irrigable area of his entry for agricultural purposes, and before receiving a patent for the lands covered by his entry shall pay to the Government the charges apportioned against such tract as contribution to the cost of the works. The Secretary is authorized to fix a limit of area of land per entry representing the acreage which may reasonably support a family. The Secretary is given full power in § 10 to make rules and regulations needed to carry the act into effect. He has done so. Under the act and the regulations contained in the General Reclamation Circular, each entryman is required to conform his entry to a "farm unit" established by the Secretary within each reclamation project and this has forced many relinquishments and cancellations of surplus land in homestead entries, leading to remedial legislation hereafter mentioned. The entryman is required to clear the land entered of brush and other encumbrances, to provide the same with lateral ditches for its effective irrigation, to grade the same and put it into proper condition for crop growth, and to plant, water, *228 and cultivate, during the two years next preceding the time of filing his final affidavit, half of the irrigable area of his entry and to grow satisfactory crops thereon, i.e., crops equal to crops raised upon lands similarly situated. Upon final proof, a final certificate is issued to the entryman showing that he has performed all conditions precedent to acquiring the title. The patent which is the formal grant follows at the convenience of the Land Office and often is delayed. By the Reclamation Act, homestead reclamation entrymen were obliged to pay all water charges before a patent would issue, but the effect of subsequent legislation, in Acts of August 9, 1912, c. 280, 37 Stat. 267, of August 13, 1914, c. 247, 38 Stat. 686, and of February 15, 1917, c. 71, 39 Stat. 920, is to divide the water charges into instalments of varying percentages, falling due during a period of twenty years, from and after public notice by the Government that the water is ready for use, and to allow a patent upon payment of all instalments due at time of submitting final proof. If proof is satisfactory, a patent then issues, conveying a full legal title but reserving a prior lien to the Government, superior to all others, for all instalments unpaid. The rule established by the decisions of this court is that, by virtue of its sovereignty and the constitutional power of Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, no State can tax the property of the United States within its limits. This was recognized and enforced by the Enabling Act of June 20, 1910, c. 310, 36 Stat. 557, under which Arizona was, on February 14, 1912, admitted to the Union, for that act contained an express declaration that lands and property belonging to the United States or reserved for its use were exempted from taxation. Van Brocklin v. Tennessee, 117 U.S. 151, 168; Wisconsin Central R.R. Co. v. Price County, 133 U.S. 496, 504. An exception to this principle, *229 or rather its non-application, is recognized where the Government has by final certificate parted with the equitable title to a person subject to state taxation and retains only the legal title by its delay in issuing the patent. Not until the equitable title passes can the State tax the entryman, except in the case of mining claims (the reason for which we shall presently consider), and in cases in which express authority to tax is given in the statute. Bothwell v. Bingham County, 237 U.S. 642, 647; Sargent v. Herrick, 221 U.S. 404, 407; Stearns v. Minnesota, 179 U.S. 223, 251; Northern Pacific Ry. Co. v. Myers, 172 U.S. 589; Hussman v. Durham, 165 U.S. 144, 147, 150; Wisconsin Central R.R. Co. v. Price County, supra; Northern Pacific R.R. Co. v. Traill County, 115 U.S. 600; Colorado Co. v. Commissioners, 95 U.S. 259; Railway Co. v. McShane, 22 Wall. 444; Railway Co. v. Prescott, 16 Wall. 603. The county authorities in this case were in error in supposing that an equitable title passed from the Government to the entrymen here, when the latter had fulfilled the requirements of the Homestead Act. Had their entries been controlled solely by that act, they would have been right. But, as we have seen, their entries were made under that act as supplemented and qualified by the Reclamation Act; and the latter expressly entails on such entrymen additional conditions which must be performed before an equitable title or a right to a patent is secured. We are cited by counsel for appellees to an opinion of Judge Dietrich of the District Court of Idaho in a suit brought by the United States to enjoin Canyon County, Idaho, and its taxing officers from taxing lands or the interests of settlers therein in the Boise Reclamation project. United States v. Canyon County, 232 Fed. 985. The case involved two classes of lands. The first was of lands in which a patent had issued, conveying a fee in the land subject to a lien of the United States, superior to all *230 others, for future instalments of water rents. The second was of lands in which the conditions of the original homestead law had been complied with, but the entrymen had not paid in full for their water rights and they had not brought the requisite acreage under cultivation and irrigation. The court held that the interests of the patentees in the first, and of the entrymen in the second class of lands were taxable by the State. In the first ruling, we concur. The patent vested the full legal title in the entrymen. The fact that a lien was reserved on the face of the patent prior in right to all other liens for instalments of water charges to fall due in the future did not prevent this, and the giving patents indicated an intention on the part of the Government that it should be land of the entrymen and of course it became taxable as such. Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U.S. 375. With the second ruling, in which the District Court was sustained by a decision of the Supreme Court of Idaho, Cheney v. Minidoka County, 26 Id. 471, we can not agree. We can not reconcile it with the cases in this court which we have cited above. The District Judge relies on the Act of June 23, 1910, c. 357, 36 Stat. 592, which permits entrymen within reclamation projects, after having made satisfactory proof of residence, improvement and cultivation for the period originally required under the homestead law, to assign such entries or any part thereof to other persons. Such assignees, upon subsequently submitting proof of the reclamation of the lands and upon payment of the charges apportioned against the same as provided in the Reclamation Act may receive a patent, "Provided, That all assignments made under the provisions of this act shall be subject to the limitations, charges, terms, and conditions of the reclamation Act." By circular of the Secretary of the Interior, the entryman may mortgage his interest also. The argument is that this puts such an interest as the entryman has in the lands *231 in the same category as mining claims which have always been taxable. Elder v. Wood, 208 U.S. 226. We do not think that mining claims present a convincing analogy. The basis of the mining interest is discovery and location. These give full opportunity to the locator of the claim to take out the mineral, and, since the beginning, this right and interest never has been dependent for its enjoyment on patent, and so it has been taxable. Forbes v. Gracey, 94 U.S. 762. The rule has always been different in respect to other public lands as the numerous decisions of this court cited above show. Even before the statute of 1910, a homesteader could mortgage his interest to help him in performing the conditions of earning his patent. Mudgett v. Dubuque & Sioux City R.R. Co., 8 L.D. 243. The care with which the Government has thus framed its land policy to protect and encourage the homesteader is shown further in Ruddy v. Rossi, 248 U.S. 104, 105. The Government incurs heavy liability in providing water for these lands. It relies on the entrymen to reclaim them, thus finally achieving its sole object of adding arid tracts to the productive area of the country. In pursuit of this purpose, it has found the requirement that the entryman shall pay all his apportioned cost of the irrigation work before he gets title, too burdensome, and, as we have seen, the sum has been spread in instalments over twenty years, and his title is given him after he has reclaimed the land and paid the few early instalments due at that time. The Act of 1910 does not purport to subject these lands to taxation while the title is as yet unearned and its terms show that it is not intended to permit anything beyond what fairly falls within its express provisions. Its evident and sole purpose was to enable entrymen whose entries were cut down in area by the Secretary of the Interior in prescribing farm units to dispose of their surplus to others who would be able to hold it, fulfill conditions and secure a *232 patent, and avoid a relinquishment or cancellation of the surplus which had been the consequence before the act. This is apparent from an amendment to the Act of 1910 passed May 8, 1916, c. 114, 39 Stat. 65, and from the Report of the Committee or Irrigation of Arid Lands of the House of Representatives of the 64th Congress, 1st session, No. 127, upon which the amendment was adopted. To construe this remedial legislation, including the Act of 1910, which is only intended to lighten the task of the entryman in reclaiming the land and acquiring title, so as to impose on him the new burden of state taxation, is contrary to its plain policy. We think, therefore, that the reason for the rule, making the acquisition of the equitable title the line between non-taxability and taxability, is stronger in case of reclamation homestead entrymen than in the instances where, before the Reclamation Act, it always applied. Moreover, the confusion caused in the past by the taxation, when specifically permitted, of indefinite and inchoate interests of the beneficiaries of government land grants, should prevent an inference of the congressional intention to depart from the rule requiring an equitable title in the entryman before state taxation, unless a purpose to permit earlier taxation is express or strongly implied. It is argued that it is not government property which is sought to be taxed here before final certificate, but only the interest of the entryman. In the case at bar, the taxes were in the first instance assessed against the land, but later the Board of Supervisors changed the form of the assessment so as to insert the word "equity" in the record. The power of the Supervisors, under the Arizona statutes, to order such a change in past assessments, is challenged. We do not think it necessary to decide this. It is enough to say that the entrymen did not have the equitable title until they received the final certificate and their interest in the Government's land, until that issued, *233 was, for the reasons given, not taxable. Whether an interest like that of the entrymen in land not belonging to the Government would be taxable property, we have no occasion to consider. Of the taxes here complained of, those from 1907 until 1916 were levied before the Secretary of the Interior, in January, 1917, had fixed for this project a farm unit of 40 acres to which each entry must conform. Certainly until the area which the entryman could receive was ascertained, no equitable title could pass. After the farm unit was established, the entryman had two years in which to fulfil the requisites of the statute. One of these, and as important as any, was the filing of the final affidavit showing that he had performed the conditions precedent to getting a patent, which he had to present to the land office for approval and final certificate, which, as we have said, gave him equitable title. From an exhibit to the bill, the accuracy of which is not controverted, it appears that of the class of forty-nine entrymen for whom the plaintiff sues, twenty-four received a final certificate in 1919, and that twenty-five, including the plaintiff, had not received a final certificate when the bill was filed. As to the former, assessment of all taxes assessed against them for the years 1907 to 1918, inclusive, was illegal, and the defendants, J.G. Montgomery, Sheriff, and J.W. Bradshaw, Guy F. Vernon and C.S. Steward, members of the Board of Supervisors, should be enjoined from taking any steps to enforce collection. As to the latter, collection of all taxes assessed prior to filing the bill, and all future assessments for taxes on their interests as entrymen until final certificate shall have been issued to them by the United States Government, will be illegal and the foregoing defendants should be enjoined accordingly. The decree of the District Court is reversed, with directions to enter a decree in conformity with this opinion. Reversed.

228 U.S. 319 (1913) TEXAS & PACIFIC RAILWAY COMPANY v. HARVEY. No. 204. Supreme Court of United States. Argued March 20, 1913. Decided April 14, 1913. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. Mr. F.H. Prendergast, with whom Mr. W.L. Hall was on the brief, for plaintiff in error. Mr. Cone Johnson, Mr. Jas. M. Edwards and Mr. S.P, Jones, for defendant in error, submitted. *320 MR. JUSTICE DAY delivered the opinion of the court. This case comes to this court from the Circuit Court of Appeals for the Fifth Circuit because The Texas & Pacific Railway Company is a Federal corporation. The action was brought by Amanda Harvey to recover for the death of her son, W.S. Harvey, occasioned by the negligence of the Railway Company while he was in its employ. The judgment against the Railway Company entered by the United States Circuit Court for the Eastern District of Texas, to which court the case had been removed, was affirmed by the Circuit Court of Appeals. The Railway Company maintained a roundhouse at Marshall, Texas, which was constructed in a crescent form, having near the entrance a turntable. Numerous tracks coming from the roundhouse converged at the turntable, the narrowest point within the roundhouse being at the entrance. A number of posts, serving to support the roof, were located at the entrance to the roundhouse, and the locomotives, in going into and coming from the roundhouse, passed between such posts, a large locomotive, the testimony tends to show, passing within four or five inches of the posts. It appears that on the day of the injury one McGilvery served as hostler in and about the roundhouse; that Harvey, the deceased, was employed as a hostler's helper, the regular helper of one Rix, and that one George was also a hostler's helper regularly of one Adams, but on that day serving with McGilvery, who was taking the place of Adams in his temporary absence. It also appeared that a hostler took the place of an engineer and that it was customary for a hostler's helper to get upon an engine, to give and receive signals and for that purpose to look out of the cab window, to throw and set switches, to accompany the engine to the coal chute and water tank, to supply it with coal and water with a view to its going upon the road, and to otherwise *321 assist the hostler in his work; and, further, that frequently one helper would assist another helper because the appliances at the chute were heavy and difficult for one man to operate. On the day of the accident, the testimony discloses, Harvey got upon the engine and took a seat in the cab window on the left side, his hips protruding somewhat over the sill; and George took a similar position, beside Harvey and on the latter's right, on the same side of the engine. McGilvery got upon the engine on the other side, where he could not be seen by Harvey because of the boiler. All three having got upon the engine to coal and otherwise prepare it for the road, McGilvery started the engine out of the roundhouse. It had gone but a few feet when Harvey was crushed between the post and the casing of the cab window in such manner that he was fatally injured and shortly died. George, sitting in the same posture, but less exposed, passed the post unhurt. The negligence charged is the failure of the Railway Company to provide a safe place to work and that the posts were so placed as to make it dangerous to use the locomotive in passing them. The question of the Railway Company's negligence was submitted to the jury in a charge to which no objection in this respect was taken, and the case is brought here because of the rulings made in the trial court and affirmed in the Circuit Court of Appeals concerning the defenses, on the Railway Company's behalf, of assumed risk and contributory negligence. At the common law a servant assumes the ordinary risks of his employment, but he is not obliged to pass upon the methods chosen by his employer in discharging the latter's duty to provide suitable appliances and a safe place to work, and he does not assume the risk of the employer's negligence in performing such duty. This rule is subject to the exception that, where a defect is known to the employe or is so patent as to be readily observed by him, he cannot continue to use the defective *322 appliance, in the face of knowledge and without objection, without himself assuming the hazard incident to such a situation. If a defect is so plainly observable that the servant may be presumed to know its existence and he continues in the master's employment without objection, he is said to have made his election to thus continue, notwithstanding the master's neglect, and in such a case he cannot recover. Choctaw, Oklahoma &c. R.R. Co. v. McDade, 191 U.S. 64; Schlemmer v. Buffalo &c. Ry. Co., 220 U.S. 590, 596. In Texas, however, where this accident happened, the rule of assumed risk has been qualified by statute. The statute of April 24, 1905, Gen. Laws 1905, c. 163, p. 386, is as follows: "That in any suit against a person, corporation or receiver operating a railroad or street railway for damages for the death or personal injury of an employe or servant, caused by the wrong or negligence of such person, corporation or receiver, the plea of assumed risk of the deceased or injured employe where the ground of the plea is knowledge or means of knowledge of the defect and danger which caused the injury or death shall not be available in the following cases. * * * * * * * * "Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger and in such case it shall not be necessary that the servant or employe give notice of the defect as provided in subdivision 1 hereof." The above statute was construed in Houston & Texas Central R.R. Co. v. Alexander, 102 Texas, 497. In that case the Supreme Court of Texas held that the effect of the act was "to deny to the railroad company the defense of assumed risk in case `the defect or danger' which caused the injury was such that a person of ordinary prudence *323 under like circumstances `would have continued in the service.'" In concluding its discussion of the statute the court said (p. 505): "The purpose of the law under consideration was to secure the servant against the injustice of being denied reparation for injuries which he received while in the faithful performance of his duties and arising out of the circumstances and conditions over which he could not possibly have control, and under circumstances which would authorize him in the exercise of ordinary care to continue in the service by using the defective machinery or implements." This view of the statute was given in the charge of the trial court in the present case, and the jury was also instructed as follows: "Then on the question of assumed risk only, you will determine whether or not a man of ordinary prudence and caution would have continued in the employ of the defendant knowing the position of the post and the circumstances there - that is if that post was too close to the track, it was open and visible to anybody using the track, and its proximity to the track could be seen. The question then is, whether or not under subdivision two of this act a person of ordinary care would have continued in the service with the knowledge of the defect and danger. If you find from the evidence that the post was too close to the track and that the danger was obvious, then you will determine whether or not Mr. Harvey in continuing in the employ of the defendant, exercised the care that a person of ordinary prudence would have exercised under the circumstances - that is, whether a person of ordinary prudence would have continued in the service. If you find that a person of ordinary care would have continued in the service under those circumstances, then you are charged that he would not assume the risk of injury. But, if you find from the evidence that a person of ordinary *324 care would not have continued in the service of the defendant, then you are charged that he would assume the risk of injury, and could not recover. That is a question for you to determine from all the evidence." On the branch of the case dealing with assumption of risk we think the charge of the trial court was as favorable to the Railroad Company as it could properly have been under the statute. If the doctrine of assumed risk applied to this case, it was because the alleged defect was so palpable and visible that Harvey was presumed to know of it, although there was no direct proof upon that subject, and, by continuing to work, to have taken upon himself the hazard of injury from that source. The Texas statute, as we have said, qualified the rule of assumed risk by limiting it to cases where a man of ordinary prudence would not continue to work with such knowledge, real or imputed. The question principally argued concerns the alleged contributory negligence of the deceased under the circumstances shown. It has often been held in this court that ordinarily negligence or contributory negligence is not a question of law but of fact, to be settled by the finding of the jury. Where there is uncertainty as to the existence of negligence or contributory negligence, whether such uncertainty arises from a conflict of testimony or because, the facts being undisputed, fairminded men might honestly draw different conclusions therefrom, the question is not one of law. Richmond & Danville Railroad Co. v. Powers, 149 U.S. 43, 45, and cases there cited. The charge of the court as to contributory negligence was distinctly and clearly that the plaintiff could not recover if the negligence of the deceased contributed to the injury resulting in his death, and at the close of the charge the court gave a special request, made by the defendant, in which the jury was again told that the plaintiff could not recover if Harvey at the time was not acting with *325 the care of an ordinarily prudent man when he protruded his hips beyond the window in the manner stated. There is little dispute as to the facts in this case. We have stated them as the evidence tends to show them. Can it be said that the inference of negligence is so plain that all fairminded men would be compelled to that conclusion upon a consideration of the facts? The appellate court is not a jury for the trial of a case, nor do we have the powers of a court to grant a new trial, which in the Federal practice is a matter resting in the sound discretion of the trial court. The question and the sole question is, Was the contributory negligence so evident, applying the rules we have already stated, that it became a question of law requiring the court to take the case from the jury by direction to return a verdict for the Railway Company because of the contributory negligence of the deceased? We are not prepared to answer this question in the affirmative. Under all the circumstances, as we have related them, we cannot say, as an appellate court, that the trial court was wrong in leaving the question to the jury under the fair and full instructions given. The other errors assigned concern the requests of the defendant below for a peremptory instruction in its favor because Harvey had placed himself in the window where none of his duties required him to be; but the record discloses that it was customary for a hostler's helper to get upon an engine and to look out of the cab window for the reasons we have stated, and for one helper to lend aid to another. We do not think that the testimony shows that Harvey was not in the line of his duties when he got upon the engine or was a mere volunteer in going to help George in his work under the circumstances. We find no error in the record requiring the reversal of the judgment of the Circuit Court of Appeals, and it is therefore Affirmed.

409 U.S. 801 93 S.Ct. 24 34 L.Ed.2d 14 The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., applicants,v.The WICHITA BOARD OF TRADE et al.No. A-1320. Supreme Court of the United States July 7, 1972 1 On consideration of the appellants' application for stay, the appellees' reply to the application, and the affidavits and memoranda filed in support of the application and reply, it is ordered: 2 (1) That, subject to the condition set forth in paragraph 2 herein, the judgment of the United States District Court for the District of Kansas entered in this matter on June 8, 1972, be and hereby is stayed pending a final determination of the appeal by this Court. 3 (2) That, as a condition of the foregoing stay, each railroad collecting in-transit grain inspection charges under the challenged tariffs shall immediately take steps, including publication of appropriate provisions in applicable tariffs, to do the following: 4 (a) keep accurate accounts in detail of all amounts hereafter received during the existence of the stay by reason of in-transit grain inspection charges, specifying by whom and in whose behalf such amounts are paid; and 5 (b) in the event the order suspending the charges is affirmed by this Court, refund (with interest) of such amounts to persons in whose behalf such amounts were paid, without the necessity for such persons to make applications for refunds. In the event this Court's action should be other than in affirmance of the results reached by the district court, this Court may make such further order concerning the disposition of the aforesaid amounts as the Court may deem appropriate.

73 U.S. 101 (____) 6 Wall. 101 UNITED STATES v. ADAMS. SAME v. JOHNSON. SAME v. CLARK. Supreme Court of United States. *105 Messrs. Carlisle, Corwine, and Wills, in support of the motion to dismiss the appeals of Adams and Johnson. Mr. Norton, Solicitor of the Court of Claims, contra. *106 *107 Mr. Justice MILLER delivered the opinion of the court. Motions are made in the case of United States v. Adams, and of the Same v. Johnson, to dismiss the appeals, upon the ground that they were not taken within the ninety days to which the act of Congress limits the right of appealing from the judgments and decrees of that court. The fifth section of the act of March 3, 1863, under which the proceedings in appeal were had, enacts that "either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court, wherein the amount in controversy exceeds three thousand dollars, under such regulations as said Supreme Court may direct: Provided, that such appeal shall be taken within ninety days after the rendition of such judgment." This language implies that taking an appeal is a matter of right, and is something which the party as distinguished from court may do. When the court has rendered its judgment "either party may appeal." That is, has the right to appeal, and may exercise that right by his own volition. The court cannot prevent it, nor is the right dependent upon any judicial discretion. So also the language of the proviso is to the same purport. The appeal is to be taken within ninety days, not granted, or allowed, or permitted, but taken - a word which implies action on the part of the appellant alone. So that, whatever the proceeding may be which constitutes appealing, or taking an appeal, it must be something which the party can do; and it would seem that no regulation of the Supreme Court, nor any judicial discretion of the Court of Claims, can deprive him of the right, though the former may frame appropriate rules in accordance with which the right must be exercised.[*] *108 We consider the paper filed by the solicitor in the office of the clerk of the court as sufficient in form to indicate the intention to exercise this right. It is addressed to the court, refers properly to the case, claims an appeal, and calls upon the court to take the action which the rules prescribed by the Supreme Court require of it. But it is claimed that the rule so prescribed has not been complied with, and therefore the appeal is not taken within time. The third rule, the one here referred to, is this: "In all cases an order of allowance of appeal by the Court of Claims, or by the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal." The language of the rule would have been more technically accurate if the word "taking" had been used instead of "granting," but the latter word is used in the rule to express the idea conveyed by the former in the statute. To understand why the Supreme Court required an allowance of the appeal by the Court of Claims it is necessary to consider the two rules which precede this. A statute passed a year or two after the one we have been considering gave the right of appeal in cases where judgments had been rendered long previous to its passage. In framing rules upon this subject the Supreme Court determined that these rules should be so drawn that only questions of law could be brought here for review. The first rule provided that the party desiring to appeal, in cases decided before the rules were made, should present his petition to the Court of Claims, setting forth the questions of law decided against him which he desired to have reviewed; and that court was required to certify what had been its rulings on those questions. By the second rule the court was required, in all appealable cases thereafter decided, to make a finding of facts, and of their conclusions of law thereon, and make it a part of the record. It is obvious that in both of these classes of cases it was proper that the attention of the court should be called to the *109 taking of an appeal, and that it should not be treated as perfected until that court had prepared the statement of facts, or the statement of its rulings on questions of law which these rules prescribed. If something of this kind had not been required, the appeal might have been taken and the record filed in this court before the rule had been complied with. But that the delay in doing this might not prejudice the party desiring to appeal, the rule expressly provides that the statute of limitations shall cease to run from the time the application is made. In other words, the framers of the rule, treating the appeal as taken within the meaning of the statute when the application is made for its allowance, provide that the delay in making out a proper statement of facts and judicial rulings, and then allowing the appeal (which C.J. Taney says, in Hudgins v. Kemp, "is merely an authority to the clerk to transmit the record"), shall not operate to defeat the appeal. Much minute criticism has been expended on the question whether the adjournment of the court from May to June was a vacation within the meaning of the rule, and whether the application should have been made to the court or to the chief justice. The rule says, the allowance may be made by the court, or, if there is a vacation, by the chief justice, but it does not prescribe the form of the application, or how or to whom it shall be made. We think that whether done in vacation or in session, or during a temporary recess, the rule adopted by that court of requiring the application to be made by filing it with the clerk, is a very proper one. We are therefore of opinion that the filing of this paper was taking the appeal, and that the delay in the subsequent proceeding to render it effectual do not touch its validity. Another ground for the motion to dismiss these cases is, that the statement of facts found by the court, and their conclusions of law thereon, are not a sufficient compliance with the rule of the Supreme Court on that subject. It is said that the statement of facts is a mere recital of the evidence, and not the results of evidence as found by the court. *110 Conceding for the present that these records are fairly liable to the objection made, does it follow that for this reason the appeals should be dismissed? In discussing the first ground on which the dismissal of these cases is claimed, we have seen that an appeal is a right given to the party by the statute, of which the Court of Claims cannot deprive him. It would be a violation of this principle if this court should refuse to consider his appeal, because the Court of Claims has erred in its attempt to comply with a rule of this court prescribing the character of the record to be sent here. If the Court of Claims had made no attempt to comply with this part of the rule, we do not perceive how that would deprive this court of its jurisdiction of the case, or the appellant of his right to be heard. In such case, there is undoubtedly in this court, as in all appellate courts, a means of enforcing compliance with the rule, without permitting its jurisdiction, or the rights of appellant, to be defeated. But there is no such case here. The Court of Claims has made a finding of facts, and conclusions of law, and has shown its intention to comply in good faith with the rule of this court. Whether it be a sufficient compliance or not, is a question which does not affect the jurisdiction of this court, and is no ground for dismissal of the cases. The motions to dismiss are therefore overruled. The rule above referred to, however, was made for the protection of this court, as well as to secure a finding of facts, by a tribunal which must of necessity inquire into them fully, and which, having ample time, and being otherwise every way competent, may be relied on to find them truly. In consequence of the suggestions of counsel in these cases, and in several others, said to be in the same category, we have examined into the statement of facts certified to us, to see if the rule is complied with. In all that we have examined, except the two named at the head of this case,[*] the statement is free from objection. In the case of United *111 States v. Adams, the propositions of fact are stated more in extenso than is either necessary or desirable, and are subdivided into a greater number of distinct propositions than are useful or conducive to clearness. There are also certain acts and joint resolutions of Congress found as facts, of which this court must take judicial notice, which are, therefore, in no sense, facts to be found. But after all, there is within a reasonable compass, and fairly stated, the main ultimate propositions of fact, on which this court can determine the principles of law, which must control the case. But in the case of United States v. Johnson, it is different. We have first a detailed history of Johnson's transactions in settling on certain land, which is the foundation of his claim, with no attempt to deduce from this recital any ultimate fact, to which a proposition of law can be applied. This is followed by from fifteen to twenty affidavits and letters, given in full, from various officers in the department of the public lands, and other persons. What facts these letters and affidavits are intended to establish, we have not stopped to inquire, because it was the object of the rule to impose upon the Court of Claims the duty of drawing the inferences and conclusions which such documents are supposed to establish, or to decide that they do not establish them. The statement in this case is, in this respect, a reproduction of the finding which we rejected in the case of Burr v. The Des Moines Navigation Co.,[*] to which this court refers in the rules as containing a judicial exposition of the principles on which they are founded. No doubt it is often difficult to draw the line between a mere recital of the evidence produced in the case, and a finding of the facts which that evidence establishes; and where the statement certified by the Court of Claims is reasonably sufficient, we hope we shall not be found captious. But in the case we have mentioned, there is such a wide departure from the principle which lies at the foundation of the rule, *112 that while we shall retain jurisdiction of the case, the record will be remanded to the Court of Claims, with directions to return a finding of the facts, in accordance with the rule. These principles also dispose of the motion for certiorari in the case of Clark et al. v. United States. The motion there is designed to require the Court of Claims to make a more extended statement of the evidence on which they find, "that the allegation of fraud or mistake in the concoction of the written agreement is not sustained by the evidence in the case." This is precisely the character of finding which the rule of this court was intended to produce. The existence of the fraud or mistake set up in the pleading is one of the ultimate facts to which the law of the case must be applied, in rendering a judgment, and this court does not purpose to go behind the finding of the Court of Claims on that subject. To do so would require an examination of evidence, and a comparison of the weight to be attached to each separate piece of testimony, and the drawing of inferences from the whole, which is the peculiar province of a jury, and which, by our rule, we intended to exclude from the consideration of this court, by making such finding by the Court of Claims conclusive. The motion in that case is, therefore, overruled. MOTIONS OVERRULED in all the cases, but in the second case the record remanded with directions to make a new finding of facts in accordance with the rules of court on the subject. NOTES [*] Hudgins et al. v. Kemp, 18 Howard, 530; Dos Hermanos, 10 Wheaton, 306; The Enterprise, 2 Curtis C.C. 317. [*] Supra, p. 101. [*] 1 Wallace, 102.

283 U.S. 96 (1931) COLUMBUS & GREENVILLE RAILWAY COMPANY ET AL. v. MILLER, STATE TAX COLLECTOR, FOR THE USE OF THE MISSISSIPPI LEVEE DISTRICT. No. 195. Supreme Court of United States. Argued March 6, 9, 1931. Decided April 13, 1931. APPEAL FROM AND CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI. *97 Messrs. Wm. H. Watkins and R.C. Stovall, with whom Messrs. A.F. Gardner, Sr., A.F. Gardner, Jr., and H.T. Odom were on the brief, for appellants. Mr. Simon Rosenthal, with whom Messrs. George Butler, J. Ed. Franklin, Lamar F. Easterling, and C.B. Snow were on the brief, for appellee. MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. On behalf of the Mississippi Levee District, the State Tax Collector of Mississippi sued the Columbus & Greenville Railway Company to collect a tax for the years 1926 and 1927, under chapter 282 of the Laws of Mississippi of 1914, at the rate of $350 a mile on its main line within the District. The Railway Company had paid the tax at the rate of $50 a mile, pursuant to the provisions of an amending act, chapter 259 of the Laws of 1926, which fixed the tax at that rate for a railroad having less than twenty-five miles of main line within the district. The Railway Company fell within the amendment, as its main line in the district was only 18.41 miles in length. The Collector alleged in his declaration that the Act of 1926 was unconstitutional and void because the bill providing therefor had not been published, in advance of introduction, as required by section 234 of the state constitution. Demurrer to the declaration was sustained by the Circuit Court *98 of Montgomery County, but its judgment was reversed by the Supreme Court of the State upon the ground that the classification by the Act of 1926 was "arbitrary and unreasonable, and therefore in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution." 154 Miss. 317; 122 So. 366. The Railway Company then pleaded that it was not indebted, and gave notice that it would undertake to show that the classification of the Act of 1926 was valid, and, further, that the statute laying the tax demanded by the plaintiff, that is, the Act of 1914, was itself unreasonable and violated the Fourteenth Amendment. Upon the trial, evidence offered by the defendant in support of these allegations was received subject to objection which the Circuit Court finally sustained, and judgment was entered for the amount of the tax on the basis of $350 a mile. This judgment was affirmed by the Supreme Court of the State in the view that the case was ruled by its previous opinion and that the excluded evidence, if competent, could not have changed the result. 127 So. 784. An appeal was taken to this Court and a motion to dismiss or affirm was postponed to the hearing on the merits. At the same time, this Court granted a writ of certiorari. 282 U.S. 825. That part of the State of Mississippi, known as the Mississippi Delta, is divided into two districts, the Mississippi Levee District and the Yazoo-Mississippi Delta Levee District, to the end that each district may maintain the levees necessary to protect the lands within it. The Mississippi Levee District, created in 1865, comprises the southern part of the Delta. It is said that four methods of taxation are used to maintain this district, an acreage tax, a cotton tax, an ad valorem tax on property generally, and a mileage tax on railroad companies which it appears is in lieu of the ad valorem tax. Miller v. Yazoo & Mississippi Valley R. Co., 160 Miss. ___; 132 So. 597. *99 Prior legislation providing for the mileage tax on railroads was amended by chapter 282 of the Laws of 1914 so as to impose a tax of $350 a mile on the main line of standard gauge railroads within the district, $87.50 a mile on narrow gauge railroads, and $210 a mile on standard gauge branch lines. Chapter 259 of the Laws of 1926 added to the statute the following proviso: "provided further that the tax per mile per annum on the main line of any railroad company which does not own in excess of twenty-five miles of railroad in the Mississippi Levee District shall be $50 per annum." The Supreme Court of the State, holding that this proviso was invalid under the Fourteenth Amendment, did not deem it necessary to decide whether this ruling invalidated merely the proviso or the entire Act of 1926, as in either event the tax to be paid would be the same. We are not concerned with any question of the State's policy in imposing taxes, or with the various methods employed in the levee district, apart from the application of the Fourteenth Amendment. The question as to the validity of the Act of 1926 is raised only by the State Tax Collector in his official capacity, as one acting solely under the authority of the legislature whose requirement he contests. The only person taxed by the statute whose rights are before the Court is the petitioner, which seeks to uphold the state legislation which defines its liability and with which it has complied. The questions which the Collector sought to raise under the state constitution have not been passed upon by the state court. While, so far as state practice is concerned, the authority of a public officer to assail in the courts of the State the constitutional validity of a state statute is a local question,[1] this fact does not alter the fundamental principle, governing the determination of the federal question by this Court, that the protection *100 of the Fourteenth Amendment against state action is only for the benefit of those who are injured through the invasions of personal or property rights or through the discriminations which the Amendment forbids.[2] The constitutional guaranty does not extend to the mere interest of an official, as such, who has not been deprived of his property without due process of law or denied the equal protection of the laws.[3] Apart from this consideration, the only question presented is whether the Act of 1926 with its proviso, or the proviso alone, is invalid upon its face. The evidence offered to support the classification was excluded, and was treated as being in any event without effect, and the case thus stood before the state court upon the bare terms of the statute. If the facts shown by the evidence, thus excluded, were treated as established (Fairmont Creamery Company v. Minnesota, 274 U.S. 1, 5), they would have no tendency to invalidate the statute, but rather to sustain it. It appears that there are only two main lines of railroad within the district, that of the Yazoo & Mississippi Valley Railroad Company, extending north and south through the entire levee district parallel with the Mississippi River, and that of the petitioner running east from the Mississippi River. The petitioner sought to show not only the difference in location but that the condition of its road and its equipment was inferior to that of the other railroad. The petitioner also offered to prove, and the fact was stipulated subject to objection, that the State Tax Commission had assessed for ad valorem *101 taxes the railroad of the petitioner within the levee district at $1,000 a mile, and that of the other railroad at $32,000 a mile and, further, that in the classification of railroads by the State Railroad Commission for the purpose of levying a privilege tax, the petitioner was placed with respect to its main line in class three and the other railroad in class one. Without attempting to appraise the excluded evidence with respect to the asserted differences between the two railroads, it is sufficient to say that, if this evidence be disregarded, the record shows no factual basis for holding the classification of the statute invalid other than the simple fact that the classification is according to mileage. But the mere selection by the state legislature, in the exercise of its broad discretion in the imposition of taxes,[4] of a mileage basis, and the establishment of a particular class of railroads having less than twenty-five miles of main line within the district, cannot be regarded, in the absence of any further showing, as arbitrary and as constituting a violation of the Federal Constitution. On the contrary, a classification of this sort has frequently been sustained. In Dow v. Beidelman, 125 U.S. 680, 691, a statute classifying railroads according to mileage, with respect to the passenger fares to be charged, was sustained. The Court said: "Whether the classification shall be according to the amount of passengers and freight carried, or of gross or net earnings, during a previous year, or according to the simpler and more constant test of the length of the line of the railroad, is a matter within the discretion of the legislature." To the same effect is Chesapeake & Ohio Ry. Co. v. Conley, 230 U.S. 513. Similar rulings have been made in upholding other regulatory statutes; e.g. a statute relating to the heating of passenger cars but not applying to railroads less than *102 fifty miles in length (New York, New Haven & Hartford R. Co. v. New York, 165 U.S. 628, 633, 634), and statutes requiring a minimum number of men in train crews but not applying to railroads of less than a stated mileage. (Chicago, Rock Island & Pacific Ry. Co. v. Arkansas, 219 U.S. 453; St. Louis, Iron Mountain & Southern Ry. Co. v. Arkansas, 240 U.S. 518.) See, also, Wilson v. New, 243 U.S. 332, 354. As we find no ground for holding the Act of 1926 to be invalid under the Federal Constitution, it is unnecessary to consider the questions discussed in relation to the Act of 1914. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Judgment reversed. NOTES [1] Smith v. Indiana, 191 U.S. 138, 148; Huntington v. Worthen, 120 U.S. 97, 101; Stewart v. Kansas City, 239 U.S. 14, 16. [2] Clark v. Kansas City, 176 U.S. 114, 118; Standard Stock Co. v. Wright, 225 U.S. 540, 550; Massachusetts v. Mellon, 262 U.S. 447, 488; Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50, 54, 55; Liberty Warehouse Co. v. Burley Tobacco Growers' Assn., 276 U.S. 71, 88. [3] Smith v. Indiana, supra; Braxton County Court v. West Virginia, 208 U.S. 192, 197, 198; Marshall v. Dye, 231 U.S. 250, 257; Stewart v. Kansas City, supra. [4] Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237; Ohio Oil Co. v. Conway, 281 U.S. 146, 159.

304 U.S. 584 58 S.Ct. 1059 82 L.Ed. 1546 Charlotte MOREHEAD et al., petitioners,v.The CENTRAL TRUST COMPANY OF CINCINNATI, as executor, etc.* No. 1022. Supreme Court of the United States May 31, 1938 Mr. George S. Hawke, of Cincinnati, Ohio, for petitioners. Mr. William J. Rielly, of Cincinnati, Ohio, for respondent. 1 Petition for writ of certiorari to the Supreme Court of the State of Ohio denied. * Rehearing denied 59 S.Ct. 59, 83 L.Ed. - - .

393 U.S. 324 (1969) GLOVER ET AL. v. ST. LOUIS-SAN FRANCISCO RAILWAY CO. ET AL. No. 38. Supreme Court of United States. Argued November 14, 1968. Decided January 14, 1969. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. William M. Acker, Jr., argued the cause and filed a brief for petitioners. Donald W. Fisher argued the cause for respondents. On the brief for respondent St. Louis-San Francisco Railway Co. was Paul R. Moody. With Mr. Fisher on the brief for respondent Brotherhood of Railway Carmen of America were Richard R. Lyman and Jerome A. Cooper. *325 MR. JUSTICE BLACK delivered the opinion of the Court. The 13 petitioners here, eight Negroes and five white men, are all employees of the respondent railroad, whose duties are to repair and maintain passenger and freight cars in the railroad's yard at Birmingham, Alabama. They brought this action in the United States District Court against the railroad and the Brotherhood of Railway Carmen of America, which is the duly selected bargaining agent for carmen employees. The complaint alleged that all of the plaintiffs were qualified by experience to do the work of carmen but that all had been classified as carmen helpers for many years and had not been promoted. The complaint went on to allege the following explanation for the railroad's refusal to promote them: "In order to avoid calling out Negro plaintiffs to work as Carmen and to avoid promoting Negro plaintiffs to Carmen, in accordance with a tacit understanding between defendants and a subrosa agreement between the Frisco and certain officials of the Brotherhood, defendant Frisco has for a considerable period of time used so-called `apprentices' to do the work of Carmen instead of calling out plaintiffs to do said work as required by the Collective Bargaining Agreement as properly and customarily interpreted; and the Frisco has used this means to avoid giving plaintiffs work at Carmen wage scale and permanent jobs in the classification of Carmen. This denial to plaintiffs of work as Carmen has been contrary to previous custom and practice by defendants in regard to seniority as far as `Upgrade Carmen' are concerned. Defendant Frisco is not calling any of plaintiffs to work as Carmen in order to avoid having to promote any Negroes to Carmen." *326 The complaint also claimed that each plaintiff had lost in excess of $10,000 in wages as the result of being a victim of "an invidious racial discrimination," and prayed for individual damages, for an injunction to cause the defendants to cease and desist from their discrimination against petitioners and their class and "for any further, or different relief as may be meet and proper . . . ." The respondents moved to dismiss the complaint on the ground, among others, that petitioners had not exhausted the administrative remedies provided for them by the grievance machinery in the collective bargaining agreement, in the constitution of the Brotherhood, and before the National Railroad Adjustment Board. The District Court, in an unreported opinion, sustained the motion to dismiss, and the petitioners then filed the following amendment to their complaint: "On many occasions the Negro plaintiffs through one or more of their number, have complained both to representatives of the Brotherhood and to representatives of the Company about the foregoing discrimination and violation of the Collective Bargaining Agreement. Said Negro plaintiffs have also called upon the Brotherhood to process a grievance on their behalf with the Company under the machinery provided by the Collective Bargaining Agreement. Although a representative of the Brotherhood once indicated to the Negro plaintiffs that the Brotherhood would `investigate the situation,' nothing concrete was ever done by the Brotherhood and no grievance was ever filed. Other representatives of the Brotherhood told the Negro plaintiffs time and time again: (a) that they were kidding themselves if they thought they could ever get white men's jobs; (b) that nothing would ever be done for them; and (c) that to file a formal complaint with the Brotherhood or with the Company would be a waste of their *327 time. They were told the same things by local representatives of the Company. They were treated with condescension by both Brotherhood and Company, sometimes laughed at and sometimes `cussed,' but never taken seriously. When the white plaintiffs brought their plight to the attention of the Brotherhood, they got substantially the same treatment which the Negro plaintiffs received, except that they were called `nigger lovers' and were told that they were just inviting trouble. Both defendants attempted to intimidate plaintiffs, Negro and white. Plaintiffs have been completely frustrated in their efforts to present their grievance either to the Brotherhood or to the Company. In addition, to employ the purported internal complaint machinery within the Brotherhood itself would only add to plaintiffs' frustration and, if ever possible to pursue it to a final conclusion it would take years. To process a grievance with the Company without the cooperation of the Brotherhood would be a useless formality. To take the grievance before the National Railroad Adjustment Board (a tribunal composed of paid representatives from the Companies and the Brotherhoods) would consume an average time of five years, and would be completely futile under the instant circumstances where the Company and the Brotherhood are working `hand-in-glove.' All of these purported administrative remedies are wholly inadequate, and to require their complete exhaustion would simply add to plaintiffs' expense and frustration, would exhaust plaintiffs, and would amount to a denial of `due process of law,' prohibited by the Constitution of the United States." The District Court again sustained the motion to dismiss. The Court of Appeals affirmed the dismissal, agreeing *328 with the opinion of the District Court and adding several authorities to those cited by the District Court, 386 F. 2d 452 (C. A. 5th Cir. 1967), and we granted certiorari, 390 U. S. 1023 (1968). We think that none of the authorities cited in either opinion justify the dismissal and reverse and remand the case for trial in the District Court. It is true, as the respondents here contend, that this Court has held that the Railroad Adjustment Board has exclusive jurisdiction, under § 3 First (i) of the Railway Labor Act, set out below,[1] to interpret the meaning of the terms of a collective bargaining agreement.[2] We have held, however, that § 3 First (i) by its own terms applies only to "disputes between an employee or group of employees and a carrier or carriers." Conley v. Gibson, 355 U. S. 41, 44 (1957). In Conley, as in the present case, the suit was one brought by the employees against their own union, claiming breach of the duty of fair representation, and we held that the jurisdiction of the federal courts was clear. In the present case, of course, the petitioners sought relief not only against their union but also against the railroad, and it might at one time have been thought that the jurisdiction of the Railroad Adjustment *329 Board remains exclusive in a fair representation case, to the extent that relief is sought against the railroad for alleged discriminatory performance of an agreement validly entered into and lawful in its terms. See, e. g., Hayes v. Union Pacific R. Co., 184 F. 2d 337 (C. A. 9th Cir. 1950), cert. denied, 340 U. S. 942 (1951). This view, however, was squarely rejected in the Conley case, where we said, "[F]or the reasons set forth in the text we believe [Hayes, supra] was decided incorrectly." 355 U. S., at 44, n. 4. In this situation no meaningful distinction can be drawn between discriminatory action in negotiating the terms of an agreement and discriminatory enforcement of terms that are fair on their face. Moreover, although the employer is made a party to insure complete and meaningful relief, it still remains true that in essence the "dispute" is one between some employees on the one hand and the union and management together on the other, not one "between an employee or group of employees and a carrier or carriers." Finally, the Railroad Adjustment Board has no power to order the kind of relief necessary even with respect to the railroad alone, in order to end entirely abuses of the sort alleged here. The federal courts may therefore properly exercise jurisdiction over both the union and the railroad. See also Steele v. Louisville & Nashville R. Co., 323 U. S. 192 (1944). The respondents also argue that the complaint should be dismissed because of the petitioners' failure to exhaust their remedies under the collective bargaining agreement, the union constitution, and the Railway Labor Act. They rely particularly on Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), and Vaca v. Sipes, 386 U. S. 171 (1967). The Court has made clear, however, that the exhaustion requirement is subject to a number of exceptions for the variety of situations in which doctrinaire application of the exhaustion rule would defeat *330 the overall purposes of federal labor relations policy. Thus, in Vaca itself the Court stressed: "[I]t is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement. Republic Steel Corp. v. Maddox, 379 U. S. 650. However, because these contractual remedies have been devised and are often controlled by the union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures." 386 U. S., at 184-185. The Court in Vaca went on to specify at least two situations in which suit could be brought by the employee despite his failure to exhaust fully his contractual remedies. The circumstances of the present case call into play another of the most obvious exceptions to the exhaustion requirement - the situation where the effort to proceed formally with contractual or administrative remedies would be wholly futile. In a line of cases beginning with Steele v. Louisville & Nashville R. Co., supra, the Court has rejected the contention that employees alleging racial discrimination should be required to submit their controversy to "a group which is in large part chosen by the [defendants] against whom their real complaint is made." 323 U. S., at 206. And the reasons which prompted the Court to hold as it did about the inadequacy of a remedy before the Adjustment Board apply with equal force to any remedy administered by the union, by the company, or both, to pass on claims by the very employees whose rights they have been charged *331 with neglecting and betraying. Here the complaint alleges in the clearest possible terms that a formal effort to pursue contractual or administrative remedies would be absolutely futile. Under these circumstances, the attempt to exhaust contractual remedies, required under Maddox, is easily satisfied by petitioners' repeated complaints to company and union officials, and no time-consuming formalities should be demanded of them. The allegations are that the bargaining representatives of the car employees have been acting in concert with the railroad employer to set up schemes and contrivances to bar Negroes from promotion wholly because of race. If that is true, insistence that petitioners exhaust the remedies administered by the union and the railroad would only serve to prolong the deprivation of rights to which these petitioners according to their allegations are justly and legally entitled. The judgment is reversed and the case is remanded for trial. Reversed and remanded. MR. JUSTICE HARLAN, concurring. I join in the Court's opinion with one addition and one reservation. I believe that Richardson v. Texas & N. O. R. Co., 242 F. 2d 230 (1957), decided by the Fifth Circuit some years before its decision in the present case, also supports today's holding that the federal courts may grant railroad employees ancillary relief against an employer who aids and abets their union in breaching its duty of fair representation. A contrary result would bifurcate, and needlessly proliferate, litigation. I think it clear that footnote 4 of Conley v. Gibson, 355 U. S. 41, 44 (1957), did not - as some of the language in today's opinion, ante, at 328-329, might otherwise imply - address itself to the question now decided, which *332 is one of first impression in this Court. Conley was a suit against the union only. A careful reading of Hayes v. Union Pacific R. Co., 184 F. 2d 337 (1950); the District Court's opinion in Conley, 138 F. Supp. 60 (1955), which relied on Hayes; and this Court's opinion in Conley makes it readily apparent that our disapproval of Hayes had nothing to do with the question of jurisdiction over an employer in a fair representation action. NOTES [1] In full, § 3 First (i) reads: "The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act [June 21, 1934], shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes." 48 Stat. 1191, 45 U. S. C. § 153 First (i). [2] See, e. g., Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239.

127 U.S. 113 (1888) LAWRENCE v. MERRITT. No. 213. Supreme Court of United States. Argued April 10, 1888. Decided April 23, 1888. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Mr. Edwin B. Smith for plaintiffs in error. Mr. Solicitor General for defendant in error. *114 MR. JUSTICE MILLER delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the Southern District of New York. The plaintiffs in error, Benjamin and Phineas Lawrence, brought suit in the court below against Edwin A. Merritt, the former collector of the port of New York, for the recovery of an alleged excess of duties levied by him and paid by them upon an importation of what is called "tissue paper." Schedule M of § 2504 of the Revised Statutes provides for the imposition of the following duties: "Paper, sized or glued, suitable only for printing paper, twenty-five per centum ad valorem; printing, unsized, used for books and newspapers exclusively, twenty per centum ad valorem; manufactured of, or of which paper is a component material, not otherwise provided for, thirty-five per centum ad valorem; sheathing paper, ten per centum ad valorem." The collector classified the paper under the following clause on the same page: "Paper hangings and paper for screens or fire-boards; paper, antiquarian, demy, drawing, elephant, foolscap, imperial letter, and all other paper not otherwise provided for, thirty-five per centum ad valorem." The plaintiffs thereupon protested that the paper which they had imported, instead of being assessed as it was by the collector under this latter clause at thirty-five per cent ad valorem, should have been assessed under the former clause as "paper ... printing, unsized, used for books and newspapers exclusively," at twenty per cent ad valorem. From the testimony it appears that it was what is generally called "tissue paper," and was mainly if not exclusively used for making letter-press copies of letters or written matter. This is a well-known process, by which, after a letter has been written on ordinary paper, it is placed between the leaves of a book filled with this kind of paper, the pages upon which the copy is desired being usually dampened somewhat for that purpose, after which such book is subject to great pressure by means of a hand or other press. One or more impressions *115 may thus be made of the written matter upon the leaves of this tissue paper. The judge of the Circuit Court, in speaking of the character of this paper, said to the jury: "I do not think that the words used in the statute have any technical meaning. You must take the statute as you find it and a common sense view of the case, and say whether or not this paper which has been produced here is paper which is used, exclusively for books and newspapers; and whether the law-makers intended, when they used this language, that such paper as has been described to you should come in and pay duty under that clause of the statute which provides for paper used exclusively for books and newspapers." He also said that if they found that it was not printing paper used exclusively for books and newspapers, and should not come under this clause, then their verdict should be for the defendant. At the request of the attorney for the defendant he also charged the jury that if they found upon the evidence that the phrase "printing paper," as used in the trade, has a technical signification, and if the plaintiffs' importation in this case does not come within that signification, they should find a verdict for the defendant. The verdict and the judgment were for the defendant. We are of opinion that the charge of the court was correct, and that the verdict and judgment which followed it are without error. It is very obvious from the face of the statute that "printing paper, unsized, used for books and newspapers exclusively," does not include the kind of paper in question in this case, and it therefore falls within the class of manufactures of other paper not otherwise provided for, so that it was properly chargeable with the duty of thirty-five per centum ad valorem. An ingenious argument is made by plaintiffs' counsel to show that the process of transferring the writing made upon sheets of the ordinary writing paper used for that purpose, by causing the ink with which it was written to soak or penetrate through one or more thicknesses of the kind of tissue paper which this is said to be, after the same have been properly *116 dampened, is printing within the meaning of the statute, and therefore this paper, being used for that purpose, is "printing paper." We, however, think it is perfectly clear that this process is not printing, and that the use of this kind of paper, which is in controversy here, for that purpose, does not make it "printing paper." The words of the statute, "paper, sized or glued, suitable only for printing paper," and "printing, unsized, used for books and newspapers, exclusively," evidently have reference to the various kinds of paper which are used for printing by means of type or plates, which make an impression only upon the face of the paper presented to them, and not to these kinds of tissue paper, so characterized on account of their thinness, used for the purpose of transferring writing by the penetration or soaking through of the liquid used therefor, so that the copy is read upon the side of the paper opposite to that presented to the original writing. The words of the statute cannot comprehend this species of tissue paper, which is merely used for the multiplication or copying of letters or other writings. Not being included within the true meaning of these phrases above quoted, it must then belong to that other and larger class of "all other paper not otherwise provided for." This is taxable at the rate of thirty-five per centum ad valorem, the amount which was actually levied and collected in this case. We think the charge of the Circuit Judge on this subject, in connection with the testimony, was sound, and that it cannot be made much clearer by amplification. The judgment of the Circuit Court is therefore Affirmed.

432 U.S. 40 (1965) UNITED STATES v. CALIFORNIA. No. 5, Orig. Supreme Court of United States. Decided June 23, 1947, Decided May 17, 1965. Order and decree entered October 27, 1947. Supplemental decree entered January 31, 1966. Second supplemental decree entered June 13, 1977. ON JOINT MOTION FOR ENTRY OF A SECOND SUPPLEMENTAL DECREE. The joint motion for entry of a second supplemental decree is granted. SECOND SUPPLEMENTAL DECREE For the purpose of identifying with greater particularity parts of the boundary line, as defined by the Supplemental Decree of January 31, 1966, 382 U. S. 448, between the submerged lands of the United States and the submerged lands of the State of California, it is ORDERED, ADJUDGED AND DECREED that this Court's Supplemental Decree of January 31, 1966, be, and the same is hereby, further supplemented as follows: 1. Closing Lines Across Entrances to Bodies of Inland Waters a. The inland waters of the following bodies of water are enclosed by straight lines between the mean lower low-water lines at the seaward ends of the jetties located at their mouths: 1. Humboldt Bay 2. Port Hueneme 3. Santa Ana River 4. Agua Hedionda Lagoon *41 b. The inland waters of San Francisco Bay are those enclosed by a series of straight lines from the south-western head of Point Bonita (37°48′56″N, 122°31′ 44″W); thence to the western edge of an unnamed island immediately to the south (37°48′55″N, 122°31′44.2″W); thence southward to the western edge of a second unnamed island (37°48′53″N, 122°31′44″W); thence southward to the western edge of a third unnamed island (37°46′57″N, 122°30′52″W); thence to a western head of Point Lobos (37°46′53″N, 122°30′49″W). The length of this closing line is 2.18 nautical miles. c. The inland waters of Bodega-Tomales Bay are those enclosed by a straight line drawn from Bodega Head (38° 17′53.8″N, 123°03′25.3″W); thence to the western edge of an unnamed island northwest of Tomales Point (38° 14′28.4″N, 122°59′41.5″W); thence southward to Tomales Point (38°14′26.5″N, 122°59′39″W). d. The closing lines delineated in the foregoing paragraph are part of the coastline of California. The foregoing is without prejudice to the right of either party to assert or deny that other closing lines are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act, 67 Stat. 29, as amended. 2. Artificial Extension of the Coastline The mean lower low-water line along each of the following structures is part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act: a. The Morro Bay breakwater b. The Port San Luis breakwater c. The Santa Barbara breakwater d. The Ventura Marina breakwater e. The Channel Islands Harbor breakwater *42 f. Three rubble groins at Point Mugu g. The Santa Monica breakwater h. The Venice Beach groin i. The Marina del Rey breakwater j. Three rubble groins along Dockweiler Beach k. The Redondo Beach breakwater l. Two harbor jetties at Newport Bay m. The Dana Point breakwater n. The Oceanside breakwater o. Two harbor jetties at entrance to Mission Bay p. The Zuniga jetty at San Diego (including the southern seaward end of this entire structure) The foregoing is without prejudice to the right of either party to assert or deny that other artificial structures are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act. 3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.

459 U.S. 553 (1983) SOUTH DAKOTA v. NEVILLE No. 81-1453. Supreme Court of United States. Argued December 8, 1982. Decided February 22, 1983. CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA *554 Mark V. Meierhenry, Attorney General of South Dakota, argued the cause for petitioner. With him on the briefs was Mark Smith, Assistant Attorney General. David R. Gienapp argued the cause and filed a brief for respondent.[*] JUSTICE O'CONNOR delivered the opinion of the Court. Schmerber v. California, 384 U. S. 757 (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant's Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, supra, at 765, n. 9, and hold that the admission into evidence of a defendant's refusal to submit to such a test likewise does not offend the right against self-incrimination. I Two Madison, South Dakota, police officers stopped respondent's car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver's license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself. *555 The officers smelled alcohol on his breath. Respondent did not have a driver's license, and informed the officers that it was revoked after a previous driving-while-intoxicated conviction. The officers asked respondent to touch his finger to his nose and to walk a straight line. When respondent failed these field sobriety tests, he was placed under arrest and read his Miranda rights.[1] Respondent acknowledged that he understood his rights and agreed to talk without a lawyer present. App. 11. Reading from a printed card, the officers then asked respondent to submit to a blood-alcohol test and warned him that he could lose his license if he refused.[2] Respondent refused to take the test, stating "I'm too drunk, I won't pass the test." The officers again read the request to *556 submit to a test, and then took respondent to the police station, where they read the request to submit a third time. Respondent continued to refuse to take the test, again saying he was too drunk to pass it.[3] South Dakota law specifically declares that refusal to submit to a blood-alcohol test "may be admissible into evidence at the trial." S. D. Comp. Laws Ann. § 32-23-10.1 (Supp. 1982).[4] Nevertheless, respondent sought to suppress all evidence of his refusal to take the blood-alcohol test. The Circuit Court granted the suppression motion for three reasons: the South Dakota statute allowing evidence of refusal violated respondent's federal constitutional rights; the officers failed to advise respondent that the refusal could be used against him at trial; and the refusal was irrelevant to the issues before the court. The State appealed from the entire order. The South Dakota Supreme Court affirmed the suppression of the act of refusal on the grounds that § 32-23-10.1, which allows the introduction of this evidence, violated the federal and state privilege against self-incrimination.[5] 312 N. W. 2d 723 (1981). The court reasoned that *557 the refusal was a communicative act involving respondent's testimonial capacities and that the State compelled this communication by forcing respondent " `to choose between submitting to a perhaps unpleasant examination and producing *558 testimonial evidence against himself,' " id., at 726 (quoting State v. Andrews, 297 Minn. 260, 262, 212 N. W. 2d 863, 864 (1973), cert. denied, 419 U. S. 881 (1974)).[6] Since other jurisdictions have found no Fifth Amendment violation from the admission of evidence of refusal to submit to blood-alcohol tests,[7] we granted certiorari to resolve the conflict. 456 U. S. 971 (1982). II The situation underlying this case - that of the drunk driver - occurs with tragic frequency on our Nation's highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U. S. 432, 439 (1957) ("The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield"); Tate v. Short, 401 U. S. 395, 401 (1971) (BLACKMUN, J., concurring) (deploring "traffic irresponsibility and the frightful carnage it spews upon our highways"); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971) (BLACKMUN, J., concurring) (footnote omitted) ("The slaughter on the highways of this Nation exceeds the death toll of all our *559 wars"); Mackey v. Montrym, 443 U. S. 1, 17-19 (1979) (recognizing the "compelling interest in highway safety"). As part of its program to deter drinkers from driving, South Dakota has enacted an "implied consent" law. S. D. Comp. Laws Ann. § 32-23-10 (Supp. 1982). This statute declares that any person operating a vehicle in South Dakota is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated. In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a state-compelled blood test against a claim that it infringed the Fifth Amendment right against self-incrimination, made applicable to the States through the Fourteenth Amendment.[8] We recognized that a coerced blood test infringed to some degree the "inviolability of the human personality" and the "requirement that the State procure the evidence against an accused `by its own independent labors,' " but noted the privilege has never been given the full scope suggested by the values it helps to protect. Id., at 762. We therefore held that the privilege bars the State only from compelling "communications" or "testimony." Since a blood test was "physical or real" evidence rather than testimonial evidence, we found it unprotected by the Fifth Amendment privilege. Schmerber, then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood-alcohol test.[9] South Dakota, however, has declined to authorize its police officers to administer a blood-alcohol test against the suspect's will. Rather, to avoid violent confrontations, the South Dakota statute permits a suspect to *560 refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. S. D. Comp. Laws Ann. § 32-23-10 (Supp. 1982). This permission is not without a price, however. South Dakota law authorizes the Department of Public Safety, after providing the person who has refused the test an opportunity for a hearing, to revoke for one year both the person's license to drive and any nonresident operating privileges he may possess. § 32-23-11. Such a penalty for refusing to take a blood-alcohol test is unquestionably legitimate, assuming appropriate procedural protections. See Mackey v. Montrym, supra. South Dakota further discourages the choice of refusal by allowing the refusal to be used against the defendant at trial. S. D. Comp. Laws. Ann. §§ 32-23-10.1 and 19-13-28.1 (Supp. 1982). Schmerber expressly reserved the question of whether evidence of refusal violated the privilege against self-incrimination. 384 U. S., at 765, n. 9. The Court did indicate that general Fifth Amendment principles, rather than the particular holding of Griffin v. California, 380 U. S. 609 (1965), should control the inquiry. 384 U. S., at 766, n. 9.[10] Most courts applying general Fifth Amendment principles to the refusal to take a blood test have found no violation of the privilege against self-incrimination. Many courts, following the lead of Justice Traynor's opinion for the California Supreme Court in People v. Sudduth, 65 Cal. 2d 543, 421 P. 2d 401 (1966), cert. denied, 389 U. S. 850 (1967), have reasoned that refusal to submit is a physical act rather than a communication and for this reason is not protected by the *561 privilege.[11] As Justice Traynor explained more fully in the companion case of People v. Ellis, 65 Cal. 2d 529, 421 P. 2d 393 (1966) (refusal to display voice not testimonial), evidence of refusal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt, such as escape from custody and suppression of evidence. The court below, relying on Dudley v. State, 548 S. W. 2d 706 (Tex. Crim. App. 1977), and State v. Andrews, 297 Minn. 260, 212 N. W. 2d 863 (1973), cert. denied, 419 U. S. 881 (1974), rejected this view. This minority view emphasizes that the refusal is "a tacit or overt expression and communication of defendant's thoughts," 312 N. W. 2d, at 726, and that the Constitution "simply forbids any compulsory revealing or communication of an accused person's thoughts or mental processes, whether it is by acts, failure to act, words spoken or failure to speak." Dudley, supra, at 708. While we find considerable force in the analogies to flight and suppression of evidence suggested by Justice Traynor, we decline to rest our decision on this ground. As we recognized in Schmerber, the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases. 384 U. S., at 764.[12] The situations arising from a refusal present a difficult *562 gradation from a person who indicates refusal by complete inaction, to one who nods his head negatively, to one who states "I refuse to take the test," to the respondent here, who stated "I'm too drunk, I won't pass the test." Since no impermissible coercion is involved when the suspect refuses to submit to take the test, regardless of the form of refusal, we prefer to rest our decision on this ground, and draw possible distinctions when necessary for decision in other circumstances.[13] As we stated in Fisher v. United States, 425 U. S. 391, 397 (1976), "[t]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of `physical or moral compulsion' exerted on the person asserting the privilege." This coercion requirement comes directly from the constitutional language directing that no person "shall be compelled in any criminal case to be a witness against himself." U. S. Const., Amdt. 5 (emphasis added). And as Professor Levy concluded in his history of the privilege, "[t]he element of compulsion or involuntariness was always an ingredient of the right and, before the right existed, of protests against incriminating interrogatories." L. Levy, Origins of the Fifth Amendment 328 (1968). Here, the State did not directly compel respondent to refuse the test, for it gave him the choice of submitting to the test or refusing. Of course, the fact the government gives a defendant or suspect a "choice" does not always resolve the *563 compulsion inquiry. The classic Fifth Amendment violation - telling a defendant at trial to testify - does not, under an extreme view, compel the defendant to incriminate himself. He could submit to self-accusation, or testify falsely (risking perjury) or decline to testify (risking contempt). But the Court has long recognized that the Fifth Amendment prevents the State from forcing the choice of this "cruel trilemma" on the defendant. See Murphy v. Waterfront Comm'n, 378 U. S. 52, 55 (1964). See also New Jersey v. Portash, 440 U. S. 450, 459 (1979) (telling a witness under a grant of legislative immunity to testify or face contempt sanctions is "the essence of coerced testimony"). Similarly, Schmerber cautioned that the Fifth Amendment may bar the use of testimony obtained when the proffered alternative was to submit to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer "confession." 384 U. S., at 765, n. 9.[14] Cf. Miranda v. Arizona, 384 U. S. 436, 458 (1966) (unless compulsion inherent in custodial surroundings is dispelled, no statement is truly a product of free choice). In contrast to these prohibited choices, the values behind the Fifth Amendment are not hindered when the State offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him. The simple blood-alcohol test is so safe, painless, and commonplace, see Schmerber, 384 U. S., at 771, that respondent concedes, as he must, that the State could legitimately compel the suspect, against his will, to accede to the test. Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Nor is this a case where the State has subtly coerced respondent into choosing the option it had no right to compel, rather than offering a true *564 choice. To the contrary, the State wants respondent to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test. We recognize, of course, that the choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices. See, e. g., Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183, 213-217 (1971). We hold, therefore, that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.[15] III Relying on Doyle v. Ohio, 426 U. S. 610 (1976), respondent also suggests that admission at trial of his refusal violates the Due Process Clause because respondent was not fully warned of the consequences of refusal. Doyle held that the Due Process Clause prohibits a prosecutor from using a defendant's silence after Miranda warnings to impeach his testimony at trial. Just a Term before, in United States v. Hale, 422 U. S. 171 (1975), we had determined under our supervisory power that the federal courts could not use such silence for impeachment because of its dubious probative value. Although *565 Doyle mentioned this rationale in applying the rule to the States, 426 U. S., at 617, the Court relied on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. Id., at 618. Unlike the situation in Doyle, we do not think it fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial. First, the right to silence underlying the Miranda warnings is one of constitutional dimension, and thus cannot be unduly burdened. See Miranda, supra, at 468, n. 37. Cf. Fletcher v. Weir, 455 U. S. 603 (1982) (postarrest silence without Miranda warnings may be used to impeach trial testimony). Respondent's right to refuse the blood-alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota Legislature. Moreover, the Miranda warnings emphasize the dangers of choosing to speak ("whatever you say can and will be used as evidence against you in court"), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him. The officers did not specifically warn respondent that the test results could be used against him at trial.[16] Explaining the consequences of *566 the other option, the officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court,[17] but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a "safe harbor," free of adverse consequences. While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process. IV The judgment of the South Dakota Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting. The Court is understandably anxious to do its part in curtailing the "carnage caused by drunk drivers." Ante, at 558. I sympathize with that concern, but it does not justify the rendition of an advisory opinion on a constitutional issue. In *567 this case, the Court has no power to reverse the judgment of the South Dakota Supreme Court, because its decision rests on an adequate and independent state ground. I therefore cannot join the Court's opinion. The South Dakota Supreme Court framed the question before it on appeal as "whether SDCL 32-23-10.1 is a violation of Neville's federal and state constitutional privilege against self-incrimination. U. S. Const. Amend. V; S. D. Const. art. VI, § 9." 312 N. W. 2d 723, 725 (1981). After analyzing both federal and state cases, the South Dakota Supreme Court concluded: "We hold that evidence of the accused's refusal to take a blood test violates the federal and state privilege against self-incrimination and therefore SDCL 32-23-10.1 is unconstitutional." Id., at 726. Thus, the South Dakota Supreme Court unambiguously held that the statute violated the State Constitution. That holding is certainly adequate to support its judgment and is beyond our power to review. Given the existence of an adequate state ground, it is established beyond dispute that this Court may not take jurisdiction if the state ground is independent.[1] In this case, we lack jurisdiction because the South Dakota Supreme Court has not indicated, explicitly or implicitly, that its construction of Art. VI, § 9, of the South Dakota Constitution was contingent *568 on our agreement with its interpretation of the Fifth Amendment to the United States Constitution.[2] There is no general presumption of federal law, no general presumption of state law, and no specific language in the opinion below to suggest that the South Dakota Court harbored such an opinion. Unless we have explicit notice that a provision of a State Constitution is intended to be a mere shadow of the comparable provision in the Federal Constitution, it is presumptuous - if not paternalistic - for this Court to make that assumption on its own. No matter how eloquent and persuasive our analysis of the Federal Constitution may be, we cannot simply presume that the highest court of a sovereign State will modify its interpretation of its own law whenever we interpret comparable federal law differently. Even when a state tribunal misconceives federal law, this Court cannot vacate its judgment merely to give it an unsolicited opportunity to reanalyze its own law.[3] If a state-court judgment *569 is premised on an adequate state ground, that ground must be presumed independent unless the state court suggests otherwise.[4] Nothing in South Dakota law establishes a presumption that the State Constitution adds no additional protections for South Dakota residents beyond those already provided by the Fourteenth Amendment to the Federal Constitution. Indeed, the South Dakota Supreme Court has explicitly established a contrary presumption: "This court is the final authority on interpretation and enforcement of the South Dakota Constitution. We have always assumed the independent nature of our state constitution regardless of any similarity between the language of that document and the federal constitution." State v. Opperman, 247 N. W. 2d 673, 674 (1976).[5] *570 Thus, both federal and South Dakota law establish the presumption that an adequate state ground is independent. That presumption is reinforced in this case. For the opinion of the South Dakota Supreme Court explicitly noted that the language of the South Dakota Constitution is "more liberal" than the comparable federal language. 312 N. W. 2d, at 726, n.[6] It was willing to rest the judgment on federal as well as state grounds, however, because this Court's opinion in Schmerber v. California, 384 U. S. 757, 761-762, n. 6 (1966), had assumed that the Fifth Amendment should be construed as broadly as the more liberal state language. 312 N. W. 2d, at 726, n. It concluded that federal law is "broad enough" to exclude the evidence in this case, and it therefore saw "no need to draw a distinction at this time" between state and federal law. Ibid. (emphasis added). Those words plainly suggest that the State Supreme Court did not understand its holding to be "dependent" on this Court's view of federal law.[7] *571 Because there exists an independent and adequate state ground for the judgment below, I would dismiss the writ of certiorari.[8] NOTES [*] Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Linley E. Pearson, Attorney General of Indiana, and Palmer K. Ward, Deputy Attorney General, by Donald M. Bouton, Acting Attorney General of the Virgin Islands, and by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Wilson L. Condon, of Alaska, Jim Smith of Florida, Tany S. Hong of Hawaii, Tyrone C. Fahner of Illinois, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Warren R. Spannaus of Minnesota, John D. Ashcroft of Missouri, Michael T. Greeley of Montana, Robert Abrams of New York, Rufus L. Edmisten of North Carolina, William J. Brown of Ohio, David Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Daniel R. McLeod of South Carolina, William M. Leech, Jr., of Tennessee, John J. Easton of Vermont, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Steven F. Freudenthal of Wyoming; for Mothers Against Drunk Drivers, Inc., by Hartley T. Hansen; and for the Texas District and County Attorneys Association et al. by David Crump. [1] The officer read the Miranda warning from a printed card. He read: "You have the right to remain silent. You don't have to talk to me unless you want to do so. If you want to talk to me I must advise you whatever you say can and will be used as evidence against you in court. You have the right to confer with a lawyer, and to have a lawyer present with you while you're being questioned. If you want a lawyer but are unable to pay for one, a lawyer will be appointed to represent you free of any cost to you. Knowing these rights, do you want to talk to me without having a lawyer present? You may stop talking to me at any time. You may also demand a lawyer at any time." App. 8. See Miranda v. Arizona, 384 U. S. 436, 467-473 (1966). [2] The card read: "I have arrested you for driving or being in actual physical control of a vehicle while under the influence of alcohol or drugs, a violation of S. D. C. L. 32-23-1. I request that you submit to a chemical test of your blood to determine your blood alcohol concentration. You have the right to refuse to submit to such a test and if you do refuse no test will be given. You have the right to a chemical test by a person of your own choosing at your own expense in addition to the test I have requested. You have the right to know the results of any chemical test. If you refuse the test I have requested, your driver's license and any non-residence driving privilege may be revoked for one year after an opportunity to appear before a hearing officer to determine if your driver's license or non-residence driving privilege shall be revoked. If your driver's license or non-residence driving privileges are revoked by the hearing officer, you have the right to appeal to Circuit Court. Do you understand what I told you? Do you wish to submit to the chemical test I have requested?" App. 8-10. [3] Responding to other questions, respondent informed the officers that he had been drinking "close to one case" by himself at home, and that his last drink was "about ten minutes ago." Tr. of Preliminary Hearing 8. [4] South Dakota Comp. Laws Ann. § 19-13-28.1 (Supp. 1982) likewise declares that, notwithstanding the general rule in South Dakota that the claim of a privilege is not a proper subject of comment by judge or counsel, evidence of refusal to submit to a chemical analysis of blood, urine, breath, or other bodily substance "is admissible into evidence" at a trial for driving under the influence of alcohol. A person "may not claim privilege against self-incrimination with regard to admission of refusal to submit to chemical analysis." Ibid. [5] As JUSTICE STEVENS emphasizes, post, at 567, the South Dakota Supreme Court clearly held that the statute violated the State as well as Federal Constitution. Although this would be an adequate state ground for decision, we do not read the opinion as resting on an independent state ground. Rather, we think the court determined that admission of this evidence violated the Fifth Amendment privilege against self-incrimination, and then concluded without further analysis that the state privilege was violated as well. In reaching its holding, the court first analyzed our decisions in Schmerber v. California, 384 U. S. 757 (1966), and Miranda v. Arizona, supra. The court then described the issue for its review as being "[t]o determine whether the Fifth Amendment privilege against self-incrimination applies to refusal evidence," 312 N. W. 2d 723, 725 (1981) (emphasis added), and later asked "whether this testimonial evidence was compelled for purposes of applying the Fifth Amendment standard," id., at 726 (emphasis added). The cases relied on by the court to resolve these issues analyze the federal privilege against self-incrimination. The analysis of the court below was remarkably similar to that of the state-court opinion reviewed in Delaware v. Prouse, 440 U. S. 648, 651-653 (1979). That state-court opinion analyzed various decisions interpreting the Federal Constitution, concluded that the Fourth Amendment violated the police procedure at issue there, and then summarily held that the State Constitution was therefore also infringed. As we characterized their analysis, every police practice found to violate the Fourth Amendment would, without further analysis, be held to be contrary to the State Constitution as well. In such a situation, we concluded, this Court has jurisdiction to review the federal constitutional issue decided below. JUSTICE STEVENS, while expressing general dissatisfaction with Prouse, attempts to distinguish it by noting that the state court there had said the State and Federal Constitutions are " `substantially similar' and that `a violation of the latter is necessarily a violation of the former.' " Post, at 571, n. 7. But the South Dakota Supreme Court made virtually identical statements. In a footnote, the court recognized the textual difference between the federal and state constitutional privileges against self-incrimination, but noted that this Court in Schmerber had interpreted the Fifth Amendment prohibition "in light of the more liberal definition of `evidence' as used in our state constitution." 312 N. W. 2d, at 726, n. Therefore, the court concluded, "[s]ince the Fifth Amendment of the U. S. Constitution is broad enough to exclude this evidence, there is no need to draw a distinction at this time between S. D. Const. Art. VI, § 9 and the Fifth Amendment of the U. S. Constitution." Ibid. The court could not have stated more clearly that it simply assumed that any violation of the Fifth Amendment privilege also violated, without further analysis, the state privilege. This was precisely the reasoning we found sufficient in Prouse to give us jurisdiction to hear the case and decide the federal constitutional issue. [6] The South Dakota Supreme Court also remanded for a determination whether respondent's statement that he was too drunk to pass the test was made after a voluntary waiver of his right to remain silent. As yet, of course, there has been no final judgment in this case. This Court nevertheless has jurisdiction under 28 U. S. C. § 1257(3) to review the federal constitutional issue which has been finally determined, because if the State ultimately prevails at trial, the federal issue will be mooted; and if the State loses at trial, governing state law, S. D. Comp. Laws Ann. §§ 23A-32-4 and 23A-32-5 (1979), prevents it from again presenting the federal claim for review. See California v. Stewart (decided with Miranda v. Arizona, 384 U. S. 436, 498, n. 71 (1966)); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 481 (1975). [7] See, e. g., cases cited in nn. 11 and 13, infra. [8] Schmerber also rejected arguments that the coerced blood test violated the right to due process, the right to counsel, and the prohibition against unreasonable searches and seizures. [9] Schmerber did caution that due process concerns could be involved if the police initiated physical violence while administering the test, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. 384 U. S., at 760, n. 4. [10] Griffin held that a prosecutor's or trial court's comments on a defendant's refusal to take the witness stand impermissibly burdened the defendant's Fifth Amendment right to refuse. Unlike the defendant's situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test. The specific rule of Griffin is thus inapplicable. [11] See, e. g., Newhouse v. Misterly, 415 F. 2d 514 (CA9 1969); Hill v. State, 366 So. 2d 318, 324-325 (Ala. 1979); Campbell v. Superior Court, 106 Ariz. 542, 479 P. 2d 685 (1971); State v. Haze, 218 Kan. 60, 542 P. 2d 720 (1975) (refusal to give handwriting exemplar); City of Westerville v. Cunningham, 15 Ohio St. 2d 121, 239 N. E. 2d 40 (1968). [12] The Court in Schmerber pointed to the lie detector test as an example of evidence that is difficult to characterize as testimonial or real. Even though the test may seek to obtain physical evidence, we reasoned that to compel a person to submit to such testing "is to evoke the spirit and history of the Fifth Amendment." 384 U. S., at 764. See also People v. Ellis, 65 Cal. 2d 529, 537, and n. 9, 421 P. 2d 393, 397, and n. 9 (1966) (analyzing lie detector tests as within the Fifth Amendment privilege). A second example of seemingly physical evidence that nevertheless invokes Fifth Amendment protection was presented in Estelle v. Smith, 451 U. S. 454 (1981). There, we held that the Fifth Amendment privilege protected compelled disclosures during a court-ordered psychiatric examination. We specifically rejected the claim that the psychiatrist was observing the patient's communications simply to infer facts of his mind, rather than to examine the truth of the patient's statements. [13] Many courts have found no self-incrimination problem on the ground of no coercion, or on the analytically related ground that the State, if it can compel submission to the test, can qualify the right to refuse the test. See, e. g., Welch v. District Court, 594 F. 2d 903 (CA2 1979); State v. Meints, 189 Neb. 264, 202 N. W. 2d 202 (1972); State v. Gardner, 52 Ore. App. 663, 629 P. 2d 412 (1981); State v. Brean, 136 Vt. 147, 385 A. 2d 1085 (1978). [14] Nothing in the record suggests that respondent made or could sustain such a claim in this case. [15] In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U. S. 291, 301 (1980), police words or actions "normally attendant to arrest and custody" do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent's choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection. See generally Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 Am. Crim. L. Rev. 31, 56-58 (1982). [16] Even though the officers did not specifically advise respondent that the test results could be used against him in court, no one would seriously contend that this failure to warn would make the test results inadmissible, had respondent chosen to submit to the test. Cf. Schneckloth v. Bustamonte, 412 U. S. 218 (1973) (knowledge of right to refuse not an essential part of proving effective consent to a search). [17] Since the State wants the suspect to submit to the test, it is in its interest fully to warn suspects of the consequences of refusal. We are informed that police officers in South Dakota now warn suspects that evidence of their refusal can be used against them in court. Tr. of Oral Arg. 16. [1] "[W]e will not review a judgment of a state court that rests on an adequate and independent ground in state law. Nor will we review one until the fact that it does not do so appears of record." Herb v. Pitcairn, 324 U. S. 117, 128 (1945). Accord, Jankovich v. Indiana Toll Road Comm'n, 379 U. S. 487 (1965); Honeyman v. Hanan, 300 U. S. 14, 18-19 (1937); Fox Film Corp. v. Muller, 296 U. S. 207 (1935); Lynch v. New York ex rel. Pierson, 293 U. S. 52 (1934); McCoy v. Shaw, 277 U. S. 302 (1928); Petrie v. Nampa and Meridian Irrigation District, 248 U. S. 154, 157 (1918); Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157, 163-166 (1917); Eustis v. Bolles, 150 U. S. 361 (1893); Murdock v. Memphis, 20 Wall. 590 (1875). [2] As Justice Harlan wrote for the Court in Mental Hygiene Dept. v. Kirchner, 380 U. S. 194, 198 (1965): "[W]e would have jurisdiction to review only if the federal ground had been the sole basis for the decision, or the State Constitution was interpreted under what the state court deemed the compulsion of the Federal Constitution" (emphasis in original) (footnote omitted). [3] "[O]ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Herb v. Pitcairn, supra, at 126. Accord, Minnick v. California Dept. of Corrections, 452 U. S. 105, 120-123 (1981); Rescue Army v. Municipal Court, 331 U. S. 549, 568-569 (1947); United States v. Hastings, 296 U. S. 188, 193 (1935). The policy of avoiding advisory opinions on federal constitutional issues is a consistent theme throughout our jurisprudence. Paschall v. Christie-Stewart, Inc., 414 U. S. 100 (1973) (per curiam), is especially instructive. In that case, our independent review of the record turned up a state ground supporting the Supreme Court of Oklahoma's judgment that had not even been mentioned in the state court's opinion. Observing that if the argument proved solid, "any decision by this Court would be advisory and beyond our jurisdiction," we remanded for analysis of the state-law claim. Id., at 102. Even in cases arising through the federal courts, we have always been alert to opportunities to avoid federal constitutional issues by means of a state-law disposition. E. g., Mills v. Rogers, 457 U. S. 291, 302-306 (1982); City of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283, 294-295 (1982); Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909). See generally Hagans v. Lavine, 415 U. S. 528, 546-547, and nn. 12-13 (1974). [4] The burden is on the petitioner or appellant to establish our jurisdiction. We have therefore regularly dismissed cases when the state judgment might have rested on an independent and adequate state ground. E. g., Durley v. Mayo, 351 U. S. 277, 285 (1956); Stembridge v. Georgia, 343 U. S. 541, 547 (1952); Lynch v. New York ex rel. Pierson, supra; Johnson v. Risk, 137 U. S. 300 (1890). [5] The South Dakota Supreme Court was speaking on remand from this Court. The state court had previously held certain police conduct unconstitutional, relying solely on the Fourth Amendment to the Federal Constitution. State v. Opperman, 89 S. D. 25, 228 N. W. 2d 152 (1975). This Court had reversed. South Dakota v. Opperman, 428 U. S. 364 (1976). The passage in text is excerpted from the South Dakota Supreme Court's reaffirmation of the rationale of its prior opinion, relying on the State Constitution. In reaching its conclusion, the court noted that the language of the relevant state provision "is almost identical to that found in the Fourth Amendment," 247 N. W. 2d, at 674, and was unmoved by the prosecutor's observation that the defendant had not argued in his first appeal that state and federal law were different, id., at 675. [6] After quoting a footnote from our opinion in Schmerber v. California, 384 U. S. 757, 761-762, n. 6 (1966), the South Dakota Supreme Court stated: "This footnote indicates that Schmerber was decided in light of the more liberal definition of `evidence' as used in our state constitution. Since the Fifth Amendment of the U. S. Constitution is broad enough to exclude this evidence, there is no need to draw a distinction at this time between S. D. Const. art. VI, § 9 and the Fifth Amendment of the U. S. Constitution." 312 N. W. 2d, at 726, n. [7] In Delaware v. Prouse, 440 U. S. 648, 651-653 (1979), we did not so interpret the opinion of the Delaware Supreme Court. Although I must confess that I now have some misgivings about our reaching that conclusion without further clarification, see n. 8, infra, there was far more indication in that case than in this one that the state court's analysis was contingent on the correctness of its understanding of federal law. The opinion there began with a statement that the police stops "violate Federal and State constitutional guarantees," State v. Prouse, 382 A. 2d 1359, 1361 (1978), but then went on to say that the State and Federal Constitutions are "substantially similar" and that "a violation of the latter is necessarily a violation of the former," id., at 1362. The opinion drew to a close with the statement: "We hold, therefore, that a random stop of a motorist [absent reasonable suspicion] is constitutionally impermissible and violative of the Fourth and Fourteenth Amendments to the United States Constitution." Id., at 1364. [8] In cases where an apparent adequate state ground was arguably not independent, this Court has occasionally vacated the state-court judgment and remanded for clarification of the basis for the decision. E. g., Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861, 866 (1974); California v. Krivda, 409 U. S. 33 (1972); Mental Hygiene Dept. v. Kirchner, 380 U. S. 194 (1965); Minnesota v. National Tea Co., 309 U. S. 551 (1940); State Tax Comm'n v. Van Cott, 306 U. S. 511 (1939). Cf. Herb v. Pitcairn, 324 U. S. 117 (1945) (case held while parties sought a certificate from the state court clarifying the basis for judgment). The Court should, at the very least, follow that course today. "[I]n cases where the answer is not clear to us, it seems consistent with the respect due the highest courts of states of the Union that they be asked rather than told what they have intended." Id., at 127-128. Some of us have pointed out that even this practice may be overused, because it "tak[es] from appellants the normal burden of demonstrating that we have jurisdiction and plac[es] it on the Supreme Court of [the State]." Philadelphia Newspapers, Inc. v. Jerome, 434 U. S. 241, 244 (1978) (REHNQUIST, J., joined by STEVENS, J., dissenting). See also Department of Motor Vehicles of California v. Rios, 410 U. S. 425, 427-430 (1973) (Douglas, J., joined by BRENNAN, Stewart, and MARSHALL, JJ., dissenting).

270 U.S. 295 (1926) MICHIGAN v. WISCONSIN. No. 19, Original. Supreme Court of United States. Argued January 5, 1926. Decided March 1, 1926. IN EQUITY. *298 Mr. Meredith P. Sawyer, with whom Messrs. Andrew B. Dougherty, Attorney General of Michigan, and Carl D. Mosier, Assistant Attorney General, were on the brief, for complainant. Mr. R.M. Rieser, with whom Messrs. Herman L. Ekern, Attorney General of Wisconsin, and Emmert L. Wingert were on the brief, for defendant. MR. JUSTICE SUTHERLAND delivered the opinion of the Court. This is an original suit in equity brought in this court to determine the boundary between the states of Michigan and Wisconsin from the mouth of the Montreal River at Lake Superior to the ship channel entrance from Lake Michigan into Green Bay. By the Enabling Act of June 15, 1836, c. 99, 5 Stat. 49, under which Michigan became a state in 1837, c. 6, 5 Stat. 144, this boundary is described as follows: ". . . thence [the mouth of the Montreal River] through the middle of the main channel of the said River Montreal, to the middle of the Lake of the Desert; thence, in a direct line to the nearest head water of the Menominee River; thence, through the middle of that fork of the said river first touched by the said line, to the main channel of the said Menominee River; thence, down the centre of the main channel of the same, to the centre of the most usual ship channel of the Green Bay of Lake Michigan; thence, through the centre of the most usual ship channel of the said bay to the middle of Lake Michigan; . . ." The Territory of Wisconsin was created by an act of April 20, 1836, c. 54, 5 Stat. 10, 11, and this boundary is there described in the reverse direction: *299 ". . . to a point in the middle of said lake [Michigan], and opposite the main channel of Green Bay, and through said channel and Green Bay to the mouth of the Menominee River; thence through the middle of the main channel of said river, to that head of said river nearest to the Lake of the Desert; thence in a direct line, to the middle of said lake; thence through the middle of the main channel of the Montreal River, to its mouth; . . ." The only difference between the two descriptions is that in the former the call is for the "most usual ship channel," while in the latter it is for the "main channel," of Green Bay. In the Wisconsin Enabling Act of August 6, 1846, c. 89, 9 Stat. 56-57, under which the state was admitted by the Act of May 29, 1848, c. 50, 9 Stat. 233, this boundary is described as ". . . running with the boundary line of the State of Michigan, through Lake Michigan, Green Bay, to the mouth of the Menominee River; thence up the channel of said river to the Brule River; thence up said last mentioned river to Lake Brule; thence along the southern shore of Lake Brule in a direct line to the centre of the channel between Middle and South Islands, in the Lake of the Desert; thence in a direct line to the head-waters of the Montreal River, as marked upon the survey made by Captain Cramm; thence down the main channel of the Montreal River to the middle of Lake Superior; . . . ". . . That, to prevent all disputes in reference to the jurisdiction of islands in the said Brule and Menominee Rivers, the line be so run as to include within the jurisdiction of Michigan all the islands in the Brule and Menominee Rivers, (to the extent in which said rivers are adopted as a boundary,) down to, and inclusive of, the Quinnesec Falls of the Menominee; and from thence the line shall be so run as to include within the jurisdiction of Wisconsin all of the islands in the Menominee River, from the falls aforesaid down to the junction of said river *300 with Green Bay: Provided, That the adjustment of boundary, as fixed in this act, between Wisconsin and Michigan shall not be binding on Congress, unless the same shall be ratified by the State of Michigan on or before the first day of June, one thousand eight hundred and forty-eight." The history of events leading up to the present controversy extends over a period of eighty years, and the evidence, including a multitude of official and other maps and documents, constitutes a long and involved record. The case is reviewed in voluminous but well prepared briefs, and was helpfully argued at the bar. This mass of material we have examined with the care properly due the importance of the issue and the high character of the parties litigant; but much of it may be put aside as unnecessary for final consideration, since the determination we have reached depends upon a comparatively few decisive facts and circumstances, either undisputed or clearly established. In the briefs and oral arguments the boundary is divided for purposes of convenient discussion into three distinct sections, namely: (1) the Montreal River section, extending from the mouth of the Montreal River to the Lake of the Desert and thence to the head-waters of the Menominee River (or to Lake Brule); (2) the Menominee River section, extending from its head-waters (or from Lake Brule) to Green Bay; and (3) the Green Bay section, extending from the last named point through the center of the most usual ship channel of the Green Bay to Lake Michigan. Although our ultimate determination in respect of these three sections rests upon the same basic principle, they are so distinct in their physical characteristics and in respect of much of the evidence peculiarly applicable to each apart from the others, that our conclusions will be more clearly formulated and better understood if we adopt the same plan in the examination of the questions which follows. *301 The Montreal River Section. If we had before us nothing but the language of the Michigan Enabling Act, describing this section of the boundary as extending "through the middle of the main channel of the said river Montreal, to the middle of the Lake of the Desert," it would not be easy to avoid the conclusion that it was the understanding of the framers of the act that the river Montreal could be followed to a connection with the Lake of the Desert. And that such was the understanding clearly appears from the record. Moreover, maps in existence at the time of the passage of the act, which were available and must have been known to the framers, depict the Lake of the Desert (or, as it is there called, Lac Vieux Desert) as the source of the Montreal River. But the locality at that time was a wilderness, the topography of which was practically unknown except to the aboriginal inhabitants and the occasional voyageur, trapper and hunter; and, following the date of the passage of the act, it was found that, in fact, the head-waters of the Montreal did not extend to the Lake of the Desert, but fell short of it some fifty or sixty miles. It was subsequently revealed by exploration and surveys that the river from its mouth follows a winding course for several miles eastwardly and then divides into two branches, the westerly branch to its head following a southerly direction and the easterly branch a southeasterly direction. The westerly branch finds its source in a body of water called Island Lake. The easterly branch finally divides into two small tributaries, called, respectively, the Balsam and Pine. The lake, which, in our opinion is sufficiently identified as the one which Congress meant by its call for the Lake of the Desert, is several miles nearer to the point of junction of these tributaries than it is to any point on the westerly branch. Much evidence was submitted on behalf of Michigan in an effort *302 to demonstrate that the westerly branch of the river was the larger stream and was in fact, and was understood by Congress to be, the upper portion of that river, and that Island Lake at the head of the westerly branch was intended by the designation "Lake of the Desert." We think it fairly appears, to the contrary, that the easterly, and not the westerly, branch was, and was understood to be, the upper portion of the Montreal, but a positive conclusion to that effect is not necessary, since our judgment turns upon other and independent considerations. In 1838, an act of Congress, c. 101, 5 Stat. 244, directed that the boundary line in question be "surveyed, marked, and designated," and by a later act, approved July 20, 1840, c. 54, 5 Stat. 404, 407, the making of the survey was placed under the superintendence of the War Department. Pursuant to this legislation, one Captain Cram was directed to make the survey, which he proceeded to do, completing it in 1841. He submitted two reports to Congress, from which it appears that the description of the boundary "through the middle of the main channel of the said river Montreal, to the middle of the Lake of the Desert" was an impossible one, and that the line could not be run in complete accordance with it. Carrying out as nearly as possible what he conceived to be the intention of Congress, he fixed the head-waters of the Montreal at the junction of the Balsam and Pine, at a point designated and marked "Astronomical Station No. 2," from which point the line was extended in a direct course to the Lake of the Desert. His reports embodied data for the information of Congress and recommended that action be taken by that body definitely to establish the boundary. Captain Cram's first report is dated December, 1840. He begins it with an analysis of the description we have quoted from the Michigan Enabling Act, from which he infers, that Congress supposed that the Lake of the Desert *303 discharged itself into the Montreal River; that somewhere between Lake Superior and Green Bay there was a known lake bearing that name, since the description is "to the middle of the Lake of the Desert"; that of the various head-waters discharging into the Menominee River one would be found nearest to the Lake of the Desert, since that is the call; and that this would be found to be a branch of the Menominee, and not a lake, since the description is, "through the middle of that fork . . . first touched by the said line." Following these inferences, he states that the Lake of the Desert has no connection either with the Montreal River or with the Menominee, but constitutes the principal head of the Wisconsin River. His conclusion is that additional action on the part of Congress will be required to the end that the boundary may be defined "in such a manner that it can be established either upon the ground or laid down on a map with that degree of definiteness which should always characterize a boundary line between two states." On January 12, 1841, the Governor of Michigan addressed a special message to the state Legislature in which he stated that a strict adherence to the terms of the Michigan Enabling Act defining the boundary in question, according to information recently communicated to him by the state geologist, would seem to be "absolutely impracticable." With the message was transmitted the communication referred to, together with a sketch of the country which the Governor thought would present with sufficient certainty the disagreements between the description contained in the enabling act and the actual geography of the region. Thereupon, the Legislature - evidently with Captain Cram's report before it, since the bill avers that action was taken "relying on the representations made in said report as to the impossibility of locating said boundary in accordance with the [Michigan *304 Enabling Act]" - adopted a joint resolution, reciting that from a critical examination of the country it appeared that a strict and literal conformity with the description was impossible and that presumptively the general intent could be attained without much difficulty if the line be immediately marked and described, and requesting Congress to cause the boundary in question to be surveyed and marked and a commissioner appointed to act with a state commissioner to the end that the boundary be established in conformity with the manifest general intent of the act. The state delegation in Congress was requested by the resolution to endeavor to secure congressional action to effect this object. In 1842, and again in 1843, a bill was introduced in the United States Senate by a Michigan senator to amend the Michigan Enabling Act so as to make the disputed boundary conform substantially to the line as it was subsequently defined in the Wisconsin Enabling Act, including that portion relating to the division of the islands in the Brule and Menominee rivers. These bills failed, apparently for parliamentary reasons and not because there was any substantive objection to them. Then followed the Wisconsin Enabling Act of 1846, the pertinent words of which we have quoted. The provision of this act describing the boundary now in question, and providing for a division of the islands in the Brule and Menominee, was submitted in the House by a Michigan congressman, with the statement that it had been agreed upon between the members from Michigan and the Wisconsin delegate. Shortly thereafter, Congress directed a survey of "so much of the line between Michigan and Wisconsin as lies between the source of Brule River and the source of Montreal River, as defined by the [Wisconsin Enabling Act]," c. 175, § 4, 9 Stat. 85, 97; and in pursuance thereof a survey was made by William A. Burt, in 1847. Burt's line, which was marked with posts set at *305 half-mile intervals and otherwise identified, substantially followed Cram's recommendation and is the line now claimed by Wisconsin. It does not appear that Michigan acted affirmatively in respect of the proviso that the adjustment of boundaries as fixed in the Wisconsin Enabling Act should not be binding on Congress unless the same should be ratified by Michigan on or before June 1, 1848. Nevertheless, Wisconsin was admitted by the Act of May 29, 1848, supra, with the express provision that its boundaries should be as prescribed by the Enabling Act of 1846. But, while Michigan did not in terms ratify the proviso just mentioned, there was inserted in her constitution of 1850, and ratified by the people, the following description of the boundary in question: ". . . to the mouth of the Montreal River; thence through the middle of the main channel of the said River Montreal to the head waters thereof; thence in a direct line to the center of the channel between Middle and South Islands in the Lake of the Desert; thence in a direct line to the southern shore of Lake Brule; thence along said southern shore and down the River Brule to the main channel of the Menominee River; thence down the center of the main channel of the same to the center of the most usual ship channel of the Green Bay of Lake Michigan; thence through the center of the most usual ship channel of the said Bay to the middle of Lake Michigan; . . ." 1915 Comp. L. Mich. 133, 134. This description was adopted by the constitutional convention held in 1867, with the addition of the words found in the Wisconsin Enabling Act: "as marked upon the survey made by Captain Cram." The same description, including the reference to the Cram survey, was again re-adopted by the Michigan special constitutional commission of 1873. The proceedings of both the convention and the commission show that these re-adoptions were *306 made deliberately and with full understanding. Both proposed constitutions, however, were rejected by the people, but apparently for reasons having no relation to the question of boundaries. Thus the matter rested until 1908, in which year a new and amended constitution was adopted, containing a radically different description of the boundary in question, namely: ". . . thence in a direct line through Lake Superior to the mouth of the Montreal River; thence through the middle of the main channel of the westerly branch of the Montreal River to Island Lake, the head waters thereof; thence in a direct line to the center of the channel between Middle and South Islands in the Lake of the Desert; thence in a direct line to the southern shore of Lake Brule; . . ." 1915 Comp. L. Mich. 209, 210. By this description for the first time the westerly branch of the Montreal was brought in and the line carried through the main channel thereof to Island Lake. During the same year, the Attorney-General of the State was directed by the state Legislature to investigate and institute proceedings to secure a determination of the correct boundary. The investigation was made and reported; and again the matter rested until 1919, at which time the state Legislature provided for the appointment of a commission to investigate the "disputed" boundary line. This commission made a report in 1921 and was continued by an act of the Legislature passed the same year. The bill was filed in this court on October 8, 1923. When admitted to statehood, Wisconsin was, and ever since has continued to be, in possession of the area in dispute, that is to say, of all lands within the boundary which she now claims. As early as 1850, county government was established upon the basis of this boundary. In 1874, taxes were assessed and collected by Wisconsin, and by 1886, practically the entire area had been subjected to such taxation. During this time, towns were *307 built, highways constructed, public buildings erected, elections held, Wisconsin law enforced, and other customary acts of dominion and jurisdiction exercised by that state within the disputed area. From the foregoing facts and circumstances the conclusions are inevitable: that the description in the Michigan Enabling Act of the line from the mouth of the Montreal to the Lake of the Desert was inserted under the mistaken belief that the river connected with the lake; that this mistake was discovered as early as 1841, of which discovery Michigan, long prior to the admission of Wisconsin, had knowledge; that the line as now claimed by Wisconsin was surveyed and marked by Cram and Burt at the dates already stated; that Michigan not only assented to the result of these surveys, but actively participated in securing the insertion of the description of that line in the Wisconsin Enabling Act and herself substantially adopted it by the Constitution of 1850; and that for a period of more than 60 years she stood by without objection with full knowledge of the possession, acts of dominion, and claim and exercise of jurisdiction on the part of the State of Wisconsin over the area in question. In addition to this, the line as claimed by Wisconsin has been, from the time of the Burt survey, accepted as the true boundary by the United States and, in its surveys, plats and maps, sales and other acts in respect of the public lands, continuously and consistently recognized, with the knowledge of Michigan and without protest on her part. Indeed, nothing appears to indicate dissatisfaction with the boundary thus established until the adoption of the Constitution of 1908, and, even then, except to the extent that this may be regarded as a continuing assertion of a claim to the boundary as there set forth or as originally described in the Michigan Enabling Act, the matter was allowed to rest until 1919. To meet this situation, it is contended that the State of Michigan through all these years labored under a mistake *308 in respect of the real facts and that this was the result of excusable ignorance on her part. The contention is devoid of merit. The material facts, since at least the date of the Wisconsin Enabling Act, have been so obvious that knowledge of them on the part of the Michigan authorities, if it were not shown, as it is shown, by the evidence, must necessarily be assumed. Notwithstanding, the State of Michigan at this late day insists that the boundary now be established by a decree of this court in accordance with the description contained in her Constitution of 1908. Plainly, this cannot be done. That rights of the character here claimed may be acquired on the one hand and lost on the other by open, long-continued and uninterrupted possession of territory, is a doctrine not confined to individuals but applicable to sovereign nations as well, Direct United States Cable Co. v. Anglo-American Telegraph Co., [1877] L.R. 2 A.C. 394, 421; Wheaton, International Law, 5th Eng. Ed. 268-269; 1 Moore, International Law Digest, 294 et seq., and, a fortiori, to the quasi-sovereign states of the Union. The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority. Indiana v. Kentucky, 136 U.S. 479, 509, et seq.; Virginia v. Tennessee, 148 U.S. 503, 522-524; Louisiana v. Mississippi, 202 U.S. 1, 53; Maryland v. West Virginia, 217 U.S. 1, 40-44; Rhode Island v. Massachusetts, 4 How. 591, 639; Missouri v. Iowa, 7 How. 660, 677; New Mexico v. Colorado, 267 U.S. 30, 40-41. That rule is applicable here and is decisive of the question in respect of the Montreal River section of the boundary in favor of Wisconsin. The Menominee River Section. The description in the Michigan Enabling Act of this section of the boundary begins at the head waters of the *309 Menominee River nearest to the Lake of the Desert in a direct line, "thence, through the middle of that fork of the said river first touched by the said line, to the main channel of the said Menominee River; thence, down the centre of the main channel of the same, to the centre of the most usual ship channel of the Green Bay." The description in the act creating the Territory of Wisconsin is the same, but in the opposite direction: ". . . thence through the middle of the main channel of said [Menominee] river, to that head of said river nearest to the Lake of the Desert; thence in a direct line to the middle of said lake; . . ." But the description in the Wisconsin Enabling Act contains important differences: ". . . thence up the channel of said [Menominee] river to the Brule River; thence up said last mentioned river to Lake Brule; thence along the southern shore of Lake Brule in a direct line to the centre of the channel between Middle and South Islands in the Lake of the Desert; . . ." or, stated in the order of the Michigan act: From the center of the channel between Middle and South Islands in the Lake of the Desert in a direct line to the southern shore of Lake Brule; thence along the southern shore of Lake Brule to the Brule River; thence down the Brule River to the Menominee; thence down the channel of the Menominee to its mouth. The evidence shows that Lake Brule is not the head of the Menominee nearest to the Lake of the Desert, as called for by the Michigan Enabling Act, though the Brule River is the principal tributary of the Menominee; and the inference is pretty clear that the change of description was made in the Wisconsin Enabling Act as a part of a general readjustment of the boundary. At any rate, since this part of the line is not in controversy, we need not consider the matter except as it may reflect light *310 upon the effect of, and the question of Michigan's acquiescence in, the further provision, that, to prevent disputes as to jurisdiction, the line shall be so run as to include within the jurisdiction of Michigan all islands in the Brule and Menominee down to and including the Quinnesec Falls of the Menominee, and thence so as to include within the jurisdiction of Wisconsin all islands in the Menominee below the falls. As to this part of the line, the contention of Wisconsin is that the description in the Wisconsin Enabling Act was in effect a proposed adjustment of the boundary as an undividable unit, and that Michigan, by the Constitution of 1850, having expressly adopted that part of the line from the Lake of the Desert to Lake Brule, cannot be heard to say that she did not also adopt the adjustment of the line in respect of a division of the islands. There is force in this contention, and especially so in view of the fact that the change from the nearest head-water of the Menominee to Lake Brule operated to give Michigan additional territory. To permit her to reap the benefit of the adjustment so far as it is to her advantage and reject it to the extent that it is advantageous to her sister state would be plainly inequitable. We prefer, however, to rest our determination upon the conclusion, fully justified by the record, that, - whatever were the rights of the respective states in respect of the islands in question immediately upon the adoption of the Constitution of 1850, - Wisconsin, for a period of more than half a century following that time, had the undisputed and undisturbed possession of substantially all of the islands in the river below the Quinnesec Falls, and, without reference to the main channel of the river, exercised jurisdiction and dominion over them with the knowledge and acquiescence of the complainant. Captain Cram's first report to Congress, dated December, 1840, points out the impracticability of following the center of the main channel of the river: *311 "The `center' of the main channel of the Menominee River is made a part of the boundary. The River contains numerous islands, and consequently more than one channel, where these islands occur. It will be impossible in many of these cases to know which is the `main channel' without minute surveys. In many cases it was tried and found impossible to decide by a simple inspection or reconnaissance which was the `main channel.' It should also be remarked here that the term `main channel' applied to the multiplicity of channels of the Menominee, would be somewhat ambiguous in any event - for, it may be asked - Is the main channel the widest channel of the river? Or is it the deepest? If it is the widest or deepest now, will it be the widest or deepest hereafter? Or shall the main channel be that through which the greater quantity of water shall be found to pass at the time of the survey? And if it should occur that two channels at the same island pass equal quantities of water - which would then be regarded as the boundary? These questions are sufficient to show the indefiniteness of the term `Main Channel' - There are also a few islands in the Brule River to which similar questions might apply in reference to the term `Main Channel.' "To avoid all ambiguity in reference to these channels, it might be specified in the act defining the boundary, that in ascending the stream, the boundary shall follow the extreme left hand channel of the Brule and the extreme right hand channel of the Menominee down to a well known point of the river - say Pe-me-ne Falls; and thence to follow the extreme left hand channel of the remainder of the Menominee to its mouth. Such a division would leave most of the islands in Michigan and the remainder in Wisconsin, and would avoid much expense in minute surveys to ascertain the `main channel' and would leave no indefiniteness upon this part of the boundary. The free use of either channel for the purposes of navigation *312 would, from an established principle of law, be open at all times to the citizens of either state, and the islands would be nearly distributed in equal proportions between the two states." Following the date of this report in respect of the impossibility - or extreme difficulty practically amounting to that - of locating the boundary in accordance with the provisions of the Michigan Enabling Act, and, it fairly may be assumed, with a view of effectuating Captain Cram's recommendation, the Michigan Legislature passed the resolution already referred to, calling upon Congress to cause the boundary to be surveyed and marked in conformity with the manifest general intent of the Michigan Enabling Act, and requesting the delegation of the state in Congress to use their efforts to secure such action. This was followed, as already stated, by the introduction of the bills in the Senate and the subsequent insertion, by agreement between the members of Congress from Michigan and the Wisconsin delegate, of the provision in the Wisconsin Enabling Act dividing the islands in accordance with Captain Cram's suggestion, except in a particular not important here. In 1854, the survey of all of the islands below Quinnesec Falls as a part of Wisconsin, was directed by the United States Surveyor General for Wisconsin, and such survey was immediately begun and thereafter continuously prosecuted. The evidence, in our opinion, fairly shows that, as early as 1879, the greater part in area of all of them had been thus surveyed and platted as belonging to Wisconsin, including many which would fall on what Michigan claims is the Michigan side of the main channel. On behalf of Michigan, it is strongly contended that to this there are important exceptions. But, without going into details, it is enough to say that the clear weight of the evidence is to the contrary. It is true that so-called Island No. 8, or Merryman's Island, was surveyed as in *313 both states; that the Wisconsin survey was subsequently cancelled; and that, thereafter, exclusive jurisdiction over the tract of land constituting it was exercised by Michigan. It is said that, nevertheless, the "island" is now claimed by Wisconsin; but, on the contrary, Wisconsin concedes that it belongs to Michigan. The fact is that the tract was originally considered to be an island and, consequently, surveyed as a part of Wisconsin. Upon further investigation, it was found by the United States Surveyor not to be an island, but, in reality, a part of the Michigan mainland. The Wisconsin survey was, accordingly, cancelled and the title of Michigan thereafter fully conceded. Two other so-called islands of small area in the same vicinity are in like situation. Some of these islands, comparatively small in area and of little consequence, have never been surveyed or any definite acts of dominion exercised over them by either state. But to this we attach no importance. The assertion and exercise of dominion by Wisconsin over the islands on the Michigan side of the channel was begun and has continued in virtue of, and in reliance upon, the readjustment of the boundary set forth in the Wisconsin Enabling Act. The rule is well-settled in respect of individual claimants that actual possession of a part of a tract by one who claims the larger tract, under color of title describing it, extends his possession to the entire tract in the absence of actual adverse possession of some part of it by another. Clarke's Lessee v. Courtney, 5 Pet. 319, 354; Hunnicutt v. Peyton, 102 U.S. 333, 368; Ellicott v. Pearl, 10 Pet. 412, 442; Smith v. Gale, 144 U.S. 509, 525-526; Montoya v. Gonzales, 232 U.S. 375, 377; Houston Oil Co. of Texas v. Goodrich, 213 Fed. 136, 142. Upon like grounds and with equal reason, under circumstances such as are here disclosed, the principle of the rule applies where states are the rival claimants. It results that the Wisconsin Enabling Act, together with the Act *314 of Admission, gave color of title in that state to all of the islands within the limits there described; and that her original and continued possession, assertion and exercise of dominion and jurisdiction over a part of these islands, pursuant to such legislation and with the acquiescence of Michigan, extended Wisconsin's possession, dominion and jurisdiction to all of them, in the absence of actual possession of, or exercise of dominion over, any territory within the boundary by Michigan. The fact that the islands constitute separated tracts of land is of no consequence here, whatever its effect might be under other conditions. In applying the rule, the area within the described boundary, both land and water, must be considered as together constituting a single tract of territory. We, therefore, hold, as to this section of the boundary, that from Lake Brule to the mouth of the Menominee the line, which is now fixed and finally established by long acquiescence, follows the channels of the Brule and Menominee wherever they are free from islands; that wherever islands are encountered above the Quinnesec Falls the line follows the channel nearest the Wisconsin mainland, so as to throw all such islands into Michigan; and that wherever islands are encountered below the Quinnesec Falls the line follows the channel nearest the Michigan mainland, so as to throw all such islands into Wisconsin. The Green Bay Section. In determining the boundary through this section, the question is not embarrassed by differences of description. The calls of the Michigan Enabling Act are down the channel of the Menominee to "the centre of the most usual ship channel of the Green Bay of Lake Michigan; thence through the centre of the most usual ship channel of the said Bay to the middle of Lake Michigan." The Wisconsin Enabling Act calls for the same boundary. *315 The evidence shows that there are two distinct ship channels, to either of which this description might apply. From the mouth of the Menominee, the channel, according to the Michigan claim, proceeds across the waters of Green Bay in an easterly direction until near the westerly shore of the Door County peninsula; thence, in close proximity to the shore, in a northerly direction to a point opposite Death's Door Channel (or Porte des Morts); thence through that channel into Lake Michigan. The channel claimed by Wisconsin, after leaving the mouth of the Menominee, turns to the north and pursues a northerly direction to a point opposite the Rock Island passage which lies between Rock Island and St. Martin's Island; thence through the Rock Island passage into Lake Michigan. The territory in dispute lies between these rival channels, and embraces two groups of islands: (1) Chambers Island, the Strawberry Islands, and a few others, small and unnamed, all within the main waters of Green Bay west of the Door County peninsula; and (2) Rock, Washington, Detroit and Plum islands, lying between Death's Door Channel and the Rock Island passage, at the north end of the peninsula. The evidence as to which of the two ship channels was the usual one at the time of the adoption of the Michigan Enabling Act is not only conflicting, but of such inconclusive character that, standing alone, we could base no decree upon it with any feeling of certainty. Living witnesses are no longer available; and tradition, recollection of statements made by persons long since dead - if of any legitimate value - , deductions drawn from ancient documents, more or less cryptic, and inferences based on more recent uses of the channels or on their relative safety and convenience as indicated by physical characteristics, all relied upon in the absence of first-hand evidence, constitute at best most unsatisfactory substitutes. If it were necessary, we should, of course, undertake the task - as we should be *316 bound to do - of reaching a conclusion from these dubious premises. But, it is not necessary, for, as in the case of the two sections of the boundary just discussed, the title of Wisconsin to the disputed area now in question, is established by long possession and acquiescence; and this conclusion is justified by evidence and concessions of the most substantial character. There is evidence of acts of dominion and possession of some of the disputed islands while Wisconsin was yet a territory. Almost from the day of her admission, the state has continuously possessed, asserted title and exercised jurisdiction and dominion over all of the islands within the boundary claimed by her. In support of this general statement, the following, among other things, may be cited: On March 21, 1855, Washington, Detroit, Rock and Plum islands, described as being in the waters of Green Bay in Door County, were organized by an act of the Wisconsin Legislature as the town of Washington. Ch. 210, Laws of Wisconsin, 1855. A census taken the same year by the town clerk showed a population of 318, which has since grown, it is said, to about 1000. Since before that time, the United States Land Department, by its surveys, plats and sales of public lands, has uniformly and notoriously recognized the islands as a part of Wisconsin, without objection on the part of Michigan. Indeed, as early as 1837, they were surveyed and platted as a part of Wisconsin Territory. A large number of maps published and available to the public during the years between 1837 and 1878, without exception, show the islands as a part of Wisconsin; and during the same time they do not appear in any survey or upon any map as belonging to Michigan. Never, so far as we are able to find from the record, have they been recognized in any practical way as a part of Michigan or, prior to the commencement of this suit, claimed by that state. The evidence in respect of the other group of islands, while perhaps not so complete, is definite and clear to the *317 same effect. The taxation of lands on Chambers Island began while Wisconsin was still a territory. In 1861, voters on that island participated in a Wisconsin election. A history of Door County, introduced by complainant, recites that the island constituted an organized town forming a part of Door County, Wisconsin, as early as 1867. Evidence of early and continued recognition and treatment of the island as a part of Wisconsin by the United States through its surveys, etc., is to the same effect as that in respect of the other group. And the evidence is likewise the same in respect of the uniform appearance of Chambers Island and the other small islands of the group upon the old maps as a part of Wisconsin, and their absence from Michigan surveys and maps. The absence of evidence of specific acts of dominion over the Strawberry and the other small islands of this group is easily understood and does not affect the result. They are of little consequence, lying well within the boundary as claimed by Wisconsin, easterly from Chambers Island and near the westerly shore of the Door County peninsula. They appear on all maps as, and have never been regarded or treated otherwise than, a part of Door County. It is impossible to give them a status differing from that of the larger island and the peninsula, between, and within the shadows of, which they lie. That Wisconsin since statehood has continuously asserted title and has exercised complete and exclusive dominion over all the islands of both groups is really not a serious issue. Indeed, the bill of complaint avers that Wisconsin has possessed herself of, and exercised sovereignty over, the islands, including Washington, Plum, the Strawberries, and numerous other valuable islands, and has excluded and continues to exclude the State of Michigan from her rights thereto; and, more particularly, that "Wisconsin has for many years disregarded the true and *318 rightful boundary . . . and has for a long time past possessed and does now possess, and has asserted and does now assert, civil, criminal and political jurisdiction over those portions of the territory within the Michigan boundaries above described as the Montreal River section, the Menominee River section, and Green Bay section of the disputed territory, aggregating approximately 255,000 acres, . . . and has unlawfully taxed and still continues to unlawfully tax said property, . . ." The explanation relied upon is that the State of Michigan, as a result of her excusable ignorance, has not been aware of the real facts and, therefore, should not be held to have lost rights by long acquiescence which she otherwise might have had. This view cannot be accepted and may be dismissed with a reference to what we have already said as to the same defense in respect of the Montreal River section. In respect of the controversy as a whole, and each of the three sections, the words of this court in Indiana v. Kentucky, supra, p. 509, are singularly apposite and conclusive: ". . . It was over seventy years after Indiana became a State before this suit was commenced, and during all this period she never asserted any claim by legal proceedings to the tract in question. She states in her bill that all the time since her admission Kentucky has claimed the Green River Island to be within her limits and has asserted and exercised jurisdiction over it, and thus excluded Indiana therefrom, in defiance of her authority and contrary to her rights. Why then did she delay to assert by proper proceedings her claim to the premises? On the day she became a State her right to Green River Island, if she ever had any, was as perfect and complete as it ever could be. On that day, according to the allegations of her bill of complaint, Kentucky was claiming and exercising, and has done so ever since, the *319 rights of sovereignty both as to soil and jurisdiction over the land. On that day, and for many years afterwards, as justly and forcibly observed by counsel, there were perhaps scores of living witnesses whose testimony would have settled, to the exclusion of a reasonable doubt, the pivotal fact upon which the rights of the two States now hinge and yet she waited for over seventy years before asserting any claim whatever to the island, and during all those years she never exercised or attempted to exercise a single right of sovereignty or ownership over its soil. It is not shown, as he adds, that an officer of hers executed any process, civil or criminal, within it, or that a citizen residing upon it was a voter at her polls, or a juror in her courts, or that a deed to any of its lands is to be found on her records, or that any taxes were collected from residents upon it for her revenues. "This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the State of Kentucky, such omission to take any steps to assert her present claim by the State of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome, except by the clearest and most unquestioned proof. It is a principle of public law universally recognized, that long acquiescence in the possession of territory and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority." The result is that complainant has failed to maintain her case in any particular; and that the claims of Wisconsin as to the location of the boundary in each of the three sections are sustained. The decree, therefore, will be for Wisconsin, costs to be divided between the parties in accordance with the general rule in cases of this character. North Dakota v. Minnesota, *320 263 U.S. 583. The boundary seems to be sufficiently defined for all purposes of future possession and jurisdiction; but the parties, or either of them, if so advised, may within 30 days submit the form of a decree more particularly to carry this opinion into effect; failing which, a simple decree dismissing the bill will be entered. It is so ordered.

117 U.S. 312 (1886) PHŒNIX INSURANCE COMPANY v. ERIE AND WESTERN TRANSPORTATION COMPANY. Supreme Court of United States. Argued January 19, 20, 1886. Decided March 1, 1886. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN. *317 Mr. George D. Van Dyke for appellant (Mr. George A. Black also filed a brief for same). Mr. George B. Hibbard for appellee. *319 MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court. It being found as matter of fact that the lading of the goods on board the propeller was not completed until the evening of the 24th of July, that she departed on her voyage about midnight, and that the bills of lading were not delivered by *320 the carrier to the shippers until after her departure, it is clear that the bills of lading were not actually delivered until the 25th. But it being also found that oral agreements for the carriage were made on the 24th, with the understanding that bills of lading would be subsequently issued; and that the shippers, having often before shipped goods by this line under similar bills of lading, knew or had every opportunity of knowing their terms and conditions; it is also clear that the bills of lading were but a putting in form of the oral agreements made on the 24th, and took effect as if they had been delivered and accepted on that day. The certificates of the agent of the insurance company, without which the policy of insurance did not attach to these goods, were also made on that day, and described the goods as on board the propeller. The contract of carriage and the contract of insurance must therefore be treated as substantially contemporaneous, and both made before the loss of the goods. There is nothing to show any misrepresentation or intentional concealment by the assured in obtaining the insurance, or that the insurer had or had not knowledge or notice of the usual form of the bills of lading. The policy of insurance contains no express stipulation for the assignment to the insurer of the assured's right of action against third persons. In the bills of lading, it is expressly stipulated that the carriers, whose railroad or vessels form part of the line of transportation, shall not be liable for loss or damage by fire, collision, or dangers of navigation; and that each carrier shall be liable only for a loss of the goods while in its custody, "and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on account of said goods." The question is, whether under these circumstances the insurer, upon payment of a loss, became subrogated to the right to recover damages from the carrier. When goods insured are totally lost, actually or constructively, by perils insured against, the insurer, upon payment of the loss, doubtless becomes subrogated to all the assured's rights of action against third persons who have caused or are responsible for *321 the loss. No express stipulation in the policy of insurance, or abandonment by the assured, is necessary to perfect the title of the insurer. From the very nature of the contract of insurance as a contract of indemnity, the insurer, when he has paid to the assured the amount of the indemnity agreed on between them, is entitled, by way of salvage, to the benefit of anything that may be received, either from the remnants of the goods, or from damages paid by third persons for the same loss. But the insurer stands in no relation of contract or of privity with such persons. His title arises out of the contract of insurance, and is derived from the assured alone, and can only be enforced in the right of the latter. In a court of common law, it can only be asserted in his name, and, even in a court of equity or of admiralty, it can only be asserted in his right. In any form of remedy, the insurer can take nothing by subrogation but the rights of the assured. Comegys v. Vasse, 1 Pet. 193, 214; Fretz v. Bull, 12 How. 466, 468; The Monticello, 17 How. 152, 155; Garrison v. Memphis Ins. Co., 19 How. 312, 317; Hall v. Railroad Cos., 13 Wall. 367, 370, 371; The Potomac, 105 U.S. 630, 634, 635; Mobile & Montgomery Railway v. Jurey, 111 U.S. 584, 594; Clark v. Wilson, 103 Mass. 219; Simpson v. Thomson, 3 App. Cas. 279, 286, 292, 293. That the right of the assured to recover damages against a third person is not incident to the property in the thing insured, but only a personal right of the assured, is clearly shown by the fact that the insurer acquires a beneficial interest in that right of action, in proportion to the sum paid by him, not only in the case of a total loss, but likewise in the case of a partial loss, and when no interest in the property is abandoned or accrues to him. Hall v. Railroad Cos., The Potomac, and Simpson v. Thomson, above cited. The right of action against another person, the equitable interest in which passes to the insurer, being only that which the assured has, it follows that if the assured has no such right of action, none passes to the insurer; and that if the assured's right of action is limited or restricted by lawful contract between him and the person sought to be made responsible for the loss, a suit by the insurer, in the right of the assured, is subject to like limitations or restrictions. *322 For instance, if two ships, owned by the same person, come into collision by the fault of the master and crew of the one ship and to the injury of the other, an underwriter who has insured the injured ship, and received an abandonment from the owner, and paid him the amount of the insurance as and for a total loss, acquires thereby no right to recover against the other ship, because the assured, the owner of both ships, could not sue himself. Simpson v. Thomson, above cited; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50, 68. Upon the same principle, any lawful stipulation between the owner and the carrier of the goods, limiting the risks for which the carrier shall be answerable, or the time of making the claim, or the value to be recovered, applies to any suit brought in the right of the owner, for the benefit of his insurer, against the carrier; as, for instance, if the contract of carriage expressly exempts the carrier from liability for losses by fire; York Co. v. Central Railroad, 3 Wall. 107; or requires claims against the carrier to be made within three months; Express Co. v. Caldwell, 21 Wall. 264; or fixes the value for which the carrier shall be responsible; Hart v. Pennsylvania Railroad, 112 U.S. 331. So the stipulation, not now in controversy, in the bills of lading in the present case, making the value of the goods at the place and time of shipment the measure of the carrier's liability, would control, although in the absence of such a stipulation the carrier would be liable for the value at the place of destination, as held in Mobile & Montgomery Railway v. Jurey, 111 U.S. 584. The stipulation in these bills of lading, that the carriers "shall not be liable for loss or damage by fire, collision, or the dangers of navigation," clearly does not protect them from liability for any loss occasioned by their own negligence. By the settled doctrine of this court, even an express stipulation in the contract of carriage, that a common carrier shall be exempt from liability for losses caused by the negligence of himself and his servants, is unreasonable and contrary to public policy, and therefore void. Railroad Co. v. Lockwood, 17 Wall. 357; Railroad Co. v. Pratt, 22 Wall. 123; Bank of Kentucky v. Adams Express Co., 93 U.S. 174; Railway Co. v. Stevens, 95 *323 U.S. 655. And it may be that, as held by Judge Wallace in a case in the Circuit Court, a stipulation that "no damage that can be insured against will be paid for" would not protect the carrier from liability for his own negligence, because that would be to compel the owners of the goods to insure against the negligence of the carrier. The Hadji, 22 Blatchford, 235. But the stipulation upon the subject of insurance, in the bills of lading before us, is governed by other considerations. It does not compel the owner of the goods to stand his own insurer, or to obtain insurance on the goods; nor does it exempt the carrier, in case of loss by negligence of himself or his servants, from liability to the owner, to the same extent as if the goods were uninsured. It simply provides that the carrier, when liable for the loss, shall have the benefit of any insurance effected upon the goods. It is conclusively settled, in this country and in England, that a policy of insurance, taken out by the owner of a ship or goods, covers a loss by perils of the sea or other perils insured against, although occasioned by the negligence of the master or crew or other persons employed by himself. Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213; Copeland v. New England Ins. Co., 2 Met. 432; General Ins. Co. v. Sherwood, 14 How. 351, 366; Davidson v. Burnand, L.R. 4 C P. 117, 121. Any one who has made himself responsible for the safety of goods has a sufficient interest in them to enable him to obtain insurance upon them. Contracts of reinsurance, by which one insurer causes the sum which he has insured to be reassured to him by a distinct contract with another insurer, with the object of indemnifying himself against his own responsibility, (though prohibited for a time in England by statute,) are valid by the common law, and have always been lawful in this country; and in a suit upon such a contract, the subject at risk and the loss thereof must be proved in the same manner as if the original assured were the plaintiff. 3 Kent Com. 278, 279; Sun Ins. Co. v. Ocean Ins. Co., 107 U.S. 485; Mackenzie v. Whitworth, L.R. 10 Ex. 142, and 1 Ex. D. 36. So a common carrier, a warehouseman, or a wharfinger, *324 whether liable by law or custom to the same extent as an insurer, or only for his own negligence, may, in order to protect himself against his own responsibility, as well as to secure his lien, cause the goods in his custody to be insured to their full value, and the policy need not specify the nature of his interest. Crowley v. Cohen, 3 B. & Ad. 478; De Forest v. Fulton Ins. Co., 1 Hall 84, 110; Waters v. Monarch Assurance Co., 5 El. & Bl. 870; London & Northwestern Railway v. Glyn, 1 El. & El. 652; Savage v. Corn Exchange Ins. Co., 36 N.Y. 655; Joyce v. Kennard, L.R. 7 Q.B. 78; Commonwealth v. Shoe & Leather Ins. Co., 112 Mass. 131; Home Ins. Co. v. Baltimore Warehouse Co., 93 U.S. 527; North British Ins. Co. v. London, Liverpool & Globe Ins. Co., 5 Ch. D. 569. No rule of law or of public policy is violated by allowing a common carrier, like any other person having either the general property or a peculiar interest in goods, to have them insured against the usual perils, and to recover for any loss from such perils, though occasioned by the negligence of his own servants. By obtaining insurance, he does not diminish his own responsibility to the owners of the goods, but rather increases his means of meeting that responsibility. If it were true that a ship owner, obtaining insurance by general description upon his ship and the goods carried by her, could, in case of the loss of both ship and goods, by perils insured against, and through the negligence of the master and crew, recover of the insurers for the loss of the ship only, and not for the loss of the goods, some trace of the distinction would be found in the books. But the learning and research of counsel have failed to furnish any such precedent. On the contrary, in one of the earliest cases in which the rule that a policy of insurance covers losses by perils insured against, though occasioned by the negligence of the servants of the assured, was judicially affirmed; the assured, being the owner of a ship, had chartered her for a West India voyage, and by the usages of trade bore the risk of bringing the cargo from the shore to the ship; the policy was upon the boats of the ship, and upon goods in them; and the amount recovered of the insurer was for goods being carried from the shore to the ship in *325 her boats, and lost by the wrecking of the boats in consequence of the misconduct and negligence of some of the ship's crew. Such was the state of facts to which Lord Chief Justice Abbott applied the language, cited and approved by Mr. Justice Story in Waters v. Merchants' Louisville Ins. Co., 11 Pet. 222, and by Chief Justice Shaw in Copeland v. New England Ins. Co., 2 Met. 442: "In this case, the immediate cause of the loss was the violence of the winds and waves. No decision can be cited, where, in such a case, the underwriters have been held to be excused in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule; it will introduce an infinite number of questions as to the quantum of care which, if used, might have prevented the loss. Suppose, for instance, the master were to send a man to the mast-head to look out, and he falls asleep, in consequence of which the vessel runs upon a rock, or is taken by the enemy, in that case it might be argued, as here, that the loss was imputable to the negligence of one of the crew, and that the underwriters were not liable. These, and a variety of other such questions, would be introduced, in case our opinion were in favor of the underwriters." Walker v. Maitland, 5 B. & Ald. 171, 174, 175. So in the recent case of North British Ins. Co. v. London, Liverpool & Globe Ins. Co., it was assumed, as unquestionable, that insurance obtained by a wharfinger would cover a loss by his own negligence. 5 Ch. D. 569, 584. As the carrier might lawfully himself obtain insurance against the loss of the goods by the usual perils, though occasioned by his own negligence, he may lawfully stipulate with the owner to be allowed the benefit of insurance voluntarily obtained by the latter. This stipulation does not, in terms or in effect, prevent the owner from being reimbursed the full value of the goods; but being valid as between the owner and the carrier, it does prevent either the owner himself, or the insurer, who can only sue in his right, from maintaining an action against the carrier upon any terms inconsistent with this stipulation. Nor does this conclusion impair any lawful rights of the *326 insurer. His right of subrogation, arising out of the contract of insurance and payment of the loss, is only to such rights as the assured has, by law or contract, against third persons. The policy containing no express stipulation upon the subject, and there being no evidence of any fraudulent concealment or misrepresentation by the owner in obtaining the insurance, the existence of the stipulation between the owner and the carrier would have afforded no defence to an action on the policy, according to two careful judgments rendered in June last and independently of each other, the one by the English Court of Appeal, and the other by the Supreme Judicial Court of Massachusetts. Tate v. Hyslop, 15 Q.B.D. 368; Jackson Co. v. Boylston Ins. Co., 139 Mass. 508. In Tate v. Hyslop, owners of goods, insured against risks in crafts or lighters, had previously agreed with a lighterman that he should not be liable for any loss in crafts except loss caused by his own negligence, and did not disclose this agreement to the underwriters at the time of procuring the insurance. The sole ground on which it was held that the owners could not recover on the policy was that this agreement was material to the risk, because the underwriters, as the assured knew, had previously established two rates of premium, depending on the question whether they would have recourse over against the lighterman. Lord Justice Brett observed that, but for the two rates of premium established by the underwriters and known to the assured, the omission of the assured to disclose their agreement with the lighterman could only have affected the amount of salvage which the underwriters might have, and would have been immaterial to the risk, and consequently to the insurance. 15 Q.B.D. 375, 376. In Jackson Co. v. Boylston Ins. Co., it was adjudged that, in the absence of any fraud or intentional concealment, the undisclosed existence of a stipulation between the assured and the carrier, like that now before us, afforded no defence to an action on the policy. It may be added that our conclusion accords with the decision of Judge Shipman in Rintoul v. New York Central Railroad, 21 Blatchford, 439, as well as with those of Judge Dyer *327 in the District Court, and Judge Drummond in the Circuit Court, in the present case. 10 Bissell, 18, 38. See also Carstairs v. Mechanics' & Traders' Ins. Co., 18 Fed. Rep. 473; The Sidney, 23 Fed. Rep. 88; Mercantile Ins. Co. v. Calebs, 20 N.Y. 173. Decree affirmed. MR. JUSTICE BRADLEY dissented. [See 118 U.S. 210.]

130 U.S. 327 (1889) KNOWLTON v. WATERTOWN. No. 198. Supreme Court of United States. Argued March 13, 1889. Decided April 8, 1889. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN. *328 Mr. George P. Miller for plaintiffs in error. Mr. George W. Bird and Mr. Daniel Hall for defendant in error. MR. JUSTICE BRADLEY delivered the opinion of the court. This suit was brought to recover the amount of 6 bonds payable August 1st, 1863; 71 half-yearly coupons due from February 1, 1858, to August 1, 1863; 31 half-yearly coupons for $40 each, due from January 1, 1858, to January 1, 1873; and 31 other half-yearly coupons for $40 each, due from January 1, 1858, to January 1, 1873. A summons at the suit of Elijah W. Carpenter and Edwin F. Knowlton was issued on the 29th of March, 1873, and served by the marshal on the 2d day of April, 1873, upon the city clerk and the city treasurer, and upon Chris. Mayer, an alderman of the city who was elected mayor at the city election April 1, 1873, but not yet inducted into the office. The court, on motion, declared that the summons was not lawfully served, and made an order authorizing the clerk to return the summons to the marshal to be served on the defendant according to law or for such further action as the plaintiffs might direct. Nothing more was done until the 9th of January, 1878, when the said Carpenter and Knowlton sued out an alias summons (so called), which was served by the marshal on the 23d of December, 1882, upon Rohr, the last mayor (but not then mayor); Bieber, city clerk; Gardner, city attorney; and Baxter, the last (but not then) president or chairman of the board of street commissioners. As Carpenter had died on the 1st of September, 1881, no further proceedings were had on this last attempt at service; but on the 19th of June, 1883, an order was applied for and made by the court that the cause be revived in favor of Edwin F. Knowlton as executor of Carpenter and said Knowlton individually. Thereupon the new plaintiffs filed their complaint and issued a new summons, tested 29th March, 1873, which was served by the marshal on the 26th of June, 1883, upon the city clerk, the city attorney, *329 and the last-elected chairman of the board of street commissioners. On the 14th of July, 1883, the defendant's attorneys entered an appearance to the action, and subsequently filed an answer, containing a general denial and a plea of the statute of limitations. The plaintiffs replied to this latter plea by amending their complaint, and setting up, as in the case of Amy et al. v. Watertown, No. 2, just decided, a conspiracy on the part of the officials and people of Watertown to prevent a service of process on the city, specifying the conduct of the mayor and aldermen in resigning their offices and meeting in secret for the transaction of business, etc. (See the report of the case referred to, ante, 320.) They added the following averment: "Said plaintiffs further allege that in the above-entitled action said plaintiffs, on the 29th day of March, 1873, filed a præcipe for a summons and an undertaking for costs, and a summons was issued in due conformity to law and placed in the hands of the United States marshal for service, and that on April 2, 1873, the said marshal, after due and diligent search and inquiry, served the said summons on those persons whom, according to the best information he could derive, he had ascertained to be the mayor and city clerk of said city of Watertown, and on the same day returned the said summons as served according to law; that on April 22d, 1873, the said city of Watertown appeared specially in said action for the purpose of moving to set aside the service of said summons on the ground that the persons on whom the said summons had been served were not, in fact, the mayor and city clerk of said city; that on June 19, 1873, the said motion came on to be heard, and this court ordered that the service of said summons be set aside for the reason that the persons so served were not the mayor and city clerk of said city, and ordered that the said summons be returned to the marshal to be served according to law; that since said date the said marshal has not been able to ascertain who were the mayor and city clerk or mayor or city clerk of said city or the persons on whom process could be served. "Said plaintiffs further allege that, notwithstanding they have exercised due diligence and hired attorneys and agents *330 for the purpose of having process served on said city, they have been unable to this date to serve or have served the summons in this action on the mayor of said city, or on that person who, by law, should exercise the functions of mayor of said city." The defendant filed an answer and an amended answer to this amended complaint. The amended answer contains the following special rejoinder to the averment respecting the issuing and service of process in 1873: "Fourth. And, further answering said amended complaint, this the said defendant alleges, that on or about the 29th day of March, 1873, the Elijah W. Carpenter and Edwin F. Knowlton named in said complaint filed with the clerk of this court a præcipe for a summons, wherein they were named as plaintiffs and this defendant was named defendant, and an undertaking for costs, and a summons, issued pursuant to said præcipe, was then placed in the hands of the United States marshal for said district for service, and that on or about the 2d day of April, 1873, said marshal returned said summons to this court with the following return of service thereon indorsed, to wit: `Served on the within-named The City of Watertown by delivering to August Tauck, city clerk, and Fred Meyer, city treasurer, of said city, and Chris. Meyer, an alderman from the first ward of said city and an acting member of the board of aldermen thereof, and mayor elect of said city at the city election held April 1, 1873, each a copy of the within summons this April 2, 1873, there being no other person acting as mayor of said city;' that on or about June 19, 1873, on motion of defendant, appearing specially for that purpose, the said pretended service of said summons was decided and held to be illegal and void by this court on the ground that said summons had not been served in the manner prescribed by law, and the same was then ordered to be returned to said marshal to be served according to law; and that said summons was not served upon this defendant at any time within sixty days after it was so as aforesaid placed in the hands of the said marshal for service, nor within sixty days after the said pretended service thereof was so decided and held by said *331 court to be illegal and void, and that the said summons was not and never has been at any time served upon said defendant, and no copy thereof has ever been delivered to or left with the mayor of said city, and that no action attempted to be commenced by the said summons or said pretended service thereof was at or before or since the time of the alleged decease of said Carpenter pending or existing in said court; that no other summons against this defendant, wherein said Carpenter and Knowlton were made plaintiffs, was ever issued out of said court or attempted to be issued on this defendant in or about the year 1873, and that the said summons is the identical and only summons against this defendant wherein said Carpenter and Knowlton were named as plaintiffs, mentioned or referred to in the said amended complaint. And this defendant, further answering, avers and alleges that this the first above-entitled action against this defendant was first commenced on or about and not before the 19th day of June, 1883, by said plaintiffs herein then or soon thereafter delivering the summons, wherein they are named as plaintiffs, in the above-entitled action, to the United States marshal of said district to be served, and that on or about the 26th day of June, 1883, the said marshal made the delivery of the copies thereof of which he made his return, indorsed upon said summons and which is now on file in this action, and that on the 16th day of July, 1883, this defendant duly appeared herein and thereafter submitted itself fully to the jurisdiction of this court, and, as this defendant is informed and believes, the said plaintiffs never attempted to commence this said action nor used any diligence to commence the same before said 19th day of June, 1883. "Fifth. And this the said defendant, for a further and separate defence, which it will insist upon herein to this said action and to the whole thereof and to each and every cause of action set forth in said amended complaint, avers and alleges, that neither this said action nor any of the causes of action averred or set forth in said amended complaint accrued within the six years next before the 19th day of June, 1883, nor on nor since the day and year last aforesaid, and that on or after *332 and not before the said 19th day of June, 1883, the summons last above mentioned was first delivered to the United States marshal for service and to be served on this defendant, and that the same never was or had been delivered to such marshal nor to any officer or person for service or to be served on this defendant or otherwise before said 19th day of June, 1883; and this said defendant further avers and alleges that neither this said action nor any of the causes of action in the said amended complaint stated nor any part thereof accrued within six years before the commencement of this the above-entitled action, and that the said action was not commenced before the said 19th day of June, 1883, nor was it commenced within the six years limited by law for the commencement thereof after the same accrued, and is barred, the whole thereof, by the statute of limitations of the State of Wisconsin; that as to all the bonds, interest warrants, and coupons described in said complaint and as to each and every one of said bonds, interest warrants, and coupons the said defendant saith and avers that each and all of said several causes of action in said complaint stated did not nor did any or either of them accrue thereon within the six years next before the commencement of this action, and that this said action and the whole thereof and each and every part thereof is barred by the statute of limitations of the State of Wisconsin." The plaintiff demurred to this amended answer, but the demurrer was overruled, and the plaintiffs having declined to plead further, judgment was given for the defendant. It is plain from the description in the complaint of the securities sued on, that most of them had become barred by the statute of limitations before the first summons was sued out in March, 1873. Only the last six years of coupons, being two sets of $40 each, and amounting to $960, were not barred at that time. Of course all the bonds and coupons were barred in June, 1883, when the last summons was issued, unless some cause existed for suspending or avoiding the operation of the statute. The plaintiffs relied on two grounds for this purpose: first, the impediments thrown in the way of the service of process by the defendant and its officers; secondly, the *333 actual commencement of an action in 1873 and keeping it on foot until the final service of process in 1883. The first of these grounds was considered and held to be insufficient in the case of Amy v. Watertown, (No. 2,) just decided, ante, 320. The second does not require an elaborate examination. Without stopping to inquire whether the process issued in 1873 could be kept on foot for five or ten years without any legal service, and without complying with the statute provided for in such cases, it is enough to say, that, by the laws of Wisconsin, an action is not commenced for the purpose of stopping the running of the statute of limitations until service of process has been effected, or until service has been attempted and followed up by actual service within sixty days or publication within that time. The text of the law on this subject is found in §§ 4239 and 4240 of the Revised Statutes of Wisconsin, published in 1878. The prior edition of 1858 contained substantially the same provisions. See Rev. Stat. Wis. 1858, 822. The sections referred to are as follows: "Section 4239. An action shall be deemed commenced, within the meaning of any provision of law which limits the time for the commencement of an action, as to each defendant when the summons is served on him, or on a co-defendant who is a joint contractor or otherwise united in interest with him. "Section 4240. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of any provision of law, which limits the time for the commencement of an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other proper officer of the county in which the defendants, or one of them, usually or last resided; or if a corporation organized under the laws of this State be defendant, to the sheriff or the proper officer of the county in which it was established by law, or where its general business is transacted, or where it keeps an office for the transaction of business, or wherein any officer, attorney, agent or other person upon whom the summons may by law be served, resides or has his office; or if such corporation has no such place of *334 business, or any officer or other person upon whom the summons may by law be served, known to the plaintiff, or if such defendant be a non-resident, or a non-resident corporation, to the sheriff or other proper officer of the county in which plaintiff shall bring his action. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days. If the action be in a court not of record, the service thereof must be made with due diligence." Now, it is clear from what was said in the case of Amy v. Watertown, (No. 1,) ante, 301, that there was never any legal service of process upon the defendant in this case. The summons was never served upon the mayor of the city, or upon any person having or exercising the powers of mayor, and there is no pretence that the directions of § 4240 were followed or attempted to be. The action was really not commenced within the meaning of the statute until the attorneys of the defendant voluntarily entered a general appearance. This was done on the 14th of July, 1883. At that time more than ten years and a half had elapsed since the last coupon sued on became due. We have no hesitation, therefore, in saying, that the court below committed no error in overruling the plaintiffs' demurrer and giving judgment for the defendant. That judgment is Affirmed.

21 U.S. 253 (____) 8 Wheat. 253 THE UNITED STATES v. WILSON. Supreme Court of United States. *254 The cause was briefly argued by the Attorney General for the United States,[b] and by Mr. Wheaton,[c] for the defendant. *255 CERTIFICATE. This cause came on to be heard on the transcript of the record of the United States Court for the second circuit, and southern District of New-York, on the question on which the Judges of that Court were divided, and which was certified to this Court. On consideration whereof, this Court is of opinion, that the said Joseph Wilson, who was in execution under a judgment obtained *256 by the United States, is not entitled to a discharge of his person under the act of the State of New-York, entitled, "an act abolishing imprisonment for debt," passed April, 1819. All which is directed to be certified to the Circuit Court for the second circuit and southern District of New-York.[a] NOTES [b] He referred to the act of Congress of June 6th, 1798, c. 66. s. 1. which provides, "that any person imprisoned upon execution issuing from any Court of the United States, for a debt due to the United States, which he shall be unable to pay, may, at any time after commitment, make application in writing to the Secretary of the Treasury, stating the circumstances of his case, and his inability to discharge the debt; and it shall, thereupon, be lawful for the said Secretary to make, or require to be made, an examination and inquiry into the circumstances of the debtor, either by the oath or affirmation of the debtor, (which the said Secretary, or any other person by him specially appointed, are hereby authorized to administer,) or otherwise, as the said Secretary shall deem necessary and expedient, to ascertain the truth; and upon proof being made, to his satisfaction, that such debtor is unable to pay the debt for which he is imprisoned, and that he hath not concealed, or made any conveyance of his estate, in trust, for himself, or with an intent to defraud the United States, or deprive them of their legal priority, the said Secretary is hereby authorized to receive from such debtor, any deed, assignment, or conveyance, of the real or personal estate of such debtor, if any he hath, or any collateral security, to the use of the United States; and upon a compliance, by the debtor, with such terms and conditions as the said Secretary may judge reasonable and proper, under all the circumstances of the case, it shall be lawful for the said Secretary to issue his order, under his hand, to the keeper of the prison, directing him to discharge such debtor from his imprisonment under such execution, and he shall be accordingly discharged, and shall not be liable to be imprisoned again for the said debt; but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterwards, belong to the debtor." [c] He cited Sturges v. Crowninshield, 4 Wheat. Rep. 136. Houston v. Moore, 5 Wheat. Rep. 1. and referred to the Judiciary Act of 1789, c. 20. s. 34.; the Bankrupt Act of 1800, c. 173. s. 61. and the Priority Act of 1799, c. 128. s. 65. [a] See the United States v. Hoar, 2 Mason's Rep. 311. where it was determined, that the local statutes of limitations of the different States do not bind the United States in suits in the national Courts, and cannot be pleaded in bar of an action by the United States against individuals. In that case it was held, that the statutes of limitation of Massachusetts did not apply even to suits by the State government in the State Courts, and that the 34th section of the Judiciary Act of 1789, c. 20. which provides, "that the laws of the several States, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply," could not have meant to enlarge the construction of the statute of Massachusetts. "It is most manifest," (says Mr. Justice STORY, in delivering the judgment of the Circuit Court in the case referred to,) "that these terms give the same efficacy, and none other, to those statutes, in the federal, that they have (proprio vigore) in the State Courts. And yet, unless this doctrine of enlargement can be maintained, it is difficult to perceive on what ground the case of the defendant can be supported. The statutes of Massachusetts could not originally have contemplated suits by the United States, not because they were in substance enacted before the federal constitution was adopted, on which I lay no stress; but because it was not within the legitimate exercise of the powers of the State legislature. It is not to be presumed, that a State legislature mean to transcend their constitutional powers; and, therefore, however general the words may be, they are always restrained to persons and things over which the jurisdiction of the State may be rightfully exerted. And if a construction could ever be justified, which should include the United States, at the same time that it excluded the State, it is not to be presumed that Congress could intend to sanction a usurpation of power by a State, to regulate and control the rights of the United States. In the language of the act of 1789, it could not be a case where the laws of the State could apply. The mischiefs, too, of such a construction, would be very great. The public rights, revenue, and property, would be subject to the arbitrary limitations of the States; and the limitations are so various in these States, that the government would hold its rights by a different tenure in each." Id. p. 315.

141 U.S. 543 (1891) OLCOTT v. HEADRICK. No. 77. Supreme Court of United States. Argued and submitted November 5, 1891. Decided November 16, 1891. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE. Mr. William M. Baxter for appellants submitted on his brief. Mr. Henry H. Ingersoll for appellee. MR. JUSTICE BLATCHFORD delivered the opinion of the court. A bill in equity was filed in the Circuit Court of the United States for the Eastern District of Tennessee, by the Central Trust Company of New York against the East Tennessee, Virginia and Georgia Railroad Company, the Tennessee State Line Railroad Company and one Thomas, to foreclose a mortgage given June 15, 1881, by the first named railroad company to the Trust Company, on its property situated in Tennessee, Georgia, Alabama and Mississippi. On the 6th of January, 1885, one Fink was appointed receiver in the cause, and placed *544 in possession of the whole of the property of the railroad company. On the 18th of March, 1886, a decree of foreclosure and sale was entered. That decree contained the following provisions: "And the purchaser or purchasers of said property at said sale shall, as a part of the consideration of the purchase and in addition to the sum bid, take the said property upon the express condition that he or they will pay off, satisfy and discharge any and all claims now pending and undetermined in either of said courts, accruing prior to the appointment of the receiver herein or during the receivership, which may be allowed and adjudged by this court as prior in right to said respective mortgages, together with such interest as may be allowed, except as to mortgages prior to said mortgages foreclosed in this suit, and subject to which said property shall be sold; and also upon the further express conditions that he or they will pay off, satisfy and discharge all debts, claims and demands, of whatsoever nature, incurred or which may hereafter be incurred by said receiver, Henry Fink, and which have not been or shall not hereafter be paid by said receiver or other parties in interest herein; and said purchaser or purchasers, their successor or successors or assigns, shall have the right to appear and make defence to any claim, debt or demand sought to be enforced against said property; and said purchaser or purchasers, their successor or successors or assigns, shall also have the right to enter appearance in this or any other court and contest any claim or demand pending and undetermined at the date of the confirmation of such sale. All claims, debts and demands accruing during the receivership herein shall be barred, unless presented, as herein provided, within six months after the confirmation of said sale; and jurisdiction of this cause is retained by this court for the purpose of enforcing the provisions of this article of this decree." A supplemental decree was made April 26, 1886, and a special master, on the 25th of May, 1886, sold the property at public auction to Frederick P. Olcott and others, the appellants herein, for $10,250,000. The master reported the sale to the court, and a decree confirming it was made June 28, 1886. That *545 decree recited that the plaintiff had applied for the confirmation of the sale, that the sale had been made to Olcott and others, acting as a committee on the part of the bondholders, as purchasing trustees, that no exceptions to the report of the sale had been filed, and sufficient notice of the hearing of the application had been given to the solicitors of the parties to the cause; and the decree went on to confirm the sale and the report of sale, and to provide that the special master should execute a proper instrument in writing, conveying to the purchasers, as a committee acting on behalf of the bondholders, as purchasing trustees, all the property described in the decree of sale, and further provided as follows: "And it is further ordered, adjudged and decreed that the said purchasers shall take the said property, and that it be recited in said deed that they do take the said property, subject to, and that the said purchasers assume and pay off, any and all debts, claims and demands of whatsoever nature now pending and undetermined in either of the courts in which the original and ancillary bills in this cause are pending which may be allowed and adjudged by this court, or either of said courts where ancillary bills are pending, as prior to any right secured under said consolidated first mortgage, under foreclosure of which the said sale was made, and subject-likewise to all debts, claims and demands of whatsoever nature incurred by Henry Fink, as receiver in this cause, and which may remain unpaid at the termination of said Fink's receivership." It does not appear by the record whether such deed was given; but it is to be presumed that it was. On the 2d of March, 1887, an intervening petition was filed in the cause by O.B. Headrick, the appellee herein, alleging that he, on March 30, 1886, as a passenger upon one of the trains of the railroad operated by the receiver, had been seriously injured and permanently disabled, by reason of a collision which occurred on the road, without fault on his part, but through the negligence of the agents and employés of the receiver; and he prayed for a judgment for damages for such injuries, and that the same might be paid out of one or the other of the following funds, alleged to be in the custody of *546 the court and still undistributed: "1st. The fund resulting from the operation of the road by the receiver and hitherto unappropriated. 2d. The funds hitherto in the hands of the receiver, which have been by him diverted from the expenses of the receivership and appropriated to the payment of the bonded indebtedness of the railroad company, defendant, and to the purchase of rolling stock for, and the permanent improvement of, said railroad property. 3d. The funds resulting from the operation of said railroad by said receiver, which were turned over to the purchasers of said railroad under the sale ordered thereof by this court in this cause. 4th. The obligation of the purchasers to pay for and discharge all the liabilities and obligations of the receiver, on all accounts, as a part of the terms of their purchase of the property." To this petition it was answered, as a defence, that the petitioner's right of action, if any, was barred by the provisions of the decree of sale and the decree of confirmation, because the petition was not filed until after the lapse of six months after the decree was made confirming the sale. It was, in fact, filed more than eight months thereafter. On the hearing of the petition by the Circuit Court, held by the circuit judge (Judge Jackson) and the district judge, (Judge Key,) their opinions were opposed on the following questions: "1st. Whether or not the petitioner was entitled to file said petition in said cause after the lapse of more than six (6) months after the entry of the decree confirming sale. 2d. Whether or not, under the decrees of sale, and confirmation of sale, plaintiff's action was barred. 3d. Whether or not the purchasers of the property were liable for any claim against the receiver presented to the court more than six (6) months after the decree of confirmation of the sale." The opinion of the circuit judge was in favor of the petitioner, and judgment was entered accordingly; and the foregoing questions were certified to this court. The judgment was for $500 in favor of the petitioner, with costs, and against the receiver, but the judgment stated that, as the receiver had been discharged from further liability, and the purchasers took the property subject to, and assumed to pay, any and all claims *547 and demands of whatsoever nature, incurred by the receiver, it was adjudged that the purchasers pay the 8500, and costs, to the petitioner. We are of opinion that the first and third questions must be answered in the affirmative, and the second question in the negative; and that the judgment must be affirmed. Although the decree of sale provided that all claims, debts, and demands accruing during the receivership should be barred unless presented within six months after the confirmation of the sale, yet the decree of confirmation provided that the purchasers should take the property, and that the deed should recite that they took it, subject to all debts, claims and demands, of whatsoever nature, incurred by the receiver, and which might remain unpaid at the termination of his receivership. It does not appear that the purchasers objected to the terms of the decree of confirmation, or appealed to this court from that decree. They might have done both, on the ground that the decree of confirmation varied from the terms of the decree of sale under which they had bought, in destroying the six months' limitation. It was uncertain, under the terms of the decree of sale, what claims might be presented within six months after the confirmation of the sale and be allowed by the court; and, as they became parties to the proceeding by their purchase, they should have seen to it that the terms of the decree of confirmation did not create still further uncertainty, by destroying the six months' limitation. The time of the confirmation of the sale was uncertain, and, inasmuch as the six months, by the decree of March 18, 1886, was to run from the confirmation of the sale, the purchasers were put upon inquiry to see that the term of six months was not varied by the decree of confirmation. If the purchasers had objected to the decree of confirmation because it destroyed the six months' limitation, they could either have asked the court not to insert such a provision, and, on its refusal, have appealed to this court, or have declined to be bound by the sale, on the ground that the new terms varied from those contained in the decree of sale. It was within the discretion of the court to abrogate the six *548 months' limitation, the fund being substantially a fund in court. Brooks v. Gibbons, 4 Paige, 374; Burchard v. Phillips, 11 Paige, 70; Grinnell v. Merchants' Ins. Co., 1 C.E. Green (16 N.J. Eq.), 283; Lashley v. Hogg, 11 Vesey, 602; Hurley v. Murrell, 2 Tenn. Ch. 620. That being so, as the record does not show on what grounds the court acted, the presumption must be that it properly exercised its discretion. The first and third questions are answered in the affirmative, and the second question in the negative, and the judgment is Affirmed.

(Slip Opinion) OCTOBER TERM, 2009 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 08-1119. Argued December 1, 2009 - Decided March 8, 2010* The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) amended the Bankruptcy Code to define a class of bankruptcy professionals termed "debt relief agenc[ies]." 11 U. S. C. §101(12A). That class includes, with limited exceptions, "any person who provides any bankruptcy assistance to an assisted person . . . for . . . payment . . . , or who is a bankruptcy petition preparer." Ibid. The BAPCPA prohibits such professionals from "advis[ing] an as sisted person . . . to incur more debt in contemplation of [filing for bankruptcy] . . . ." §526(a)(4). It also requires them to disclose in their advertisements for certain services that the services are with respect to or may involve bankruptcy relief, §§528(a)(3), (b)(2)(A), and to identify themselves as debt relief agencies, §§528(a)(4), (b)(2)(B). The plaintiffs in this litigation - a law firm and others (collectively Milavetz) - filed a preenforcement suit seeking declaratory relief, ar guing that Milavetz is not bound by the BAPCPA's debt-relief-agency provisions and therefore can freely advise clients to incur additional debt and need not make the requisite disclosures in its advertise ments. The District Court found that "debt relief agency" does not include attorneys and that §§526 and 528 are unconstitutional as ap plied to that class of professionals. The Eighth Circuit affirmed in part and reversed in part, rejecting the District Court's conclusion that attorneys are not "debt relief agenc[ies]"; upholding application of §528's disclosure requirements to attorneys; and finding §526(a)(4) unconstitutional because it broadly prohibits debt relief agencies - - - - - - * Together with No. 08-1225, United States v. Milavetz, Gallop & Mi lavetz, P. A., et al., also on certiorari to the same court. 2 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Syllabus from advising assisted persons to incur any additional debt in con templation of bankruptcy even when the advice constitutes prudent prebankruptcy planning. Held: 1. Attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the BAPCPA. By definition, "bank ruptcy assistance" includes several services commonly performed by attorneys, e.g., providing "advice, counsel, [or] document prepara tion," §101(4A). Moreover, in enumerating specific exceptions to the debt-relief-agency definition, Congress indicated no intent to exclude attorneys. See §§101(12A)(A)-(E). Milavetz relies on the fact that §101(12A) does not expressly include attorneys in advocating a nar rower understanding. On that reading, only a bankruptcy petition preparer would qualify - an implausibility given that a "debt relief agency" is "any person who provides any bankruptcy assistance . . . or who is a bankruptcy petition preparer," ibid. Milavetz's other argu ments for excluding attorneys are also unpersuasive. Pp. 5-9. 2. Section 526(a)(4) prohibits a debt relief agency only from advis ing a debtor to incur more debt because the debtor is filing for bank ruptcy, rather than for a valid purpose. The statute's language, to gether with its purpose, makes a narrow reading of §526(a)(4) the natural one. Conrad, Rubin & Lesser v. Pender, 289 U. S. 472, sup ports this conclusion. The Court in that case read now-repealed §96(d), which authorized reexamination of a debtor's attorney's fees payment "in contemplation of the filing of a petition," to require that the portended bankruptcy have "induce[d]" the transfer at issue, id., at 477, understanding inducement to engender suspicion of abuse. The Court identified the "controlling question" as "whether the thought of bankruptcy was the impelling cause of the transaction," ibid. Given the substantial similarities between §§96(d) and 526(a)(4), the controlling question under the latter is likewise whether the impelling reason for "advis[ing] an assisted person . . . to incur more debt" was the prospect of filing for bankruptcy. In prac tice, advice impelled by the prospect of filing will generally consist of advice to "load up" on debt with the expectation of obtaining its dis charge. The statutory context supports the conclusion that §526(a)(4)'s prohibition primarily targets this type of conduct. The Court rejects Milavetz's arguments for a more expansive view of §526(a)(4) and its claim that the provision, narrowly construed, is impermissibly vague. Pp. 9-18. 3. Section 528's disclosure requirements are valid as applied to Mi lavetz. Consistent with Milavetz's characterization, the Court pre sumes that this is an as-applied challenge. Because §528 is directed at misleading commercial speech and imposes only a disclosure re  Cite as: 559 U. S. ____ (2010) 3 Syllabus quirement rather than an affirmative limitation on speech, the less exacting scrutiny set out in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, governs. There, the Court found that, while unjustified or unduly burdensome disclosure re quirements offend the First Amendment, "an advertiser's rights are adequately protected as long as disclosure requirements are reasona bly related to the State's interest in preventing deception of consum ers." Id., at 651. Section 528's requirements share the essential fea tures of the rule challenged in Zauderer. The disclosures are intended to combat the problem of inherently misleading commercial advertisements, and they entail only an accurate statement of the advertiser's legal status and the character of the assistance provided. Moreover, they do not prevent debt relief agencies from conveying any additional information through their advertisements. In re R. M. J., 455 U. S. 191, distinguished. Because §528's requirements are "reasonably related" to the Government's interest in preventing con sumer deception, the Court upholds those provisions as applied to Mi lavetz. Pp. 18-23. 541 F. 3d 785, affirmed in part, reversed in part, and remanded. SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined, in which SCALIA, J., joined except for n. 3, and in which THOMAS, J., joined except for Part III-C. SCALIA, J., and THOMAS, J., filed opin ions concurring in part and concurring in the judgment.  Cite as: 559 U. S. ____ (2010) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 08-1119 and 08-1225 _________________ MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL., PETITIONERS 08-1119 v. UNITED STATES UNITED STATES, PETITIONER 08-1225 v. MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [March 8, 2010] JUSTICE SOTOMAYOR delivered the opinion of the Court. Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system. Among the reform measures the Act implemented are a number of provisions that regulate the conduct of "debt relief agenc[ies]" - i.e., professionals who provide bank ruptcy assistance to consumer debtors. See 11 U. S. C. §§101(3), (12A). These consolidated cases present the threshold question whether attorneys are debt relief agen cies when they provide qualifying services. Because we agree with the Court of Appeals that they are, we must also consider whether the Act's provisions governing debt relief agencies' advice to clients, §526(a)(4), and requiring them to make certain disclosures in their advertisements, 2 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court §§528(a) and (b)(2), violate the First Amendment rights of attorneys. Concluding that the Court of Appeals con strued §526(a)(4) too expansively, we reverse its judgment that the provision is unconstitutionally overbroad. Like the Court of Appeals, we uphold §528's disclosure re quirements as applied in these consolidated cases. I In order to improve bankruptcy law and practice, Con gress enacted through the BAPCPA a number of provi sions directed at the conduct of bankruptcy professionals. Some of these measures apply to the broad class of bank ruptcy professionals termed "debt relief agenc[ies]." That category includes, with limited exceptions, "any person who provides any bankruptcy assistance to an assisted person in return for . . . payment . . . , or who is a bank ruptcy petition preparer." §101(12A).1 "Bankruptcy assis tance" refers to goods or services "provided to an assisted person with the express or implied purpose of providing information, advice, counsel, document preparation, or filing, or attendance at a creditors' meeting or appearing in a case or proceeding on behalf of another or providing legal representation with respect to a case or proceeding" in bankruptcy. §101(4A). An "assisted person" is someone with limited nonexempt property whose debts consist primarily of consumer debts. §101(3). The BAPCPA subjects debt relief agencies to a number of restrictions and requirements, as set forth in §§526, 527, and 528. As - - - - - - 1 Congress excluded from the definition of "debt relief agency" any "officer, director, employee, or agent of a person who provides [bank ruptcy] assistance"; any "nonprofit organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986"; "a creditor of [an] assisted person" who is helping that person "to restructure any debt owed . . . to the creditor"; "a depository institu tion"; or "an author, publisher, distributor, or seller of works subject to copyright protection under title 17, when acting in such capacity." §§101(12A)(A)-(E).  Cite as: 559 U. S. ____ (2010) 3 Opinion of the Court relevant here, §526(a) establishes several rules of profes sional conduct for persons qualifying as debt relief agen cies. Among them, §526(a)(4) states that a debt relief agency shall not "advise an assisted person . . . to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy peti tion preparer fee or charge for services performed as part of preparing for or representing a debtor in a case under this title." Section 528 requires qualifying professionals to include certain disclosures in their advertisements. Subsection (a) provides that debt relief agencies must "clearly and con spicuously disclose in any advertisement of bankruptcy assistance services or of the benefits of bankruptcy di rected to the general public . . . that the services or bene fits are with respect to bankruptcy relief under this title." §528(a)(3). It also requires them to include the following, "or a substantially similar statement": "We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code." §528(a)(4). Subsection (b) requires essentially the same disclosures in advertise ments "indicating that the debt relief agency provides assistance with respect to credit defaults, mortgage fore closures, eviction proceedings, excessive debt, debt collec tion pressure, or inability to pay any consumer debt." §528(b)(2). Debt relief agencies advertising such services must disclose "that the assistance may involve bankruptcy relief," §528(b)(2)(A), and must identify themselves as "debt relief agenc[ies]" as required by §528(a)(4), see §528(b)(2)(B). II The plaintiffs in this litigation - the law firm Milavetz, Gallop & Milavetz, P. A.; the firm's president, Robert J. Milavetz; a bankruptcy attorney at the firm, Barbara Nilva Nevin; and two of the firm's clients (collectively 4 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court Milavetz) - filed a preenforcement suit in Federal District Court seeking declaratory relief with respect to the Act's debt-relief-agency provisions. Milavetz asked the court to hold that it is not bound by these provisions and thus may freely advise clients to incur additional debt and need not identify itself as a debt relief agency in its advertisements. Milavetz first argued that attorneys are not "debt relief agenc[ies]" as that term is used in the BAPCPA. In the alternative, Milavetz sought a judgment that §§526(a)(4) and 528(a)(4) and (b)(2) are unconstitutional as applied to attorneys. The District Court agreed with Milavetz that the term "debt relief agency" does not include attorneys, App. to Pet. for Cert. in No. 08-1119, p. A-15, but only after finding that §§526 and 528 - provisions expressly applicable only to debt relief agencies - are unconstitu tional as applied to this class of professionals. The Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. 541 F. 3d 785 (2008). Relying on the Act's plain language, the court unanimously re jected the District Court's conclusion that attorneys are not "debt relief agenc[ies]" within the meaning of the Act. The Court of Appeals also parted ways with the District Court concerning the constitutionality of §528. Conclud ing that the disclosures are intended to prevent consumer deception and are "reasonably related" to that interest, the court upheld the application of §528's disclosure require ments to attorneys. Id., at 796-797 (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985)). A majority of the Eighth Circuit panel, however, agreed with the District Court that §526(a)(4) is invalid. Deter mining that §526(a)(4) "broadly prohibits a debt relief agency from advising an assisted person . . . to incur any additional debt when the assisted person is contemplating bankruptcy," even when that advice constitutes prudent prebankruptcy planning not intended to abuse the bank  Cite as: 559 U. S. ____ (2010) 5 Opinion of the Court ruptcy laws, 541 F. 3d, at 793, the majority held that §526(a)(4) could not withstand either strict or intermedi ate scrutiny. In dissent, Judge Colloton argued that §526(a)(4) should be read narrowly to prevent only advice to abuse the bankruptcy system, noting that this construc tion would avoid most constitutional difficulties. See id., at 799 (opinion concurring in part and dissenting in part). In light of a conflict among the Courts of Appeals,2 we granted certiorari to resolve the question of §526(a)(4)'s scope. 556 U. S. ___ (2009). We also agreed to consider the threshold question whether attorneys who provide bankruptcy assistance to assisted persons are "debt relief agenc[ies]" within the meaning of §101(12A) and the re lated question whether §528's disclosure requirements are constitutional. III A We first consider whether the term "debt relief agency" includes attorneys. If it does not, we need not reach the other questions presented, as §§526 and 528 govern only the conduct of debt relief agencies, and Milavetz chal lenges the validity of those provisions based on their application to attorneys. The Government contends that "debt relief agency" plainly includes attorneys, while Milavetz urges that it does not. We conclude that the Government has the better view. As already noted, a debt relief agency is "any person who provides any bankruptcy assistance to an assisted person" in return for payment. §101(12A). By definition, "bankruptcy assistance" includes several services com - - - - - - 2 Compare 541 F. 3d 785, 794 (CA8 2008) (case below), with Hersh v. United States ex rel. Mukasey, 553 F. 3d 743, 761, 764 (CA5 2008) (holding that §526(a)(4) can be narrowly construed to prohibit only advice to abuse or manipulate the bankruptcy system and that, so construed, it is constitutional). 6 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court monly performed by attorneys. Indeed, some forms of bankruptcy assistance, including the "provi[sion of] legal representation with respect to a case or proceeding," §101(4A), may be provided only by attorneys. See §110(e)(2) (prohibiting bankruptcy petition preparers from providing legal advice). Moreover, in enumerating specific exceptions to the definition of debt relief agency, Congress gave no indication that it intended to exclude attorneys. See §§101(12A)(A)-(E). Thus, as the Government con tends, the statutory text clearly indicates that attorneys are debt relief agencies when they provide qualifying services to assisted persons.3 In advocating a narrower understanding of that term, Milavetz relies heavily on the fact that §101(12A) does not expressly include attorneys. That omission stands in contrast, it argues, to the provision's explicit inclusion of "bankruptcy petition preparer[s]" - a category of profes sionals that excludes attorneys and their staff, see §110(a)(1). But Milavetz does not contend, nor could it credibly, that only professionals expressly included in the definition are debt relief agencies. On that reading, no professional other than a bankruptcy petition preparer would qualify - an implausible reading given that the statute defines "debt relief agency" as "any person who - - - - - - 3 Although reliance on legislative history is unnecessary in light of the statute's unambiguous language, we note the support that record provides for the Government's reading. Statements in a Report of the House Committee on the Judiciary regarding the Act's purpose indicate concern with abusive practices undertaken by attorneys as well as other bankruptcy professionals. See, e.g., H. R. Rep. No. 109-31, pt. 1, p. 5 (2005) (hereinafter H. R. Rep.). And the legislative record else where documents misconduct by attorneys. See, e.g., Hearing on H. R. 3150 before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. III, p. 95 (1998) (hereinafter 1998 Hearings). (While the 1998 Hearings preceded the BAPCPA's enactment by several years, they form part of the record cited by the 2005 House Report. See H. R. Rep., at 7.)  Cite as: 559 U. S. ____ (2010) 7 Opinion of the Court provides any bankruptcy assistance to an assisted person . . . or who is a bankruptcy petition preparer." §101(12A) (emphasis added). The provision's silence regarding at torneys thus avails Milavetz little. Cf. Heintz v. Jenkins, 514 U. S. 291, 294 (1995) (holding that "debt collector" as used in the Fair Debt Collection Practices Act, 15 U. S. C. §1692a(6), includes attorneys notwithstanding the defini tion's lack of an express reference to lawyers or litigation). Milavetz's other arguments for excluding attorneys similarly fail to persuade us to disregard the statute's plain language. Milavetz contends that 11 U. S. C. §526(d)(2)'s instruction that §§526, 527, and 528 should not "be deemed to limit or curtail" States' authority to "determine and enforce qualifications for the practice of law" counsels against reading "debt relief agency" to in clude attorneys, as the surest way to protect the States' role in regulating the legal profession is to make the BAPCPA's professional conduct rules inapplicable to lawyers. We find that §526(d)(2) supports the opposite conclusion, as Congress would have had no reason to enact that provision if the debt-relief-agency provisions did not apply to attorneys. Milavetz's broader claim that reading §101(12A) to include attorneys impermissibly trenches on an area of traditional state regulation also lacks merit. Congress and the bankruptcy courts have long overseen aspects of attorney conduct in this area of substantial federal concern. See, e.g., Conrad, Rubin & Lesser v. Pender, 289 U. S. 472, 477-479 (1933) (finding broad authorization in former §96(d) (1934 ed.) (repealed 1978) for courts to examine the reasonableness of a debtor's prepetition attorney's fees). Milavetz next argues that §101(12A)'s exception for any "officer, director, employee, or agent of a person who pro vides" bankruptcy assistance is revealing for its failure to include "partners." §101(12A)(A). In light of that omis sion, it contends, treating attorneys as debt relief agencies 8 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court will obligate entire law firms to comply with §§526, 527, and 528 based on the conduct of a single partner, while the agents and employees of debt relief agencies not typi cally organized as partnerships are shielded from those requirements. Given that the partnership structure is not unique to law firms, however, it is unclear why the exclu sion would be revealing of Congress' intent only with respect to attorneys. In any event, partnerships are them selves "person[s]" under the BAPCPA, see §101(41), and can qualify as "debt relief agenc[ies]" when they meet the criteria set forth in §101(12A). Moreover, a partnership's employees and agents are exempted from §101(12A) in the same way as the employees and agents of other organiza tions. To the extent that partners may be subject to the debt-relief-agency provisions by association, that result is consistent with the joint responsibilities that typically flow from the partnership structure, cf. Strang v. Bradner, 114 U. S. 555, 561 (1885). Accordingly, we decline to attribute the significance Milavetz suggests to §101(12A)(A)'s fail ure to include partners among the exempted actors.4 All else failing, Milavetz urges that the canon of consti tutional avoidance requires us to read "debt relief agency" - - - - - - 4 Reviving an argument that Milavetz abandoned, amici contend that §527(b) undermines the Government's reading of §101(12A) because it requires a debt relief agency to inform an assisted person of his right to hire an attorney, and it would be nonsensical to require attorneys to provide such notice. See Brief for National Association of Consumer Bankruptcy Attorneys et al. as Amici Curiae 34. This argument fails on its own terms. Even if §101(12A) excluded attorneys, as Milavetz contends, §527(b) would still produce the result of which its amici complain, as that provision also requires a debt relief agency to inform assisted persons that they " 'can get help in some localities from a bankruptcy petition preparer,' " and there is no question that bank ruptcy petition preparers are debt relief agencies and thus subject to that requirement. It is in any event not absurd to require debt relief agencies - whether attorneys or bankruptcy petition preparers - to inform prospective clients of their options for obtaining bankruptcy assistance services.  Cite as: 559 U. S. ____ (2010) 9 Opinion of the Court to exclude attorneys in order to forestall serious doubts as to the validity of §§526 and 528. The avoidance canon, however, "is a tool for choosing between competing plausi ble interpretations of a statutory text." Clark v. Martinez, 543 U. S. 371, 381 (2005). In applying that tool, we will consider only those constructions of a statute that are " 'fairly possible.' " United States v. Security Industrial Bank, 459 U. S. 70, 78 (1982). For the reasons already discussed, the text and statutory context of §101(12A) foreclose a reading of "debt relief agency" that excludes attorneys. Accordingly, we hold that attorneys who pro vide bankruptcy assistance to assisted persons are debt relief agencies within the meaning of the BAPCPA. B Having concluded that attorneys are debt relief agencies when they provide qualifying services, we next address the scope and validity of §526(a)(4). Characterizing the stat ute as a broad, content-based restriction on attorney-client communications that is not adequately tailored to con strain only speech the Government has a substantial interest in restricting, the Eighth Circuit found the rule substantially overbroad. 541 F. 3d, at 793-794, and n. 10. For the reasons that follow, we reject that conclusion. Section 526(a)(4) prohibits a debt relief agency from "advis[ing] an assisted person" either "to incur more debt in contemplation of" filing for bankruptcy "or to pay an attorney or bankruptcy petition preparer fee or charge for services" performed in preparation for filing. Only the first of these prohibitions is at issue. In debating the correctness of the Court of Appeals' decision, the parties first dispute the provision's scope. The Court of Appeals concluded that Ҥ526(a)(4) broadly prohibits a debt relief agency from advising an assisted person . . . to incur any additional debt when the assisted person is contemplating bankruptcy." Id., at 793. Under that reading, an attorney 10 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court is prohibited from providing all manner of "beneficial advice - even if the advice could help the assisted person avoid filing for bankruptcy altogether." Ibid. Agreeing with the Court of Appeals, Milavetz contends that §526(a)(4) prohibits a debt relief agency from advising a client to incur any new debt while considering whether to file for bankruptcy. Construing the provision more broadly still, Milavetz contends that §526(a)(4) forbids not only affirmative advice but also any discussion of the advantages, disadvantages, or legality of incurring more debt. Like the panel majority's, Milavetz's reading rests primarily on its view that the ordinary meaning of the phrase "in contemplation of" bankruptcy encompasses any advice given to a debtor with the awareness that he might soon file for bankruptcy, even if the advice seeks to obviate the need to file. Milavetz also maintains that if §526(a)(4) were construed more narrowly, as urged by the Govern ment and the dissent below, it would be so vague as to inevitably chill some protected speech. The Government continues to advocate a narrower construction of the statute, urging that Milavetz's reading is untenable and that its vagueness concerns are mis placed. The Government contends that §526(a)(4)'s re striction on advice to incur more debt "in contemplation of" bankruptcy is most naturally read to forbid only advice to undertake actions to abuse the bankruptcy system. Focus ing first on the provision's text, the Government points to sources indicating that the phrase "in contemplation of" bankruptcy has long been, and continues to be, associated with abusive conduct. For instance, Black's Law Diction ary 336 (8th ed. 2004) (hereinafter Black's) defines "con templation of bankruptcy" as "[t]he thought of declaring bankruptcy because of the inability to continue current financial operations, often coupled with action designed to thwart the distribution of assets in a bankruptcy proceed ing." Use of the phrase by Members of Congress illus  Cite as: 559 U. S. ____ (2010) 11 Opinion of the Court trates that traditional coupling. See, e.g., S. Rep. No. 98- 65, p. 9 (1983) (discussing the practice of " 'loading up' [on debt] in contemplation of bankruptcy"); Report of the Commission on the Bankruptcy Laws of the United States, H. R. Doc. No. 93-137, pt. I, p. 11 (1973) ("[T]he most serious abuse of consumer bankruptcy is the number of instances in which individuals have purchased a sizable quantity of goods and services on credit on the eve of bankruptcy in contemplation of obtaining a discharge"). The Government also points to early American and Eng lish judicial decisions to corroborate its contention that "in contemplation of" bankruptcy signifies abusive conduct. See, e.g., In re Pearce, 19 F. Cas. 50, 53 (No. 10,873) (D. Vt. 1843); Morgan v. Brundrett, 5 B. Ad. 288, 296-297, 110 Eng. Rep. 798, 801 (K. B. 1833) (Parke, J.). To bolster its textual claim, the Government relies on §526(a)(4)'s immediate context. According to the Govern ment, the other three subsections of §526(a) are designed to protect debtors from abusive practices by debt relief agencies: §526(a)(1) requires debt relief agencies to per form all promised services; §526(a)(2) prohibits them from making or advising debtors to make false or misleading statements in bankruptcy; and §526(a)(3) prohibits them from misleading debtors regarding the costs or benefits of bankruptcy. When §526(a)(4) is read in context of these debtor-protective provisions, the Government argues, construing it to prevent debt relief agencies from giving advice that is beneficial to both debtors and their creditors seems particularly nonsensical. Finally, the Government contends that the BAPCPA's remedies for violations of §526(a)(4) similarly corroborate its narrow reading. Section 526(c) provides remedies for a debt relief agency's violation of §526, §527, or §528. Among the actions authorized, a debtor may sue the at torney for remittal of fees, actual damages, and reasonable attorney's fees and costs; a state attorney general may sue 12 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court for a resident's actual damages; and a court finding inten tional abuse may impose an appropriate civil penalty. §526(c). The Government also relies on the Fifth Circuit's decision in Hersh v. United States ex rel. Mukasey, 553 F. 3d 743 (2008), and Judge Colloton's dissent below for the observation that "Congress's emphasis on actual dam ages for violations of section 526(a)(4) strongly suggests that Congress viewed that section as aimed at advice to debtors which if followed would have a significant risk of harming the debtor." Id., at 760; see 541 F. 3d, at 800 (opinion concurring in part and dissenting in part). By contrast, "legal and appropriate advice that would be protected by the First Amendment, yet prohibited by a broad reading of §526(a)(4), should cause no damage at all." Ibid.; see Hersh, 541 F. 3d, at 760. Milavetz contends that the Government's sources actu ally undermine its claim that the phrase "in contemplation of" bankruptcy necessarily refers to abusive conduct. Specifically, Milavetz argues that these authorities illus trate that "in contemplation of" bankruptcy is a neutral phrase that only implies abusive conduct when attached to an additional, proscriptive term. As Black's states, the phrase is "often coupled with action designed to thwart the distribution of assets" in bankruptcy, Black's 336 (empha sis added), but it carries no independent connotation of abuse. In support of that conclusion, Milavetz relies on our decision in Pender, 289 U. S. 472, contending that we construed "in contemplation of" bankruptcy in that case to describe "conduct with a view to a probable bankruptcy filing and nothing more." Brief for Milavetz 61. After reviewing these competing claims, we are per suaded that a narrower reading of §526(a)(4) is sounder, although we do not adopt precisely the view the Govern ment advocates. The Government's sources show that the phrase "in contemplation of" bankruptcy has so commonly been associated with abusive conduct that it may readily  Cite as: 559 U. S. ____ (2010) 13 Opinion of the Court be understood to prefigure abuse. As used in §526(a)(4), however, we think the phrase refers to a specific type of misconduct designed to manipulate the protections of the bankruptcy system. In light of our decision in Pender, and in context of other sections of the Code, we conclude that §526(a)(4) prohibits a debt relief agency only from advising a debtor to incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose. Pender addressed the meaning of former §96(d), which authorized reexamination of a debtor's payment of attor ney's fees "in contemplation of the filing of a petition." Recognizing " 'the temptation of a failing debtor to deal too liberally with his property in enabling counsel to protect him,' " 289 U. S., at 478 (quoting In re Wood & Henderson, 210 U. S. 246, 253 (1908)), we read "in contemplation of . . . filing" in that context to require that the portended bankruptcy have "induce[d]" the transfer at issue, 289 U. S., at 477, understanding inducement to engender suspicion of abuse. In so construing the statute, we identi fied the "controlling question" as "whether the thought of bankruptcy was the impelling cause of the transaction." Ibid. Given the substantial similarities between §§96(d) and 526(a)(4), we think the controlling question under the latter provision is likewise whether the impelling reason for "advis[ing] an assisted person . . . to incur more debt" was the prospect of filing for bankruptcy. To be sure, there are relevant differences between the provision at issue in Pender and the one now under re view. Most notably, the inquiry in Pender was as to pay ments made on the eve of bankruptcy, whereas §526(a)(4) regards advice to incur additional debts. Consistent with that difference, under §96(d) a finding that a payment was made "in contemplation of" filing resolved only a threshold inquiry triggering further review of the reasonableness of the payment; the finding thus supported an inference of abuse but did not conclusively establish it. By contrast, 14 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court advice to incur more debt because of bankruptcy, as pro hibited by §526(a)(4), will generally consist of advice to "load up" on debt with the expectation of obtaining its discharge - i.e., conduct that is abusive per se. The statutory context supports the conclusion that §526(a)(4)'s prohibition primarily targets this type of abuse. Code provisions predating the BAPCPA already sought to prevent the practice of loading up on debt prior to filing. Section 523(a)(2), for instance, addressed the attendant risk of manipulation by preventing the dis charge of debts obtained by false pretenses and making debts for purchases of luxury goods or services presump tively nondischargeable. See §§523(a)(2)(A) and (C) (2000 ed.). The BAPCPA increased the risk of such abuse, how ever, by providing a new mechanism for determining a debtor's ability to repay. Pursuant to the "means tes[t]," §707(b)(2)(D) (2006 ed.), a debtor's petition for Chapter 7 relief is presumed abusive (and may therefore be dis missed or converted to a structured repayment plan under Chapter 13) if the debtor's current monthly income ex ceeds his statutorily allowed expenses, including pay ments for secured debt, by more than a prescribed amount. See §§707(b)(2)(A)(i)-(iv). The test promotes debtor accountability but also enhances incentives to incur additional debt prior to filing, as payments on secured debts offset a debtor's monthly income under the formula. Other amendments effected by the BAPCPA reflect a concern with this practice. For instance, Congress amended §523(a)(2) to expand the exceptions to discharge by lowering the threshold amount of new debt a debtor must assume to trigger the presumption of abuse under §523(a)(2)(C), and it extended the relevant prefiling win dow. See §310, 119 Stat. 84. In context, §526(a)(4) is best understood to provide an additional safeguard against the practice of loading up on debt prior to filing. The Government's contextual arguments provide addi  Cite as: 559 U. S. ____ (2010) 15 Opinion of the Court tional support for the view that §526(a)(4) was meant to prevent this type of conduct. The companion rules of professional conduct in §§526(a)(1)-(3) and the remedies for their violation in §526(c) indicate that Congress was concerned with actions that threaten to harm debtors or creditors. Unlike the reasonable financial advice the Eighth Circuit's broad reading would proscribe, advice to incur more debt because of bankruptcy presents a sub stantial risk of injury to both debtors and creditors. See Hersh, 553 F. 3d, at 760-761. Specifically, the incurrence of such debt stands to harm a debtor if his prepetition conduct leads a court to hold his debts nondischargable, see §523(a)(2), convert his case to another chapter, or dismiss it altogether, see §707(b), thereby defeating his effort to obtain bankruptcy relief. If a debt, although manipulatively incurred, is not timely identified as abu sive and therefore is discharged, creditors will suffer harm as a result of the discharge and the consequent dilution of the bankruptcy estate. By contrast, the prudent advice that the Eighth Circuit's view of the statute forbids would likely benefit both debtors and creditors and at the very least should cause no harm. See id., at 760; 541 F. 3d, at 800 (Colloton, J., concurring in part and dissenting in part). For all of these reasons, we conclude that §526(a)(4) prohibits a debt relief agency only from advising an as sisted person to incur more debt when the impelling rea son for the advice is the anticipation of bankruptcy. That "[n]o other solution yields as sensible a" result further persuades us of the correctness of this narrow reading. United States v. Granderson, 511 U. S. 39, 55 (1994). It would make scant sense to prevent attorneys and other debt relief agencies from advising individuals thinking of filing for bankruptcy about options that would be beneficial to both those individuals and their creditors. That construction serves none of the purposes of the Bank ruptcy Code or the amendments enacted through the 16 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court BAPCPA. Milavetz itself acknowledges that its expansive view of §526(a)(4) would produce absurd results; that is one of its bases for arguing that "debt relief agency" should be construed to exclude attorneys. Because the language and context of §526(a)(4) evidence a more targeted pur pose, we can avoid the absurdity of which Milavetz com plains without reaching the result it advocates. For the same reason, we reject Milavetz's suggestion that §526(a)(4) broadly prohibits debt relief agencies from discussing covered subjects instead of merely proscribing affirmative advice to undertake a particular action. Sec tion 526(a)(4) by its terms prevents debt relief agencies only from "advis[ing]" assisted persons "to incur" more debt. Covered professionals remain free to "tal[k] fully and candidly about the incurrence of debt in contempla tion of filing a bankruptcy case." Brief for Milavetz 73. Section 526(a)(4) requires professionals only to avoid instructing or encouraging assisted persons to take on more debt in that circumstance. Cf. ABA Model Rule of Professional Conduct 1.2(d) (2009) ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any pro posed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law"). Even if the statute were not clear in this regard, we would reach the same conclusion about its scope because the inhibition of frank discussion serves no conceivable purpose within the statutory scheme. Cf. Johnson v. United States, 529 U. S. 694, 706, n. 9 (2000).5 - - - - - - 5 If read as Milavetz advocates, §526(a)(4) would seriously undermine the attorney-client relationship. Earlier this Term, we acknowledged the importance of the attorney-client privilege as a means of protecting that relationship and fostering robust discussion. See Mohawk Indus tries, Inc. v. Carpenter, 558 U. S. ___, ___ (2009) (slip op., at 7). Reiter  Cite as: 559 U. S. ____ (2010) 17 Opinion of the Court Finally, we reject Milavetz's contention that, narrowly construed, §526(a)(4) is impermissibly vague. Milavetz urges that the concept of abusive prefiling conduct is too indefinite to withstand constitutional scrutiny and that uncertainty regarding the scope of the prohibition will chill protected speech. We disagree. Under our reading of the statute, of course, the prohib ited advice is not defined in terms of abusive prefiling conduct but rather the incurrence of additional debt when the impelling reason is the anticipation of bankruptcy. Even if the test depended upon the notion of abuse, how ever, Milavetz's claim would be fatally undermined by other provisions of the Bankruptcy Code, to which that concept is no stranger. As discussed above, the Code authorizes a bankruptcy court to decline to discharge fraudulent debts, see §523(a)(2), or to dismiss a case or convert it to a case under another chapter if it finds that granting relief would constitute abuse, see §707(b)(1). Attorneys and other professionals who give debtors bank ruptcy advice must know of these provisions and their consequences for a debtor who in bad faith incurs addi tional debt prior to filing. Indeed, §707(b)(4)(C) states that an attorney's signature on bankruptcy filings "shall consti tute a certification that the attorney has" determined that the filing "does not constitute an abuse under [§707(b)(1)]." Against this backdrop, it is hard to see how a rule that narrowly prohibits an attorney from affirmatively advising a client to commit this type of abusive prefiling conduct could chill attorney speech or inhibit the attorney-client relationship. Our construction of §526(a)(4) to prevent only advice principally motivated by the prospect of bank - - - - - - ating the significance of such dialogue, we note that §526(a)(4), as narrowly construed, presents no impediment to " 'full and frank' " discussions. Ibid. (quoting Upjohn Co. v. United States, 449 U. S. 383, 389 (1981)). 18 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court ruptcy further ensures that professionals cannot unknow ingly run afoul of its proscription.6 Because the scope of the prohibition is adequately defined, both on its own terms and by reference to the Code's other provisions, we reject Milavetz's vagueness claim. As the foregoing shows, the language of the statute, together with other evidence of its purpose, makes this narrow reading of §526(a)(4) not merely a plausible inter pretation but the more natural one. Accordingly, we reject the Eighth Circuit's conclusion and hold that a debt relief agency violates §526(a)(4) only when the impetus of the advice to incur more debt is the expectation of filing for bankruptcy and obtaining the attendant relief. Because our reading of the statute supplies a sufficient ground for reversing the Court of Appeals' decision, and because Milavetz challenges the constitutionality of the statute, as narrowed, only on vagueness grounds, we need not further consider whether the statute so construed withstands First Amendment scrutiny. C Finally, we address the validity of §528's challenged disclosure requirements. Our first task in resolving this - - - - - - 6 The hypothetical questions Milavetz posits regarding the permissi bility of advice to incur debt in certain circumstances, see Brief for Milavetz 48-51, are easily answered by reference to whether the expectation of filing for bankruptcy (and obtaining a discharge) im pelled the advice. We emphasize that awareness of the possibility of bankruptcy is insufficient to trigger §526(a)(4)'s prohibition. Instead, that provision proscribes only advice to incur more debt that is princi pally motivated by that likelihood. Thus, advice to refinance a mort gage or purchase a reliable car prior to filing because doing so will reduce the debtor's interest rates or improve his ability to repay is not prohibited, as the promise of enhanced financial prospects, rather than the anticipated filing, is the impelling cause. Advice to incur additional debt to buy groceries, pay medical bills, or make other purchases "reasonably necessary for the support or maintenance of the debtor or a dependent of the debtor," §523(a)(2)(C)(ii)(II), is similarly permissible.  Cite as: 559 U. S. ____ (2010) 19 Opinion of the Court question is to determine the contours of Milavetz's claim. Although the nature of its challenge is not entirely clear from the briefing or decisions below, counsel for Milavetz insisted at oral argument that this is "not a facial chal lenge; it's an as-applied challenge." Tr. of Oral Arg. 26. We will approach the question consistent with Milavetz's characterization.7 We next consider the standard of scrutiny applicable to §528's disclosure requirements. The parties agree, as do we, that the challenged provisions regulate only commer cial speech. Milavetz contends that our decision in Cen tral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980), supplies the proper standard for reviewing these requirements. The Court in that case held that restrictions on nonmisleading commercial speech regarding lawful activity must withstand intermediate scrutiny - that is, they must "directly advanc[e]" a sub stantial governmental interest and be "n[o] more extensive than is necessary to serve that interest." Id., at 566. Contesting Milavetz's premise, the Government maintains that §528 is directed at misleading commercial speech. For that reason, and because the challenged provisions impose a disclosure requirement rather than an affirma tive limitation on speech, the Government contends that the less exacting scrutiny described in Zauderer governs our review. We agree. Zauderer addressed the validity of a rule of professional conduct that required attorneys who advertised contin gency-fee services to disclose in their advertisements that a losing client might still be responsible for certain litiga - - - - - - 7 In so doing, we note that our ability to evaluate §528's validity as applied to Milavetz is constrained by the lack of a developed record. Because the parties have introduced no exhibits or other evidence to ground our analysis, we are guided in this preenforcement challenge only by Milavetz's status - i.e., as a law firm or attorney - and its general claims about the nature of its advertisements. 20 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court tion fees and costs. Noting that First Amendment protec tion for commercial speech is justified in large part by the information's value to consumers, the Court concluded that an attorney's constitutionally protected interest in not providing the required factual information is "minimal." 471 U. S., at 651. Unjustified or unduly burdensome disclosure requirements offend the First Amendment by chilling protected speech, but "an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." Ibid. The challenged provisions of §528 share the essential features of the rule at issue in Zauderer. As in that case, §528's required disclosures are intended to combat the problem of inherently misleading commercial advertise ments - specifically, the promise of debt relief without any reference to the possibility of filing for bankruptcy, which has inherent costs. Additionally, the disclosures entail only an accurate statement identifying the advertiser's legal status and the character of the assistance provided, and they do not prevent debt relief agencies like Milavetz from conveying any additional information. The same characteristics of §528 that make it analogous to the rule in Zauderer serve to distinguish it from those at issue in In re R. M. J., 455 U. S. 191 (1982), to which the Court applied the intermediate scrutiny of Central Hudson. The ethical rules addressed in R. M. J. prohib ited attorneys from advertising their practice areas in terms other than those prescribed by the State Supreme Court and from announcing the courts in which they were admitted to practice. See 455 U. S., at 197-198. Finding that the restricted statements were not inherently mis leading and that the State had failed to show that the appellant's advertisements were themselves likely to mislead consumers, see id., at 205, the Court applied Central Hudson's intermediate scrutiny and invalidated  Cite as: 559 U. S. ____ (2010) 21 Opinion of the Court the restrictions as insufficiently tailored to any substan tial state interest, 455 U. S., at 205-206. In so holding, the Court emphasized that States retain authority to regulate inherently misleading advertisements, particu larly through disclosure requirements, and it noted that advertisements for professional services pose a special risk of deception. See id., at 203, 207. Milavetz makes much of the fact that the Government in these consolidated cases has adduced no evidence that its advertisements are misleading. Zauderer forecloses that argument: "When the possibility of deception is as self-evident as it is in this case, we need not require the State to 'conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead.' " 471 U. S., at 652-653 (quoting FTC v. Colgate- Palmolive Co., 380 U. S. 374, 391-392 (1965)). Evidence in the congressional record demonstrating a pattern of advertisements that hold out the promise of debt relief without alerting consumers to its potential cost, see 1998 Hearings, pt. III, at 86, 90-94, is adequate to establish that the likelihood of deception in this case "is hardly a speculative one," 471 U. S., at 652. Milavetz alternatively argues that the term "debt relief agency" is confusing and misleading and that requiring its inclusion in advertisements cannot be "reasonably related" to the Government's interest in preventing consumer deception, as Zauderer requires. Id., at 651. This conten tion amounts to little more than a preference on Milavetz's part for referring to itself as something other than a "debt relief agency" - e.g., an attorney or a law firm. For several reasons, we conclude that this preference lacks any consti tutional basis. First, Milavetz offers no evidence to sup port its claim that the label is confusing. Because §528 by its terms applies only to debt relief agencies, the disclo sures are necessarily accurate to that extent: Only debt relief agencies must identify themselves as such in their 22 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of the Court advertisements. This statement provides interested ob servers with pertinent information about the advertiser's services and client obligations. Other information that Milavetz must or may include in its advertisements for bankruptcy-assistance services provides additional assurance that consumers will not misunderstand the term. The required statement that the advertiser " 'help[s] people file for bankruptcy relief' " gives meaningful context to the term "debt relief agency." And Milavetz may further identify itself as a law firm or attor ney. Section 528 also gives Milavetz flexibility to tailor the disclosures to its individual circumstances, as long as the resulting statements are "substantially similar" to the statutory examples. §§528(a)(4) and (b)(2)(B). Finally, we reject Milavetz's argument that §528 is not reasonably related to any governmental interest because it applies equally to attorneys who represent creditors, as Milavetz sometimes does. The required disclosures, Mi lavetz contends, would be counterfactual and misleading in that context. This claim is premised on an untenable reading of the statute. We think it evident from the defi nition of "assisted person" - which is stated in terms of the person's debts, see §101(3) - and from the text and struc ture of the debt-relief-agency provisions in §§526, 527, and 528 that those provisions, including §528's disclosure requirements, govern only professionals who offer bank ruptcy-related services to consumer debtors. Section 528 is itself expressly concerned with advertisements pertain ing to "bankruptcy assistance services," "the benefits of bankruptcy," "excessive debt, debt collection pressure, or inability to pay any consumer debt," §§528(a)(3) and (b)(2). Moreover, like the other debt-relief-agency provisions, that section is codified in a subchapter of the Bankruptcy Code entitled "DEBTOR'S DUTIES AND BENEFITS." 11 U. S. C., ch. 5, subch. II. In context, reading §528 to gov ern advertisements aimed at creditors would be as anoma  Cite as: 559 U. S. ____ (2010) 23 Opinion of the Court lous as the result of which Milavetz complains. Once again, we decline Milavetz's invitation to adopt a view of the statute that is contrary to its plain meaning and would produce an absurd result. Because §528's requirements that Milavetz identify itself as a debt relief agency and include certain informa tion about its bankruptcy-assistance and related services are "reasonably related to the [Government's] interest in preventing deception of consumers," Zauderer, 471 U. S., at 651, we uphold those provisions as applied to Milavetz. IV For the foregoing reasons, the judgment of the Court of Appeals for the Eighth Circuit is affirmed as to §§101(12A) and 528 and reversed as to §526(a)(4), and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.  Cite as: 559 U. S. ____ (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ Nos. 08-1119 and 08-1225 _________________ MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL., PETITIONERS 08-1119 v. UNITED STATES UNITED STATES, PETITIONER 08-1225 v. MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [March 8, 2010] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the opinion of the Court, except for footnote 3, which notes that the legislative history supports what the statute unambiguously says. The Court first notes that statements in the Report of the House Committee on the Judiciary "indicate concern with abusive practices under taken by attorneys." Ante, at 6, n. 3. Perhaps, but only the concern of the author of the Report. Such statements tell us nothing about what the statute means, since (1) we do not know that the members of the Committee read the Report, (2) it is almost certain that they did not vote on the Report (that is not the practice), and (3) even if they did read and vote on it, they were not, after all, those who made this law. The statute before us is a law because its text was approved by a majority vote of the House and the Senate, and was signed by the President. Even indulging the extravagant assumption that Members of the House 2 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of SCALIA, J. other than members of its Committee on the Judiciary read the Report (and the further extravagant assumption that they agreed with it), the Members of the Senate could not possibly have read it, since it did not exist when the Senate passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. And the President surely had more important things to do. The footnote's other source of legislative history is truly mystifying. For the proposition that "the legislative record elsewhere documents misconduct by attorneys" which was presumably the concern of Congress, the Court cites a reproduction of a tasteless advertisement that was (1) an attachment to the written statement of a witness, (2) in a hearing held seven years prior to this statute's passage, (3) before a subcommittee of the House considering a different consumer bankruptcy reform bill that never passed.* "Elsewhere" indeed. The Court acknowledges that nothing can be gained by this superfluous citation (it admits the footnote is "unnec essary in light of the statute's unambiguous language," ante, at 6, n. 3). But much can be lost. Our cases have said that legislative history is irrelevant when the statu tory text is clear. See, e.g., United States v. Gonzales, 520 U. S. 1, 6 (1997); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992). The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients' treasure combing the annals of legislative history in all cases: To buttress their case - - - - - - * The Court protests that the earlier hearing was "part of the record cited by the 2005 House Report," ante, at 6, n. 3. The page it cites, however, does nothing more than note that the earlier hearing took place, see H. R. Rep. No. 109-31, pt. 1, p. 7 (2005). Are we to believe that this brought to the attention of the committee (much less of the whole Congress) an attachment to the testimony of one of the witnesses at that long-ago hearing? Of course not. That legislative history shows what "Congress" intended is a fiction requiring no support in reality.  Cite as: 559 U. S. ____ (2010) 3 Opinion of SCALIA, J. where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.  Cite as: 559 U. S. ____ (2010) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES _________________ Nos. 08-1119 and 08-1225 _________________ MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL., PETITIONERS 08-1119 v. UNITED STATES UNITED STATES, PETITIONER 08-1225 v. MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [March 8, 2010] JUSTICE THOMAS, concurring in part and concurring in the judgment. I concur in the judgment and join all but Part III-C of the Court's opinion. I agree with the Court that 11 U. S. C. §528's advertising disclosure requirements sur vive First Amendment scrutiny on the record before us. I write separately because different reasons lead me to that conclusion. I have never been persuaded that there is any basis in the First Amendment for the relaxed scrutiny this Court applies to laws that suppress nonmisleading commercial speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 522-523 (1996) (opinion concurring in part and con curring in judgment) (discussing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980)). In this case, the Court applies a still lower stan dard of scrutiny to review a law that compels the disclo sure of commercial speech - i.e., the rule articulated in 2 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of THOMAS, J. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), that laws that require the disclosure of factual information in commercial adver tising may be upheld so long as they are "reasonably related" to the government's interest in preventing con sumer deception, id., at 651. I am skeptical of the premise on which Zauderer rests - that, in the commercial-speech context, "the First Amend ment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed," id., at 652, n. 14; see id., at 650 (citing "material differences between disclosure require ments and outright prohibitions on speech"). We have refused in other contexts to attach any "constitutional significance" to the difference between regulations that compel protected speech and regulations that restrict it. See, e.g., Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 796-797 (1988). I see no reason why that difference should acquire constitutional significance merely because the regulations at issue involve commer cial speech. See Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457, 480-481 (1997) (Souter, J., dissenting) (arguing that "commercial speech is . . . subject to [this] First Amendment principle: that compelling cognizable speech officially is just as suspect as suppressing it, and is typically subject to the same level of scrutiny"); id., at 504 (THOMAS, J., dissenting); cf. United States v. United Foods, Inc., 533 U. S. 405, 419 (2001) (THOMAS, J., concurring) (stating that regulations that compel funding for commer cial advertising "must be subjected to the most stringent First Amendment scrutiny"). Accordingly, I would be willing to reexamine Zauderer and its progeny in an appropriate case to determine whether these precedents provide sufficient First Amend ment protection against government-mandated disclo  Cite as: 559 U. S. ____ (2010) 3 Opinion of THOMAS, J. sures.1 Because no party asks us to do so here, however, I agree with the Court that the Zauderer standard governs our review of the challenge to §528 brought by the Milav etz law firm and the other plaintiffs in this action (herein after Milavetz). Yet even under Zauderer, we "have not presumptively endorsed" laws requiring the use of "government-scripted disclaimers" in commercial advertising. See Borgner v. Florida Bd. of Dentistry, 537 U. S. 1080, 1082 (2002) (THOMAS, J., dissenting from denial of certiorari). Zaud erer upheld the imposition of sanctions against an attor ney under a rule of professional conduct that required advertisements for contingency-fee services to disclose that losing clients might be responsible for litigation fees and costs. See 471 U. S., at 650-653. Importantly, how ever, Zauderer's advertisement was found to be misleading on its face, and the regulation in that case did not man date the specific form or text of the disclosure. Ibid. Thus, Zauderer does not stand for the proposition that the gov ernment can constitutionally compel the use of a scripted disclaimer in any circumstance in which its interest in - - - - - - 1 I have no quarrel with the principle that advertisements that are false or misleading, or that propose an illegal transaction, may be proscribed. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 520 (1996) (opinion concurring in part and concurring in judgment). Furthermore, I acknowledge this Court's longstanding assumption that a consumer-fraud regulation that compels the disclosure of certain factual information in advertisements may intrude less significantly on First Amendment interests than an outright prohibition on all adver tisements that have the potential to mislead. See, e.g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651-652, n. 14 (1985); Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 796, n. 9 (1988); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 565 (1980). But even if that assumption is correct, I doubt that it justifies an entirely different standard of review for regulations that compel, rather than suppress, commercial speech. 4 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of THOMAS, J. preventing consumer deception might plausibly be at stake. In other words, a bare assertion by the government that a disclosure requirement is "intended" to prevent consumer deception, standing alone, is not sufficient to uphold the requirement as applied to all speech that falls within its sweep. See ante, at 20. Instead, our precedents make clear that regulations aimed at false or misleading advertisements are permissi ble only where "the particular advertising is inherently likely to deceive or where the record indicates that a par ticular form or method of advertising has in fact been deceptive." In re R. M. J., 455 U. S. 191, 202 (1982) (em phasis added); see Zauderer, supra, at 651 ("recogniz[ing] that unjustified or unduly burdensome disclosure re quirements might offend the First Amendment"). There fore, a disclosure requirement passes constitutional mus ter only to the extent that it is aimed at advertisements that, by their nature, possess these traits. See R. M. J., supra, at 202; Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 143, 146-147 (1994). I do not read the Court's opinion to hold otherwise. See ante, at 20. Accordingly, and with that understanding, I turn to the question whether Milavetz's challenge to §528's disclosure requirements survives Zauderer scrutiny on the record before us. As the Court notes, the posture of Milavetz's challenge inhibits our review of its First Amendment claim. See ante, at 19, n. 7. Milavetz challenged §528's constitution ality before the statute had ever been enforced against any of the firm's advertisements. Although Milavetz purports to challenge §528 only " 'as-applied' " to its own advertis ing, see ante, at 19, it did not introduce any evidence or exhibits to substantiate its claim. Thus, no court has seen a sampling of Milavetz's advertisements or even a declara tion describing their contents and the media through  Cite as: 559 U. S. ____ (2010) 5 Opinion of THOMAS, J. which Milavetz seeks to transmit them. As a consequence, Milavetz's nominal "as applied" challenge appears strik ingly similar to a facial challenge. We generally disapprove of such challenges because they "often rest on speculation" and require courts to engage in " 'premature interpretation of statutes on the basis of factually barebones records.' " Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 450 (2008) (quoting Sabri v. United States, 541 U. S. 600, 609 (2004)). Milavetz's claim invites the same prob lems. Milavetz alleges that §528's disclosure require ments are unconstitutional as applied to its advertise ments because its advertisements are not misleading and because the disclaimer required by §528 will create, rather than reduce, confusion for Milavetz's potential clients. That may well be true. But because no record evidence of Milavetz's advertisements exists to guide our review, we can only speculate about the ways in which the statute might be applied to Milavetz's speech. When forced to determine the constitutionality of a statute based solely on such conjecture, we will uphold the law if there is any "conceivabl[e]" manner in which it can be enforced consistent with the First Amendment. Wash ington State Grange, supra, at 456. In this case, both parties agree that §528's disclosure requirements cover, at a minimum, deceptive advertisements that promise to " 'wipe out' " debts without mentioning bankruptcy as the means of accomplishing this goal.2 Brief for Milavetz 82, - - - - - - 2 Atoral argument, Milavetz's counsel declined to describe Milavetz's challenge to §528 as a facial overbreadth claim, Tr. of Oral Arg. 25-26, and Milavetz's briefs make no such contention. But even viewing Milavetz's argument as a claim that §528 is facially overbroad because it applies to nonmisleading advertisements for bankruptcy-related services, such an argument must fail. First, as noted, Milavetz ac knowledges that §528 can be constitutionally applied to deceptive bankruptcy-related advertisements and, thus, at least one "set of 6 MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED STATES Opinion of THOMAS, J. 86; Brief for United States 60-62. As a result, there is at least one set of facts on which the statute could be consti tutionally applied. Thus, I agree with the Court that Milavetz's challenge to §528 must fail. - - - - - - circumstances exists under which [§528] would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987). Second, Milavetz does not at tempt to argue that §528's unconstitutional applications are "substan tial" in number when judged in relation to this "plainly legitimate sweep." Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449-450, and n. 6 (2008) (internal quotation marks omitted).

409 U.S. 100 (1972) COOL v. UNITED STATES. No. 72-72. Supreme Court of United States. Decided December 4, 1972. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. PER CURIAM. The petition for a writ of certiorari is granted. In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re Winship, 397 U. S. 358 (1970), and Washington v. Texas, 388 U. S. 14 (1967), and must therefore be reversed. After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her husband, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting. After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband *101 were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car. Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt,[1] but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor. With the case in this posture, the Government's position clearly depended upon its ability to discredit Voyles, since his testimony was completely exculpatory. Over strenuous defense objection,[2] the trial judge gave the jury *102 a lengthy "accomplice instruction" to be used in evaluating Voyles' testimony. After first defining the word "accomplice" and warning that an accomplice's testimony is "open to suspicion," the judge made the following statement: "However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source." (Emphasis added.) The clear implication of this instruction was that the jury should disregard Voyles' testimony unless it was "convinced it is true beyond a reasonable doubt."[3] Such *103 an instruction places an improper burden on the defense and allows the jury to convict despite its failure to find guilt beyond a reasonable doubt.[4] Accomplice instructions have long been in use and have been repeatedly approved. See, e. g., Holmgren v. United States, 217 U. S. 509, 523-524 (1910). In most instances, they represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity. See, e. g., Crawford v. United States, 212 U. S. 183, 204 (1909). But in most of the recorded cases, the instruction has been used when the accomplice turned State's evidence and testified against the defendant. See generally McMillen v. United States, 386 F. 2d 29 (CA1 1967), and cases cited therein. No constitutional problem is posed when the judge instructs a jury to receive the prosecution's accomplice testimony "with care and caution." See, e. g., United States v. George, 319 F. 2d 77, 80 (CA6 1963). Cf. United States v. Nolte, 440 F. 2d 1124 (CA5 1971). *104 But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt. In Washington v. Texas, supra, we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable. Moreover, the instruction also has the effect of substantially reducing the Government's burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voyles' testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant's case rests almost entirely on accomplice testimony, the effect of the judge's instructions is to require the defendant to establish his innocence beyond a reasonable doubt. Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. *105 MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN concur, dissenting. I believe that the Court's fine-spun parsing of the trial judge's charge to the jury turns the appellate review of this case into the sort of "quest for error" which was said in Bihn v. United States, 328 U. S. 633, 638 (1946), to be forbidden by Rule 52 (a) of the Federal Rules of Criminal Procedure,[1] and by 28 U. S. C. § 2111.[2] The testimony of the witness Voyles, called by petitioner as a witness in her behalf, presented the trial judge with something of a dilemma in determining how he should charge the jury. Much of Voyles' testimony tended to exculpate petitioner, but there were significant aspects of it that did not. He substantiated the fact that the petitioner and her husband[3] had traveled with him from St. Louis to Brazil, Indiana. He corroborated prosecution evidence that both petitioner and her husband gave the same false last name of Gibbs when booked at the police station in Brazil. He also suggested a closeness to petitioner's husband which was scarcely helpful to their defense when he testified that "I was a little sore at Mike [petitioner's husband], because I thought Mike should help me [get out on bond]." The trial judge made clear in his colloquy with counsel, while dealing with their objections to the charge, that he *106 was concerned about the ambivalence of Voyles' testimony and felt it necessary to give the charge relating to accomplices. Petitioner's counsel in objecting to that portion of the charge did so on a quite different ground from that now sustained by the Court; the ground of objection stated to the trial court was apparently that the mention of the term "accomplice" to the jury suggested that petitioner and her husband were in fact guilty. Such a ground of objection was wholly without merit, since, as the Court of Appeals pointed out in its opinion in this case, the instruction left it entirely to the jury to determine whether or not the facts existed that would make Voyles an accomplice. The trial court gave 36 separate instructions to the jury, which covered some 52 pages of the transcript in this case. The instruction in question covers two pages, and the Court reverses the conviction on the basis of one sentence in that one instruction. The trial judge repeatedly emphasized to the jury that the Government was obligated to prove guilt beyond a reasonable doubt. Typical is the following statement, which is repeated throughout the instructions in at least half a dozen places: "The entire burden of proof is upon the Government from the beginning to the end of the trial and this burden of proof never shifts from the Government to the defendants, and the defendants are not bound to prove their innocence, offer any excuse, or explain anything . . . ." The record before us does not indicate that either counsel so much as mentioned the accomplice instruction in his argument to the jury. Nonetheless, the Court concludes that because the instruction contained a "negative pregnant" that could be taken to mean that the jurors should reject Voyles' testimony if they had a reasonable *107 doubt as to its veracity, the conviction is to be reversed. I had thought the day long past when even appellate courts of the first instance, such as the Court of Appeals in this case, parsed instructions and engaged in nice semantic distinctions in the absence of any showing that would satisfy an ordinary lawyer or layman that substantial rights of one of the parties had been prejudiced by the supposed error. If the nuance of the instruction upon which reversal is now based did not suggest itself to petitioner's trial counsel, it seems doubtful that it suggested itself to the jury either: "A party must make every reasonable effort to secure from the trial court correct rulings or such at least as are satisfactory to him before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions. . . . `. . . [J]ustice itself and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception.' " Allis v. United States, 155 U. S. 117, 122 (1894), quoting Harvey v. Tyler, 2 Wall. 328, 339 (1865). Nor, as pointed out above, did this particular instruction of the trial court stand alone; it was incorporated into a series of instructions that had as their predominant theme that the burden of proof was upon the Government at every stage to prove guilt beyond a reasonable doubt. The trial court's instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground *108 for reversal. Boyd v. United States, 271 U. S. 104, 107 (1926). The Court's reversal on the ground that one of the instructions contained a "negative pregnant" smacks more of the scholastic jurisprudence whose shortcomings led to the enactment of 28 U. S. C. § 2111 than it does of the commonsense approach to appellate review that that section mandates. NOTES [1] At the time of his testimony, Voyles had already pleaded guilty to a charge of complicity in the possession and concealment of counterfeit notes. [2] The dissent suggests that the defendant objected to the accomplice instruction solely on the ground that use of the word "accomplice" suggested that the defendant was guilty. Although the defense objection was not a model of clarity, it seems apparent that it was grounded more broadly on the trial judge's decision to give the standard accomplice instruction despite the fact that the accomplice was a defense witness. The defense attorney stated: "I take exception to Instruction No. 16, as it's misleading. I don't think it belongs in this cause. There was no accomplice testified [sic] for the Government, and this could mislead them as to the person who was accused of this crime and has already pled guilty, as making an accomplice of him, when actually he is not an accomplice, because they are not involved in the crime." (Emphasis added.) Certainly, the trial judge understood this objection to be directed to his decision to give the standard cautionary instruction even though the alleged accomplice was called by the defendant. In colloquy with the defense attorney, the judge stated: "The next, `accomplice,' the evidence of both the Government and the defendants may be considered by the jury in determining the guilt or innocence, no matter who produces the witness. . . . Now there's a lot of inferences can be drawn from one item of evidence or another, and that's for the jury to decide. So long as there is some evidence, the instruction must be given. It hits both ways on that point." (Emphasis added.) Nor did the Court of Appeals indicate any doubt that defendant's objection was sufficient to preserve the point on appeal. [3] True, the instruction was couched in positive terms. It told the jury to consider the evidence if it believed it true beyond a reasonable doubt. But the statement contained a negative pregnant as well. There is an unacceptable risk that jurors might have thought they were to reject the evidence - "throw [it] out," in the words of the trial judge - if they had a reasonable doubt as to its veracity. [4] In the next paragraph of his instruction, the judge stated: "I further instruct you that testimony of an accomplice may alone and uncorroborated support your verdict of guilty of the charges in the Indictment if believed by you to prove beyond a reasonable doubt the essential elements of the charges in the Indictment against the defendants." In light of the fact that the only accomplice testimony in the case was exculpatory, this instruction was confusing to say the least. But even if it is assumed that Voyles' testimony was to some extent inculpatory, the instruction was still fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis. Even had there been no other error, the conviction would have to be reversed on the basis of this instruction alone. [1] "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. Rule Crim. Proc. 52 (a). [2] "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." 28 U. S. C. § 2111. [3] The petitioner and her husband were tried and convicted together on the counterfeiting charges. Both appealed their convictions to the Seventh Circuit, which affirmed both. Petitioner's husband has not sought certiorari to have his conviction reviewed.

257 U.S. 85 (1921) PENNSYLVANIA RAILROAD COMPANY v. WEBER, SURVIVING PARTNER OF JACOBY AND WEBER, COPARTNERS, TRADING UNDER THE FIRM NAME OF W.F. JACOBY & COMPANY. No. 210. Supreme Court of United States. Argued October 13, 1921. Decided November 7, 1921. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. *86 Mr. Henry Wolf Bikle, with whom Mr. Frederic D. McKenney and Mr. Francis I. Gowen were on the brief, for plaintiff in error. Mr. William A. Glasgow, Jr., for defendant in error. MR. JUSTICE DAY delivered the opinion of the court. This cause has been the subject of much and long continued controversy. This is its third appearance in this court. The previous history of the litigation is set out in 242 U.S. 89. The action is based upon a reparation order made by the Interstate Commerce Commission in favor of Jacoby & Company. A recovery was had in the sum awarded by the Commission, with interest. At the first trial plaintiffs did not introduce the record of the testimony before the Commission. The defendant railroad company introduced testimony tending to show that the Commission in making its award of damages had used a table, attached as exhibit 10 to the record of the case, showing a discrimination of the railroad company against the plaintiffs in the distribution of coal cars in times of shortage, and produced a witness who testified that the effect of the use of the percentages in that table as the basis of awarding damages by the Commission was to give plaintiffs the undue preference in the distribution of coal cars which favored shippers had received. That being so, this court held that the recovery of a sum thus arrived at would defeat the purpose of the act to place shippers on a basis of equality. For the refusal of the trial court to give a charge based upon such use of the table the judgment of the Circuit Court of Appeals for the Third Circuit, affirming that of the District Court, was reversed, and the cause remanded for a new trial. The second trial in the District Court resulted in a verdict and judgment for the plaintiffs in the sum awarded by the Commission with interest. 263 Fed. 945. That judgment was affirmed *87 by the Circuit Court of Appeals, 269 Fed. 111, and the case is again here. We need not repeat the discussion concerning distribution of cars in times of shortage which was held to result in undue advantage. See 242 U.S. supra, pp. 90, 91; Hillsdale Coal & Coke Co. v. Pennsylvania R.R. Co., 19 I.C.C. 362, 363, 364. At the last trial the testimony before the Commission was put in evidence, with some additional testimony tending to show that plaintiffs had been discriminated against because of the special allotment to the Berwind-White Company of five hundred cars daily; and the sale to it, and to other companies, of a large number of cars in times of car shortage. There was evidence tending to show that but for these discriminations the plaintiffs would have received a sufficient number of cars to furnish them with all they needed during the periods complained of. The Commission in the report condemned the practice of giving to the Berwind-White Coal Company five hundred cars daily by special allotment, and the selling of the company's own cars during the same period to favored shippers, thereby diminishing its capacity to supply the coal car requirements of other coal companies along its line. When the Commission came to asses damages it allowed the plaintiffs $21,094.39 with interest from June 28, 1907. The order on which this award was made is set forth in 242 U.S. supra. Upon the new trial, with the additional testimony and the whole record of the Commission introduced in evidence, the judge, after charging the jury that there might be a recovery if the discriminations alleged and proved resulted in damages in the sum awarded by the Commission, charged: "If you should find that the conclusion of the Interstate Commerce Commission that the plaintiff in the year ending April 1, 1905, should have received cars equal in *88 capacity to 59.9 per cent. of the aggregate of their mine's daily rating, and in the period between April 1 and October 18, 1905, cars equal in capacity to 59.6 per cent. of the aggregate of their mine's daily rating - if you should find that that conclusion was reached or arrived at because of the evidence presented by the plaintiff that the aggregate of the cars placed by the defendant at certain mines which had been selected for the purpose of comparison from those comprised in the region in which the plaintiff's mine was located, had been equal in the earlier period to 59.9 per cent. and in the later period to 59.6 per cent. of the aggregate ratings of these selected mines, [These being the percentages of cars given to preferred companies as shown in Exhibit 10.] for the basis of the Commission's conclusion, then the award was an erroneous one, and under those circumstances the finding of the Commission would lose its effect as prima facie evidence, and you would only be justified in finding for the plaintiff if you find that from the other evidence offered before the Commission, either of discrimination through distribution to favored shippers in the Tyrone region or through withholding cars from the Tyrone region, which should have been distributed there, the Commission was justified in arriving at that conclusion. If you find that the Commission was justified in arriving at that conclusion, or are satisfied from that evidence, and that evidence is reinforced by further evidence that the plaintiff has offered in the case, then you would be justified in finding a verdict in favor of the plaintiff, and assessing damages at the amount found by the Commission. "If, however, you should find that that was an erroneous finding, then it would be your duty to find to what extent the plaintiff was damaged, I mean in case you find that the plaintiff was actually damaged you would have to find to what extent the plaintiff was actually damaged. If you leave out the evidence before the Commission the *89 Court is unable to say that there is any other evidence standing alone which would be sufficient, but the evidence which was before the Commission has all been offered before you, and some additional testimony. The proper basis of damages in that case, if the Commission has not reached the proper basis, would be upon the theory set out in the Commission's report, but not based on a comparison between what the favored shippers received and what the plaintiff received. "If the plaintiff is entitled to recover and has suffered damages, the measure of damages would be the loss in operating, upon the coal that was actually shipped, through discrimination in favor of other shippers, together with the profits it would have made on the coal they would have been able to ship. The question as to what coal they would have been able to ship is a question for you gentlemen to decide under the evidence in this case. You have had the schedules laid before you, counsel have argued the case to you and explained the grounds on which they respectively base their demand on the one side and the defense on the other, and the questions of fact are for your determination. The defendant has offered in evidence, and has shown you these facts, in regard to the 59.9 per cent. and the 59.6 per cent., and as I have already instructed you, if you find the Commission's finding was based on that, then the Commission's finding as to the amount of damages suffered should not be considered by the jury, but the jury will be obliged independently, if they can do so, to arrive at a proper amount of damages. "If the jury do not believe that the plaintiffs suffered any damages, or do not believe that they were discriminated against in favor of other shippers, either by the distribution of cars that were sent into this region or by the failure of the railroad company to send cars to the Tyrone region which should have been distributed there, then it *90 would be your duty to find a verdict in favor of the defendant." As there was substantial testimony in the record to support the finding of the Commission in awarding damages in a sum at least equal to the amount assessed by it, the principal question to be decided is: May a plaintiff recover in such circumstances in a suit based upon a reparation order of the Interstate Commerce Commission when there is testimony fairly tending to show that recovery was justified because of unfair practices in the distribution of coal cars in times of shortage, which practices, as its report shows, were condemned by the Commission, although it may appear that the sum awarded by the Commission was actually based upon an erroneous calculation? In determining the rule to govern this situation we must bear in mind that the Commission is empowered to act upon questions of unfair practices and discrimination. Pennsylvania R.R. Co. v. Clark Coal Co., 238 U.S. 456, and the previous cases in this court cited at p. 469. While this is true, when an action is brought upon a reparation order of the Commission, as it may be under § 16 of the Act to Regulate Commerce, its findings and order are prima facie evidence of the facts therein stated. Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412; Second Meeker Case, 236 U.S. 434; Mills v. Lehigh Valley R.R. Co., 238 U.S. 473. These cases have disposed of the question of the right of the defendant to attack the prima facie value of the award, and have dealt with the nature of the award of the Commission in view of the statutory provisions as to its character. That the Commission used a wrong basis in awarding damages, now that the whole record is before us, admits of no doubt. Indeed, the coincidence in the award made and the use of the percentage table shown in Exhibit No. 10 is difficult to account for except upon the basis pointed *91 out by the witness introduced by the defendant, whose testimony was made the basis of the request to charge, the refusal of which led to the reversal of the judgment in 242 U.S. supra. The defendant in error argues that the Commission could not have used this table because it covers a different period of operation as evidenced by the number of days shown than the Commission found to have been the period covered by the operation of the plaintiffs' mine. Nevertheless, the coincidence of percentage and award remains, and the conclusion is inescapable that the Commission in determining the sum awarded used percentages which had the effect of placing the plaintiffs on a basis of equality with the favored companies. On the other hand, there is testimony tending to show that had the cars been distributed upon a basis of general equality approved by the Commission, and without resort to practices condemned by it, there would have been cars enough to have furnished plaintiffs with a sufficient number to meet their trade and requirements during the period in question. Under the circumstances here shown, when the case is fairly and fully submitted, as it was in the charge of the judge to the jury, giving a correct basis upon which there might be a recovery of damages, and there is testimony tending to show damages in at least the sum awarded by the Commission, there is no prejudicial error because of the erroneous calculation of the Commission which was the basis of its award. Other questions are argued, but they are disposed of satisfactorily in the opinion of the Circuit Court of Appeals (269 Fed. supra), and in the opinion of the trial judge upon the motion for a new trial (263 Fed. supra). It follows that the judgment of the Circuit Court of Appeals must be Affirmed.

191 U.S. 138 (1903) SMITH v. INDIANA. No. 81. Supreme Court of United States. Argued October 22, 23, 1903. Decided November 16, 1903. ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA. *139 Mr. Horace E. Smith, with whom Mr. Roscoe O. Hawkins was on the brief, for plaintiff in error. Mr. Cassius C. Hadley, with whom Mr. Charles W. Miller, Attorney General of the State of Indiana, Mr. L.G. Rothschild and Mr. William C. Geake, were on the brief, for defendant in error. *148 MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court. The constitutionality of the exemption law of Indiana was apparently the only question raised by the parties. It was argued elaborately, both in the Circuit and Supreme Court of the State, and was finally affirmed by a majority of the latter court. The power of the county auditor, who is charged by law with the duty of making the assessment, to refuse to allow the relators their exemption upon the ground of the unconstitutionality of the act, does not appear to have been raised in the state courts, and is not noticed in either opinion of the Supreme Court. In fact, the celerity of the proceedings and the admissions of counsel indicate that the suit was begun and carried on for the purpose of testing the constitutionality of the law, and that the litigation was at least not an unfriendly one. We have no doubt of the power of state courts to assume jurisdiction of the case if they choose to do so, although there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that in his opinion it is repugnant to the Constitution. It is but just to say, however, that the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event, it is a purely local question, and seems to have been so treated by this court in Huntington v. Worthen, 120 U.S. 97, 101. Different considerations, however, apply to the jurisdiction of this court, which we have recently held can only be invoked by a party having a personal interest in the litigation. It follows that he cannot sue out a writ of error in behalf of third persons. Tyler v. Judges of Court of Registration, 179 U.S. 405; Clark v. Kansas City, 176 U.S. 114; Turpin v. Lemon, 187 U.S. 51; Lampasas v. Bell, 180 U.S. 276; Ludeling v. Chaffe, 143 U.S. 301; Giles v. Little, 134 U.S. 645. These authorities *149 control the present case. It is evident that the auditor had no personal interest in the litigation. He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their non-performance was equally so. He neither gained nor lost anything by invoking the advice of the Supreme Court as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers, and in this particular the case is analogous to that of Caffrey v. Oklahoma, 177 U.S. 346. We think the interest of an appellant in this court should be a personal and not an official interest, and that the defendant, having sought the advice of the courts of his own State in his official capacity, should be content to abide by their decision. It is true there seems to have been a personal judgment in form against the defendant for costs, the amount of which, however, has never been taxed, and when taxed and paid would probably be reimbursed to him. It was formerly held, under the practice which disqualified interested witnesses, that a liability for costs was sufficient to render a witness incompetent. 1 Greenl. Ev. secs. 401, 402. But it seems to be well settled that even if the fact that costs are awarded against a party, gives him an appealable interest, of which there appears to be considerable doubt, Travis v. Waters, 12 Johns. 500; Reid v. Vanderheyden, 5 Cow. 719, 736, it does not give him an appealable interest in the judgment upon the merits, but limits him to the mere question of costs. Studabaker v. Markley, 7 Ind. App. 368; Hone v. Schaick, 7 Paige, 221; Card v. Bird, 10 Paige, 426; Cuyler v. Moreland, 6 Paige, 273. If plaintiff in error objected to this judgment for costs he might have moved to modify it in that particular. Not having done so, his appeal is presumptively from the judgment on the merits, American Ins. Co. v. Gibson, 104 Indiana, 336, 342, and as his individual rights were not affected by such judgment, he is not entitled to an appeal. The fact that the various statutes fixing the jurisdiction of *150 the Circuit Courts of the United States, and of this court, which from the original Judiciary Act of 1789 have, where the amount involved was made the test of jurisdiction, uniformly used the words "exclusive of costs," would indicate, so far as the Federal courts are concerned, that a mere judgment for costs could not ordinarily be made the basis of an appeal to this court. For the reasons above given, the appellant did not have the requisite interest to maintain this appeal, and it is therefore Dismissed. MR. JUSTICE HARLAN and MR. JUSTICE WHITE are of opinion that the plaintiff in error was entitled to prosecute the present writ, and that the court should determine the case upon its merits.

81 U.S. 531 (1871) 14 Wall. 531 MORGAN v. UNITED STATES. Supreme Court of United States. *533 Messrs. N. Chipman, Carlisle, and McPherson, for the claimants. Mr. C.H. Hill, Assistant Attorney-General, contra. *534 Mr. Justice DAVIS delivered the opinion of the court. These claimants cannot recover, on the ground that the injuries to their vessel were occasioned by the tortious act of the quartermaster at Brazos in compelling their master, against his better judgment, to proceed to sea; nor would their condition be improved if the vessel had been actually impressed into the service of the United States, for in neither case would the Court of Claims have jurisdiction.[*] Congress has wisely reserved to itself the right to give or withhold relief where the claim is founded on the wrongful proceedings of an officer of the government. The case, therefore, rests wholly on the contract of affreightment, and the inquiry is, which of the parties to it must bear the loss caused by the stranding of the claimants' vessel on the bar at the mouth of the harbor of Brazos. The stipulations in the contract applicable to this subject leave no room for doubt how the question should be answered. The United States, being in a state of war, found it necessary to hire the injured vessel for the purpose of transporting troops and munitions of war to different ports and places, and entered into a contract with her owners to carry this purpose into effect. The vessel was to be officered and manned by the owners, who agreed at all times to keep her in repair and fit for the service in which she was engaged. In no sense were the United States the owners of the vessel, for they had nothing to do with her management, and only reserved to themselves the right to say how she should be loaded and where she should go. In the condition of things then existing it became necessary to make provision for two classes of perils. This was done; the *535 United States assuming the war risk, while the owners of the boat agreed to bear the marine risk. If, therefore, the stranding of the boat in going over the bar was owing to a peril of the sea, her owners, and not the government, must bear the loss. That the high wind and low stage of water were the efficient agents in producing this disaster are too plain for controversy. They were the proximate causes of it, and in obedience to the rule "causa proxima non remota spectatur" we cannot proceed further in order to find out whether the fact of war did not create the exigency which compelled the employment of the vessel. If it did, it was known to the owners when the charter-party was formed, who, with this knowledge, became their own insurers against the usual sea risks, and must abide the consequences of their stipulation. There is a certain degree of hardship in this case growing out of the peremptory order of the quartermaster to proceed to sea, but this is outside of the contract, and, if worthy of being considered at all, must be addressed to another department of the government. JUDGMENT AFFIRMED. NOTES [*] Recd v. United States, 11 Wallace, 591; United States v. Kimbal, 13 Id. 636

163 U.S. 631 (____) UNITED STATES v. FITCH. No. 828. Submitted with No. 422. Supreme Court of United States. Error to the Supreme Court of the State of New York. Mr. Solicitor General for plaintiffs in error. Mr. Benjamin F. Dos Passos and Mr. Edgar J. Levey for defendant in error. MR. JUSTICE BROWN. In this case George W. Cullum, a resident of the State of New York, died in the city of New York on February 28, 1892, leaving a last will and testament, which, on the 30th day of April, 1892, was duly admitted to probate. By this will the testator bequeathed to the United States government the sum of $175,100, upon which, by order of the Surrogate's Court, there was assessed an inheritance tax of $8755. The case does not differ in principle from the one above decided, and the judgment of the court below is, therefore, Affirmed. MR. JUSTICE HARLAN dissented.

(Slip Opinion) OCTOBER TERM, 2008 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus UNITED STATES v. NAVAJO NATION CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 07-1410. Argued February 23, 2009 - Decided April 6, 2009 The Navajo Nation has long sought damages under the Indian Tucker Act (ITA) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a roy alty rate increase under a coal lease (Lease 8580) the Tribe executed in 1964. Six years ago, this Court held that "the Tribe's claim for compensation . . . fails." United States v. Navajo Nation, 537 U. S. 488, 493 (Navajo I). The Court explained that in order to invoke the ITA and thereby bypass federal sovereign immunity, a tribe "must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." Id., at 506. Holding that such duties were not imposed by the Indian Mineral Leasing Act of 1938 (IMLA), by the Indian Mineral Development Act of 1982 (IMDA), or by 25 U. S. C. §399, the Court reversed a judgment for the Tribe and re manded. The Court of Federal Claims then dismissed the Tribe's claim, but the Federal Circuit reversed, finding violations of duties imposed by the Navajo-Hopi Rehabilitation Act of 1950, 25 U. S. C. §§635(a), 638, and the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e), as well as common-law duties arising from the Government's "comprehensive control" over tribal coal. Held: The Tribe's claim for compensation fails. None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its lawsuit than those analyzed in Navajo I. Pp. 8-14. (a) Navajo I did not definitively terminate the Tribe's claim. Be cause the Court in that case did not analyze statutes other than the IMLA, the IMDA, and §399, it is conceivable, albeit unlikely, that an other relevant statute might have provided a basis for the suit. How 2 UNITED STATES v. NAVAJO NATION Syllabus ever, Navajo I's reasoning - particularly its instruction to "train on specific rights-creating or duty-imposing statutory or regulatory pre scriptions," 537 U. S., at 506 - left no room for that result based on the sources of law relied on below. P. 8. (b) Lease 8580 was not issued under §635(a), so the Tribe cannot invoke that law as a source of money-mandating duties. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows "terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." §396a. Mirroring the latter language, Lease 8580's indefinite term strongly suggests that it was negotiated and approved under the IMLA. This conclusion is not refuted by §635(a)'s saving clause or by testimony that coal leasing was a centerpiece of the Rehabilitation Act's program. Pp. 8-11. (c) Also unavailing is the argument that the Secretary violated §638's requirement that he follow the Tribe's recommendations in administering the "program authorized by this subchapter." The word "program" refers back to §631, which directs the Secretary to undertake "a program of basic improvements for the conservation and development of the [Tribe's] resources" and lists various projects to be included in the program. The statute certainly does not require the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act. Pp. 11-12. (d) Title 30 U. S. C. §1300(e) is irrelevant. That provision applies only "[w]ith respect to leases issued after" the statute was enacted in 1977. Lease 8580 was issued in 1964; §1300(e) is therefore inappli cable. Pp. 12-13. (e) The Government's "comprehensive control" over Indian coal, alone, does not create enforceable fiduciary duties. The ITA limits cognizable claims to those arising under, inter alia, "the . . . laws . . . of the United States," 28 U. S. C. §1505, and Navajo I reiterated that the analysis must begin with "specific rights-creating or duty imposing statutory or regulatory prescriptions," 537 U. S., at 506. If a statute or regulation imposes a trust relationship, then common law principles are relevant in determining whether damages are available for breach of the duty, but the Tribe cannot identify a spe cific, applicable, trust-creating statute or regulation that the Gov ernment violated, so trust principles do not come into play here. Pp. 13-14. 501 F. 3d 1327, reversed and remanded. SCALIA, J., delivered the opinion for a unanimous Court. SOUTER, J., filed a concurring opinion, in which STEVENS, J., joined.  Cite as: 556 U. S. ____ (2009) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 07-1410 _________________ UNITED STATES, PETITIONER v. NAVAJO NATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [April 6, 2009] JUSTICE SCALIA delivered the opinion of the Court. For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim for money damages against the Federal Government based on an asserted breach of trust by the Secretary of the Interior in connec tion with his approval of amendments to a coal lease executed by the Tribe. The original lease took effect in 1964. The amendments were approved in 1987. The litigation was initiated in 1993. Six years ago, we held that "the Tribe's claim for compensation . . . fails," United States v. Navajo Nation, 537 U. S. 488, 493 (2003) (Navajo I), but after further proceedings on remand the United States Court of Appeals for the Federal Circuit resusci tated it. 501 F. 3d 1327 (2007). Today we hold, once again, that the Tribe's claim for compensation fails. This matter should now be regarded as closed. I. Legal Background The Federal Government cannot be sued without its consent. FDIC v. Meyer, 510 U. S. 471, 475 (1994). Lim ited consent has been granted through a variety of stat utes, including one colloquially referred to as the Indian Tucker Act: 2 UNITED STATES v. NAVAJO NATION Opinion of the Court "The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which oth erwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group." 28 U. S. C. §1505. The last clause refers to the (ordinary) Tucker Act, which waives immunity with respect to any claim "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." §1491(a)(1). Neither the Tucker Act nor the Indian Tucker Act cre ates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts). United States v. Testan, 424 U. S. 392, 400 (1976); United States v. Mitchell, 445 U. S. 535, 538 (1980) (Mitchell I). The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it " 'can fairly be interpreted as mandating compensation by the Federal Government.' " Testan, supra, at 400 (quot ing Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)); see also United States v. Mitchell, 463 U. S. 206, 218 (1983) (Mitchell II); Navajo I, 537 U. S., at 503. As we explained in Navajo I, there are thus two hurdles that must be cleared before a tribe can invoke jurisdiction under the Indian Tucker Act. First, the tribe "must iden tify a substantive source of law that establishes specific  Cite as: 556 U. S. ____ (2009) 3 Opinion of the Court fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." Id., at 506. "If that threshold is passed, the court must then deter mine whether the relevant source of substantive law 'can fairly be interpreted as mandating compensation for dam ages sustained as a result of a breach of the duties [the governing law] impose[s].' " Ibid. (alteration in original). At the second stage, principles of trust law might be rele vant "in drawing the inference that Congress intended damages to remedy a breach." United States v. White Mountain Apache Tribe, 537 U. S. 465, 477 (2003). II. History of the Present Case A. The Facts A comprehensive recitation of the facts can be found in Navajo I, supra, at 495-502. By way of executive sum mary: The Tribe occupies a large Indian reservation in the American Southwest, on which there are significant coal deposits. In 1964 the Secretary of the Interior approved a lease (Lease 8580), executed by the Tribe and the prede cessor of Peabody Coal Company, allowing the company to engage in coal mining on a tract of the reservation in exchange for royalty payments to the Tribe. The term of the lease was set at "ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities," App. 189; it is still in effect today. The royalty rates were originally set at a maximum of 37.5 cents per ton of coal, but the lease also said that the rates were "subject to reasonable adjustment by the Secretary of the Interior" after 20 years and again "at the end of each successive ten-year period thereafter." Id., at 194. The dispute in this case concerns the Tribe's attempt to secure such an adjustment to the royalty rate after the initial 20-year period elapsed in 1984. At that point, the Tribe requested that the Secretary exercise his power to 4 UNITED STATES v. NAVAJO NATION Opinion of the Court increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds. Id., at 8-9. But Peabody filed an administrative appeal, and while it was pending the Tribe and the company reached a negotiated agreement to set a rate of 12.5 percent of gross proceeds instead. As a result, the Area Director's decision was vacated, the administrative appeal was dismissed, and the Secretary approved the amendments to the lease. B. This Litigation through Navajo I The Tribe launched the present lawsuit in 1993, claim ing that the Secretary's actions in connection with the approval of the lease amendments constituted a breach of trust. In particular, the Tribe alleged that the Secretary, following upon improper ex parte contacts with Peabody, had delayed action on Peabody's administrative appeal in order to pressure the economically desperate Tribe to return to the bargaining table. This, the complaint charged, was in violation of the United States' fiduciary duty to act in the Indians' best interests. The Tribe sought $600 million in damages, invoking the Indian Tucker Act to bypass sovereign immunity. The Court of Federal Claims granted summary judg ment to the United States, concluding that "the Navajo Nation has failed to present statutory authority which can be fairly interpreted as mandating compensation for the government's fiduciary wrongs," Navajo Nation v. United States, 46 Fed. Cl. 217, 236 (2000), and therefore could not sue under the Indian Tucker Act. The Federal Circuit reversed that ruling and held that the Indian Mineral Leasing Act of 1938 (IMLA), 52 Stat. 347, 25 U. S. C. §396a et seq., among other statutes, gave the Government broad control over mineral leasing on Indian lands, thus creating a fiduciary duty enforceable through suits for monetary damages. Navajo Nation v. United States, 263  Cite as: 556 U. S. ____ (2009) 5 Opinion of the Court F. 3d 1325, 1330-1332 (2001). Finding that the Govern ment had in fact violated its obligations, the Court of Appeals reinstated the suit. We granted certiorari, United States v. Navajo Nation, 535 U. S. 1111 (2002), and (as described by the author of the ensuing opinion, concurring in a companion case) considered "the threshold question" presented by the Tribe's attempt to invoke the Indian Tucker Act: "[W]hether the IMLA and its regulations impose any concrete substantive obligations, fiduciary or otherwise, on the Government," White Mountain, supra, at 480 (GINSBURG, J., concurring). The answer was an unequivo cal no. The relevant provision of the IMLA provided as follows: "[U]nallotted lands within any Indian reservation or lands owned by any tribe . . . may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 25 U. S. C. §396a. Another provision of the IMLA authorized the Secretary to promulgate regulations governing operations under such leases, §396d, but during the relevant period the regula tions applicable to coal leases, beyond setting a minimum royalty rate of 10 cents per ton, 25 CFR §211.15(c) (1985), did not limit the Secretary's approval authority. We construed the IMLA in light of its purpose: to "en hance tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties." Navajo I, 537 U. S., at 508. Consis tent with that goal, the IMLA gave the Secretary not a "comprehensive managerial role," id., at 507, but only the power to approve coal leases already negotiated by Tribes. That authority did not create, expressly or otherwise, a 6 UNITED STATES v. NAVAJO NATION Opinion of the Court trust duty with respect to coal leasing and so there existed no enforceable fiduciary obligations that the Tribe could sue the Government for having neglected. Id., at 507-508. We distinguished Mitchell II, which involved a series of statutes and regulations that gave the Federal Govern ment "full responsibility to manage Indian resources and land for the benefit of the Indians." 463 U. S., at 224. Title 25 U. S. C. §406(a) permitted Indians to sell timber with the consent of the Secretary of the Interior, but di rected the Secretary to base his decisions on "a considera tion of the needs and best interests of the Indian owner and his heirs" and enumerated specific factors to guide that decisionmaking. We understood that statute - in combination with several other provisions and the appli cable regulations - to create a fiduciary duty with respect to Indian timber. Mitchell II, supra, at 219-224. But neither the IMLA nor its regulations established any analogous duties or obligations in the coal context. Navajo I, supra, at 507-508. Nor did the other statutes cited by the Tribe - 25 U. S. C. §399 and the Indian Mineral Development Act of 1982 (IMDA), 96 Stat. 1938, 25 U. S. C. §2101 et seq. - help its case. Section 399 "is not part of the IMLA and [did] not govern Lease 8580," Navajo I, 537 U. S., at 509; rather, it granted to the Secretary the power to lease Indian land on his own say-so. We therefore found it irrelevant to the question whether "the Secretary's more limited approval role under the IMLA" created any en forceable duties. Ibid. And while the IMDA did set stan dards to govern the Secretary's approval of other mining related agreements, Lease 8580 "falls outside the IMDA's domain," ibid.; that law was accordingly beside the point. Having resolved that "we ha[d] no warrant from any relevant statute or regulation to conclude that [the Secre tary's] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act," this Court  Cite as: 556 U. S. ____ (2009) 7 Opinion of the Court reversed the Federal Circuit's judgment in favor of the Tribe and "remanded for further proceedings consistent with this opinion." Id., at 514. C. Proceedings on Remand On remand, the Tribe argued that even if its suit could not be maintained on the basis of the IMLA, the IMDA, or §399, a "network" of other statutes, treaties, and regula tions could provide the basis for its claims. The Govern ment objected that our opinion foreclosed that possibility, but the Federal Circuit disagreed and remanded for con sideration of the argument in the first instance. 347 F. 3d 1327 (2003). The Court of Federal Claims, however, per sisted in its original decision to dismiss the Tribe's claim, explaining that nothing in the suggested "network" suc ceeded in tying "specific laws or regulatory provisions to the issue at hand," namely, the Secretary's approval of royalty rates in coal leases negotiated by tribes. 68 Fed. Cl. 805, 811 (2005). Once again the Federal Circuit reversed, this time relying primarily on three statutory provisions - two sections of the Navajo-Hopi Rehabilitation Act of 1950, 64 Stat. 46, 25 U. S. C. §§635(a), 638; and one section of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e) - to allow the Tribe's claim to proceed. The Court held that the Government had violated the specific duties created by those statutes, as well as "com mon law trust duties of care, candor, and loyalty" that arise from the comprehensive control over tribal coal that is exercised by the Government. 501 F. 3d 1327, 1346 (2007). Once again we granted the Government's petition for a writ of certiorari. 554 U. S. ___ (2008). 8 UNITED STATES v. NAVAJO NATION Opinion of the Court III. Analysis A. Threshold Matter The Government points to our categorical concluding language in Navajo I: "[W]e have no warrant from any relevant statute or regulation to conclude that [the Secre tary's] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act," 537 U. S., at 514. This proves, the Government claims, that this Court definitively terminated the Tribe's claim last time around, so that the lower court's later resurrection of the suit was flatly inconsistent with our mandate. But, to be fair, our opinion (like the Court of Appeals decision we were re viewing, Navajo Nation, 263 F. 3d, at 1327, 1330-1331) did not analyze any statutes beyond the IMLA, the IMDA, and §399. It is thus conceivable, albeit unlikely, that some other relevant statute, though invoked by the Tribe at the outset of the litigation, might have gone unmentioned by the Federal Circuit and unanalyzed by this Court. So we cannot say that our mandate completely fore closed the possibility that such a statute might allow for the Tribe to succeed on remand. What we can say, how ever, is that our reasoning in Navajo I - in particular, our emphasis on the need for courts to "train on specific rights-creating or duty-imposing statutory or regulatory prescriptions," 537 U. S., at 506 - left no room for that result based on the sources of law that the Court of Ap peals relied upon. B. 25 U. S. C. §635(a) The first of the two discussed provisions of the Navajo- Hopi Rehabilitation Act of 1950 - like the IMLA - permits Indians to lease reservation lands if the Secretary ap proves of the deal: "Any restricted Indian lands owned by the Navajo Tribe, members thereof, or associations of such mem bers . . . may be leased by the Indian owners, with the  Cite as: 556 U. S. ____ (2009) 9 Opinion of the Court approval of the Secretary of the Interior, for public, re ligious, educational, recreational, or business pur poses, including the development or utilization of natural resources in connection with operations under such leases. All leases so granted shall be for a term of not to exceed twenty-five years, but may include provisions authorizing their renewal for an additional term of not to exceed twenty-five years, and shall be made under such regulations as may be prescribed by the Secretary. . . . Nothing contained in this section shall be construed to repeal or affect any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law." 25 U. S. C. §635(a). The Tribe contends that this section renders the Govern ment liable for any breach of trust in connection with the approval of leases executed pursuant to the authority it grants. Whether or not that is so, the provision only even arguably matters if Lease 8580 was issued under its au thority. In Navajo I we presumed, as did the parties, that the lease had been issued pursuant to the IMLA. 537 U. S., at 495. But now the Tribe has changed its tune, and con tends that Lease 8580 was approved under §635(a), not under the IMLA at all. Brief for Respondent 39. The Government says otherwise. Section 635(a) permits leas ing only for "public, religious, educational, recreational, or business purposes," and the Government contends that mining is not embraced by those terms. While leases under §635(a) may provide for "the development or utiliza tion of natural resources," they may do so only "in connec tion with operations under such leases," i.e., in connection with operations for the enumerated purposes. By con trast, mining leases were permitted and governed by the IMLA even before the Navajo-Hopi Rehabilitation Act was enacted in 1950. 10 UNITED STATES v. NAVAJO NATION Opinion of the Court We need not decide whether the Government is correct on that point, or whether mining could ever qualify as a "business purpose" under the statute, because the Tribe's argument suffers from a more fundamental problem. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows "for terms not to exceed ten years and as long thereafter as minerals are produced in paying quanti ties." 25 U. S. C. §396a. Lease 8580, mirroring the latter language, sets a term of "ten (10) years from the date hereof, and for so long thereafter as the substances pro duced are being mined by the Lessee in accordance with its terms, in paying quantities." App. 189. That indefinite lease term strongly suggests that it was negotiated by the Tribe and approved by the Secretary under the powers authorized by the IMLA, not the Rehabilitation Act. The Tribe's only responses to this apparently fatal defect in its argument are (1) that §635(a) expressly leaves unaffected "any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law," including the authority to lease for indefinite terms; and (2) that Stewart Udall, who served as Secretary of the Interior during the 1960's, recently testified that "coal leasing and related development was the centerpiece of the resources development program" under the Rehabilita tion Act, id., at 569. As to the former: That is precisely the point. Section 635(a) creates a supplemental authority for leasing Indian land; it does not displace authority granted elsewhere. But in light of the different conditions attached to the different grants, it is apparent that a particular lease must be executed and approved pursuant to a particular authorization. The saving clause in §635(a) does not allow the Tribe to mix-and-match, to combine the (allegedly) duty-creating mechanism of the Rehabilitation Act with the indefinite lease term of the IMLA. It must be one or  Cite as: 556 U. S. ____ (2009) 11 Opinion of the Court the other, and the record persuasively demonstrates that Lease 8580 is an IMLA lease. As to Secretary Udall's testimony: That is not inconsis tent with our conclusion. The Interior Department may have viewed coal leasing as an important part of the pro gram to rehabilitate the Navajo Tribe but that does not prove that Lease 8580 was issued pursuant to the supple mental leasing authority granted by the Rehabilitation Act, rather than the pre-existing leasing authority of the IMLA preserved by the Rehabilitation Act. The latter, perhaps because of its longer lease terms, was evidently preferable to the Tribe or the coal company or both. Because the lease in this case "falls outside" §635(a)'s "domain," Navajo I, supra, at 509, the Tribe cannot invoke it as a source of money-mandating rights or duties. C. 25 U. S. C. §638 Next, the Tribe points to a second provision in the Na vajo-Hopi Rehabilitation Act: "The Tribal Councils of the Navajo and Hopi Tribes and the Indian communities affected shall be kept in formed and afforded opportunity to consider from their inception plans pertaining to the program au thorized by this subchapter. In the administration of the program, the Secretary of the Interior shall con sider the recommendations of the tribal councils and shall follow such recommendations whenever he deems them feasible and consistent with the objec tives of this subchapter." 25 U. S. C. §638. In the Tribe's view, the Secretary violated this provision by failing promptly to abide by its wishes to affirm the Area Director's order increasing the royalty rate under Lease 8580 to a full 20 percent of gross proceeds. We cannot agree. The "program" twice mentioned in §638 refers back to the Act's opening provision, which 12 UNITED STATES v. NAVAJO NATION Opinion of the Court directs the Secretary to undertake "a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians, the more pro ductive employment of their manpower, and the supplying of means to be used in their rehabilitation." §631. The statute then enumerates various projects to be included in that program, and authorizes appropriation of funds (in specific amounts) for each. E.g., "Soil and water conserva tion and range improvement work, $10,000,000." §631(1). The only listed project even remotely related to this case is "[s]urveys and studies of timber, coal, mineral, and other physical and human resources." §631(3). Of course a lease is neither a survey nor a study. To read §638 as imposing a money-mandating duty on the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act, and to allow for the enforcement of that duty through the Indian Tucker Act, would simply be too far a stretch. D. 30 U. S. C. §1201 et seq. The final statute invoked by the Tribe is the most easily dispensed with. The Surface Mining Control and Recla mation Act of 1977 (SMCRA), 91 Stat. 445, 30 U. S. C. §1201 et seq., is a comprehensive statute that regulates all surface coal mining operations. See generally §1202; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 268-272 (1981). One section of the Act, §1300, deals with coal mining specifically on Indian lands, and the Tribe cites subsection (e): "With respect to leases issued after [the date of enactment of this Act], the Secretary shall include and enforce terms and conditions in addition to those required by subsections (c) and (d) of this section as may be requested by the Indian tribe in such leases." According to the Tribe, this provision requires the Sec retary to enforce whatever terms the Indians request with  Cite as: 556 U. S. ____ (2009) 13 Opinion of the Court respect to coal leases. In light of the fact that the refer enced subsections (c) and (d) refer exclusively to environ mental protection standards, that interpretation is highly suspect. In any event, because Lease 8580 was issued in 1964 - some 13 years before the date of enactment of the SMCRA - the provision is categorically inapplicable. The Federal Circuit concluded otherwise on the theory that the amendments to the lease were approved after 1977. But §1300(e) is limited to leases "issued" after that date; and even the Tribe does not contend that a lease is "issued" whenever it is amended. The SMCRA is irrelevant here. E. Government's "Comprehensive Control" over Coal The Federal Circuit's opinion also suggested that the Government's "comprehensive control" over coal on Indian land gives rise to fiduciary duties based on common-law trust principles. It noted that the Government had con ducted surveys and studies of the Tribe's coal resources, 501 F. 3d, at 1341; that the Interior Department imposed various requirements on coal mining operations on Indian land - regulating, for example, "signs and markers, post mining use of land, backfilling and grading, waste dis posal, topsoil handling, protection of hydrologic systems, revegetation, and steep-slope mining," id., at 1342; and that the Government in practice exercised control over the calculation of coal values and quantities for royalty pur poses, even though such control was codified by regulation only after the events at issue here, id., at 1342-1343. The Federal Government's liability cannot be premised on control alone. The text of the Indian Tucker Act makes clear that only claims arising under "the Constitution, laws or treaties of the United States, or Executive orders of the President" are cognizable (unless the claim could be brought by a non-Indian plaintiff under the ordinary Tucker Act). 28 U. S. C. §1505. In Navajo I we reiterated that the analysis must begin with "specific rights-creating 14 UNITED STATES v. NAVAJO NATION Opinion of the Court or duty-imposing statutory or regulatory prescriptions." 537 U. S., at 506. If a plaintiff identifies such a prescrip tion, and if that prescription bears the hallmarks of a "conventional fiduciary relationship," White Mountain, 537 U. S., at 473, then trust principles (including any such principles premised on "control") could play a role in "in ferring that the trust obligation [is] enforceable by dam ages," id., at 477. But that must be the second step of the analysis, not (as the Federal Circuit made it) the starting point. Navajo I determined that the IMLA, which governs the lease at issue here, does not create even a " 'limited trust relationship' " with respect to coal leasing. Navajo I, su pra, at 508 (quoting Mitchell I, 445 U. S., at 542). Since the statutes discussed in the preceding subparts, supra, at 8-13, do not apply to the lease at all, they likewise create no such relationship. Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the ques tion whether the trust duty was money mandating. Thus, neither the Government's "control" over coal nor common law trust principles matter. * * * None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its breach-of-trust lawsuit against the Federal Government than those we analyzed in Navajo I. This case is at an end. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to affirm the Court of Federal Claims' dismissal of the Tribe's complaint. It is so ordered.  Cite as: 556 U. S. ____ (2009) 1 SOUTER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 07-1410 _________________ UNITED STATES, PETITIONER v. NAVAJO NATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [April 6, 2009] JUSTICE SOUTER, with whom JUSTICE STEVENS joins, concurring. I am not through regretting that my position in United States v. Navajo Nation, 537 U. S. 488, 514-521 (2003) (dissenting opinion), did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here.

279 U.S. 816 49 S.Ct. 341 73 L.Ed. 973 The UNITED STATES of America, complainant,v.The STATE OF UTAH. No. 15, original. Supreme Court of the United States March 11, 1929 ORDER 1 On consideration of the motion by the United States for the appointment of a Special Master to take the evidence in this case and report the same to this Court with his findings of fact, conclusions of law, and recommendations for a decree, 2 It is now here ordered that Charles Warren, of Washington, D. C., be, and he is hereby, appointed a Special Master with the powers of a Master in Chancery, as provided in the rules of this Court, to take the evidence viva voce or by deposition and to report the same to the Court with his findings of fact, conclusions of law, and recommendations for a decree-all subject to examination, consideration, approval, modification, or other disposal by the Court. 3 The Special Master shall have authority (1) to employ competent stenographic and clerical assistants, (2) to fix the times and places of taking the evidence and to limit the time within which each party shall present its evidence, and (3) to issue subpoenas to secure the attendance of witnesses and to administer oaths. Depositions of witnesses residing at any place may be taken upon stipulation of the parties, or by the mode provided in the rules of practice for the Courts of Equity of the United States, or as provided by sections 863, 865-867 of the Revised Statutes (28 USCA §§ 639, 641, 644, 645) for the taking of depositions de bene esse in the District Court, or as may be directed by the Master. They may be returned in the first instance to the Master. When the Special Master's report of his findings of fact, conclusions of law, and recommendations for a decree is completed, the Clerk of the Court shall cause the same to be printed; and when the same is presented to the Court in printed form, the parties will be accorded a reasonable time, to be fixed by the Court, within which to present exceptions. The Special Master shall be allowed his actual expenses and a reasonable compensation for his services, to be fixed hereafter by the Court. The allowance to him, the compensation paid to his stenographic and clerical assistants, and the cost of printing his report shall be charged against and be borne by the parties in such proportions as the Court hereafter may direct. 4 If the appointment herein made of a Special Master is not accepted, or if the place becomes vacant during the recess of the Court, the Chief Justice shall have authority to make a new designation, which shall have the same effect as if originally made by the Court herein.

138 U.S. 397 (1891) BEAUPRE v. NOYES. No. 160. Supreme Court of United States. Argued and submitted January 23, 1891. Decided February 2, 1891. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. *401 Mr. I.V.D. Heard for plaintiffs in error, submitted on his brief. Mr. C.K. Davis for defendants in error. MR. JUSTICE HARLAN delivered the opinion of the court. The contention of the plaintiffs in error is, that by the statutes of the Territory of Montana, above quoted, the alleged assignment by Young to Winchester was conclusively fraudulent as to them, for the want of the immediate delivery, followed by an actual and continued change of possession, of the goods assigned; that their right to so treat the assignment, although such right was specially set up and claimed, was denied; and that, consequently, they were denied a right arising under an authority exercised under the United States. Whether the state court so interpreted the Territorial statute as to deny such right to the plaintiffs in error, we need not inquire, for it proceeded, in part, upon another and distinct ground, not involving any federal question, and sufficient, in itself, to maintain the judgment, without reference to that question. That ground is, that there was evidence tending to *402 show that the defendants acquiesced in and assented to all that was done, and waived any irregularity in the mode in which the assignee conducted the business; and that the question whether the defendants so acquiesced and assented with knowledge of all the facts and thereby waived their right to treat the assignment as fraudulent, was properly submitted to the jury. The state court evidently intended to hold that, even if the assignment was originally fraudulent, as against the creditors, by reason of Young remaining in the store as clerk for Winchester, and assisting the latter in carrying on the business, it was competent for the plaintiffs in error to waive the fraud and treat the assignment as valid for all the purposes specified in it. That view does not involve a federal question. Whether sound or not, we do not inquire. It is broad enough, in itself, to support the final judgment, without reference to the federal question, and for that reason the judgment must be Affirmed.

336 U.S. 207 (1949) REYNOLDS, ADMINISTRATRIX, v. ATLANTIC COAST LINE RAILROAD CO. No. 234. Supreme Court of United States. Argued January 10, 1949. Decided February 14, 1949. CERTIORARI TO THE SUPREME COURT OF ALABAMA. J. Kirkman Jackson argued the cause and filed a brief for petitioner. Peyton D. Bibb argued the cause for respondent. With him on the brief was Charles Cook Howell. PER CURIAM. The petitioner brought this suit under the Federal Employers' Liability Act in an Alabama state court. As permitted by the practice in that state, all the facts which the petitioner expected to prove to establish her *208 cause of action were set forth in the complaint so that any objections to a verdict in her favor based on evidence of those facts could be disposed of prior to trial. The respondent demurred to the complaint on the ground that the facts as thus set forth did not constitute a cause of action. The demurrer was sustained by the trial court and its action was affirmed by the Supreme Court of Alabama.[1] We granted certiorari.[2] It appears from the complaint that the petitioner's husband was a brakeman whose duties customarily required him to cross between cars on moving freight trains. On one such crossing he fell and was killed. This crossing occurred as part of a required journey from the caboose to a car from which a signal was to be given. The signal ordinarily would have been given from the sixth car from the caboose. The complaint charged, however, that because the railroad had negligently allowed canes to grow alongside the roadbed the deceased could not safely signal from the sixth car and so had to cross to the seventh in order to give the required signal. On this additional crossing he was killed. The complaint also charged that the deceased would not have had to make this particular journey at all if the railroad had provided a competent assistant brakeman. Neither the journey nor the crossing on which the accident occurred was alleged to be any more hazardous than that usually undertaken by railroad brakemen. The Alabama Supreme Court conceded that the complaint adequately charged negligence in the failure to remove the canes and in the failure to provide a competent fellow servant. It held, however, that the facts alleged did not show that the accident resulted proximately, *209 in whole or in part, from that negligence. We cannot say that the Supreme Court of Alabama erred. Affirmed. MR. JUSTICE FRANKFURTER is of opinion that this is also a case in which the petition for certiorari should not have been granted. See Wilkerson v. McCarthy, 336 U.S. 53, 64 (concurring opinion). However, inasmuch as the case does not call for an independent examination of the record in order to appraise conflicting testimony, but merely turns on the facts presented in the pleadings, he joins in the Court's disposition of it. MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE dissent. See Lillie v. Thompson, 332 U.S. 459; Anderson v. Atchison, T. & S.F.R. Co., 333 U.S. 821. NOTES [1] 251 Ala. 27, 36 So.2d 102 (1948). [2] 335 U.S. 852 (1948).

103 U.S. 597 (____) SWAN v. ARTHUR. FLEITMAN v. ARTHUR. FLEGENHEIM v. ARTHUR. Supreme Court of United States. Mr. Stephen G. Clarke for the plaintiffs in error. Mr. Assistant Attorney-General Smith, contra. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. Sect. 8 of the tariff act of June 30, 1864, c. 171 (13 Stat. 210), provides for the levy and collection of duties on imports, as follows: - "On all dress and piece silks, ribbons, and silk velvets, or velvets of which silk is the component material of chief value, sixty per centum ad valbrem. On silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watch chains, webbing, braids, fringes, galloons, tassels, cords, and trimmings, sixty per centum ad valorem. "On all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, fifty per centum ad valorem." In one of the cases the importation was of laces, in another cigar ribbons, and in the other galloons and braids. The articles in each case were made of silk and cotton, but the silk preponderated so largely that they were substantially silk. The collector charged them with duties at the rate of sixty per cent ad valorem, as silk laces, ribbons, galloons, and braids, while the importers claimed they were dutiable at fifty per cent only, as manufactures of which silk was the component material of chief value, not otherwise provided for. These *598 suits were brought to recover back what had been paid in excess of fifty per cent. In the cases for the laces, galloons, and braids the evidence was positive and uncontradicted to the effect that they were substantially made of silk, and there was no claim that they were commercially known otherwise than as silk goods. Upon these facts the court directed a verdict in favor of the defendant. In the case for the ribbons, the jury was instructed that if the goods were made substantially of silk, and were not commercially regarded as different from silk ribbons, a verdict must also be returned for the defendant. In the last case there was some evidence which, it was claimed, showed that the particular kind of ribbon imported had, by usage, been taken out of the commercial designation of silk ribbons. These writs of error have been brought to reverse the judgments which followed from these rulings. We think the court below was right in the view it took of the law. While tariff acts are generally to be construed according to the commercial understanding of the terms employed, language will be presumed to have the same meaning in commerce that it has in ordinary use, unless the contrary is shown. Outside of commerce there can hardly be a doubt that laces, ribbons, galloons, and braids made substantially of silk would be denominated silk goods. Until, therefore, it was shown that they were regarded differently by dealers, it was right to class them as dutiable at sixty per cent. The burden of bringing them under the reduced rate was thrown on the importer. So far as the laces, galloons, and braids are concerned, there was no attempt to do so, and in respect to the ribbons the attempt that was made failed before the jury. We cannot believe that what are bought and sold in the market as dress or piece silks are not in commercial designation silks because they are to some extent adulterated with a cheaper fibre, if the silk so far predominates over the inferior material that it can be said they are made substantially of silk. If that is true of piece silks it certainly must be of laces, ribbons, galloons, and braids. So, in general, it may be said, as we think, that all goods made substantially of silk will be treated as silk commercially, unless it directly appears that commerce has given another name to the admixture. Judgments affirmed.

381 U.S. 761 (1965) ASSOCIATED FOOD RETAILERS OF GREATER CHICAGO, INC., ET AL. v. JEWEL TEA CO., INC. No. 321. Supreme Court of United States. Decided June 7, 1965. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Eugene Kart for petitioners. George B. Christensen, Fred H. Daugherty, Theodore A. Groenke and Samuel Weisbard for respondent. Solicitor General Cox for the United States, as amicus curiae, in support of the petition. PER CURIAM. The petition for writ of certiorari is granted and the judgment below is reversed. Meat Cutters v. Jewel Tea, ante, p. 676. MR. JUSTICE HARLAN, MR. JUSTICE STEWART and MR. JUSTICE GOLDBERG concur in the judgment of the Court for the reasons stated in MR. JUSTICE GOLDBERG'S opinion in United Mine Workers of America v. Pennington and Meat Cutters v. Jewel Tea, ante, at 697. MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK dissent.

Cite as: 558 U. S. ____ (2010) 1 Per Curiam SUPREME COURT OF THE UNITED STATES _________________ No. 09A648 _________________ DENNIS HOLLINGSWORTH ET AL. v. KRISTIN M. PERRY ET AL. ON APPLICATION FOR STAY [January 13, 2010] PER CURIAM. We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on oth ers, and must follow those requirements themselves. * * * This lawsuit, still in a preliminary stage, involves an action challenging what the parties refer to as Proposition 8, a California ballot proposition adopted by the electorate. Proposition 8 amended the State Constitution by adding a new section providing that "[o]nly marriage between a man and a woman is valid or recognized in California." Cal. Const. Art. I, §7.5. The plaintiffs contend that Propo sition 8 violates the United States Constitution. A bench trial in the case began on Monday, January 11, 2010, in the United States District Court for the Northern District of California. The District Court has issued an order permitting the trial to be broadcast live via streaming audio and video to a number of federal courthouses around the country. The 2 HOLLINGSWORTH v. PERRY Per Curiam order was issued pursuant to a purported amendment to a local Rule of the District Court. That Rule had previously forbidden the broadcasting of trials outside the courthouse in which a trial takes place. The District Court effected its amendment via several postings on the District Court's Web site in the days immediately before the trial in this case was to begin. Applicants here are defendant-intervenors in the law suit. They object to the District Court's order, arguing that the District Court violated a federal statute by prom ulgating the amendment to its local Rule without suffi cient opportunity for notice and comment and that the public broadcast would violate their due process rights to a fair and impartial trial. Applicants seek a stay of the order pending the filing of petitions for writs of certiorari and mandamus. We granted a temporary stay to consider the issue further. Post, p. ___. Concluding that the appli cants have made a sufficient showing of entitlement to relief, we now grant a stay. I Proposition 8 was passed by California voters in No vember 2008. It was a ballot proposition designed to overturn a ruling by the California Supreme Court that had given same-sex couples a right to marry. Proposition 8 was and is the subject of public debate throughout the State and, indeed, nationwide. Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. See, e.g., Reply Brief for Ap pellant 28-29 in Citizens United v. Federal Election Comm'n, No. 08-205, now pending before this Court. For example, donors to groups supporting Proposition 8 "have received death threats and envelopes containing a pow dery white substance." Stone, Prop 8 Donor Web Site Shows Disclosure is a 2-Edged Sword, N. Y. Times, Feb. 8, 2009. Some advocates claim that they have received  Cite as: 588 U. S. ____ (2010) 3 Per Curiam confrontational phone calls and e-mail messages from opponents of Proposition 8, ibid., and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment, see Brief for Center for Competitive Politics as Amicus Curiae 13-14, in Citizens United v. Federal Election Comm'n, No. 08-205, now pending before this Court. Opponents of Proposition 8 also are alleged to have compiled "Internet blacklists" of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for sup porting the ballot measure. Carlton, Gay Activists Boycott Backers of Prop 8, Wall Street Journal, Dec. 27, 2008, A3. And numerous instances of vandalism and physical vio lence have been reported against those who have been identified as Proposition 8 supporters. See Exhs. B, I, and L to Defendant-Intervenors' Motion for Protective Order in Perry v. Schwarzenegger, No. 3:09-cv-02292 (ND Cal.) (hereinafter Defendant-Intervenors' Motion). Respondents filed suit in the United States District Court for the Northern District of California, seeking to invalidate Proposition 8. They contend that the amend ment to the State's Constitution violates the Equal Protec tion and Due Process Clauses of the Fourteenth Amend ment of the United States Constitution. The State of California declined to defend Proposition 8, and the defen dant-intervenors (who are the applicants here) entered the suit to defend its constitutionality. A bench trial began on Monday, January 11, 2010, before the Chief Judge of the District Court, the Honorable Vaughn R. Walker. On September 25, 2009, the District Court informed the parties at a hearing that there was interest in the possibil ity that the trial would be broadcast. Respondents indi cated their support for the idea, while applicants opposed it. The court noted that "[t]here are, of course, Judicial Conference positions on this," but also that "[t]his is all in flux." Exh. 9, p. 72, App. to Pet. for Mandamus in No. 10- 4 HOLLINGSWORTH v. PERRY Per Curiam 70063 (CA9) (hereinafter App. to Pet.). One month later, Chief Judge Kozinski of the United States Court of Appeals for the Ninth Circuit appointed a three-judge committee to evaluate the possibility of adopt ing a Ninth Circuit Rule regarding the recording and transmission of district court proceedings. The committee (of which Chief Judge Walker was a member) recom mended to the Ninth Circuit Judicial Council that district courts be permitted to experiment with broadcasting court proceedings on a trial basis. Chief Judge Walker later acknowledged that while the committee was considering the pilot program, "this case was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration." Id., Exh. 2, at 42. The committee did not publicly disclose its consideration of the proposal, nor did it solicit or receive public comments on the proposal. On December 17, the Ninth Circuit Judicial Council issued a news release indicating that it had approved a pilot program for "the limited use of cameras in federal district courts within the circuit." Id., Exh. 13, at 1. The release explained that the Council's decision "amend[ed] a 1996 Ninth Circuit policy" that had banned the photo graphing, as well as radio and television coverage, of court proceedings. Ibid. The release further indicated that cases would be selected for participation in the program "by the chief judge of the district court in consultation with the chief circuit judge." Ibid. No further guidelines for participation in the pilot program have since been issued. On December 21, a coalition of media companies re quested permission from the District Court to televise the trial challenging Proposition 8. Two days later, the court indicated on its Web site that it had amended Civil Local Rule 77-3, which had previously banned the recording or broadcast of court proceedings. The revised version of  Cite as: 588 U. S. ____ (2010) 5 Per Curiam Rule 77-3 created an exception to this general prohibition to allow "for participation in a pilot or other project au thorized by the Judicial Council of the Ninth Circuit." Id., Exh. 14. Applicants objected to the revision, arguing that any change to Ninth Circuit or local rules would require a sufficient notice and comment period. On December 31, the District Court revised its Web site to remove the previous announcement about the change to Rule 77-3. A new announcement was posted indicating a "proposed revision of Civil Local Rule 77-3," which had been "approved for public comment." Id., Exh. 17. The proposed revision was the same as the previously an nounced amendment. Comments on the proposed revision were to be submitted by Friday, January 8, 2010. On January 4, 2010, the District Court again revised its Web site. The announcement regarding the proposed revision of Rule 77-3 was removed and replaced with a third version of the announcement. This third version stated that the revised Rule was "effective December 22, 2009," and that "[t]he revised rule was adopted pursuant to the 'immediate need' provision of Title 28 Section 2071(e)." Id., Exh. 19, at 3. On January 6, 2010, the District Court held a hearing regarding the recording and broadcasting of the upcoming trial. The court announced that an audio and video feed of trial proceedings would be streamed live to certain court houses in other cities. It also announced that, pending approval of the Chief Judge of the Ninth Circuit, the trial would be recorded and then broadcast on the Internet. A court technician explained that the proceedings would be recorded by three cameras, and then the resulting broad cast would be uploaded for posting on the Internet, with a delay due to processing requirements. On January 7, 2010, the District Court filed an order formally requesting that Chief Judge Kozinski approve "inclusion of the trial in the pilot project on the terms and 6 HOLLINGSWORTH v. PERRY Per Curiam conditions discussed at the January 6, 2010, hearing and subject to resolution of certain technical issues." Id., Exh. 1, at 2. Applicants filed a petition for a writ of mandamus in the Court of Appeals, seeking to prohibit or stay the District Court from enforcing its order. The following day, a three-judge panel of the Court of Appeals denied the petition. On January 8, 2010, Chief Judge Kozinski issued an order approving the District Court's decision to allow real time streaming of the trial to certain federal courthouses listed in a simultaneously issued press release. Five locations had been selected: federal courthouses in San Francisco, Pasadena, Seattle, Portland, and Brooklyn. The press release also indicated that "[a]dditional sites may be announced." Federal Courthouses to Offer Remote Viewing of Proposition 8 Trial, online at Prop8_Remote_Viewing_Locations.pdf (as visited Jan. 13, 2010, and available in the Clerk of Court's case file). Chief Judge Kozinski's January 8 order noted that the request to broadcast the trial on the Internet was "still pending" before him. In a later letter to Chief Judge Walker, he explained that the request was not yet "ripe for approval" because "the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting." Letter of Jan. 9, 2010 (avail able in Clerk of Court's case file). A final decision whether to permit online publication would be made when techni cal difficulties were resolved. On January 9, 2010, applicants filed in this Court an application for a stay of the District Court's order. Their petition seeks a stay pending resolution of forthcoming petitions for the writs of certiorari and mandamus. II The question whether courtroom proceedings should be  Cite as: 588 U. S. ____ (2010) 7 Per Curiam broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and proce dures under which such broadcasts should occur. We do not here express any views on the propriety of broadcast ing court proceedings generally. Instead, our review is confined to a narrow legal issue: whether the District Court's amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court's actions. We therefore stay the court's January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court pro ceedings on the Internet, as this may be premature. A To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent. Lucas v. Townsend, 486 U. S. 1301, 1304 (1988) (KENNEDY, J., in chambers); Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). To obtain a stay pending the filing and dispo sition of a petition for a writ of mandamus, an applicant must show a fair prospect that a majority of the Court will vote to grant mandamus and a likelihood that irreparable harm will result from the denial of a stay. Before a writ of 8 HOLLINGSWORTH v. PERRY Per Curiam mandamus may issue, a party must establish that (1) "no other adequate means [exist] to attain the relief he de sires," (2) the party's "right to issuance of the writ is 'clear and indisputable,' " and (3) "the writ is appropriate under the circumstances." Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380-381 (2004) (some internal quotation marks omitted). This Court will issue the writ of mandamus directly to a federal district court "only where a question of public importance is involved, or where the question is of such a nature that it is peculiarly appropriate that such action by this court should be taken." Ex parte United States, 287 U. S. 241, 248-249 (1932). These familiar standards are followed here, where applicants claim that the District Court's order was based on a local rule adopted in violation of federal law. B Given the importance of the issues at stake, and our conclusion that the District Court likely violated a federal statute in revising its local rules, applicants have shown a fair prospect that a majority of this Court will either grant a petition for a writ of certiorari and reverse the order below or will grant a petition for a writ of mandamus. A district court has discretion to adopt local rules. Frazier v. Heebe, 482 U. S. 641, 645 (1987) (citing 28 U. S. C. §2071; Fed. Rule Civ. Proc. 83). Those rules have "the force of law." Weil v. Neary, 278 U. S. 160, 169 (1929). Federal law, however, requires a district court to follow certain procedures to adopt or amend a local rule. Local rules typically may not be amended unless the district court "giv[es] appropriate public notice and an opportunity for comment." 28 U. S. C. §2071(b); see also Fed. Rule Civ. Proc. 83(a). A limited exception permits dispensing with this notice-and-comment requirement only where "there is an immediate need for a rule." §2071(e). Even where a rule is amended based on imme  Cite as: 588 U. S. ____ (2010) 9 Per Curiam diate need, however, the issuing court must "promptly thereafter afford . . . notice and opportunity for comment." Ibid. Before late December, the court's Local Rule 77-3 ex plicitly banned the broadcast of court proceedings: "Unless allowed by a Judge or a Magistrate Judge with respect to his or her own chambers or assigned courtroom for ceremonial purposes, the taking of pho tographs, public broadcasting or televising, or re cording for those purposes in the courtroom or its en virons, in connection with any judicial proceeding, is prohibited. Electronic transmittal of courtroom pro ceedings and presentation of evidence within the con fines of the courthouse is permitted, if authorized by the Judge or Magistrate Judge. The term 'environs,' as used in this rule, means all floors on which cham bers, courtrooms or on which Offices of the Clerk are located, with the exception of any space specifically designated as a Press Room. Nothing in this rule is intended to restrict the use of electronic means to re ceive or present evidence during Court proceedings." Notably, the Rule excepted from its general ban the trans mittal of certain proceedings - but it limited that exception to transmissions "within the confines of the courthouse." The negative inference of this exception, of course, is that the Rule would have prohibited the streaming of trans missions, or other broadcasting or televising, beyond "the confines of the courthouse." Respondents do not dispute that this version of Rule 77- 3 would have prohibited streaming video of the trial around the country. But they assert that this is not the operative version of Rule 77-3. In a series of postings on its Web site, the District Court purported to revise or propose revisions to Local Rule 77-3. This amendment would have created an additional exception to Rule 77-3's 10 HOLLINGSWORTH v. PERRY Per Curiam general ban on the broadcasting of court proceedings "for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit." Exh. 14, App. to Pet. Respondents rely on this amended version of the Rule. The amended version of Rule 77-3 appears to be invalid. In amending this rule, it appears that the District Court failed to "giv[e] appropriate public notice and an opportu nity for comment," as required by federal law. 28 U. S. C. §2071(b). The first time the District Court asked for pub lic comments was on the afternoon of New Year's Eve. The court stated that it would leave the comment period open until January 8. At most, the District Court there fore allowed a comment period spanning five business days. There is substantial merit to the argument that this was not "appropriate" notice and an opportunity for com ment. Administrative agencies, for instance, "usually" provide a comment period of "thirty days or more." River bend Farms, Inc. v. Madigan, 958 F. 2d 1479, 1484 (CA9 1992); see Petry v. Block, 737 F. 2d 1193, 1201 (CADC 1984) ("[T]he shortest period in which parties can mean ingfully review a proposed rule and file informed re sponses is thirty days"). To be sure, the possibility that some aspects of the trial might be broadcast was first raised to the parties by the District Court at an in-court hearing on September 25, some three months before the Rule was changed. The broadcasting, however, was prohibited under both Circuit and local rules at that time. The first public indication that the District Court intended to adopt a rule of general applicability came in its Web site posting on December 23. And even if Chief Judge Walker's in-court allusion to the possibility that the Proposition 8 trial might be broadcast could be considered as providing notice to the parties in this case - his statement that "[t]his is all in flux" notwith standing - the disclosure falls far short of the "appropriate  Cite as: 588 U. S. ____ (2010) 11 Per Curiam public notice and an opportunity for comment" required by §2071(b). Indeed, there was no proposed policy on which to comment. The need for a meaningful comment period was particu larly acute in this case. Both courts and legislatures have proceeded with appropriate caution in addressing this question. In 1996, the Judicial Conference of the United States adopted a policy opposing the public broadcast of court proceedings. This policy was adopted after a multi year study of the issue by the Federal Judicial Center which drew on data from six district and two appellate courts, as well as state-court data. In light of the study's findings, the Judicial Conference concluded that "the intimidating effect of cameras on some witnesses and jurors [is] cause for concern." Report of the Proceedings of the Judicial Conference of the United States 47 (Sept. 20, 1994). In more than a decade since its adoption the Judicial Conference has continued to adhere to its position on the broadcast of court proceedings. While the policy conclu sions of the Judicial Conference may not be binding on the lower courts, they are "at the very least entitled to respect ful consideration." In re Sony BMG Music Entertainment, 564 F. 3d 1, 6 (CA1 2009). Before abandoning its own policy - one consistent with the Judicial Conference's longstanding views - it was incumbent on the District Court to adopt a proposed rule only after notice and an adequate period for public comment. In dispensing with public notice and comment the Dis trict Court invoked the "immediate need" exception. 28 U. S. C. §2071(e). It did so through a Web site posting on January 4 - prior to the expiration of the comment pe riod - indicating that Rule 77-3 had been revised to per mit participation in the Ninth Circuit's pilot program. These postings gave no explanation for invoking the ex ception. At trial the District Court explained that the 12 HOLLINGSWORTH v. PERRY Per Curiam immediate need here was to allow this case to be broad cast pursuant to the Ninth Circuit's new pilot program. See Exh. 1, p. 11, Supp. App. to Response for Perry et al. This does not qualify as an immediate need that justi fies dispensing with the notice and comment procedures required by federal law. While respondents (the plaintiffs in the District Court) had indicated their approval of the plan, no party alleged that it would be imminently harmed if the trial were not broadcast. Had an administrative agency acted as the District Court did here, the immediate need exception would likely not have been available. See 5 U. S. C. §553(b)(B) (administrative agencies cannot invoke an exception to affording notice-and-comment before rulemaking unless the notice-and-comment proce dures would be "impracticable, unnecessary, or contrary to the public interest"). In issuing its order the District Court relied on the Ninth Circuit Judicial Council's pilot program. Yet nothing in that program - which was not adopted after notice and comment procedures, cf. 28 U. S. C. §332(d)(1) - required any "immediate" revision in local rules. The Ninth Circuit Judicial Council did not purport to modify or abrogate the District Court's local Rule. Nor could it, as the Judicial Council only has the power to modify or abrogate local rules that conflict with federal law. See §332(d)(4) (permitting a circuit court council to modify a local rule that is "found inconsistent" with rules promulgated by the Supreme Court). No fed eral law requires that the District Court broadcast some of its cases. The District Court's local Rule, in addition, was not a conforming amendment to Ninth Circuit policy, because that policy does not require district courts to broadcast proceedings. Applicants also have shown that irreparable harm will likely result from the denial of the stay. Without a stay, the District Court will broadcast the trial. It would be difficult - if not impossible - to reverse the harm from  Cite as: 588 U. S. ____ (2010) 13 Per Curiam those broadcasts. The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast. See Estes v. Texas, 381 U. S. 532, 547 (1965); id., at 591 (Harlan, J., concurring). Some of appli cants' witnesses have already said that they will not tes tify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. See, e.g., Exh. K to Defendant-Intervenors' Motion (71 news articles detailing incidents of harassment related to people who supported Proposition 8). These concerns are not diminished by the fact that some of applicants' witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one's testimony broadcast throughout the country. Applicants may not be able to obtain ade quate relief through an appeal. The trial will have already been broadcast. It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings. The balance of equities favors applicants. While appli cants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast. The issue, moreover, must be resolved at this stage, for the injury likely cannot be undone once the broadcast takes place. This Court also has a significant interest in supervising the administration of the judicial system. See this Court's Rule 10(a) (the Court will consider whether the courts below have "so far departed from the accepted and usual 14 HOLLINGSWORTH v. PERRY Per Curiam course of judicial proceedings . . . as to call for an exercise of this Court's supervisory power"). The Court may use its supervisory authority to invalidate local rules that were promulgated in violation of an Act of Congress. See Fra zier, 482 U. S., at 645-646; id., at 652, 654 (Rehnquist, C. J., dissenting). The Court's interest in ensuring com pliance with proper rules of judicial administration is particularly acute when those rules relate to the integrity of judicial processes. The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place. The arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit, and reasonable minds can surely differ over the general and specific terms of rules and standards adopted for that purpose. Here, however, the order in question complied neither with existing rules or policies nor the required procedures for amending them. By insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law's own insistence on neutrality and fidelity to principle. Those systematic interests are all the more evident here, where the lack of a regular rule with proper standards to determine the guidelines for broadcasting could compro mise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments. These considerations, too, are part of the reasons leading to the decision to grant extraordinary relief. In addressing a discrete instance authorizing a closed circuit broadcast of a trial, Congress has illustrated the need for careful guidelines and standards. The trial of the two defendants in the Oklahoma City bombing case had been transferred to the United States District Court for the District of Colorado, so it was set to take place in  Cite as: 588 U. S. ____ (2010) 15 Per Curiam Denver. That meant the families of deceased and surviv ing victims in and around Oklahoma City would not have the opportunity to observe the trial. Congress passed a statute that allowed victims' families to watch the trial on closed-circuit television. 42 U. S. C. §10608. The statute was drawn with care to provide precise and detailed guid ance with respect to the wide range of issues implicated by the broadcast. See §10608(a) (the statute only applies "in cases where the venue of the trial is changed" to a city that is "out of the State" and "more than 350 miles from the location in which those proceedings originally would have taken place"); §§10608(a)-(b) (standards for who can view such trials); §10608(c) (restrictions on transmission). And the statute gave the Judicial Conference of the United States rulemaking authority "to effectuate the policy addressed by this section." §10608(g). In the present case, by contrast, over a span of three weeks the District Court and Ninth Circuit Judicial Council issued, retracted, and reissued a series of Web site postings and news releases. These purport to amend rules and policies at the heart of an ongoing consideration of broadcasting federal trials. And they have done so to make sure that one particular trial may be broadcast. Congress' requirement of a notice and comment procedure prevents just such arbitrary changes of court rules. Instead, courts must use the pro cedures prescribed by statute to amend their rules, 28 U. S. C. §2071. If Local Rule 77-3 had been validly revised, questions would still remain about the District Court's decision to allow broadcasting of this particular trial, in which several of the witnesses have stated concerns for their own secu rity. Even districts that allow trials to be broadcast, see Civ. Rule 1.8 (SDNY 2009); Civ. Rule 1.8 (EDNY 2009), recognize that a district judge's discretion to broadcast a trial is limited, see, e.g., Hamilton v. Accu-Tek, 942 F. Supp. 136, 138 (EDNY 1996) (broadcast forbidden 16 HOLLINGSWORTH v. PERRY Per Curiam unless "there is no interference with the due process, the dignity of litigants, jurors and witnesses, or with other appropriate aspects of the administration of justice"). Consequently, courts in those districts have allowed the broadcast of their proceedings on the basis that those cases were not high profile, E*Trade Financial Corp. v. Deutsche Bank AG, 582 F. Supp. 2d 528, 535 (SDNY 2008), or did not involve witnesses, Marisol A. v. Giuliani, 929 F. Supp. 660, 661 (SDNY 1996); Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580, 586-587 (SDNY 1996). Indeed, one District Court did not allow the broadcasting of its proceedings because the case "involv[ed] very sensi tive issues." Schoeps v. Museum of Modern Art, 599 F. Supp. 2d 532, 534 (SDNY 2009). This case, too, in volves issues subject to intense debate in our society. The District Court intends not only to broadcast the attorneys' arguments but also witness testimony. See Sony BMG, 564 F. 3d, at 11 (Lipez, J., concurring) (distinguishing broadcast of attorneys' arguments from other parts of the trial). This case is therefore not a good one for a pilot program. Even the studies that have been conducted thus far have not analyzed the effect of broadcasting in high profile, divisive cases. See Application for Stay 17 (warn ing by Judge Edward R. Becker that in " 'truly high-profile cases,' " one can " '[j]ust imagine what the findings would be' " (quoting Exh. 21, at 2, App. to Pet.)). III The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as  Cite as: 588 U. S. ____ (2010) 17 Per Curiam well. The Court grants the application for a stay of the District Court's order of January 7, 2010, pending the timely filing and disposition of a petition for a writ of certiorari or the filing and disposition of a petition for a writ of mandamus. It is so ordered.  Cite as: 558 U. S. ____ (2010) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09A648 _________________ DENNIS HOLLINGSWORTH ET AL. v. KRISTIN M. PERRY ET AL. ON APPLICATION FOR STAY [January 13, 2010] JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, dissenting. The Court today issues an order that will prevent the transmission of proceedings in a nonjury civil case of great public interest to five other federal courthouses located in Seattle, Pasadena, Portland, San Francisco, and Brooklyn. The Court agrees that it can issue this extraordinary legal relief only if (1) there is a fair chance the District Court was wrong about the underlying legal question, (2) that legal question meets this Court's certiorari standards, (3) refusal of the relief would work "irreparable harm," (4) the balance of the equities (including, the Court should say, possible harm to the public interest) favors issuance, (5) the party's right to the relief is "clear and undisputable," and (6) the "question is of public importance" (or otherwise "peculiarly appropriate" for such action). See ante, at 6-7; Rostker v. Goldberg, 448 U. S., 1306, 1308 (1980) (Bren nan, J., in chambers) (stay standard); Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380 (2004) (noting that mandamus is a "drastic and extraordinary remedy reserved for really extraordinary causes" (internal quotation marks omitted)). This case, in my view, does not satisfy a single one of these standards, let alone all of them. Consequently, I must dissent. First, consider the merits of the legal issue: The United States Code, in a chapter entitled "Rules of Courts," states 2 HOLLINGSWORTH v. PERRY BREYER, J., dissenting that "[a]ny rule . . . shall be prescribed only after giving appropriate public notice and an opportunity for com ment." 28 U. S. C. §2071(b). The question here is whether the District Court accompanied the modification of its antivideo rule with "appropriate public notice and an opportunity for comment." Certainly the parties themselves had more than ade quate notice and opportunity to comment before the Rule was changed. On September 25, 2009, the trial judge, Chief Judge Vaughn Walker, discussed the possibility of broadcasting trial proceedings both within the courthouse and beyond, and asked for the parties' views. No party objected to the presence of cameras in the courtroom for transmissions within the courthouse, Exh. 9, p. 70, App. to Pet. for Mandamus in No. 10-70063 (CA9) (hereinafter App. to Pet.). ("No objection. None at all"), and both sides made written submissions to the court regarding their views on other transmissions. The court again raised the issue at a hearing on December 16. Nor, in practice, did other members of the Judiciary lack information about the issue. In May 1996 the Circuit Council adopted a policy permitting video in connection with appellate proceedings, but prohibiting its use in the district court. Subsequently, appellate court panels have frequently permitted electronic coverage. Judges, the press, lawyers, and others have discussed the matter. In 2007 the lawyers and judges present at the Ninth Circuit Judicial Conference considered a resolution that favored the use of cameras in district court civil nonjury proceed ings. And, voting separately, both lawyers and judges "approved the resolution by resounding margins." Letter from Chief Judge Kozinski to Judge Anthony Scirica (Jan. 10, 2010), Exh. 8, p. 4, Supp. App. to Response for Perry et al. (hereinafter Supp. App. to Response). Subsequently, a committee of judges was created to study the matter. And on December 17, 2009, the Circuit Council voted to  Cite as: 558 U. S. ____ (2010) 3 BREYER, J., dissenting authorize a pilot program permitting the use of video in nonjury civil cases as part of an "experiment with the dissemination of video recordings in civil nonjury matters" (specifically those selected by the Chief Judge of the Cir cuit and the Chief Judge of the District Court). And it issued a press release. News Release, Ninth Circuit Judi cial Council Approves Experimental Use of Cameras in District Courts (Dec. 17, 2009), Exh, 13. App. to Pet. In this context the United States District Court for the Northern District of California amended its local rules on December 22, 2009 to bring them into conformity with Ninth Circuit policy. In particular, the court amended the local Rule forbidding the public broadcasting or televising of court proceedings by creating an exception "for partici pation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit." Public Notice Concerning Revisions of Civil Local Rule 77-3, id., Exh. 14. The court initially relied on a provision in the United States Code that permits District Courts to prescribe rules "without public notice and opportunity for comment" "[i]f the pre scribing court determines that there is an immediate need for a rule," and if the court "promptly thereafter afford[s] such notice and opportunity for comment," 28 U. S. C. § 2071(e). See Exh. 1, at 11, Supp. App. to Response. Then, on December 31, the court revised its public notice to ask for comments directly. By January 8, 2010, the court had received 138,574 comments, all but 32 of which favored transmitting the proceedings. Id., at 12. Viewed in light of this history, the court satisfied the statute's insistence that "notice" be "appropriate." Cf. 28 U. S. C. §§2071(b), (e). The parties, the judges, and the interested public were aware of the proposals to change Ninth Circuit policy that culminated in the "pilot pro gram" well before the change in the local rules that en abled participation in the project. The Ninth Circuit issued a press release in mid-December explaining its new 4 HOLLINGSWORTH v. PERRY BREYER, J., dissenting "pilot program." Then, once the District Court amended its local rule, it issued its own notice nearly three weeks before the transmissions that the rule change authorized were to begin. And the rule change itself is simply a change that conforms local rule to Circuit policy - a con formity that the law may well require. (The Judicial Council had long before voted to make its video policy "binding on all courts within the Ninth Circuit," Letter from Chief Judge Hug to All Ninth Circuit Judges (June 21, 1996) (available in Clerk of Court's case file); it an nounced its new "pilot program" policy in December 2009, App. to Application, Exh. 13, App. to Pet.; and federal statutes render district court rules void insofar as they have been "modified or abrogated" by the Council, see §2071(c)(1). Compare ante, at 11 ("Council only has the power to modify or abrogate local rules that conflict with federal law"), with 28 U. S. C. §332(d)(1) ("[C]ouncil shall make all necessary and appropriate orders for the effective and expeditious administration of justice within its cir cuit").) The applicants point to no interested person un aware of the change. How can the Majority reasonably demand yet more notice in respect to a local rule modifica tion that a statute likely requires regardless? There was also sufficient "opportunity for comment." The parties, the intervenors, other judges, the public - all had an opportunity to comment. The parties were specifi cally invited by Chief Judge Walker to comment on the possibility of broadcast as early as September. And the entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial. As I said, the court received 138,574 comments during that time. How much more "opportunity for comment" does the Court believe necessary, particu larly when the statutes themselves authorize the local court to put a new rule into effect "without" receiving any "comments" before doing so when that local "court deter  Cite as: 558 U. S. ____ (2010) 5 BREYER, J., dissenting mines that there is an immediate need" to do so (and to receive comments later)? And more importantly, what is the legal source of the Court's demand for additional comment time in respect to a rule change to conform to Judicial Council policy? Second, this legal question is not the kind of legal ques tion that this Court would normally grant certiorari to consider. There is no conflict among the state or federal courts regarding the procedures by which a district court changes its local rules. Cf. this Court's Rules 10(a)-(b). The technical validity of the procedures followed below does not implicate an open "important question of federal law." Cf. Rule 10(c). Nor do the procedures below clearly conflict with any precedent from this Court. Cf. ibid. It is particularly inadvisable for this Court to consider this kind of question because it involves local rules and local judicial administration. Here, for example, the Court decides just how a district court should modify its own local rules; in a word, this Court micromanages district court administrative procedures in the most detailed way. And, without briefing, the Court imposes limitations on the Judicial Councils' ability to implement policy deci sions, ante, at 11-12 (suggesting Council policy does not abrogate local rules), with consequences we cannot pre dict. The District Councils, the Circuit Councils, the Judicial Conference of the United States, and the Chief Justice bear responsibility for judicial administration, not this Court. See 28 U. S. C. §§331-332. And those bodies have adequate authority to resolve disagreements about how to promulgate and apply local rules, and, particularly, about the use of cameras in the courtroom. For the past 80 years, local judicial administration has been left to the exclusive province of the Circuit Judicial Councils, and this Court lacks their institutional experi ence. See generally P. Fish, The Politics of Federal Judi cial Administration 152-153 (1973) (From their creation, 6 HOLLINGSWORTH v. PERRY BREYER, J., dissenting "[t]he councils constituted . . . a mechanism through which there could be a concentration of responsibility in the various Circuits - immediate responsibility for the work of the courts, with power and authority . . . to insure compe tence in th[eir] work . . ."). For that reason it is inappro priate as well as unnecessary for this Court to intervene in the procedural aspects of local judicial administration. Perhaps that is why I have not been able to find any other case in which this Court has previously done so, through emergency relief or otherwise. Cf. Bank of Nova Scotia v. United States, 487 U. S. 250, 264 (1988) (SCALIA, J., con curring) ("I do not see the basis for any direct authority to supervise lower courts" (citing Frazier v. Heebe, 482 U. S. 641, 651-652 (1987) (Rehnquist, C. J., dissenting))). Nor am I aware of any instance in which this Court has pre emptively sought to micromanage district court proceed ings as it does today. I recognize that the Court may see this matter not as one of promulgating and applying a local rule but, rather, as presenting the larger question of the place of cameras in the courtroom. But the wisdom of a camera policy is primarily a matter for the proper administrative bodies to determine. See 28 U. S. C. §332. This Court has no legal authority to address that larger policy question except insofar as it implicates a question of law. The relevant question of law here concerns the procedure for amending local rules. And the only relevant legal principles that allow us here to take account of the immediate subject matter of that local rule, namely cameras, are those legal principles that permit us - indeed require us - to look to the nature of the harm at issue and to balance equities, including the public interest. I consequently turn to those two matters. Third, consider the harm: I can find no basis for the Court's conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer  Cite as: 558 U. S. ____ (2010) 7 BREYER, J., dissenting irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from the simple fact of transmission itself. By my count, 42 States and two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. See Media Privacy and Related Law 2009-10 (2009) (collecting state statutes and rules); Civ. Rule 1.8 (SDNY 2009); Civ. Rule 1.8 (EDNY 2009). Neither the applicants nor anyone else "has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process," Chandler v. Florida, 449 U. S. 560, 578-579 (1981). Cf. M. Cohn & D. Dow, Cameras in the Courtroom: Television and the Pursuit of Justice 62-64 (1998) (canvassing stud ies, none of which found harm, and one of which found that witnesses "who faced an obvious camera, provided answers that were more correct, lengthier and more de tailed"). And, in any event, any harm to the parties, in cluding the applicants, is reparable through appeal. Cf. Chandler, supra, at 581. The applicants also claim that the transmission will irreparably harm the witnesses themselves, presumably by increasing the public's awareness of who those wit nesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court's order. Cf. Miller v. Albright, 523 U. S. 420, 445 (1998) (O'Connor, J., joined by KENNEDY, J., concurring in judgment); Powers v. Ohio, 499 U. S. 400, 411 (1991). And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on televi sion or Internet broadcasts, already toured the State advocating a "yes" vote on Proposition 8, or already en gaged in extensive public commentary far more likely to 8 HOLLINGSWORTH v. PERRY BREYER, J., dissenting make them well known than a closed-circuit broadcast to another federal courthouse. The likelihood of any "irreparable" harm is further diminished by the fact that the court order before us would simply increase the trial's viewing audience from the occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court houses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of the witnesses. See, e.g., Leff, Woman Recalls Emotional Ordeal of Gay Marriage Ban, Associated Press, Jan. 11, 2010. I see no reason why the incremental increase in exposure caused by transmit ting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes. See ante, at 13. Moreover, if in respect to any particular witness this transmission threatens harm, the District Court can prevent that harm. Chief Judge Walker has already said that he would keep the broadcast "completely under the Court's control, to permit the Court to stop it if [it] proves to be a problem, if it proves to be a distraction, [or] if it proves to create problems with wit nesses." See Exh. 2, at 45, App. to Pet. The Circuit Coun cil confirmed in a press release that the District Court "will fully control the process" and that "Judge Walker has reserved the right to terminate any part of the audio or video, or both, for any duration" or to terminate par ticipation in the pilot program "at any time." News Release, Federal Courthouses to Offer Remote Viewing of Pro-position 8 Trial (Jan. 8, 2010), . Remote_Viewing_Locations.pdf (as visited Jan. 13, 2010, and available in Clerk of Court's case file). Surely such firm control, exercised by an able district court judge with  Cite as: 558 U. S. ____ (2010) 9 BREYER, J., dissenting 20 years of trial-management experience, will be sufficient to address any possible harm, either to the witnesses or to the integrity of the trial. Fourth, no fair balancing of the equities (including harm to the public interest) could support issuance of the stay. See Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J. in Chambers) (recognizing "significant public and private interests balanced on both sides" when "present[ed with] a funda mental confrontation between the competing values of free press and fair trial"). As I have just explained, the appli cants' equities consist of potential harm to witnesses - harm that is either nonexistent or that can be cured through protective measures by the District Court as the circumstances warrant. The competing equities consist of not only respondents' interest in obtaining the courthouse to-courthouse transmission that they desire, but also the public's interest in observing trial proceedings to learn about this case and about how courts work. See Nebraska Press Assn. v. Stuart, 427 U. S. 539, 587 (1976) (Brennan, J., concurring in judgment); see also Exh. 2, at 42, App. to Pet. (statement of Chief Judge Walker) ("[I]f the public could see how the judicial process works, they would take a somewhat different view of it." "I think the only time that you're going to draw sufficient interest in the legal process is when you have an issue such as the issues here, that people think about, talk about, debate about and consider"). With these considerations in the balance, the scales tip heavily against, not in favor, of issuing the stay. The majority's action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no prece dent for doing so. It identifies no real harm, let alone "irreparable harm," to justify its issuance of this stay. And the public interest weighs in favor of providing access 10 HOLLINGSWORTH v. PERRY BREYER, J., dissenting to the courts. To justify this extraordinary intervention, the majority insists that courts must "enforce the re quirement of procedural regularity on others, and must follow those requirements themselves." Ante, at 1. And so too I believe this Court should adhere to its institutional competence, its historical practice, and its governing precedent - all of which counsel strongly against the issu ance of this stay. I respectfully dissent.

397 U.S. 759 (1970) McMANN, WARDEN, ET AL. v. RICHARDSON ET AL. No. 153. Supreme Court of United States. Argued February 24, 1970 Decided May 4, 1970 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. *760 Brenda Soloff, Assistant Attorney General of New York, argued the cause for petitioners. With her on the briefs were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian Z. Cohen and Amy Juviler, Assistant Attorneys General. Gretchen White Oberman argued the cause for respondents. With her on the brief were Grace L. Brodsky and Kalman Finkel. Michael R. Juviler, by special leave of Court, argued the cause for the District Attorney of New York County as amicus curiae urging reversal. With him on the brief were Frank S. Hogan, pro se, and Bennett L. Gershman. Melvin L. Wulf filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. MR. JUSTICE WHITE delivered the opinion of the Court. The petition for certiorari, which we granted, 396 U. S. 813 (1969), seeks reversal of three separate judgments of the Court of Appeals for the Second Circuit ordering hearings on petitions for habeas corpus filed by the respondents in this case.[1] The principal issue before us is whether and to what extent an otherwise valid guilty plea may be impeached in collateral proceedings by assertions or proof that the plea was motivated by a prior coerced confession. We find ourselves in substantial disagreement with the Court of Appeals. *761 I The three respondents now before us are Dash, Richardson, and Williams. We first state the essential facts involved as to each. Dash: In February 1959, respondent Dash was charged with first-degree robbery which, because Dash had previously been convicted of a felony, was punishable by up to 60 years' imprisonment.[2] After pleading guilty to robbery in the second degree in April, he was sentenced to a term of eight to 12 years as a second-felony offender.[3] His petition for collateral relief in the state courts in 1963 was denied without a hearing.[4]*762 Relief was then sought in the United States District Court for the Southern District of New York where his petition for habeas corpus alleged that his guilty plea was the illegal product of a coerced confession and of the trial judge's threat to impose a 60-year sentence if he was convicted after a plea of not guilty. His petition asserted that he had been beaten, refused counsel, and threatened with false charges prior to his confession and that the trial judge's threat was made during an off-the-record colloquy in one of Dash's appearances in court prior to the date of his plea of guilty. Dash also asserted that his court-appointed attorney had advised pleading guilty since Dash did not "stand a chance due to the alleged confession signed" by him. The District Court denied the petition without a hearing because "a voluntary plea of guilty entered on advice of counsel constitutes a waiver of all nonjurisdictional defects in any prior stage of the proceedings against the defendant," citing United States ex rel. Glenn v. McMann, 349 F. 2d 1018 (C. A. 2d Cir. 1965), cert. denied, 383 U. S. 915 (1966), and other cases. The allegation of coercion by the trial judge did not call for a hearing since the prosecutor had filed an affidavit in the state court categorically denying that the trial judge ever threatened the defendant. Dash then appealed to the Court of Appeals for the Second Circuit. Richardson: Respondent Richardson was indicted in April 1963 for murder in the first degree. Two attorneys were assigned to represent Richardson. He initially pleaded not guilty but in July withdrew his plea and pleaded guilty to murder in the second degree, specifically admitting at the time that he struck the victim with a knife. He was convicted and sentenced to a term of 30 years to life. Following the denial without a hearing of his application for collateral relief in the *763 state courts,[5] Richardson filed his petition for habeas corpus in the United States District Court for the Northern District of New York, alleging in conclusory fashion that his plea of guilty was induced by a coerced confession and by ineffective court-appointed counsel. His petition was denied without a hearing, and he appealed to the Court of Appeals for the Second Circuit, including with his appellate brief a supplemental affidavit in which he alleged that he was beaten into confessing the crime, that his assigned attorney conferred with him only 10 minutes prior to the day the plea of guilty was taken, that he advised his attorney that he did not want to plead guilty to something he did not do, and that his attorney advised him to plead guilty to avoid the electric chair, saying that "this was not the proper time to bring up the confession" and that Richardson "could later explain by a writ of habeas corpus how my confession had been beaten out of me." Williams: In February 1956, respondent Williams was indicted for five felonies, including rape and robbery. He pleaded guilty to robbery in the second degree in March and was sentenced in April to a term of 7 1/2 to 15 years. After unsuccessful applications for collateral relief in the state courts,[6] he petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York, asserting that his plea was the consequence of a coerced confession and was made without an understanding of the nature of the *764 charge and the consequences of the plea. In his petition and in documents supporting it, allegations were made that he had been handcuffed to a desk while being interrogated, that he was threatened with a pistol and physically abused, and that his attorney, in advising him to plead guilty, ignored his alibi defense and represented that his plea would be to a misdemeanor charge rather than to a felony charge. The petition was denied without a hearing and Williams appealed. The Court of Appeals for the Second Circuit reversed in each case, sitting en banc and dividing six to three in Dash's case[7] and disposing of Richardson's and Williams' cases in decisions by three-judge panels.[8] In each case it was directed that a hearing be held on the petition for habeas corpus.[9] It was the Court of Appeals' view that *765 a plea of guilty is an effective waiver of pretrial irregularities only if the plea is voluntary and that a plea is not voluntary if it is the consequence of an involuntary confession.[10] That the petitioner was represented by counsel and denied the existence of coercion or promises when tendering his plea does not foreclose a hearing on his petition for habeas corpus alleging matters outside the state court record. Although conclusory allegations would in no case suffice, the allegations in each of these cases concerning the manner in which the confession was coerced and the connection between the confession and the plea were deemed sufficient to require a hearing. The law required this much, the Court of Appeals thought, at least in New York, where prior to Jackson v. Denno, 378 U. S. 368 (1964), constitutionally acceptable procedures were unavailable to a defendant to test the voluntariness of his confession. The Court of Appeals also ordered a hearing in each case for reasons other than that the plea was claimed to rest on a coerced confession which the defendant had no adequate opportunity to test in the state courts. In the Dash case, the additional issue to be considered was whether the trial judge coerced the guilty plea by threats as to the probable sentence after trial and conviction on a plea of not guilty; in Richardson, the additional issue was the inadequacy of counsel allegedly arising from the *766 short period of consultation and counsel's advice to the effect that the confession issue could be raised after a plea of guilty; and in Williams, the additional question was the alleged failure of counsel to consider Williams' alibi defense and to make it clear that he was pleading to a felony rather than to a misdemeanor. II The core of the Court of Appeals' holding is the proposition that if in a collateral proceeding a guilty plea is shown to have been triggered by a coerced confession - if there would have been no plea had there been no confession - the plea is vulnerable at least in cases coming from New York where the guilty plea was taken prior to Jackson v. Denno, supra. We are unable to agree with the Court of Appeals on this proposition. A conviction after a plea of guilty normally rests on the defendant's own admission in open court that he committed the acts with which he is charged. Brady v. United States, ante, at 748; McCarthy v. United States, 394 U. S. 459, 466 (1969). That admission may not be compelled, and since the plea is also a waiver of trial - and unless the applicable law otherwise provides,[11] a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant - it must be an intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, ante, at 748. *767 For present purposes, we put aside those cases where the defendant has his own reasons for pleading guilty wholly aside from the strength of the case against him as well as those cases where the defendant, although he would have gone to trial had he thought the State could not prove its case, is motivated by evidence against him independent of the confession. In these cases, as the Court of Appeals recognized, the confession, even if coerced, is not a sufficient factor in the plea to justify relief. Neither do we have before us the uncounseled defendant, see Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), nor the situation where the circumstances that coerced the confession have abiding impact and also taint the plea. Cf. Chambers v. Florida, 309 U. S. 227 (1940). It is not disputed that in such cases a guilty plea is properly open to challenge.[12] The issue on which we differ with the Court of Appeals arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize *768 the penalty that might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this. III Since we are dealing with a defendant who deems his confession crucial to the State's case against him and who would go to trial if he thought his chances of acquittal were good, his decision to plead guilty or not turns on whether he thinks the law will allow his confession to be used against him. For the defendant who considers his confession involuntary and hence unusable against him at a trial, tendering a plea of guilty would seem a most improbable alternative. The sensible course would be to contest his guilt, prevail on his confession claim at trial, on appeal, or, if necessary, in a collateral proceeding, and win acquittal, however guilty he might be. The books are full of cases in New York and elsewhere, where the defendant has made this choice and has prevailed. If he nevertheless pleads guilty the plea can hardly be blamed on the confession which in his view was inadmissible evidence and no proper part of the State's case. Since by hypothesis the evidence aside from the confession is weak and the defendant has no reasons of his own to plead, a guilty plea in such circumstances is nothing less than a refusal to present his federal claims to the state court in the first instance - a choice by the defendant to take the benefits, if any, of a plea of guilty and then to pursue his coerced-confession claim in collateral proceedings. Surely later allegations that the confession rendered his plea involuntary would appear incredible, and whether his plain bypass *769 of state remedies was an intelligent act depends on whether he was so incompetently advised by counsel concerning the forum in which he should first present his federal claim that the Constitution will afford him another chance to plead. A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State's being permitted to use the confession as evidence is sufficient to convince him that the State's case is too strong to contest and that a plea of guilty is the most advantageous course. Nothing in this train of events suggests that the defendant's plea, as distinguished from his confession, is an involuntary act. His later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable. As we said in Brady v. United States, ante, at 756-757, the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant's guilt? On those facts would evidence seized without a warrant be admissible? Would *770 the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts. That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing. Courts continue to have serious differences among themselves on the admissibility of evidence, both with respect to the proper standard by which the facts are to be judged and with respect to the application of that standard to particular facts. That this Court might hold a defendant's confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant's attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty. In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession.[13] Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession *771 erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel.[14] Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts. IV We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus. Nor do we deem the situation substantially different where the defendant's plea was entered prior to Jackson v. Denno, 378 U. S. 368 (1964). At issue in that case was the constitutionality of the New York procedure for determining the voluntariness of a confession offered in evidence at a jury trial. This *772 procedure, which would have been applicable to the respondents if they had gone to trial, required the trial judge, when the confession was offered and a prima facie case of voluntariness established, to submit the issue to the jury without himself finally resolving disputed issues of fact and determining whether or not the confession was voluntary. The Court held this procedure unconstitutional because it did not "afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson's right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment." 378 U. S., at 377. In reaching that conclusion, the Court overruled Stein v. New York, 346 U. S. 156 (1953), which had approved the New York practice. Whether a guilty plea was entered before or after Jackson v. Denno, the question of the validity of the plea remains the same: was the plea a voluntary and intelligent act of the defendant? As we have previously set out, a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents successfully to claim relief based on Jackson v. Denno, each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the New York procedures for determining the admissibility of confessions. Such showing cannot be made, for precisely this challenge was presented to the New York courts and to this Court in Stein v. New York, supra, and in 1953 this Court found no constitutional *773 infirmity in the New York procedures for dealing with coerced-confession claims. Counsel for these respondents cannot be faulted for not anticipating Jackson v. Denno or for considering the New York procedures to be as valid as the four dissenters in that case thought them to be. We are unimpressed with the argument that because the decision in Jackson has been applied retroactively to defendants who had previously gone to trial, the defendant whose confession allegedly caused him to plead guilty prior to Jackson is also entitled to a hearing on the voluntariness of his confession and to a trial if his admissions are held to have been coerced. A conviction after trial in which a coerced confession is introduced rests in part on the coerced confession, a constitutionally unacceptable basis for conviction. It is that conviction and the confession on which it rests that the defendant later attacks in collateral proceedings. The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him. The prior confession is not the basis for the judgment, has never been offered in evidence at a trial, and may never be offered in evidence. Whether or not the advice the defendant received in the pre-Jackson era would have been different had Jackson then been the law has no bearing on the accuracy of the defendant's admission that he committed the crime. What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pleas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to its proof. It might be suggested that if Jackson had been the law when the pleas in the cases below were made - if the judge *774 had been required to rule on the voluntariness of challenged confessions at a trial - there would have been a better chance of keeping the confessions from the jury and there would have been no guilty pleas. But because of inherent uncertainty in guilty-plea advice, this is a highly speculative matter in any particular case and not an issue promising a meaningful and productive evidentiary hearing long after entry of the guilty plea. The alternative would be a per se constitutional rule invalidating all New York guilty pleas that were motivated by confessions and that were entered prior to Jackson. This would be an improvident invasion of the State's interests in maintaining the finality of guilty-plea convictions that were valid under constitutional standards applicable at the time. It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act. V As we have previously indicated, in each case below the Court of Appeals ruled that a hearing was required to consider claims other than the claim that the plea of guilty rested on a coerced confession and was entered prior to Jackson v. Denno, supra. With respect to these other claims, we now express no disagreement with the judgments of the Court of Appeals; but since our holding will require reassessment of the petitions for habeas *775 corpus in the light of the standards expressed herein, the judgments of the Court of Appeals are vacated and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE BLACK, while still adhering to his separate opinion in Jackson v. Denno, 378 U. S. 368, 401-423, concurs in the Court's opinion and judgment in this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting. In this case the Court moves yet another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of government may have induced a particular plea. Respondents alleged in some detail that they were subjected to physical and mental coercion in order to force them to confess; that they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reasonable alternative to pleading guilty.[1] Respondents' contention, in short, is that their pleas were the product of the State's illegal action. Notwithstanding the possible truth of the claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I *776 cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue.[2] I The basic principle applicable to this case was enunciated for the Court by MR. JUSTICE BLACK in Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 118 (1956): "[A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause." The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are "based on" coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession so that the plea may be said to be infected by the State's prior illegal action. Thus to invalidate a guilty plea more must be shown than the mere existence of a coerced *777 confession. The Court of Appeals so held; respondents do not disagree. The critical question, then, is what elements in addition to the coerced confession must be alleged and proved to demonstrate the invalidity of a guilty plea. The Court abruptly forecloses any inquiry concerning the impact of an allegedly coerced confession by decreeing that the assistance of "reasonably competent" counsel insulates a defendant from the effects of a prior illegal confession. However, as the Court tacitly concedes, the absolute rigor of its new rule must be adjusted to accommodate cases such as Chambers v. Florida, 309 U. S. 227 (1940). In that case, the four defendants confessed. Subsequently, three of them pleaded guilty, while the fourth pleaded not guilty and was tried before a jury. Each of the defendants, represented by counsel, stated during the trial that he had confessed and was testifying voluntarily.[3] Notwithstanding this testimony in open court, the proffering of guilty pleas, and representation by counsel, the state courts and this Court as well properly permitted a collateral attack upon the judgments of conviction entered on the guilty pleas. In explication of Chambers, the Court notes that the coercive circumstances that compelled the confessions may "have abiding impact and also taint the plea." Ante, at 767. Apparently the Court would permit a defendant who was represented by counsel to attack his conviction collaterally if he could demonstrate that coercive pressures were brought to bear upon him at the *778 very moment he was called to plead. This position is certainly unexceptionable. I cannot agree, however, that the pleading process is constitutionally adequate despite a coerced confession merely because the coercive pressures that compelled the confession ceased prior to the entry of the plea. In short, the "abiding impact" of the coerced confession may continue to prejudice a defendant's case or unfairly influence his decisions regarding his legal alternatives. Moreover, our approach in Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), is inconsistent with the absolute rule that the Court adopts today. We there considered whether, under all the circumstances of the case, the pressures brought to bear on the defendant by the State, including the extraction of a coerced confession, were sufficient to render his guilty plea involuntary. While the fact that the defendant was not assisted by counsel was given considerable weight in determining involuntariness, it was hardly the sole critical consideration. Thus the Court's attempt to distinguish Claudy on the basis of counsel's assistance alone is unpersuasive. I would continue to adhere to the approach adopted in Chambers and Claudy and take into account all of the circumstances surrounding the entry of a plea rather than attach talismanic significance to the presence of counsel. I concluded in Parker v. North Carolina and Brady v. United States, post, at 802, that "the legal concept of `involuntariness' has not been narrowly confined but refers to a surrender of constitutional rights influenced by considerations that the government cannot properly introduce" into the pleading process. In Parker and Brady the "impermissible factor" introduced by the government was an unconstitutional death penalty scheme; here the improper influence is a coerced confession. In either event the defendant must establish that the unconstitutional influence actually infected the *779 pleading process, that it was a significant factor in his decision to plead guilty. But if he does so, then he is entitled to reversal of the judgment of conviction entered on the plea. Harrison v. United States, 392 U. S. 219 (1968), lends additional support to this conclusion. There confessions had been illegally procured from a defendant and then introduced at his trial. At a new trial, after reversal of the defendant's conviction, he objected to the introduction of his testimony from the previous trial on the ground that he had been improperly induced to testify at the former trial by the introduction of the inadmissible confessions. We sustained this contention, noting in part that "the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby - the fruit of the poisonous tree, to invoke a time-worn metaphor. For 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.' Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392. ". . . The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible." 392 U. S., at 222-223. (Emphasis in original.) The same reasoning is applicable here. That is, if the coerced confession induces a guilty plea, that plea, no *780 less than the surrender of the self-incrimination privilege in Harrison, is the fruit of the State's prior illegal conduct, and thus is vulnerable to attack.[4] *781 As in Parker and Brady the Court lays great stress upon the ability of counsel to offset the improper influence injected into the pleading process by the State's unconstitutional action. However, here again, the conclusions that the Court draws from the role it assigns to counsel are, in my view, entirely incorrect, for it cannot be blandly assumed, without further discussion, that counsel will be able to render effective assistance to the defendant in freeing him from the burdens of his unconstitutionally extorted confession. In Parker and Brady there was no action that counsel could take to remove the threat posed by the unconstitutional death penalty scheme. There was no way, in short, to counteract the intrusion of an impermissible factor into the pleading process. However, where the unconstitutional factor is a coerced confession, it is not necessarily true that counsel's role is so limited. It is a common practice, for example, to hold pretrial hearings or devise other procedures for the purpose of permitting defendants an opportunity to challenge the admissibility of allegedly coerced confessions. If it is assumed that these procedures provide a constitutionally adequate means to attack the validity of the confession, then it must be expected that a defendant who subsequently seeks to overturn his guilty plea will come forward with a persuasive explanation for his failure to invoke those procedures which were readily available to test the validity of his confession. It does not follow from this that a defendant assisted by counsel can never demonstrate that this failure to *782 invoke the appropriate procedures was justified. The entry of a guilty plea is, essentially, a waiver, or the "intentional relinquishment or abandonment of a known right," Johnson v. Zerbst, 304 U. S. 458, 464 (1938). By pleading guilty the defendant gives up not only his right to a jury trial, Boykin v. Alabama, 395 U. S. 238 (1969), but also, in most jurisdictions, the opportunity to challenge the validity of his confession by whatever procedures are provided for that purpose. It is always open to a defendant to establish that his guilty plea was not a constitutionally valid waiver, that he did not deliberately bypass the orderly processes provided to determine the validity of confessions. Cf. Fay v. Noia, 372 U. S. 391, 438-440 (1963). Whether or not there has been a deliberate bypass can be determined, of course, only by a consideration of the total circumstances surrounding the entry of each plea.[5] II In the foregoing discussion I have assumed that the State has provided a constitutionally adequate method to challenge an allegedly invalid confession in the trial court. That assumption is not applicable to respondents in this case, however, because, as we held in Jackson v. Denno, 378 U. S. 368 (1964), the procedure that New York employed at the time their pleas were tendered failed to provide a constitutionally acceptable means to challenge the validity of confessions. Thus, even the *783 most expert appraisal and advice by counsel necessarily had to take into account a procedure for challenging the validity of confessions that was fundamentally defective, but that had nevertheless been approved by this Court in Stein v. New York, 346 U. S. 156 (1953). Hence the advice of counsel could not remedy or offset the constitutional defect infused into the pleading process. Therefore, respondents are entitled to relief if they can establish that confessions were coerced from them and that their guilty pleas were motivated in significant part by their inability to challenge the validity of the confessions in a constitutionally adequate procedure.[6] By such a showing they would establish a nexus between the coerced confessions and the subsequent pleas and thereby demonstrate that their respective pleas were the product of the State's illegal action. The Court seeks to avoid the impact of Jackson v. Denno upon pre-Jackson guilty pleas by adding a new and totally unjustified element to the Court's confused pattern of retroactivity rules. Jackson v. Denno has been held to be retroactive, at least in the sense that it requires hearings to determine the voluntariness of pre-Jackson confessions that were introduced at trial.[7] The *784 Court today decides, however, that Jackson's effect is to be limited to situations in which the confession was introduced at trial and is to have no application whatever to guilty pleas. In short, Jackson v. Denno is now held to be only partially retroactive, a wholly novel and unacceptable result. As I understand the Court's opinion, there are basically three reasons why the Court rejects the contention that the Jackson-Denno defect may unconstitutionally infect the pleading process. The first is the highly formalistic notion that the guilty plea, and not the antecedent confession, is the basis of the judgments against respondents. Of course this is true in the technical sense that the guilty plea is always the legal basis of a judgment of conviction entered thereon. However, this argument hardly disposes adequately of the contention that the plea in turn was at least partially induced, and therefore is tainted, by the fact that no constitutionally adequate procedures existed to test the validity of a highly prejudicial and allegedly coerced confession. The Court's formalism is symptomatic of the desire to ignore entirely the motivational aspect of a decision to plead guilty. As long as counsel is present when the defendant pleads, the Court is apparently willing to assume that the government may inject virtually any influence into the process of deciding on a plea. However, as I demonstrated in Parker and Brady, this insistence upon ignoring the factors with which the prosecution confronts the defendant before he pleads departs broadly from the manner in which the voluntariness of guilty pleas has traditionally been approached. In short, the critical question is not, as the Court insists, whether respondents knowingly decided to plead guilty but why they made that decision. Cf. Harrison v. United States, 392 U. S. 219, 223 (1968). *785 Secondly, the Court views the entry of the guilty pleas as waivers of objections to the allegedly coerced confessions. For the reasons previously stated, I do not believe that the pleas were legally voluntary if respondents' allegations are proved. Nor were the pleas the relinquishment of a known right, for it was only when Stein v. New York, 346 U. S. 156 (1953), was overruled by Jackson v. Denno that it became clear that the New York procedure was constitutionally inadequate. Thus there is no sense in which respondents deliberately bypassed or "waived" state procedures constitutionally adequate to adjudicate their coerced-confession claims. See Moreno v. Beto, 415 F. 2d 154 (C. A. 5th Cir. 1969); cf. Smith v. Yeager, 393 U. S. 122 (1968). Finally, the Court takes the position, in effect, that the defect in the Stein-approved New York procedure was not very great - that the procedure was only a little bit unconstitutional - and hence that it is too speculative to inquire whether the difference between the pre-Jackson and post-Jackson procedures would, in a particular case, alter the advice given by counsel concerning the desirability of a plea. If, indeed, the deficiency in the pre-Jackson procedure was not very great, then it is difficult to understand why we found it necessary to invalidate the procedure and, particularly, why it was imperative to apply the Jackson decision retroactively. I, for one, have never thought Jackson v. Denno is so trivial, that it deals with procedural distinctions of such insignificance that they would necessarily make no difference in the plea advice given to a defendant by his attorney. To the contrary, the extent to which the constitutional defect in the pre-Jackson-Denno procedure actually infected the pleading process cannot be determined by a priori pronouncements by this Court; rather, its effect can be evaluated only after a factual inquiry into the circumstances motivating particular pleas. *786 Despite the disclaimers to the contrary, what is essentially involved both in the instant case and in Brady and Parker is nothing less than the determination of the Court to preserve the sanctity of virtually all judgments obtained by means of guilty pleas. There is no other adequate explanation for the surprising notion of partial retroactivity that the Court today propounds. An approach that shrinks from giving effect to the clear implications of our prior decisions by drawing untenable distinctions may have its appeal, but it hardly furthers the goal of principled decisionmaking. Thus, I am constrained to agree with the concurring judge in the Court of Appeals that it is "the rankest unfairness, and indeed a denigration of the rule of law, to recognize the infirmity of the pre-Jackson v. Denno procedure for challenging the legality of a confession in the case of prisoners who went to trial but to deny access to the judicial process to those who improperly pleaded guilty merely because the state would have more difficulty in affording a new trial to them." 409 F. 2d, at 1027. Lest it be thought that my views would render the criminal process "less effective in protecting society against those who have made it impossible to live today in safety," Harrison v. United States, 392 U. S. 219, 235 (WHITE, J., dissenting), I emphasize again that the only issue involved in this case is whether respondents are entitled to a hearing on their claims that coerced confessions and a procedural device that we condemned as unconstitutional deterred them from exercising their constitutional rights. Whether or not these allegations have bases in fact is not before us, for these individuals have never been afforded a judicial forum for the presentation of their claims. In these circumstances, I would not simply slam shut the door of the courthouse in their faces. *787 III I agree with the Court of Appeals that a hearing is required for the coerced-confession claims presented in these cases. We have, of course, held that a post-conviction hearing must be afforded to defendants whose allegations of constitutional deprivation raise factual issues and are neither "vague, conclusory, or palpably incredible," Machibroda v. United States, 368 U. S. 487, 495 (1962), nor "patently frivolous or false," Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 119 (1956).[8] Respondents have raised at least three factual issues that the record in its present form does not resolve: (1) whether confessions were obtained from them; (2) whether these confessions, if given, were coerced; and (3) whether respondents had a justifiable reason for their failure to challenge the validity of the confessions - more specifically, whether the confessions, together with the Jackson-Denno defect in New York's procedures, influenced in significant part the decisions to plead guilty. As to each of these issues, respondents of course bear the burden of proof. Respondents alleged in some detail that they had been coerced by the police into confessing. They also alleged that the Jackson-Denno defect in the state procedures rendered futile any attempt to challenge the confessions in the state trial court.[9] The Court of Appeals noted *788 that, in the ordinary case, additional supporting material, such as an affidavit from the attorney who represented the petitioner, should be appended to his habeas corpus petition. Without elaboration, however, the Court of Appeals concluded that no material in corroboration was necessary in this case. To be sure, it is difficult, though not impossible, to believe that without any corroborative evidence a petitioner would ultimately succeed with a sophisticated argument such as the contention that a coerced confession, coupled with the Jackson-Denno defect, induced his guilty plea. In this connection, the views of the defense attorney when the plea was entered are particularly important because in the ordinary case counsel is in a good position to appraise the factors that actually entered into the decision to plead guilty. As a technical matter of pleading, however, I would not absolutely require that a petitioner, particularly one who is proceeding pro se, accompany his petition with extensive supporting materials.[10] It is of course prudent for petitioners who raise a claim such as the one presented in the instant case to append a statement from counsel, or at least an explanation of why such a statement was not procured, for the petitioner who does not do so *789 takes a considerable risk that his petition will be denied as vague, conclusory, or frivolcus.[11] The respondents in this case clearly raised the Jackson-Denno issue in their petitions to the District Court. Furthermore, this Court has not affected the judgment below insofar as it requires hearings for these respondents on issues other than their coerced-confession claims. In these circumstances, I would not disturb that portion of the Court of Appeals' order that requires the District Court to consider the merits of respondents' coerced-confession allegations. Accordingly, I would affirm the judgment of the Court of Appeals. NOTES [1] Our grant of certiorari also included a fourth respondent, another petitioner for habeas corpus, Wilbert Ross. See n. 7, infra. However, upon consideration of a subsequent suggestion of mootness by reason of Ross' death, we vacated the Court of Appeals' judgment and remanded to the District Court for the Eastern District of New York with directions to dismiss the petition for habeas corpus as moot. 396 U. S. 118 (1969). [2] N. Y. Penal Law § 2125, then in effect, provided that first-degree robbery was punishable by imprisonment for an indeterminate term the minimum of which was to be not less than 10 years and the maximum of which was to be not more than 30 years. Under N. Y. Penal Law § 1941, subd. 1, then in effect, conviction for a second felony was punishable by imprisonment for an indeterminate term with the minimum one-half the maximum set for a first conviction and the maximum twice the maximum set for a first conviction. In addition to the first-degree robbery charge, Dash was also charged with grand larceny and assault. [3] Waterman and Devine, two men accused of taking part in the robbery along with Dash, did not plead guilty; after a jury trial they were convicted of first-degree robbery, second-degree grand larceny, and second-degree assault and were sentenced to 15 to 20 years' imprisonment. On appeal these convictions were reversed because of the State's use of post-indictment confessions given by one of the defendants in the absence of counsel. People v. Waterman, 12 App. Div. 2d 84, 208 N. Y. S. 2d 596 (1960), aff'd, 9 N. Y. 2d 561, 175 N. E. 2d 445 (1961). Waterman and Devine then pleaded guilty to assault in the second degree and were sentenced to imprisonment for 2 1/2 to 3 years. [4] The denial of relief was affirmed by the Appellate Division of the New York Supreme Court, People v. Dash, 21 App. Div. 2d 978, 252 N. Y. S. 2d 1016 (1964), aff'd mem., 16 N. Y. 2d 493, 208 N. E. 2d 171 (1965). [5] The denial of relief was affirmed without opinion by the Appellate Division of the New York Supreme Court, People v. Richardson, 23 App. Div. 2d 969, 260 N. Y. S. 2d 586 (1965). [6] The denial of relief on the claims later presented in the Federal District Court was affirmed without opinion by the Appellate Division of the New York Supreme Court, People v. Williams, 25 App. Div. 2d 620, 268 N. Y. S. 2d 958 (1966). [7] United States ex rel. Ross v. McMann, 409 F. 2d 1016 (C. A. 2d Cir. 1969). The Court of Appeals' opinion dealt also with the appeal of Wilbert Ross from a denial of habeas corpus without a hearing by the United States District Court for the Eastern District of New York. Ross in his habeas petition alleged that his 1955 plea of guilty to second-degree murder was induced by the State's possession of an unconstitutionally obtained confession. The Court of Appeals held that, like Dash, Ross was entitled to a hearing on his claims. Along with the three respondents dealt with in this opinion, we granted certiorari as to Ross but the matter was subsequently remanded for dismissal as moot after the death of Ross. See n. 1, supra. [8] United States ex rel. Richardson v. McMann, 408 F. 2d 48 (C. A. 2d Cir. 1969); United States ex rel. Williams v. Follette, 408 F. 2d 658 (C. A. 2d Cir. 1969). [9] The same day that the Court of Appeals ordered hearings in the Dash and Richardson cases, the court, en banc and without dissent, held that a hearing was not required in the case of a petitioner for habeas corpus who had pleaded guilty after a trial judge ruled that his confession was admissible in evidence - the Court of Appeals found that the petition for habeas corpus did not allege with sufficient specificity that the plea of guilty was infected by the allegedly coerced confession. United States ex rel. Rosen v. Follette, 409 F. 2d 1042 (C. A. 2d Cir. 1969). [10] The majority and concurring opinions in the Dash case relied on decisions in several other circuits: United States ex rel. Collins v. Maroney, 382 F. 2d 547 (C. A. 3d Cir. 1967); Jones v. Cunningham, 297 F. 2d 851 (C. A. 4th Cir. 1962); Smith v. Wainwright, 373 F. 2d 506 (C. A. 5th Cir. 1967); Carpenter v. Wainwright, 372 F. 2d 940 (C. A. 5th Cir. 1967); Bell v. Alabama, 367 F. 2d 243 (C. A. 5th Cir. 1966), cert. denied, 386 U. S. 916 (1967); Reed v. Henderson, 385 F. 2d 995 (C. A. 6th Cir. 1967); Smiley v. Wilson, 378 F. 2d 144 (C. A. 9th Cir. 1967); Doran v. Wilson, 369 F. 2d 505 (C. A. 9th Cir. 1966). [11] New York law now permits a defendant to challenge the admissibility of a confession in a pretrial hearing and to appeal from an adverse ruling on the admissibility of the confession even if the conviction is based on a plea of guilty. N. Y. Code Crim. Proc. § 813-g (Supp. 1969) (effective July 16, 1965). A similar provision permits a defendant to appeal an adverse ruling on a Fourth Amendment claim after a plea of guilty. N. Y. Code Crim. Proc. § 813-c (Supp. 1969) (effective April 29, 1962). [12] Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), involved a plea of guilty made by a defendant without assistance of counsel. Herman did not hold that a plea of guilty, offered by a defendant assisted by competent counsel, is invalid whenever induced by the prosecution's possession of a coerced confession. Likewise, Chambers v. Florida, 309 U. S. 227 (1940), does not support the position taken by the Court of Appeals in these cases. In Chambers the voluntariness of the confessions was properly considered by this Court both because the alleged coercion producing the confessions appeared to carry over to taint the guilty pleas and because the convictions were based on the confessions as well as the guilty pleas. See Chambers v. State, 136 Fla. 568, 187 So. 156 (1939), rev'd, 309 U. S. 227 (1940). [13] We do not here consider whether a conviction, based on a plea of guilty entered in a State permitting the defendant pleading guilty to challenge on appeal the admissibility of his confession (as in New York after July 16, 1965, see n. 11, supra), would be open to attack in federal habeas corpus proceedings on the grounds that the confession was coerced. Cf. United States ex rel. Rogers v. Warden, 381 F. 2d 209 (C. A. 2d Cir. 1967). [14] Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968). It has long been recognized that the right to counsel is the right to the effective assistance of counsel. See Reece v. Georgia, 350 U. S. 85, 90 (1955); Glasser v. United States, 315 U. S. 60, 69-70 (1942); Avery v. Alabama, 308 U. S. 444, 446 (1940); Powell v. Alabama, 287 U. S. 45, 57 (1932). [1] There are additional allegations involved in this case, including Richardson's claim that he was ineffectively represented by counsel when he entered his plea and Dash's contention that he was threatened by the trial judge with imposition of the statutory maximum sentence (60 years) if he elected to stand trial and did not prevail. I understand that the Court does not disturb the Court of Appeals' holding that a hearing is required to consider these additional allegations. [2] The Court does not deny that the decision of the Court of Appeals in the instant case is in complete harmony with the decisions of numerous other courts that have considered the same or similar issues. See, e. g., Moreno v. Beto, 415 F. 2d 154 (C. A. 5th Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F. 2d 853 (C. A. 3d Cir. 1968); Kott v. Green, 387 F. 2d 136 (C. A. 6th Cir. 1967); Reed v. Henderson, 385 F. 2d 995 (C. A. 6th Cir. 1967); United States ex rel. Collins v. Maroney, 382 F. 2d 547 (C. A. 3d Cir. 1967); Smiley v. Wilson, 378 F. 2d 144 (C. A. 9th Cir. 1967); Carpenter v. Wainwright, 372 F. 2d 940 (C. A. 5th Cir. 1967); Doran v. Wilson, 369 F. 2d 505 (C. A. 9th Cir. 1966); White v. Pepersack, 352 F. 2d 470 (C. A. 4th Cir. 1965); Zachery v. Hale, 286 F. Supp. 237 (D. C. M. D. Ala. 1968); United States ex rel. Cuevas v. Rundle, 258 F. Supp. 647 (D. C. E. D. Pa. 1966); People v. Spencer, 66 Cal. 2d 158, 424 P. 2d 715 (1967); Commonwealth v. Baity, 428 Pa. 306, 237 A. 2d 172 (1968). [3] "[E]ach of the defendants testified on the trial that the confessions were freely and voluntarily made and that the respective statements of each made upon the trial was the free and voluntary statement of such defendant as a witness in his behalf." Chambers v. State, 113 Fla. 786, 792, 152 So. 437, 438 (1934), on subsequent appeal, 136 Fla. 568, 187 So. 156 (1939), rev'd, 309 U. S. 227 (1940). [4] Indeed, one of the dissenting opinions in Harrison concludes that "[s]imilarly, an inadmissible confession preceding a plea of guilty would taint the plea." 392 U. S., at 234 (WHITE, J., dissenting). In response to this suggestion, the Court noted that "we decide here only a case in which the prosecution illegally introduced the defendant's confession in evidence against him at trial in its case-in-chief." 392 U. S., at 223 n. 9. Of course, in Harrison we did consider a case in which evidence had been introduced at trial. It hardly follows, however, that the fruit-of-the-poisonous-tree rationale has no application apart from the narrow confines of the Harrison factual context. See generally Fahy v. Connecticut, 375 U. S. 85 (1963); Wong Sun v. United States, 371 U. S. 471 (1963); Nardone v. United States, 308 U. S. 338 (1939). There are factual differences between Harrison and the instant case, but they are insufficient to undermine the analogy. For example, in Harrison the inadmissible confessions had actually been used in proceedings against the defendant, whereas here no more is involved than the potential use of the coerced confessions. However, confessions have traditionally been considered extremely valuable evidentiary material, and, in the ordinary course of events, it is not to be expected that the prosecution would, on its own initiative, refrain from attempting to introduce a relevant confession. Of course, when a guilty plea is attacked on the ground that it was induced by an involuntary confession, it is always open to the prosecution to establish that there was no confession, that any confession was not coerced, or that the prosecution had decided not to use the confession against the defendant and had communicated this fact to him. Moreover, it is perhaps not as clear in the instant case as it was in Harrison that the prosecution's illegality infected the subsequent proceedings involving the respective defendants. In Harrison, the defense attorney had initially announced that the defendant would not testify, and the defendant did in fact take the stand only after the prosecution had introduced his confessions. In that circumstance the burden was appropriately placed upon the prosecution to rebut the clear inference that the inadmissible confessions induced the subsequent testimony. By contrast, in the instant case we are dealing with guilty pleas that are usually the culmination of a decision-making process in which the defendant has taken into account numerous factors. It can therefore hardly be established on the basis of mere allegations that, in a given case, a coerced confession induced the guilty plea. This factual difference indicates no more, however, than that the respondents here may have a more difficult time than the petitioner in Harrison in substantiating their respective claims. [5] If the procedures for challenging the validity of confessions are constitutionally adequate, then a persuasive justification for the failure to invoke them does not arise from the fear that a confession, erroneously or otherwise, will be determined to be voluntary. If this were not true, then no guilty plea could constitute an effective waiver, for the risk of error or adverse result is inherent in every criminal proceeding, and it would be open to every defendant to contend that this risk induced his guilty plea. [6] The Court of Appeals held that a plea of guilty was not voluntary "if the plea was substantially motivated by a coerced confession the validity of which [the defendant] was unable, for all practical purposes, to contest." 409 F. 2d, at 1023. I would accept this formulation with the understanding that a "substantial" motivating factor is any one which is not merely de minimis. Ordinarily, a decision to plead guilty is the result of numerous considerations. As long as a defendant was in fact motivated in significant part by the influence of an unconstitutionally obtained confession that he had no adequate means to challenge, I would relieve him of the consequences of his guilty plea. [7] See, e. g., Johnson v. New Jersey, 384 U. S. 719, 727-728 (1966); Tehan v. Shott, 382 U. S. 406, 416 (1966); Linkletter v. Walker, 381 U. S. 618, 639 and n. 20 (1965). [8] Respondents have never had a hearing in the state courts on their coerced-confession claims because the state courts rejected their contentions on the pleadings. In these circumstances, the Court of Appeals properly instructed the District Court to afford the State a reasonable time to proceed with its own hearings, if it be so advised. [9] For example, respondent Dash stated the following in his petition to the District Court: "The futility of relator's position is more clearly seen when this Court considers the fact, that the only choice remaining to him - beside the entry of the plea of guilty to a crime that he had not committed - was to proceed to trial in the hope of challenging the admissibility of the alleged coerced confession. For it was only in the case of Jackson v. Denno . . . that the Court recognized the insoluble plight of a defendant in New York, faced with the decision whether to challenge the admissibility of a confession, had in violation of the United States Constitution. Relator had no such remedy when he was faced with this situation." Respondent Williams' petition contains similar references to Jackson v. Denno. Respondent Richardson's principal claim relates to the adequacy of the legal assistance afforded him. He concedes that the pre-Jackson-Denno procedure played no role in his decision to plead guilty. [10] See, e. g., Price v. Johnston, 334 U. S. 266, 292 (1948). [11] See, e. g., United States ex rel. Nixon v. Follette, 299 F. Supp. 253 (D. C. S. D. N. Y. 1969).

19 U.S. 450 (1821) 6 Wheat. 450 SULLIVAN et al. v. THE FULTON STEAM BOAT COMPANY. Supreme Court of United States. March 8, 1821. *451 Mr. Webster, for the appellants. DECREE. On motion of the appellants, by their counsel, and on inspection of the transcript of the record of the Circuit Court for the Southern District of New-York, it is DECREED and ORDERED, that the decree of the said Circuit Court, in this case, be, and the same is hereby affirmed, it not appearing from the record that the said Circuit Court had jurisdiction *452 in said cause. The said affirmance to be without prejudice to the complainants on the merits of the case.

547 U.S. 250 (2006) HARTMAN et al. v. MOORE No. 04-1495. Supreme Court of United States. Argued January 10, 2006. Decided April 26, 2006. *252 Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Dan Himmelfarb, Barbara L. Herwig, Matthew M. Collette, Stephanie R. Marcus, and Richard Montague. Patrick F. McCartan argued the cause for respondent. With him on the brief were Paul Michael Pohl and Christian G. Vergonis.[*] JUSTICE SOUTER delivered the opinion of the Court. This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven. I In the 1980's, respondent William G. Moore, Jr., was the chief executive of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader for interpreting multiple lines of text. Although REI had received some $50 million from the United States Postal Service to develop this technology for reading and sorting mail, the Postmaster General and other top officials of the Postal Service were urging mailers to use nine-digit zip codes (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail automatically by reading just that line. Besides Moore, who obviously stood to gain financially from the adoption of multiline technology, some Members of *253 Congress and Government research officers had reservations about the Postal Service's Zip + 4 policy and its intended reliance on single-line readers. Critics maligned single-line scanning technology, objected to the foreign sources of single-line scanners, decried the burden of remembering the four extra numbers,[1] and echoed the conclusion reached by the United States Office of Technology Assessment, that use of the single-line scanners in preference to multiliners would cost the Postal Service $1 million a day in operational losses. Moore built on this opposition to Zip + 4, by lobbying Members of Congress, testifying before congressional committees, and supporting a "Buy American" rider to the Postal Service's 1985 appropriations bill. Notwithstanding alleged requests by the Postmaster General to be quiet, REI followed its agenda by hiring a public-relations firm, Gnau and Associates, Inc. (GAI), which one of the Postal Service's governors, Peter Voss, had recommended. The campaign succeeded, and in July 1985 the Postal Service made what it called a "mid-course correction" and embraced multiline technology. Brief for Respondent 4. But the change of heart did not extend to Moore and REI, for the Service's ensuing order of multiline equipment, valued somewhere between $250 million and $400 million, went to a competing firm. Not only did REI lose out on the contract, but Moore and REI were soon entangled in two investigations by Postal Service inspectors. The first looked into the purported payment of kickbacks by GAI to Governor Voss for Voss's recommendations of GAI's services, as in the case of REI; the second sought to document REI's possibly improper role in the search for a new Postmaster General. Notwithstanding very limited evidence linking Moore and REI to any wrong-doing, *254 an Assistant United States Attorney decided to bring criminal charges against them, and in 1988 the grand jury indicted Moore, REI, and REI's vice president. At the close of the Government's case, after six weeks of trial, however, the District Court concluded that there was a "complete lack of direct evidence" connecting the defendants to any of the criminal wrongdoing alleged, and it granted the REI defendants' motion for judgment of acquittal. United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596 (DC 1989). Moore then brought an action in the Northern District of Texas for civil liability under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),[2] against the prosecutor and the five postal inspectors who are petitioners here (a sixth having died). His complaint raised five causes of action, only one of which is relevant here, the claim that the prosecutor and the inspectors had engineered his criminal prosecution in retaliation for criticism of the Postal Service, thus violating the First Amendment. In the course of these proceedings Moore has argued, among other things, that the postal inspectors launched a criminal investigation against him well before they had any inkling of either of the two schemes mentioned above, that the inspectors targeted him for his lobbying activities, and that they pressured the United States Attorney's Office to have him indicted. Moore also sought recovery from the United States under the Federal Tort Claims Act (FTCA). The District Court *255 dismissed the claims against the Assistant United States Attorney in accordance with the absolute immunity for prosecutorial judgment, and rejected an abuse-of-process claim against the inspectors. Moore v. Valder, Civil Action No. 3:91-CV-2491-G (ND Tex., Sept. 21, 1992).[3] The claims remaining were transferred to the District Court for the District of Columbia, where Moore's suit was dismissed in its entirety, Civ. Nos. 92-2288 (NHJ), 93-0324 (NHJ), 1993 WL 405785 (Sept. 24, 1993), only to have the Court of Appeals for the District of Columbia Circuit reinstate the retaliatory-prosecution claim. Moore v. Valder, 65 F. 3d 189 (1995). The District Court then permitted limited discovery on that matter so far as the inspectors were involved, but again dismissed the remaining charges against the United States and the prosecutor. Moore v. Valder, Civil Action No. 92-2288 (NHJ) et al., Record, Tab No. 32 (Memorandum Opinion, Feb. 5, 1998). Although Moore succeeded in having the District of Columbia Circuit reinstate his FTCA claim against the United States, the dismissal of his claims against the prosecutor was affirmed. Moore v. United States, 213 F. 3d 705 (2000). With the remainder of the case back in District Court, the inspectors moved for summary judgment, urging that because the underlying criminal charges were supported by probable cause they were entitled to qualified immunity from a retaliatory-prosecution suit. The District Court denied the motion, and the Court of Appeals affirmed. 388 F. 3d 871 (2004). The Courts of Appeals have divided on the issue of requiring evidence of a lack of probable cause in 42 U. S. C. § 1983 and Bivens retaliatory-prosecution suits. Some Circuits burden plaintiffs with the obligation to show its absence. See, e. g., Wood v. Kesler, 323 F. 3d 872, 883 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252, 260 (CA5 2002); Mozzochi *256 v. Borden, 959 F. 2d 1174, 1179-1180 (CA2 1992). Others, including the District of Columbia Circuit, impose no such requirement. See, e. g., Poole v. County of Otero, 271 F. 3d 955, 961 (CA10 2001); Haynesworth v. Miller, 820 F. 2d 1245, 1256-1257 (CADC 1987). We granted certiorari, 545 U. S. 1138 (2005), to resolve the Circuit split and now reverse. II Official reprisal for protected speech "offends the Constitution [because] it threatens to inhibit exercise of the protected right," Crawford-El v. Britton, 523 U. S. 574, 588, n. 10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his "constitutionally protected speech"). Some official actions adverse to such a speaker might well be unexceptionable if taken on other grounds, but when nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution. See Crawford-El, supra, at 593; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283-284 (1977) (adverse action against government employee cannot be taken if it is in response to the employee's "exercise of constitutionally protected First Amendment freedoms"). When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens. See 403 U. S., at 397. III Despite a procedural history portending another Jarndyce v. Jarndyce,[4] the issue before us is straightforward: whether *257 a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges.[5] A The inspectors argue on two fronts that absence of probable cause should be an essential element. Without such a requirement, they first say, the Bivens claim is too readily available. A plaintiff can afflict a public officer with disruption and expense by alleging nothing more, in practical terms, than action with a retaliatory animus, a subjective condition too easy to claim and too hard to defend against. Brief for Petitioners 21-23; see also National Archives and Records Admin. v. Favish, 541 U. S. 157, 175 (2004) (allegations of government misconduct are "`easy to allege and hard to disprove'"). In the inspectors' view, some "objective" burden must be imposed on these plaintiffs, simply to filter out the frivolous. The second argument complements the *258 first, for the inspectors believe that the traditional tort of malicious prosecution tells us what the objective requirement should be. Brief for Petitioners 24-29. In an action for malicious prosecution after an acquittal, a plaintiff must show that the criminal action was begun without probable cause for charging the crime in the first place; the inspectors see retaliatory prosecution under Bivens as a close cousin of malicious prosecution under common law, making the latter's no-probable-cause requirement a natural feature of the constitutional tort. See Heck v. Humphrey, 512 U. S. 477, 483-485, and 484, n. 4 (1994). B In fact, we think there is a fair argument for what the inspectors call an "objective" fact requirement in this type of case, but the nub of that argument differs from the two they set out, which we will deal with only briefly. As for the invitation to rely on common-law parallels, we certainly are ready to look at the elements of common-law torts when we think about elements of actions for constitutional violations, see Carey v. Piphus, 435 U. S. 247, 258 (1978), but the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts. See, e. g., Albright v. Oliver, 510 U. S. 266, 277, n. 1 (1994) (Ginsburg, J., concurring); Bivens, supra, at 394; cf. Baker v. McCollan, 443 U. S. 137, 146 (1979). And in this instance we could debate whether the closer common-law analog to retaliatory prosecution is malicious prosecution (with its no-probable-cause element) or abuse of process (without it). Compare Heck, 512 U. S., at 483-485, and 484, n. 4, with id., at 493-496 (SOUTER, J., concurring in judgment). Nor is there much leverage in the fear that without a filter to screen out claims federal prosecutors and federal courts will be unduly put upon by the volume of litigation. The basic concern is fair enough, but the slate is not blank. Over the past 25 years fewer than two dozen damages actions for *259 retaliatory prosecution under Bivens or § 1983 have come squarely before the Federal Courts of Appeals, and there is no disproportion of those cases in Circuits that do not require showing an absence of probable cause.[6] C It is, instead, the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement espoused by the inspectors. Although a Bivens (or § 1983) plaintiff must show a causal connection between a defendant's retaliatory animus and subsequent injury in any sort of retaliation action, see Crawford-El, 523 U. S., at 593; Mt. Healthy, 429 U. S., at 285-287, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty that can be understood by comparing the requisite causation in ordinary retaliation claims, where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, with causation in a case like this one. Take the example of a public employee's claim that he was fired for speech criticizing the government. See, e. g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 566-567 (1968) (allegation that a school board dismissed a teacher for writing a public letter critical of the board's financial administration). While the employee plaintiff obviously must plead and prove adverse *260 official action in retaliation for making the statements, our discussions of the elements of the constitutional tort do not specify any necessary details about proof of a connection between the retaliatory animus and the discharge, which will depend on the circumstances. Cf. Crawford-El, supra, at 593 ("[A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation - there must also be evidence of causation"). The cases have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other. See, e. g., Mt. Healthy, supra, at 287; see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 270, n. 21 (1977). It is clear, moreover, that the causation is understood to be but-for causation, without which the adverse action would not have been taken; we say that upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee). See Mt. Healthy, 429 U. S., at 287. If there is a finding that retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official's mind. See ibid. It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway. See Crawford-El, supra, at 593; Mt. Healthy, supra, at 285-286. When the claimed retaliation for protected conduct is a criminal charge, however, a constitutional tort action will differ from this standard case in two ways. Like any other plaintiff charging official retaliatory action, the plaintiff in a retaliatory-prosecution claim must prove the elements of retaliatory animus as the cause of injury, and the defendant *261 will have the same opportunity to respond to a prima facie case by showing that the action would have been taken anyway, independently of any retaliatory animus. What is different about a prosecution case, however, is that there will always be a distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge. Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive. This alone does not mean, of course, that a Bivens or § 1983 plaintiff should be required to plead and prove no probable cause, but it does mean that litigating probable cause will be highly likely in any retaliatory-prosecution case, owing to its powerful evidentiary significance.[7] The second respect in which a retaliatory-prosecution case is different also goes to the causation that a Bivens plaintiff must prove; the difference is that the requisite causation between the defendant's retaliatory animus and the plaintiff's injury is usually more complex than it is in other retaliation cases, and the need to show this more complex connection supports a requirement that no probable cause be alleged and proven. A Bivens (or § 1983) action for retaliatory *262 prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute, Imbler v. Pachtman, 424 U. S. 409, 431 (1976).[8] Instead, the defendant will be a nonprosecutor, an official, like an inspector here, who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute.[9] The consequence is that a plaintiff like Moore must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging. Thus, the causal connection required here is not merely between the retaliatory animus of one person and that person's own injurious action, but between the retaliatory animus of one person and the action of another. See 213 F. 3d, at 710 ("In order to find that a defendant procured a prosecution, the plaintiff must establish `a chain of causation' linking the defendant's actions with the initiation of criminal proceedings"); see also Barts v. Joyner, 865 F. 2d 1187, 1195 (CA11 1989) (plaintiff seeking damages incident to her criminal prosecution would have to show that the police, who allegedly *263 acted in violation of law in securing her arrest, unduly pressured or deceived prosecutors); Dellums v. Powell, 566 F. 2d 167, 192-193 (CADC 1977) (where allegation of misconduct is directed at police, a malicious-prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by police); cf. Smiddy v. Varney, 665 F. 2d 261, 267 (CA9 1981) ("[W]here police officers do not act maliciously or with reckless disregard for the rights of an arrested person, they are not liable for damages suffered by the arrested person after a district attorney files charges unless the presumption of independent judgment by the district attorney is rebutted"). Herein lies the distinct problem of causation in cases like this one. Evidence of an inspector's animus does not necessarily show that the inspector induced the action of a prosecutor who would not have pressed charges otherwise. Moreover, to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor's mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 489-490 (1999); United States v. Armstrong, 517 U. S. 456, 464-466 (1996). And this presumption that a prosecutor has legitimate grounds for the action he takes is one we do not lightly discard, given our position that judicial intrusion into executive discretion of such high order should be minimal, see Wayte v. United States, 470 U. S. 598, 607-608 (1985). Some sort of allegation, then, is needed both to bridge the gap between the nonprosecuting government agent's motive and the prosecutor's action, and to address the presumption of prosecutorial regularity. And at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured the plaintiff. The connection, to be alleged and shown, is the absence of probable cause. *264 It would be open to us, of course, to give no special prominence to an absence of probable cause in bridging the causal gap, and to address this distinct causation concern at a merely general level, leaving it to such pleading and proof as the circumstances allow. A prosecutor's disclosure of retaliatory thinking on his part, for example, would be of great significance in addressing the presumption and closing the gap. So would evidence that a prosecutor was nothing but a rubber stamp for his investigative staff or the police. Cf. Mt. Healthy, 429 U. S., at 281-283 (evidence that the board of education, which formally decided not to rehire a teacher, was only nominally distinct from the school superintendent, who allegedly bore the retaliatory animus). In fact, though, these examples are likely to be rare and consequently poor guides in structuring a cause of action. In most cases, for instance, it would be unrealistic to expect a prosecutor to reveal his mind even to the degree that this record discloses, with its reported statement by the prosecutor that he was not galvanized by the merits of the case, but sought the indictment against Moore because he wanted to attract the interest of a law firm looking for a tough trial lawyer.[10] *265 Accordingly, the significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. True, it is not necessarily dispositive: showing an absence of probable cause may not be conclusive that the inducement succeeded, and showing its presence does not guarantee that inducement was not the but-for fact in a prosecutor's decision. But a retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision, see Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) (emphasizing that "so long as the prosecutor has probable cause," the charging decision is generally discretionary), and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor's decision to bring the charge. Our sense is that the very significance of probable cause means that a requirement to plead and prove its absence will usually be cost free by any incremental reckoning. The issue is so likely to be raised by some party at some point that treating it as important enough to be an element will be a way to address the issue of causation without adding to time or expense. See n. 7, supra. In this case, for example, Moore cannot succeed in the retaliation claim without showing that the Assistant United States Attorney was worse than just an unabashed careerist, and if he can show that the prosecutor had no probable cause, the claim of retaliation will have some vitality. In sum, the complexity of causation in a claim that prosecution was induced by an official bent on retaliation should be addressed specifically in defining the elements of the tort. Probable cause or its absence will be at least an evidentiary issue in practically all such cases. Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes *266 sense to require such a showing as an element of a plaintiff's case, and we hold that it must be pleaded and proven. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE and JUSTICE ALITO took no part in the consideration or decision of this case. JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting. The Court of Appeals, reviewing the record so far made, determined that "[t]he evidence of retaliatory motive [came] close to the proverbial smoking gun." 388 F. 3d 871, 884 (CADC 2004). The record also indicated that the postal inspectors engaged in "unusual prodding," strenuously urging a reluctant U. S. Attorney's Office to press charges against Moore. Ibid. Following Circuit precedent, the Court of Appeals held that "once a plaintiff shows [conduct sheltered by the First Amendment] to have been a motivating factor in the decision to press charges," the burden shifts to the defending officials to show that the case would have been pursued anyway. Id., at 878. Recognizing that this case is now directed against the instigating postal inspectors alone, not the prosecutor, I would not assign to the plaintiff the burden of pleading and proving the absence of probable cause for the prosecution. Instead, in agreement with the Court of Appeals, I would assign to the postal inspectors who urged the prosecution the burden of showing that, had there been no retaliatory motive and importuning, the U. S. Attorney's Office nonetheless would have pursued the case. Under the Court's proof burden allocation, which saddles plaintiff - the alleged victim - with the burden to plead and prove lack of probable cause, only entirely "baseless prosecutions" *267 would be checked. Id., at 879. So long as the retaliators present evidence barely sufficient to establish probable cause and persuade a prosecutor to act on their thin information, they could accomplish their mission cost free. Their victim, on the other hand, would incur not only the costs entailed in mounting a defense, he likely would sustain a reputational loss as well, and neither loss would be compensable under federal law. Under the D. C. Circuit's more speechprotective formulation, "[a] Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),] recovery remains possible . . . in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the [investigation and ensuing] prosecution would not have occurred but for the [defending] officials' retaliatory animus." Id., at 881. That such situations "are likely to be rare," it seems to me, does not warrant "structuring a cause of action," ante, at 264, that precludes relief when they do arise. For reasons fully developed in the D. C. Circuit's opinion, I conclude that, in full accord with this Court's decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977), the Court of Appeals' decision strikes the proper balance. I would, therefore, affirm the Circuit's judgment. NOTES [*] Richard Ruda and James I. Crowley filed a brief for the National League of Cities et al. as amici curiae urging reversal. [1] See, e. g., Seaberry, Durenberger Begins Campaign Against Nine-Digit Zip Code, Washington Post, Feb. 24, 1981, p. E4 (describing Senator David Durenberger's reference to the Zip + 4 campaign as "`a mnemonic plague of contagious digititous'"). [2] "Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U. S. 14, 18 (1980). Though more limited in some respects not relevant here, a Bivens action is the federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U. S. C. § 1983. See Wilson v. Layne, 526 U. S. 603, 609 (1999); see also Waxman & Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L. J. 2195, 2208 (2003) ("Section 1983 applies . . . to state and local officers, [and] the Supreme Court in Bivens . . . inferred a parallel damages action against federal officers"). [3] Moore and his wife had originally filed this complaint jointly. Her claims were dismissed for lack of standing. [4] See 2 C. Dickens, Bleak House 85 (1853). [5] Moore contends that we (like the Court of Appeals before us) exceed our appellate jurisdiction when we address the issue of probable cause, see Brief for Respondent 37-39, but his argument is mistaken. It is true that the disagreement over a no-probable-cause requirement arose on the inspectors' motion for summary judgment on their qualified-immunity defense; Moore stresses that an interlocutory appeal can be taken from the rejection of qualified immunity at the summary-judgment stage only on questions turning on the definition of the violation, not on the sufficiency of the evidence to show that a defendant is in fact entitled to the immunity claimed. See Mitchell v. Forsyth, 472 U. S. 511, 528 (1985). Moore says that the issue of probable cause or its absence is simply an evidentiary matter going to entitlement in fact. But the inspectors are making more than a claim about the evidence in this case: they are arguing that we should hold that a showing of no probable cause is an element of the kind of claim Moore is making against them. In agreeing with the inspectors, we are addressing a requirement of causation, which Moore must plead and prove in order to win, and our holding does not go beyond a definition of an element of the tort, directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal. See ibid.; see also Crawford-El v. Britton, 523 U. S. 574, 588, 592-593 (1998); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285-286 (1977). [6] In fact, many of the appellate challenges have been brought in the Second, Fifth, and Eleventh Circuits, all of which require plaintiffs to show an absence of probable cause. See, e. g., Izen v. Catalina, 398 F. 3d 363 (CA5 2005) (per curiam); Wood v. Kesler, 323 F. 3d 872 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252 (CA5 2002); Singer v. Fulton County Sheriff, 63 F. 3d 110 (CA2 1995); Post v. Fort Lauderdale, 7 F. 3d 1552 (CA11 1993); Mozzochi v. Borden, 959 F. 2d 1174 (CA2 1992); Magnotti v. Kuntz, 918 F. 2d 364 (CA2 1990). [7] Indeed, even though the Court of Appeals in this case held that plaintiffs do not have to show an absence of probable cause in order to make retaliatory-prosecution claims, it nevertheless acknowledged probable cause's significance in such suits. See 388 F. 3d 871, 881 (CADC 2004) ("Given that probable cause ordinarily suffices to initiate a prosecution, that showing will be enough in most cases to establish that prosecution would have occurred absent bad intent. A Bivens recovery remains possible, however, in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the prosecution would not have occurred but for the officials' retaliatory animus"). [8] An action could still be brought against a prosecutor for conduct taken in an investigatory capacity, to which absolute immunity does not extend. See Buckley v. Fitzsimmons, 509 U. S. 259, 274-276 (1993) (no absolute immunity when prosecutor acts in administrative capacity); Burns v. Reed, 500 U. S. 478, 492-495 (1991) (absolute immunity does not attach when a prosecutor offers legal advice to the police regarding interrogation practices). In fact, Moore's complaint charged the prosecutor with acting in an investigative as well as in a prosecutorial capacity, see App. 45, but dismissal of the complaint as against the prosecutor was affirmed in 213 F. 3d 705, 710 (CADC 2000), and no claim against him is before us now. [9] No one here claims that simply conducting a retaliatory investigation with a view to promote a prosecution is a constitutional tort. That is not part of Moore's complaint. See App. 33-34, 38-45. Whether the expense or other adverse consequences of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us. [10] Some may suggest that we should structure a cause of action in the alternative, dispensing with a requirement to show no probable cause when a plaintiff has evidence of a direct admission by a prosecutor that, irrespective of probable cause, the prosecutor's sole purpose in initiating a criminal prosecution was to acquiesce to the inducements of other government agents, who themselves harbored retaliatory animus. Cf. United States v. Armstrong, 517 U. S. 456, 469, n. 3 (1996) (leaving open the question "whether a [criminal] defendant must satisfy the similarly situated requirement in a case `involving direct admissions by [prosecutors] of discriminatory purpose'" (brackets in original)). But this would seem a little like proposing that retirement plans include the possibility of winning the lottery. Unambiguous admissions of successful inducement are likely to be rare, and hassles over the adequacy of admissions will be the predictable result, if any exemption to a noprobable-cause requirement is allowed.

223 U.S. 303 (1912) POWERS v. UNITED STATES. No. 152. Supreme Court of United States. Argued January 22, 1912. Decided February 19, 1912. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF VIRGINIA. *304 Mr. S.H. Sutherland, with whom Mr. R.A. Ayers was on the brief, for plaintiff in error. Mr. Assistant Attorney General Denison, with whom Mr. Loring C. Christie was on the brief, for the United States. *310 MR. JUSTICE DAY delivered the opinion of the court. Plaintiff in error (hereinafter called defendant) was convicted in the District Court of the United States for the Western District of Virginia under an indictment charging him with the violation of §§ 3258, 3279, 3281 and 3242 of the Revised Statutes of the United States. He was sentenced to a fine of $100 and to be imprisoned for a period of thirty days. The indictment contained seven counts, charging the defendant substantially as follows: That he had in his possession a still and distilling apparatus for the production of spirituous liquors without having had such still and apparatus registered (first count); that he carried on the business of a distiller of spirituous liquors without having given bond (second count), and with the intent to defraud the United States of the tax on such liquors (third count), and also carried on the business of a retail liquor dealer without having paid the special tax therefor (seventh count); that he worked in a distillery for the production of spirituous liquors upon which no "Registered Distillery" sign was displayed (fourth count), and that he delivered raw material, namely, meal, to (sixth count), and conveyed distilled spirits from (fifth count), such distillery. The case comes to this court, because of the alleged violation of a constitutional right, in compelling the defendant to be a witness against himself. This contention is developed in the bill of exceptions, which shows that at a preliminary hearing before a United States commissioner, after a witness for the Government had testified that he had seen the defendant beating apples at a "still *311 place" near the home of one Preston Powers, and about four miles from defendant's home, the defendant, without counsel and not having been instructed by the commissioner, voluntarily, in his own behalf, testified that he had beaten apples about thirty steps from the still place; that Preston Powers had hired him for seventy-five cents a day, and had set him to work beating apples, but that he had no interest in the apples, the product from them or the still, and no control of the still, and had merely been hired by the day at a fixed price; that thereupon M.P. Colly, deputy marshal, asked him if he had not worked at a distillery within two years of the warrant in this case, at another time and place, which question the defendant refused to answer until informed by the commissioner, and by the deputy marshal, that unless he did so he would be committed to jail, and he then testified that "he had worked at a distillery and made some brandy last fall near his house, and he paid Preston Powers to assist him"; that upon the trial of the case in the District Court that court, over the objection of the defendant, admitted the testimony of Colly, who repeated the proceedings before the commissioner, including the testimony of defendant, and that the court refused to strike out Colly's testimony or to instruct the jury to disregard it, upon the motion of defendant's counsel, to all of which, at the time, counsel for defendant duly excepted. The contentions of the defendant are that the judgment should be reversed for the following reasons: 1st. There was no venire facias summoning the grand jury which found this purported indictment. 2nd. The said grand jury was not sworn and consequently could not find an indictment. 3rd. The indictment was defective and the demurrer should have been sustained to the fourth and sixth counts. 4th. The petit jury that tried this case was not sworn nor summoned. *312 5th. The testimony of Colly was illegal and incompetent testimony, and should have been rejected when offered, and if received striken out on counsel's motion. As to the first, that there was no venire facias summoning the grand jury, there is nothing in the record to show that this objection, if tenable at all, was taken before plea or, indeed, at any time during the trial. Objections of this character are waived unless seasonably taken. United States v. Gale, 109 U.S. 65; Agnew v. United States, 165 U.S. 36; Rodriguez v. United States, 198 U.S. 156; McInerney v. United States, 147 Fed. Rep. 183. The same observation applies to the second assignment of error, that the grand jury is not shown by the record to have been sworn. The indictment recites that the grand jury was selected, impaneled, sworn and charged, and that they on their oaths present, etc. At this stage of the proceedings this is enough to show the proper swearing of the grand jury. In Crain v. United States, 162 U.S. 625, cited by counsel for defendant, the record was destitute of any showing that the accused was arraigned or pleaded to the indictment. See Pointer v. United States, 151 U.S. 396, 418. As to the assignment of error that there were certain defective counts in the indictment, the conviction was a general one, and, even if the counts were defective, as alleged, one good count, sufficient to sustain the sentence, is all that is required to warrant the affirmation of a judgment in error proceedings. Dunbar v. United States, 156 U.S. 185. As to the objection that the petit jury was not sworn: The record discloses that they were "called and empaneled," and, "being selected and tried in the manner prescribed by law, the truth of and upon the premises to speak, and having heard the evidence, the arguments of counsel, and charge of the judge, retired to consider their verdict, and upon their oaths do say," etc. We *313 think that this sufficiently discloses, upon proceedings in error after conviction, that the petit jury was duly sworn. The chief objection contended for in argument concerns the admission in the District Court of the testimony of the defendant before the commissioner. The admission of this testimony is claimed to have worked a violation of the defendant's constitutional rights under the Fifth Amendment to the Constitution, which protects him against self-incrimination. It appears from the bill of exceptions that the defendant voluntarily took the stand and testified in his own behalf. This he might do under the Federal statute (March 16, 1878, 20 Stat. 30, c. 37), making the defendant a competent witness, "at his own request, but not otherwise." We are of the opinion that it was not essential to the admissibility of his testimony that he should first have been warned that what he said might be used against him. In Wilson v. United States, 162 U.S. 613, Wilson was charged with murder. Before a United States commissioner, upon a preliminary hearing, he made a statement which was admitted at the trial. He had no counsel, was not warned or told of his right to refuse to testify, but there was testimony tending to show that the statement was voluntary. At pages 623, 624, this court said: "And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned. Joy on Confessions, * 45, * 48, and cases cited. ". . . . He [Wilson] did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered. . . . He did not have the aid of counsel; *314 and he was not warned that the statement might be used against him or advised that he need not answer. These were matters which went to the weight or credibility of what he said of an incriminating character, but as he was not confessing guilt but the contrary, we think that, under all the circumstances disclosed, they were not of themselves sufficient to require his answers to be excluded on the ground of being involuntary as matter of law." In the present case, it does not appear that the witness claimed his privilege, or was ignorant of it, or that if he had known of it would not have answered - indeed, the record shows that his testimony was entirely voluntary and understandingly given. Such testimony cannot be excluded when subsequently offered at his trial. As to the contention that the cross-examination before the commissioner shown in the bill of exceptions was improperly extorted from the witness under threat of commitment, an examination of the bill of exceptions, we think, requires an answer overruling this exception. There is some difference of opinion expressed in the authorities, but the rule recognized in this court is that a defendant, who voluntarily takes the stand in his own behalf, thereby waiving his privilege, may be subjected to a cross-examination concerning his statement. "Assuming the position of a witness, he is entitled to all its rights and protection, and is subject to all its criticisms and burdens" and may be fully cross-examined as to the testimony voluntarily given. Reagan v. United States, 157 U.S. 301, 305. The rule is thus stated in Brown v. Walker, 161 U.S. 591, 597: "Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure. 1 Greenl. Ev., § 451; Dixon v. Vale, 1 C. & P. 278; East v. Chapman, *315 2 C. & P. 570; S.C., M. & M. 46; State v. K----, 4 N.H. 562; Low v. Mitchell, 18 Maine, 372; Coburn v. Odell, 10 Fost. (N.H.) 540; Norfolk v. Gaylord, 28 Connecticut, 309; Austin v. Poiner, 1 Sim. 348; Commonwealth v. Pratt, 126 Massachusetts, 462; Chamberlain v. Willson, 12 Vermont, 491; Lockett v. State, 63 Alabama, 5; People v. Freshour, 55 California, 375. "So, under modern statutes permitting accused persons to take the stand in their own behalf, they may be subjected to cross-examination upon their statements. State v. Wentworth, 65 Maine, 234; State v. Witham, 72 Maine, 531; State v. Ober, 52 N.H. 492; Commonwealth v. Bonner, 97 Massachusetts, 587; Commonwealth v. Morgan, 107 Massachusetts, 199; Commonwealth v. Mullen, 97 Massachusetts, 545; Connors v. People, 50 N.Y. 240; People v. Casey, 72 N.Y. 393." But it is contended by the defendant that the bill of exceptions shows that the alleged cross-examination was entirely irrelevant and improper, and not a legitimate cross-examination of the defendant's testimony in his own behalf. It appears that Powers testified, being charged with illegal conduct concerning the distillation of spirits, as already stated, that he was at a place about thirty steps from the still, beating apples, as testified by the Government's witness; that Preston Powers had hired him to work for him at the price of seventy-five cents a day, and that he put him to beating apples; that the witness had no interest in the apples or the product thereof and no interest in the still, but was merely hired to work by the day at the price of 75 cents. Having taken the stand in his own behalf, and given the testimony above recited, tending to show that he was not guilty of the offense charged, he was required to submit to cross-examination, as any other witness in the case would be, concerning matter pertinent to the examination in chief. The cross-examination, in the answer elicited, tended to *316 show that defendant had worked at a distillery the fall before with Preston Powers, the man he alleged he was working for at beating apples on the occasion when the Government witness saw him near the still, and had made brandy near his house, and had paid Preston Powers to assist him. This, we think, might be regarded as having some relevancy to the defendant's claim as to the innocent character of his occupation at the time charged. It had a tendency to show that defendant knew the character of the occupation in which he was then engaged, having worked before with Preston Powers at a distillery and made brandy with him, and did not exceed the limits of a proper cross-examination of the witness. As to the suggestion that § 860 of the Revised Statutes prevented the introduction of the testimony given by defendant before the commissioner, that section, providing that no pleading nor any discovery or evidence obtained from a party by means of a judicial proceeding, shall be used in evidence against him in a criminal proceeding, can have no bearing, where, as in the present case, the accused voluntarily testified in his own behalf in the course of the same proceeding, thereby himself opening the door to legitimate cross-examination. See Tucker v. United States, 151 U.S. 164, 168. Judgment affirmed.

451 U.S. 704 (1981) H. A. ARTISTS & ASSOCIATES, INC., ET AL. v. ACTORS' EQUITY ASSN. ET AL. No. 80-348. Supreme Court of United States. Argued March 23, 1981. Decided May 26, 1981. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. *705 Howard Breindel argued the cause for petitioners. With him on the briefs was Charles Donelan. Jerome B. Lurie argued the cause for respondents. With him on the brief were Sidney E. Cohn, Mary K. O'Melveny, Nan Bases, and Samuel Estreicher. *706 Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. With him on the brief were J. Albert Woll and George Kaufmann.[*] JUSTICE STEWART delivered the opinion of the Court. The respondent Actors' Equity Association (Equity) is a union representing the vast majority of stage actors and actresses in the United States. It enters into collective-bargaining agreements with theatrical producers that specify minimum wages and other terms and conditions of employment for those whom it represents. The petitioners are independent theatrical agents who place actors and actresses in jobs with producers. The Court of Appeals for the Second Circuit held that the respondents'[1] system of regulation of theatrical agents is immune from antitrust liability by reason of the statutory labor exemption from the antitrust laws, 622 F. 2d 647.[2] We granted certiorari to consider the availability of that exemption in the circumstances presented by this case. 449 U. S. 991. I A Equity is a national union that has represented stage actors and actresses since early in this century. Currently representing approximately 23,000 actors and actresses, it has collective-bargaining agreements with virtually all major theatrical producers in New York City, on and off Broadway, *707 and with most other theatrical producers throughout the United States. The terms negotiated with producers are the minimum conditions of employment (called "scale"); an actor or actress is free to negotiate wages or terms more favorable than the collectively bargained minima. Theatrical agents are independent contractors who negotiate contracts and solicit employment for their clients. The agents do not participate in the negotiation of collective-bargaining agreements between Equity and the theatrical producers. If an agent succeeds in obtaining employment for a client, he receives a commission based on a percentage of the client's earnings. Agents who operate in New York City must be licensed as employment agencies and are regulated by the New York City Department of Consumer Affairs pursuant to New York law, which provides that the maximum commission a theatrical agent may charge his client is 10% of the client's compensation. In 1928, concerned with the high unemployment rates in the legitimate theater and the vulnerability of actors and actresses to abuses by theatrical agents,[3] including the extraction of high commissions that tended to undermine collectively bargained rates of compensation, Equity unilaterally established a licensing system for the regulation of agents. The regulations permitted Equity members to deal only with those agents who obtained Equity licenses and thereby agreed to meet the conditions of representation prescribed by Equity. Those members who dealt with nonlicensed agents were subject to union discipline. The system established by the Equity regulations was immediately challenged.[4] In Edelstein v. Gillmore, 35 F. 2d *708 723, the Court of Appeals for the Second Circuit concluded that the regulations were a lawful effort to improve the employment conditions of Equity members. In an opinion written by Judge Swan and joined by Judge Augustus N. Hand,[5] the court said: "The evils of unregulated employment agencies (using this term broadly to include also the personal representative) are set forth in the defendants' affidavits and are corroborated by common knowledge. . . . Hence the requirement that, as a condition to writing new business with Equity's members, old contracts with its members must be made to conform to the new standards, does not seem to us to justify an inference that the primary purpose of the requirement is infliction of injury upon plaintiff, and other personal representatives in a similar situation, rather than the protection of the supposed interests of Equity's members. The terms they insist upon are calculated to secure from personal representatives better and more impartial service, at uniform and cheaper rates, and to improve conditions of employment of actors by theater managers. Undoubtedly the defendants intend to compel the plaintiff to give up rights under existing contracts which do not conform to the new standards set up by Equity, but, as already indicated, their motive in so doing is to benefit themselves and their fellow actors in the economic struggle. The financial loss to plaintiff is incidental to this purpose." Id., at 726 (emphasis added).[6] *709 The essential elements of Equity's regulation of theatrical agents have remained unchanged since 1928.[7] A member of Equity is prohibited, on pain of union discipline, from using an agent who has not, through the mechanism of obtaining an Equity license (called a "franchise"), agreed to comply with the regulations. The most important of the regulations requires that a licensed agent must renounce any right to take a commission on an employment contract under which an actor or actress receives scale wages.[8] To the extent a contract includes provisions under which an actor or actress will sometimes receive scale pay - for rehearsals or "chorus" *710 employment, for example - and sometimes more, the regulations deny the agent any commission on the scale portions of the contract. Licensed agents are also precluded from taking commissions on out-of-town expense money paid to their clients. Moreover, commissions are limited on wages within 10% of scale pay,[9] and an agent must allow his client to terminate a representation contract if the agent is not successful in procuring employment within a specified period.[10] Finally, agents are required to pay franchise fees to Equity. The fee is $200 for the initial franchise, $60 a year thereafter for each agent, and $40 for any subagent working in the office of another. These fees are deposited by Equity in its general treasury and are not segregated from other union funds. In 1977, after a dispute between Equity and Theatrical Artists Representatives Associates (TARA) - a trade association representing theatrical agents, see n. 7, supra - a group of agents, including the petitioners, resigned from TARA because of TARA's decision to abide by Equity's regulations. These agents also informed Equity that they would not accept Equity's regulations, or apply for franchises. The petitioners instituted this lawsuit in May 1978, contending that Equity's regulations of theatrical agents violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 2. *711 B The District Court found, after a bench trial, that Equity's creation and maintenance of the agency franchise system were fully protected by the statutory labor exemptions from the antitrust laws, and accordingly dismissed the petitioners' complaint. 478 F. Supp. 496 (SDNY). Among its factual conclusions, the trial court found that in the theatrical industry, agents play a critical role in securing employment for actors and actresses: "As a matter of general industry practice, producers seek actors and actresses for their productions through agents. Testimony in this case convincingly established that an actor without an agent does not have the same access to producers or the same opportunity to be seriously considered for a part as does an actor who has an agent. Even principal interviews, in which producers are required to interview all actors who want to be considered for principal roles, do not eliminate the need for an agent, who may have a greater chance of gaining an audition for his client. ..... "Testimony confirmed that agents play an integral role in the industry; without an agent, an actor would have significantly lesser chances of gaining employment." Id., at 497, 502. The court also found "no evidence to suggest the existence of any conspiracy or illegal combination between Actors' Equity and TARA or between Actors' Equity and producers," and concluded that "[t]he Actors Equity franchising system was employed by Actors' Equity for the purpose of protecting the wages and working conditions of its members." Id., at 499. The Court of Appeals unanimously affirmed the judgment of the District Court. It determined that the threshold issue was, under United States v. Hutcheson, 312 U. S. 219, 232, whether Equity's franchising system involved any combination *712 between Equity and any "non-labor groups" or persons who are not "parties to a labor dispute." 622 F. 2d, at 648-649. If it did, the court reasoned, the protection of the statutory labor exemption would not apply. First, the Court of Appeals held that the District Court had not been clearly erroneous in finding no agreement, explicit or tacit, between Equity and the producers to establish or police the franchising system. Ibid. Next, the court turned to the relationship between the union and those agents who had agreed to become franchised, in order to determine whether those agreements would divest Equity's system of agency regulation of the statutory exemption. Relying on Musicians v. Carroll, 391 U. S. 99, the court concluded that the agents were themselves a "labor group," because of their substantial "economic inter-relationship" with Equity, under which "the union [could] not eliminate wage competition among its members without regulation of the fees of the agents." 622 F. 2d, at 650, 651. Accordingly, since the elimination of wage competition is plainly within the area of a union's legitimate self-interest, the court concluded that the exemption was applicable.[11] After deciding that the central feature of Equity's franchising system - the union's exaction of an agreement by agents not to charge commissions on certain types of work - was immune from antitrust challenge, the Court of Appeals turned to the petitioners' challenge of the franchise fees exacted from agents. Equity had argued that the fees were necessary to meet its expenses in administering the franchise system, but no evidence was presented at trial to show that the costs justified the fees actually levied. The Court of Appeals suggested that if the exactions exceeded the true *713 costs, they could not legally be collected, as such exactions would be unconnected with any of the goals of national labor policy that justify the labor antitrust exemption. Despite the lack of any cost evidence at trial, however, the appellate court reasoned that the fees were sufficiently low that a remand to the District Court on this point "would not serve any useful purpose." Id., at 651. II A Labor unions are lawful combinations that serve the collective interests of workers, but they also possess the power to control the character of competition in an industry. Accordingly, there is an inherent tension between national antitrust policy, which seeks to maximize competition, and national labor policy, which encourages cooperation among workers to improve the conditions of employment.[12] In the years immediately following passage of the Sherman Act, courts enjoined strikes as unlawful restraints of trade when a union's conduct or objectives were deemed "socially or economically harmful." Duplex Printing Press Co. v. Deering, 254 U. S. 443, 485 (Brandeis, J., dissenting).[13] In response to these practices, Congress acted, first in the Clayton Act, 38 Stat. 731, and later in the Norris-LaGuardia Act, 47 Stat. 70, to immunize labor unions and labor disputes from challenge under the Sherman Act. Section 6 of the Clayton Act, 15 U. S. C. § 17, declares that human labor "is not a commodity or article of commerce," and immunizes from antitrust liability labor organizations *714 and their members "lawfully carrying out" their "legitimate object[ives]." Section 20 of the Act prohibits injunctions against specified employee activities, such as strikes and boycotts, that are undertaken in the employees' self-interest and that occur in the course of disputes "concerning terms or conditions of employment," and states that none of the specified acts can be "held to be [a] violatio[n] of any law of the United States." 29 U. S. C. § 52. This protection is re-emphasized and expanded in the Norris-LaGuardia Act, which prohibits federal-court injunctions against single or organized employees engaged in enumerated activities,[14] and specifically forbids such injunctions notwithstanding the claim of an unlawful combination or conspiracy. While the Norris-LaGuardia Act's bar of federal-court labor injunctions is not explicitly phrased as an exemption from the antitrust laws, it has been interpreted broadly as a statement of congressional policy that the courts must not use the antitrust laws as a vehicle to interfere in labor disputes.[15] In United States v. Hutcheson, 312 U. S. 219, the Court held that labor unions acting in their self-interest and not in combination with nonlabor groups enjoy a statutory exemption from Sherman Act liability. After describing the *715 congressional responses to judicial interference in union activity, id., at 229-230, the Court declared that "[s]o long as a union acts in its self-interest and does not combine with non-labor groups, the licit and the illicit under § 20 [of the Clayton Act] are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means." Id., at 232 (footnote omitted). The Court explained that this exemption derives not only from the Clayton Act, but also from the Norris-LaGuardia Act, particularly its definition of a "labor dispute," see n. 14, supra, in which Congress "reasserted the original purpose of the Clayton Act by infusing into it the immunized trade union activities as redefined by the later Act." 312 U. S., at 236. Thus under Hutcheson, no federal injunction may issue over a "labor dispute," and "§ 20 [of the Clayton Act] removes all such allowable conduct from the taint of being a `violation of any law of the United States,' including the Sherman [Act]." Ibid.[16] The statutory exemption does not apply when a union combines with a "non-labor group." Hutcheson, supra, at 232. Accordingly, antitrust immunity is forfeited when a union combines with one or more employers in an effort to restrain trade. In Allen Bradley Co. v. Electrical Workers, 325 U. S. 797, for example, the Court held that a union had violated the Sherman Act when it combined with manufacturers and contractors to erect a sheltered local business market in *716 order "to bar all other business men from [the market], and to charge the public prices above a competitive level." Id., at 809.[17] The Court indicated that the union efforts would, standing alone, be exempt from antitrust liability, ibid., but because the union had not acted unilaterally, the exemption was denied.[18] Congress "intended to outlaw business monopolies. A business monopoly is no less such because a union participates, and such participation is a violation of the Act." Id., at 811.[19] *717 B The Court of Appeals properly recognized that the threshold issue was to determine whether or not Equity's franchising of agents involved any combination between Equity and any "non-labor groups," or persons who are not "parties to a labor dispute." 622 F. 2d, at 649 (quoting Hutcheson, 312 U. S., at 232).[20] And the court's conclusion that the trial court had not been clearly erroneous in its finding that there was no combination between Equity and the theatrical producers[21] to create or maintain the franchise system is amply supported by the record. The more difficult problem is whether the combination between Equity and the agents who agreed to become franchised was a combination with a "nonlabor group." The answer to this question is best understood in light of Musicians v. Carroll, 391 U. S. 99. There, four orchestra leaders, members of the American Federation of Musicians, brought an action based on the Sherman Act challenging the union's unilateral system of regulating "club dates," or one-time musical engagements. These regulations, inter alia, enforced a *718 closed shop; required orchestra leaders to engage a minimum number of "sidemen," or instrumentalists; prescribed minimum prices for local engagements;[22] prescribed higher minimum prices for traveling orchestras; and permitted leaders to deal only with booking agents licensed by the union. Without disturbing the finding of the Court of Appeals that the orchestra leaders were employers and independent contractors, the Court concluded that they were nonetheless a "labor group" and parties to a "labor dispute" within the meaning of the Norris-LaGuardia Act, and thus that their involvement in the union regulatory scheme was not an unlawful combination between "labor" and "nonlabor" groups. The Court agreed with the trial court that the applicable test was whether there was "job or wage competition or some other economic interrelationship affecting legitimate union interests between the union members and the independent contractors." Id., at 106. The Court also upheld the restrictions on booking agents, who were not involved in job or wage competition with union members. Accordingly, these restrictions had to meet the "other economic interrelationship" branch of the disjunctive test quoted above. And the test was met because those restrictions were "`at least as intimately bound up with the subject of wages' . . . as the price floors." Id., at 113 (quoting Teamsters v. Oliver, 362 U. S. 605, 606). The Court noted that the booking agent restrictions had been adopted, in part, because agents had "charged exorbitant fees, and booked engagements for musicians at wages . . . below union scale."[23] *719 C The restrictions challenged by the petitioners in this case are very similar to the agent restrictions upheld in the Carroll case.[24] The essential features of the regulatory scheme are identical: members are permitted to deal only with agents who have agreed (1) to honor their fiduciary obligations by avoiding conflicts of interest, (2) not to charge excessive commissions, and (3) not to book members for jobs paying less than the union minimum.[25] And as in Carroll, Equity's *720 regulation of agents developed in response to abuses by employment agents who occupy a critical role in the relevant labor market.[26] The agent stands directly between union members and jobs, and is in a powerful position to evade the union's negotiated wage structure. The peculiar structure of the legitimate theater industry, where work is intermittent, where it is customary if not essential for union members to secure employment through agents, and where agents' fees are calculated as a percentage of a member's wage, makes it impossible for the union to defend even the integrity of the minimum wages it has negotiated without regulation of agency fees.[27] The regulations are "brought within the labor exemption [because they are] necessary to assure that scale wages will be paid . . . ." Carroll, 391 U. S., at 112. They "embody . . . a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure." Teamsters v. Oliver, 358 U. S. *721 283, 294. Agents must, therefore, be considered a "labor group," and their controversy with Equity is plainly a "labor dispute" as defined in the Norris-LaGuardia Act: "representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." 29 U. S. C. § 113 (c). Agents perform a function - the representation of union members in the sale of their labor - that in most nonentertainment industries is performed exclusively by unions. In effect, Equity's franchise system operates as a substitute for maintaining a hiring hall as the representative of its members seeking employment.[28] Finally, Equity's regulations are clearly designed to promote the union's legitimate self-interest. Hutcheson, 312 U. S., at 232. In a case such as this, where there is no direct wage or job competition between the union and the group it regulates, the Carroll formulation to determine the *722 presence of a nonlabor group - whether there is "`some . . . economic interrelationship affecting legitimate union interests. . . ,'" 391 U. S., at 106 (quoting District Court opinion) - necessarily resolves this issue. D The question remains whether the fees that Equity levies upon the agents who apply for franchises are a permissible component of the exempt regulatory system. We have concluded that Equity's justification for these fees is inadequate. Conceding that Carroll did not sanction union extraction of franchise fees from agents,[29] Equity suggests, only in the most general terms, that the fees are somehow related to the basic purposes of its regulations: elimination of wage competition, upholding of the union wage scale, and promotion of fair access to jobs. But even assuming that the fees no more than cover the costs of administering the regulatory system, this is simply another way of saying that without the fees, the union's regulatory efforts would not be subsidized - and that the dues of Equity's members would perhaps have to be increased to offset the loss of a general revenue source.[30] If Equity did not impose these franchise fees upon the agents, there is no reason to believe that any of its legitimate interests would be affected.[31] *723 III For the reasons stated, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion. It is so ordered. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and JUSTICE MARSHALL join, concurring in part and dissenting in part. I join all but Part II-D of the Court's opinion. That part holds that respondents' exaction of a franchise fee is not a "permissible component of the exempt regulatory system." Ante, at 722. Rather, I agree with the Court of Appeals that the approximately $12,000 collected annually in fees is not "incommensurate with Equity's expenses in maintaining a full-time employee to administer the system," 622 F. 2d 647, 651 (CA2 1980), and thus is not "unconnected with any of the goals of national labor policy which justify the antitrust exemption for labor," ibid. The Court justifies its conclusion by suggesting that, since the union could increase its dues to offset the revenue lost from invalidation of the fee system, "there is no reason to believe that any of [the union's] legitimate interests would be affected," if the fee system were found to violate the anti-trust laws. Ante, at 722. The union could of course raise its dues, but the issue here is whether the conceded antitrust immunity of the franchising system includes the franchise fee. I find somewhat incongruous the Court's conclusion that an incident of the overall system constitutes impermissible regulation, but that agents in general may be significantly *724 regulated because they are not a "nonlabor group." This incongruity is highlighted by the similarity between union hiring halls and the franchising system, a similarity which the Court itself acknowledges: "Equity's franchise system operates as a substitute for maintaining a hiring hall as the representative of its members seeking employment." Ante, at 721. The Court disregards this similarity in concluding that the franchising system does not "directly benefit" the agents who are required to pay the fees. Ante, at 722, n. 31. It reaches this conclusion by incorrectly assuming that the only parties who directly benefit from the hiring hall and the franchising system are employers and employees and producers and actors, as the case may be. But surely the agents also benefit from the franchising system, which provides an orderly and protective mechanism for pairing actors who seek jobs with producers who seek actors. The system is thus the means by which the agents ultimately receive their commissions; it is as much the source of their livelihood as it is that of the actors. Because the fee is an incident of a legitimate scheme of regulation and because it is commensurate in amount with the purpose for which it is sought, I would also affirm this holding of the Court of Appeals. NOTES [*] David Alter, Joseph Ferraro, Mortimer Becker, Henry Kaiser, Ronald Rosenberg, and Paul P. Selvin filed a brief for the American Federation of Television and Radio Artists et al. as amici curiae urging affirmance. [1] The respondent Donald Grody is the executive secretary of Equity. [2] The basic sources of organized labor's exemption from federal antitrust laws are §§ 6 and 20 of the Clayton Act, 38 Stat. 731 and 738, 15 U. S. C. § 17 and 29 U. S. C. § 52, and §§ 4,5, and 13 of the Norris-LaGuardia Act, 47 Stat. 70, 71, and 73, 29 U. S. C. §§ 104, 105, and 113. [3] Such vulnerability was, and still remains, particularly acute for actors and actresses without established professional reputations, who have always constituted the overwhelming majority of Equity's members. [4] The challenge was grounded on allegations of common-law tortious interference with business relationships. [5] Judge Manton dissented without opinion. [6] For contemporary descriptions of agent abuses of actors and actresses, see generally A. Harding, The Revolt of the Actors (1929). See also New Rules for Actors, N. Y. Times, Sept. 24, 1928, p. 20, col. 3; The New Republic, Oct. 24, 1928, p. 263. Cf. Ribnik v. McBride, 277 U. S. 350, 359-375 (Stone, J., joined by Holmes and Brandeis, JJ., dissenting) (general abuses by employment agencies, particularly at times of widespread unemployment). The Court's decision in Ribnik v. McBride was overruled unanimously in Olsen v. Nebraska, 313 U. S. 236. [7] The petitioners do not dispute this. The regulations have undergone revision in some details, largely as a result of negotiations between Equity and Theatrical Artists Representatives Associates (TARA), which until shortly before this litigation began was the only association voicing the concerns of agents with regard to their representation of Equity members. Until their voluntary resignation in late 1977, most of the petitioners were members of TARA. The petitioners are now members of the National Association of Talent Representatives (NATR). Unlike TARA, which functions only in the legitimate theater filed, NATR also functions in the fields of motion pictures and television. In those fields, agents operate under closely analogous agent regulations maintained by the Screen Actors' Guild and the American Federation of Television and Radio Artists. The history of the negotiations and disputes between Equity and TARA are described in the opinion of the District Court in the present case. 478 F. Supp. 496, 498 (SDNY). [8] The minimum, or "scale," wage varies. In August 1977, for example, the minimum weekly salary was $335 for Broadway performances, and $175 for performances off Broadway. Scale wages are set by a collective-bargaining agreement between Equity and the producers, to which the agents are not parties. When an agent represents an actor or actress whose professional reputation is not sufficient to demand a salary higher than scale, the agent hopes to develop a relationship that will become continually more remunerative as the performer's professional reputation grows, and with it the power to demand an ever higher salary. No agent is required to represent an actor or actress whom he does not wish to represent. [9] It is Equity's view that commissions in the industry are not necessarily related to efforts by the agents, and that an agent often functions as little more than an "order taker," who is able to collect a percentage of a client's wages for the duration of a show for doing little more than answering a producer's telephone call. Indeed, an agent may collect a commission on the salary of an actor or actress he represents even if the client obtains the job without the agent. [10] Equity argues that this restriction is necessary because there is an incentive for agents to represent as many actors and actresses as possible - and not necessarily to serve them all well - because an agent receives a commission whenever his client is employed at a salary higher than scale, regardless of the extent of his involvement in obtaining employment for the client. [11] The Court of Appeals recognized that even if there had been an agreement between Equity and a "non-labor group," the agreement might still have been protected from the antitrust laws under the "non-statutory" exemption. 622 F. 2d, at 649, n. 1. See Connell Construction Co. v. Pumbers & Steamfitters, 421 U. S. 616, 622. See n. 19, infra. [12] See generally Meltzer, Labor Unions, Collective Bargaining, and the Antitrust Laws, 32 U. Chi. L. Rev. 659 (1965); Winter, Collective Bargaining and Competition: The Application of Antitrust Standards to Union Activities, 73 Yale L. J. 14 (1963). See also Leslie, Principles of Labor Antitrust, 66 Va. L. Rev. 1183 (1980). [13] See Winter, supra n. 12, at 30-38. [14] As is true under the Clayton Act, the specified activities are protected only in the context of a labor dispute. The Norris-LaGuardia Act defines a labor dispute to include "any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." 29 U. S. C. § 113 (c). [15] In Milk Wagon Drivers v. Lake Valley Farm Products, Inc., 311 U. S. 91, 103, the Court stated: "For us to hold, in the face of [the Norris-LaGuardia Act], that the federal courts have jurisdiction to grant injunctions in cases growing out of labor disputes, merely because alleged violations of the Sherman Act are involved, would run counter to the plain mandate of the Act and would reverse the declared purpose of Congress." [16] See also Apex Hosiery Co. v. Leader, 310 U. S. 469. There, in the Term preceding that in which the Hutcheson case was decided, the Court reasoned that the Sherman Act prohibits only restraints on "commercial competition," 310 U. S., at 497, 499, 510-511 - or those market restraints designed to monopolize supply, control prices, or allocate product distribution - and that unions are not liable where they merely further their own goals in the labor market. [17] In Hunt v. Crumboch, 325 U. S. 821, decided the same day as Allen Bradley, the Court ruled that the labor exemption protected a union's boycott of a truck hauler through successful secondary pressure on purchasers of the hauler's services with whom the union had contracts, because of the absence of union participation in a conspiracy with the hauler's competitors. See 325 U. S., at 824; Meltzer, supra n. 12, at 677, and n. 74. [18] Mine Workers v. Pennington, 381 U. S. 657, also dealt with a union combination with employers, but the grounds of decision were unrelated to the antitrust exemption. [19] Even where there are union agreements with nonlabor groups that may have the effect of sheltering the nonlabor groups from competition in product markets, the Court has recognized a "nonstatutory" exemption to shield such agreements if they are intimately related to the union's vital concerns of wages, hours, and working conditions. See, e. g., Meat Cutters v. Jewel Tea Co., 381 U. S. 676. This nonstatutory exemption was described as follows in Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S., at 622: "The Court has recognized . . . that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited non-statutory exemption from antitrust sanctions. . . . "The nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions. Union success in organizing workers and standardizing wages ultimately will affect price competition among employers, but the goals of federal labor law never could be achieved if this effect on business competition were held a violation of the antitrust laws. The Court therefore has acknowledged that labor policy requires tolerance for the lessening of business competition based on differences in wages and working conditions." Neither the District Court nor the Court of Appeals in this case decided whether the nonstatutory exemption would independently shield the respondents from the petitioners' antitrust claims. See n. 11, supra. [20] Of course, a party seeking refuge in the statutory exemption must be a bona fide labor organization, and not an independent contractor or entrepreneur. See Meat Drivers v. United States, 371 U. S. 94; Columbia River Packers Assn. v. Hinton, 315 U. S. 143. See generally 1 P. Areeda & D. Turner, Antitrust Law § 229c, pp. 195-198 (1978). There is no dispute about Equity's status as a bona fide labor organization. [21] As the employers of Equity's members, producers are plainly a "nonlabor group." Employers almost always will be a "nonlabor group," although an exception has been recognized, for example, when the employer himself is in job competition with his employees. See Musicians v. Carroll, 391 U. S. 99 (orchestra leaders who both lead an orchestra and play an instrument). [22] These consisted of a minimum scale for sidemen, a "leader's fee," which was twice the sidemen's scale in orchestras of at least four, and an additional 8% for social security, unemployment insurance, and other expenses. In addition, if a leader did not appear but designated a subleader, and four or more musicians performed, the leader was required to pay from his leader's fee 1.5 times the sidemen's scale to the subleader. [23] The Court did not explicitly determine whether the second prong of the Hutcheson test for the statutory exemption had been met, i. e., whether the union had acted in its "self-interest." But given its various findings that the challenged restrictions were designed to cope with job competition and to protect wage scales and working conditions, 391 U. S., at 108, 109, 110, 113, it clearly did so sub silentio. [24] Several cases before Carroll also upheld union regulation of the practices of independent entrepreneurs affecting the wages or working conditions of union members. See Milk Wagon Drivers v. Lake Valley Farm Products, Inc., 311 U. S. 91; Teamsters v. Oliver, 358 U. S. 283 (Oliver I); Teamsters v. Oliver, 362 U. S. 605 (Oliver II). In Milk Wagon Drivers, the Court held that the union had engaged in a "labor dispute" within the meaning of the Norris-LaGuardia Act when it attempted to organize independent "vendors" who supplied milk to retail stores. There the union feared that the "vendor system" was designed to escape the payment of union wages and the assumption of union-imposed working conditions. In Oliver I, the Milk Wagon Drivers decision was invoked to protect from state antitrust challenge a union's successful efforts to prescribe through collective-bargaining agreements a wage scale for truck-drivers, and minimum rental fees for drivers who owned their own trucks. The union feared that driver-owners, whose fees included not only an entrepreneurial component but also a "wage" for the labor of driving, might undercut the union scale by charging a fee that effectively included a subscale wage component. The Court stated that "[t]he regulations embod[ied] . . . a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract." 358 U. S., at 294. See also Oliver II, supra, at 606 (after remand to the state court). [25] Indeed, the District Court in Carroll, whose judgment was affirmed by this Court "in its entirety," 391 U. S., at 114, drew parallels with the restrictions at issue in the present case. The court noted that "[a]pparently, similar abuses by booking agents existed in other fields too. Edelstein v. Gillmore, 35 F. 2d 723, 726 (2d Cir. 1929) (actors)." Carroll v. AFM, 241 F. Supp. 865, 892 (SDNY). The petitioners argue that theatrical agents are indistinguishable from "numerous [other] groups of persons who merely supply products and services to union members" such as landlords, grocers, accountants, and lawyers. But it is clear that agents differ from these groups in two critical respects: the agents control access to jobs and negotiation of the terms of employment. For the actor or actress, therefore, agent commissions are not merely a discretionary expenditure of disposable income, but a virtually inevitable concomitant of obtaining employment. [26] See Carroll v. AFM, 241 F. Supp., at 881-882; Harding, supra n. 6, at 319-325. [27] The Court of Appeals found that "the union cannot eliminate wage competition among its members without regulation of the fees of the agents." 622 F. 2d, at 651 (emphasis added). Wage competition is prevented not only by the rule precluding commissions on scale jobs. Actors and actresses could also compete over the percentage of their wages they were willing to cede to an agent, subject only to the restrictions imposed by state law. [28] In many industries, unions maintain hiring halls and other job referral systems, particularly where work is typically temporary and performed on separate project sites rather than fixed locations. By maintaining halls, unions attempt to eliminate abuses such as kickbacks, and to insure fairness and regularity in the system of access to employment. In a 1947 Senate Report, Senator Taft explained: "The employer should be able to make a contract with the union as an employment agency. The union frequently is the best employment agency. The employer should be able to give notice of vacancies, and in the normal course of events to accept men sent to him by the hiring hall." S. Rep. No. 1827, 81st Cong., 2d Sess., 13 (1947), quoted in Teamsters v. NLRB, 365 U. S. 667, 673-674. The National Labor Relations Board and the courts have ruled that union demands for hiring halls are a mandatory subject of collective bargaining, and that strikes to obtain such provisions are protected activity. See, e. g., Houston Chapter, Associated General Contractors, 143 N. L. R. B. 409, enf'd, 349 F. 2d 449 (CA5); NLRB v. Tom Joyce Floors, Inc., 353 F. 2d 768, 771 (CA9). Cf. Teamsters v. NLRB, supra, at 672-673, 676. [29] See Carroll, 241 F. Supp., at 881. We have, in fact, found no case holding that a union may extract such fees from independent agents who represent union members. [30] As already indicated, the franchise fees are not segregated in any manner but merely deposited in the union's general fund. [31] The respondents offer union hiring hall fees as an analogy in support of Equity's collection of franchise fees. In that context, the respondents argue, without citation, that a union may impose reasonable fees upon employers to meet the costs of maintaining a union-run hiring hall. But even if the respondents' statement of labor law is correct, the analogy would not be persuasive. Assuming that hiring hall fees are so imposed, the fees are borne by parties who directly benefit from the employment services of the hiring halls and are collected by the entities that provide them. That is not true in the present case. The view expressed in the separate opinion filed today as to who are the beneficiaries of the franchising system will undoubtedly surprise the agents who brought this lawsuit. Post, at 724.

47 U.S. 14 (____) 6 How. 14 LEWIS A. COLLIER, PLAINTIFF IN ERROR, v. JOSIAH STANBROUGH. Supreme Court of United States. *19 The cause was argued by Mr. Bibb, for the plaintiff in error, and by Stockton & Steele and Mr. Henderson (in a printed argument), upon the same side. No counsel appeared for the defendant in error. *20 Mr. Justice CATRON delivered the opinion of the court. Lewis A. Collier filed his petition in the District Court held for the Parish of Madison, in the State of Louisiana, against Josiah Stanbrough and others, alleging that the Farmers' Bank of Virginia had recovered a judgment in the Circuit Court of the United States for the Eastern District in that State, against David Stanbrough, as curator of the succession of Jesse Harper; that an execution issued on the judgment, by which the marshal seized a debt belonging to the succession, due from Dougal McCall, evidenced by three notes of hand, and by a mortgage on land, securing the payment to be made to David Stanbrough, the curator; that the debt, amounting to 11,433 dollars, was seized and sold by the marshal, and said Collier became the purchaser, for the sum of 3,500 dollars, &c. It is also alleged, that a fictitious indorsement had been made on one of the notes by the curator to Josiah Stanbrough, which the petition prays may be annulled, and that the petitioner may have the benefit of his purchase by judgment and execution on the notes and mortgaged property. The defendants answered, and insisted that the debt was not legally seized or levied upon; and, secondly, that it was not legally appraised or advertised, as required by law. The facts were agreed, and it was admitted that the notes in controversy were never appraised, and that the marshal sold them to Collier at a cash sale on the first biddings. In the District Court, the law was adjudged to be for the defendants, and Collier's petition was dismissed; and from this judgment he appealed to the Supreme Court of Louisiana, where the judgment was affirmed; and to reverse this latter judgment, the plaintiff prosecuted a writ of error from this court to bring up the record; and this he had a right to do, as his claim of title was founded on "an authority exercised under the United States," which the judgment below drew in question, and the decision was against its validity. The only question submitted for our consideration is whether the marshal's sale was void, or valid. *21 The Supreme Court of Louisiana declared, in its opinion found in the record, and preceding the judgment, "that a creditor residing in another State cannot issue an execution upon the judgment which he has obtained in the federal court against the executor or administrator of an estate, which is admitted in the Court of Probates as insolvent, and take the property out of the hands of such executor or administrator, and leave nothing for the other creditors," - adding, that, as it was one of the admitted facts that Harper's estate had been insolvent for several years before the seizure and sale were made, they were consequently void. But as this case has been argued here by counsel for the plaintiff, Collier, only, no one appearing for the defendant in error, we deem it proper to forbear touching the delicate question on which the Supreme Court of Louisiana founded its judgment of affirmance. Its great importance in different States, and the difficulties attending it on either hand, because of the conflicts it is likely to produce between the tribunals of the State and the federal courts, strongly impress this court with the propriety of leaving the question open and uninfluenced by the present opinion, as no necessity exists for such a decision in this case. The judgment of the State court pronounced the seizure and sale on the federal execution void; this judgment we are called on to revise, and if we find that it was proper, for the reasons given by the court below, or on other grounds manifestly appearing of record, and equally calling into exercise the jurisdiction of this court, it is our duty to affirm it; and we are of opinion that the judgment of the State court was proper, on another ground. In Louisiana, the debts due to an execution debtor may be seized and sold on execution, like other movable property, and equally with the immovable property; in respect to lands seized on execution, it is necessary, before they are offered for sale, that they should be appraised by persons appointed for the purpose, and if, when offered at public sale, two thirds of the appraised value is not bid, the officer who is attempting to sell shall not adjudicate the sale, but cease, and readvertise the property, and again offer it at public outcry on a credit of twelve months; and this mode of proceeding, having been adopted by rule in the Circuit Court of the United States held in Louisiana, governs the marshal of that court. Whether movable property was entitled to the benefit of the provision seems not to have been definitively settled until 1845, in the case of Phelps v. Rightor and others (9 Robinson's Rep. 541), when it was adjudged by the Supreme Court of Louisiana, that movable property (of the same description that is here in *22 controversy) could not be legally sold by a sheriff in virtue of an execution, without having been first appraised at its cash value, and that then the cash bid on the first offer must be equal, at least, to two thirds of the appraised value; and for want of such an appraisement and bid, the adjudication of a cash sale on the first offer to sell was void, for want of power in the officer. And it is proper to remark, that, in the case of Gantly v. Ewing (3 Howard, 707), this court declared a similar principle to apply in a case arising under a law of Indiana, which provided that the fee simple of real estate should not be sold, until the sheriff had, at the time and place of sale, first offered the rents and profits of the land for a term of seven years at public outcry, and if no bid was had for the rents and profits sufficient to satisfy the execution, then the sheriff should proceed to sell the fee. In that case the sheriff had proceeded to sell the fee-simple estate without first offering the rents and profits for the seven years' term, and this court held that the sale was void, for want of power in the sheriff to make it before he complied with the previous step, forasmuch as the power to sell the fee simple arose for want of a bid for the term. In principle, that case and the one under consideration cannot be distinguished. In each it was immaterial whether the purchaser had or had not knowledge of the fact, that the officer had not taken the first step, as on that step the power to sell first arose. In this case, no appraisement was had, and the debt on the first bidding was struck off to Collier, for less than one third of the amount called for by the three notes and the mortgage to secure them; and these facts being admitted on the record, it follows that the sale was void, and that the judgment of the Supreme Court of Louisiana must be affirmed. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs.

264 U.S. 281 (1924) WESTERN UNION TELEGRAPH COMPANY v. CZIZEK. No. 300. Supreme Court of United States. Argued February 26, 27, 1924. Decided March 10, 1924. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. *282 Mr. Francis R. Stark and Mr. Beverly L. Hodghead, with whom Mr. J.H. Richards, Mr. Oliver O. Haga, Mr. Joseph L. Egan and Mr. J. Julien Southerland were on the briefs, for petitioner. Mr. Richard H. Johnson, with whom Mr. Carey H. Nixon was on the brief, for respondent. MR. JUSTICE HOLMES delivered the opinion of the Court. This is a suit against the Telegraph Company for failure to forward and deliver to the plaintiff a message from one Jones, found by the Court below to have been acting as agent for the plaintiff in the matter. The District Court found for the defendant, but the judgment was reversed by the Circuit Court of Appeals, 272 Fed. 223, and at a second trial, in deference to the Circuit Court of Appeals, a judgment was entered for the plaintiff, which was affirmed. 286 Fed. 478. Certiorari granted. 262 U.S. 739. The plaintiff owned fifty shares of stock in the Idaho National Bank at Boise, Idaho. Miller, vice president of the bank, was buying the stock with a view to a merger. He talked with the plaintiff and told him that he would buy his stock and that they would have no difficulty in agreeing on the price. The plaintiff told this to Jones, an attorney at Boise, who owned fifteen shares, asked Jones to act for him, saying that they would sell their stock together, and told Miller that Jones would represent him. Later Miller called on Jones and at Miller's request Jones, on November 30, 1917, wrote on a Western Union form - directing the Company to send. "subject to the terms on *283 back hereof", the following telegram addressed to the plaintiff at 5767 Shafter Avenue, Oakland, California, where the plaintiff lived: "Miller advises Idaho National sold to Pacific offers me ninety dollars per share otherwise wait year and chance of liquidation says if fails to get two thirds stock liquidation will follow. Will you take ninety dollars per share for yours. I am inclined to accept offer for mine. Answer." The form had been filed with the Interstate Commerce Commission and the Commission had approved the provisions and rates that it set forth. Among the terms on the back of the form were the following: "To guard against mistakes or delays, the sender . . . should order it REPEATED, that is, telegraphed back to the originating office for comparison," an additional half rate being charged. "Unless otherwise indicated on its face, THIS IS AN UNREPEATED TELEGRAM AND PAID FOR AS SUCH, in consideration whereof it is agreed . . . 1. The Company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any UNREPEATED telegram, beyond the amount received for sending the same . . . 2. In any event the Company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for the nondelivery, of this telegram, whether caused by the negligence of its servants or otherwise, beyond the sum of FIFTY DOLLARS, at which amount this telegram is hereby valued, unless a greater value is stated in writing hereon at the time the telegram is offered to the Company for transmission, and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent. thereof." This telegram was an unrepeated message of the class known as night letter, and was not specially valued or paid for upon a value in excess of $50. It was the duty of the receiving clerk, Margaret Brown, to indorse her initials, *284 the filing time and the amount of toll received, and to place the message on the sending hook for transmission. By inadvertence, although a competent clerk, she put it in a file of earlier messages instead of upon the hook, and it was not sent. The next day Jones's son inquired at the telegraph office for an answer and being told that there was none, asked if they had sent the telegram and was answered yes. On December 3 he asked again and was told that the plaintiff had received the message. Miller was ready and willing to buy the stock until December 5, 1917, and the plaintiff testified that he would have sold if he had received the telegram. Later the stock became worthless. The District Court found that there was no gross negligence but the Circuit Court of Appeals distinguished between a failure to take the first step toward transmission and some later neglect, held that the failure was not and, as a matter of public policy, could not be within the protection of the terms that we have stated and held the company liable for $4,500 with interest at seven per cent, from June 18, 1918, on which day the plaintiff made a demand. The plaintiff, the respondent here, does not deny that he is bound by the terms that we have recited. That was assumed below and is established law. Western Union Telegraph Co. v. Esteve Bros. & Co., 256 U.S. 566. Those terms apply as definitely to a nondelivery in consequence of a neglect or oversight at the first office as at any other. The moment that the message is received the contract attaches along with the responsibility, and the transit begins. We can perceive no legal distinction between that moment and the next when the message is handed to a transmitting clerk, or that on which a copy is given to a boy at the further end. The hand that holds the paper technically is that of the Company, but no more at the beginning than at the end, and as in fact it is that of servants, reasonable self-protection is allowed to the *285 master against their neglects. One such self-protection sanctioned by the decisions is a valuation of the message, with liberty to the sender to fix a higher value on paying more for it. Adams Express Co. v. Croninger, 226 U.S. 491. The plaintiff finds no difficulty in valuing the message now. It was at least equally possible to value it when it was sent. See Western Union Telegraph Co. v. Esteve Bros. & Co., 256 U.S. 566, 574; Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27. When the message is valued it may be doubted whether the valuation can be affected by the intensity of the vituperative epithet applied to an admitted fault. Kirsch v. Postal Telegraph Cable Co., 100 Kans. 250, 252. At all events something more would have to be shown than is proved here to take the case out of the general rule. The act of the receiving clerk cannot reasonably be supposed to have been more than a momentary inadvertence. It was not a wilful wrong. The answers to the inquires were probably the natural consequence of the first error, and the second answer probably was too late to have had any effect upon the plaintiff's position. See Primrose v. Western Union Telegraph, Co., 154 U.S. 1, 15. With regard to the amount of the valuation, if it is too low now, Unrepeated Message Case, 61 I.C.C. 541 it was reasonable in 1917. Primrose v. Western Union Telegraph Co., 154 U.S. 1, 15. Unrepeated Message Case, 44 I.C.C. 670. Whatever effect may be given to the judgment of the Commission in the later case, it was not intended to be retroactive. The rules prescribed by the Commission were to take effect on July 13, 1921. We have not adverted to the first clause of the exemptions, limiting liability to the amount received for sending the message. Obviously this has a narrower scope than the valuation clause and we should hesitate to hold that it exonerated the defendant in this case. Unrepeated Message Case, 61 I.C.C. 541. *286 Another clause not mentioned as yet reads: "The Company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the telegram is filed with the Company for transmission." This could not be held to apply literally to a case where through the fault of the Company the plaintiff did not know of the message until the sixty days had passed. It might be held to give the measure of a reasonable time for presenting the claim after the fact was known, in the absence of anything more. But here the plaintiff called on Hackett, the General Manager at Boise, about February 14, 1918, as soon as he knew the facts. Directly after, he received a letter from Hackett regretting the occurrence and enclosing the amount paid by the plaintiff as toll. Three days later the plaintiff returned the check by letter saying "an acceptance of this check on my part might be construed as a settlement of the matter," so that the defendant then had written notice that a claim was made. There was further communication and finally on June 18 the plaintiff made a formal written demand. We should be unwilling to decide that the action was barred by this clause. But we are of opinion that his claim is limited to fifty dollars for the reasons given above. Judgment reversed. MR. JUSTICE McKENNA dissents.

134 U.S. 398 (1890) GLENN v. FANT. No. 357. Supreme Court of United States. Argued March 11, 1890. Decided March 24, 1890. ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. *400 Mr. Charles Marshall and Mr. John Howard for plaintiff in error. Mr. Henry Wise Garnett and Mr. Conway Robinson, Jr., also filed a brief for plaintiff in error. Mr. Walter D. Davidge and Mr. Martin F. Morris for defendant in error. Mr. Eugene Carusi and Mr. Reginald Fendale were also on the brief for defendant in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. No bill of exceptions was taken in this case, nor was there any finding of facts by the Supreme Court of the District of Columbia, nor any case stated by the parties analogous to a special verdict and stating the ultimate facts of the case, presenting questions of law only. What is styled here an "agreed statement of facts" is an agreement as to certain matters, and that the parties might refer to and rely upon any and all grounds of action or defence to be found in two voluminous exhibits, marked X and Y, being the records of two equity causes in other courts, including all the pleadings and evidence, as well as the orders and decrees therein. The effect of some of that evidence and of the conclusions of fact to be drawn from it is controverted. It is impossible for us to regard this stipulation as taking the place of a special verdict of a jury, or a special finding of facts by the court, upon which our jurisdiction could properly be invoked to determine the questions of law thereon arising. And while the case is governed by the rule laid down in Campbell v. Boyreau, 21 How. 223, yet, even if the statutory provisions in relation to the trial of causes without the intervention of a jury by the Circuit Courts of the United States were applicable, the result upon this record would be the same. Raimond v. Terrebonne Parish, *401 132 U.S. 192; Andes v. Slauson, 130 U.S. 435; Bond v. Dustin, 112 U.S. 604; Lyons v. Lyons Bank, 19 Blatchford, 279. The judgment must be Affirmed.

370 U.S. 711 (1962) CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION No. 795 ET AL. v. YELLOW TRANSIT FREIGHT LINES, INC., ET AL. No. 13. Supreme Court of United States. Argued October 11, 1961. Decided June 25, 1962. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. David Previant argued the cause and filed briefs for petitioners. Malcolm Miller argued the cause for respondents. With him on the briefs were Charles Blackmar, Carl T. Smith and John F. Eberhardt. J. Albert Woll, Theodore J. St. Antoine and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal. PER CURIAM. Reversed. Sinclair Rfg. Co. v. Atkinson, ante, p. 195. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE HARLAN join, concurring. Since it is clear that the collective bargaining agreement involved in this case does not bind either party to *712 arbitrate any dispute, I agree that no injunction should be granted.[*] See Sinclair Rfg. Co. v. Atkinson, ante, p. 215 (dissenting opinion). NOTES [*] The grievance machinery emphasizes voluntary settlements through negotiations between employer and union representatives. Settlement is first to be attempted between the employer and the local union involved and, failing adjustment, negotiated settlement is to be attempted by a joint state committee consisting of equal numbers of employer and union representatives. If a majority of that committee "settles a dispute," "[s]uch a decision will be final and binding on both parties." If a joint state committee fails to settle a dispute, a negotiated settlement is then to be attempted by a joint area committee consisting of equal numbers of employer and union representatives duly elected by the various joint state committees. This is the last stage unless there is agreement at that point to submit unsettled disputes to arbitration. Obviously, either employer or union representatives are free to prevent arbitration. For the contract provisions are: "(d) Deadlocked cases may be submitted to umpire handling if a majority of the Joint Area Committee determines to submit such matter to an umpire for decision. Otherwise either party shall be permitted all legal or economic recourse. ..... "(f) In the event of strikes, work-stoppages or other activities which are permitted in case of deadlock, default, or failure to comply with majority decisions, no interpretation of this Agreement by any tribunal shall be binding upon the Union or affect the legality or lawfulness of the strike unless the Union stipulates to be bound by such interpretation, it being the intention of the parties to resolve all questions of interpretation by mutual agreement. Nothing herein shall prevent legal proceedings by the Employer where the strike is in violation of this Agreement."

496 U.S. 91 (1990) PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF ILLINOIS No. 88-1775. Supreme Court of United States. Argued January 17, 1990 Decided June 4, 1990 CERTIORARI TO THE SUPREME COURT OF ILLINOIS *93 Bruce J. Ennis, Jr., argued the cause and filed briefs for petitioner. Stephen J. Marzen argued the cause for the Federal Trade Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Rill, Deputy Solicitor General Merrill, Kevin J. Arquit, Jay C. Shaffer, and Ernest J. Isenstadt. William F. Moran III argued the cause for respondent. With him on the brief was James J. Grogan.[*] Briefs of amici curiae were filed for the Academy of Certified Trial Lawyers of Minnesota by Clarance E. Hagglund; and for the National Board of Trial Advocacy by Timothy Wilton and Jacob D. Fuchsberg. JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE KENNEDY join. The Illinois Supreme Court publicly censured petitioner because his letterhead states that he is certified as a civil trial specialist by the National Board of Trial Advocacy. We *94 granted certiorari to consider whether the statement on his letterhead is protected by the First Amendment. 492 U. S. 917 (1989).[1] I This case comes to us against a background of growing interest in lawyer certification programs. In the 1973 Sonnett Memorial Lecture, then Chief Justice Warren E. Burger advanced the proposition that specialized training and certification of trial advocates is essential to the American system of justice.[2] That proposition was endorsed by a number of groups of lawyers[3] who were instrumental in establishing the National Board of Trial Advocacy (NBTA) in 1977. *95 Since then, NBTA has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. Those standards, which have been approved by a board of judges, scholars, and practitioners, are objective and demanding. They require specified experience as lead counsel in both jury and nonjury trials, participation in approved programs of continuing legal education, a demonstration of writing skills, and the successful completion of a day-long examination. Certification expires in five years unless the lawyer again demonstrates his or her continuing qualification.[4] NBTA certification has been described as a "highly-structured" and "arduous process that employs a wide range of assessment methods." Task Force on Lawyer Competence, Report With Findings and Recommendations to the Conference of Chief Justices, Publication No. NCSC-021, pp. 33-34 (May 26, 1982). After reviewing NBTA's procedures, the Supreme Court of Minnesota found that "NBTA applies a rigorous and exacting set of standards and examinations on a national scale before certifying a lawyer as a trial *96 specialist." In re Johnson, 341 N. W. 2d 282, 283 (1983). The Alabama Supreme Court similarly concluded that "a certification of specialty by NBTA would indicate a level of expertise with regard to trial advocacy in excess of the level of expertise required for admission to the bar generally." Ex parte Howell, 487 So. 2d 848, 851 (1986). II Petitioner practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, and in Missouri in 1981. He has served as president of the Madison County Bar Association and has been active in both national and state bar association work.[5] He has tried to verdict over 100 jury trials and over 300 nonjury trials, and has participated in hundreds of other litigated matters that were settled. NBTA issued petitioner a "Certificate in Civil Trial Advocacy" in 1981, renewed it in 1986, and listed him in its 1985 Directory of "Certified Specialists and Board Members."[6] Since 1983 petitioner's professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed. It appears as follows: "Gary E. Peel "Certified Civil Trial Specialist "By the National Board of Trial Advocacy "Licensed: Illinois, Missouri, Arizona."[7]*97 In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois (Commission) filed a complaint alleging that petitioner, by use of this letterhead, was publicly holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. That Rule provides: "A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as `certified' or a `specialist.' "[8] The complaint also alleged violations of Rule 2-101(b), which requires that a lawyer's public "communication shall contain all information necessary to make the communication not misleading and shall not contain any false or misleading statement or otherwise operate to deceive," and of Rule 1-102 (a)(1), which generally subjects a lawyer to discipline for violation of any Rule of the Code of Professional Responsibility. Disciplinary Rules 2-101(b), 1-102(a)(1) (1988). After a hearing, the Commission recommended censure for a violation of Rule 2-105(a)(3). It rejected petitioner's First Amendment claim that a reference to a lawyer's certification as a specialist was a form of commercial speech that could not *98 be "`subjected to blanket suppression.' " Report of the Hearing Panel, App. C to Pet. for Cert. 19a. Although the Commission's "Findings of Facts" did not contain any statement as to whether petitioner's representation was deceptive, its "Conclusion of Law" ended with the brief statement that petitioner, "by holding himself out, on his letterhead as `Gary E. Peel, Certified Civil Trial Specialist - By the National Board of Trial Advocacy,' is in direct violation of the above cited Rule [2-105(a)(3)]. "We hold it is `misleading' as our Supreme Court has never recognized or approved any certification process." Id., at 20a. The Illinois Supreme Court adopted the Commission's recommendation for censure. It held that the First Amendment did not protect petitioner's letterhead because the letterhead was misleading in three ways. First, the State Supreme Court concluded that the juxtaposition of the reference to petitioner as "certified" by NBTA and the reference to him as "licensed" by Illinois, Missouri, and Arizona "could" mislead the general public into a belief that petitioner's authority to practice in the field of trial advocacy was derived solely from NBTA certification. It thus found that the statements on the letterhead impinged on the court's exclusive authority to license its attorneys because they failed to distinguish voluntary certification by an unofficial group from licensure by an official organization. In re Peel, 126 Ill. 2d 397, 405-406, 534 N. E. 980, 983-984 (1989). Second, the court characterized the claim of NBTA certification as "misleading because it tacitly attests to the qualifications of [petitioner] as a civil trial advocate." Id., at 406, 534 N. E. 2d, at 984. The court noted confusion in the parties' descriptions of NBTA's requirements,[9] but did not *99 consider whether NBTA certification constituted reliable, verifiable evidence of petitioner's experience as a civil trial advocate. Rather, the court reasoned that the statement was tantamount to an implied claim of superiority of the quality of petitioner's legal services and therefore warranted restriction under our decision in In re R. M. J., 455 U. S. 191 (1982). 126 Ill. 2d, at 406, 534 N. E. 2d, at 984. Finally, the court reasoned that use of the term "specialist" was misleading because it incorrectly implied that Illinois had formally authorized certification of specialists in trial advocacy. The court concluded that the conjunction of the reference to being a specialist with the reference to being licensed implied that the former was the product of the latter. Id., at 410, 534 N. E. 2d, at 986. Concluding that the letterhead was inherently misleading for these reasons, the court upheld the blanket prohibition of Rule 2-105(a) under the First Amendment. III The Illinois Supreme Court considered petitioner's letterhead as a form of commercial speech governed by the "constitutional limitations on the regulation of lawyer advertising." 126 Ill. 2d, at 402, 534 N. E. 2d, at 982. The only use of the letterhead in the record is in petitioner's correspondence with the Commission itself. Petitioner contends that, absent evidence of any use of the letterhead to propose commercial transactions with potential clients, the statement should be accorded the full protections of noncommercial speech. However, he also acknowledges that "this case can and should be decided on the narrower ground that even if it is commercial speech it cannot be categorically prohibited." Tr. of Oral Arg. 9. We agree that the question to be decided *100 is whether a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA. In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), this Court decided that advertising by lawyers was a form of commercial speech entitled to protection by the First Amendment. Justice Powell summarized the standards applicable to such claims for the unanimous Court in In re R. M. J., 455 U. S., at 203: "Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e. g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. . . . "Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served." (Emphasis added.) In this case we must consider whether petitioner's statement was misleading and, even if it was not, whether the potentially misleading character of such statements creates a state interest sufficiently substantial to justify a categorical ban on their use. The facts stated on petitioner's letterhead are true and verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and that three States have licensed him to practice law. There is no contention that any *101 potential client or person was actually misled or deceived by petitioner's stationery. Neither the Commission nor the State Supreme Court made any factual finding of actual deception or misunderstanding, but rather concluded, as a matter of law, that petitioner's claims of being "certified" as a "specialist" were necessarily misleading absent an official state certification program. Notably, although petitioner was originally charged with a violation of Disciplinary Rule 2-101(b), which aims at misleading statements by an attorney, his letterhead was not found to violate this rule. In evaluating petitioner's claim of certification, the Illinois Supreme Court focused not on its facial accuracy, but on its implied claim "as to the quality of [petitioner's] legal services," and concluded that such a qualitative claim " `might be so likely to mislead as to warrant restriction.' " 126 Ill. 2d, at 406, 534 N. E. 2d, at 984 (quoting In re R. M. J., 455 U. S., at 201). This analysis confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. A lawyer's certification by NBTA is a verifiable fact, as are the predicate requirements for that certification. Measures of trial experience and hours of continuing education, like information about what schools the lawyer attended or his or her bar activities, are facts about a lawyer's training and practice. A claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, cf. In re R. M. J., 455 U. S., at 201, n. 14, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney's work in a given area of practice.[10] *102 We must assume that some consumers will infer from petitioner's statement that his qualifications in the area of civil trial advocacy exceed the general qualifications for admission to a state bar. Thus if the certification had been issued by an organization that had made no inquiry into petitioner's fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading. In this case, there is no evidence that a claim of NBTA certification suggests any greater degree of professional qualification than reasonably may be inferred from an evaluation of its rigorous requirements. Much like a trademark, the strength of a certification is measured by the quality of the organization for which it stands. The Illinois Supreme Court merely notes some confusion in the parties' explanation of one of those requirements. See n. 9, supra. We find NBTA standards objectively clear, and, in any event, do not see why the degree of uncertainty identified by the State Supreme Court would make the letterhead inherently misleading to a consumer. A number of other States have their own certification plans and expressly authorize references to specialists and certification,[11] but there is no evidence that the consumers *103 in any of these States are misled if they do not inform themselves of the precise standards under which claims of certification are allowed. Nor can we agree with the Illinois Supreme Court's somewhat contradictory fears that juxtaposition of the references to being "certified" as a "specialist" with the identification of the three States in which petitioner is "licensed" conveys, on the one hand, the impression that NBTA had the authority to grant those licenses and, on the other, that the NBTA certification was the product of official state action. The separate character of the two references is plain from their texts: one statement begins with the verb "[c]ertified" and identifies the source as the "National Board of Trial Advocacy," while the second statement begins with the verb "[l]icensed" and identifies States as the source of licensure. The references are further distinguished by the fact that one is indented below petitioner's name while the other uses the same margin as his name. See supra, at 96. There has been no finding that any person has associated certification with governmental action - state or federal - and there is no basis for belief that petitioner's representation generally would be so construed. We are satisfied that the consuming public understands that licenses - to drive cars, to operate radio stations, to sell liquor - are issued by governmental authorities and that a host of certificates - to commend job performance, to convey an educational degree, to commemorate a solo flight or a hole in one - are issued by private organizations. The dictionary definition of "certificate," from which the Illinois *104 Supreme Court quoted only excerpts, comports with this common understanding: "[A] document issued by a school, a state agency, or a professional organization certifying that one has satisfactorily completed a course of studies, has passed a qualifying examination, or has attained professional standing in a given field and may officially practice or hold a position in that field." Webster's Third New International Dictionary 367 (1986 ed.) (emphasis added to portions omitted from 126 Ill. 2d, at 405, 534 N. E. 2d, at 984). The court relied on a similarly cramped definition of "specialist," turning from Webster's - which contains no suggestion of state approval of "specialists" - to the American Bar Association's Comment to Model Rule 7.4, which prohibits a lawyer from stating or implying that he is a "specialist" except for designations of patent, admiralty, or state-designated specialties. The Comment to the Rule concludes that the terms "specialist" and "specialty" "have acquired a secondary meaning implying formal recognition as a specialist and, therefore, use of these terms is misleading" in States that have no formal certification procedures. ABA Model Rule of Professional Conduct 7.4 and Comment (1989). We appreciate the difficulties that evolving standards for attorney certification present to national organizations like the ABA.[12] However, it seems unlikely that petitioner's statement *105 about his certification as a "specialist" by an identified national organization necessarily would be confused with formal state recognition. The Federal Trade Commission, which has a long history of reviewing claims of deceptive advertising, fortifies this conclusion with its observation that "one can readily think of numerous other claims of specialty - from `air conditioning specialist' in the realm of home repairs to `foreign car specialist' in the realm of automotive repairs - that cast doubt on the notion that the public would automatically mistake a claim of specialization for a claim of formal recognition by the State." Brief for Federal Trade Commission as Amicus Curiae 24. We reject the paternalistic assumption that the recipients of petitioner's letterhead are no more discriminating than the audience for children's television. Cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983).[13] The two *106 state courts that have evaluated lawyers' advertisements of their certifications as civil trial specialists by NBTA have concluded that the statements were not misleading or deceptive on their face, and that, under our recent decisions, they were protected by the First Amendment. Ex parte Howell, 487 So. 2d 848 (Ala. 1986); In re Johnson, 341 N. W. 2d 282 (Minn. 1983). Given the complete absence of any evidence of deception in the present case, we must reject the contention that petitioner's letterhead is actually misleading. IV Even if petitioner's letterhead is not actually misleading, the Commission defends Illinois' categorical prohibition against lawyers' claims of being "certified" or a "specialist" on the assertion that these statements are potentially misleading. In the Commission's view, the State's interest in avoiding any possibility of misleading some consumers with such communications is so substantial that it outweighs the cost of providing other consumers with relevant information about lawyers who are certified as specialists. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 566 (1980). We may assume that statements of "certification" as a "specialist," even though truthful, may not be understood fully by some readers. However, such statements pose no greater potential of misleading consumers than advertising *107 admission to "Practice before: The United States Supreme Court," In re R. M. J., 455 U. S. 191 (1982),[14] of exploiting the audience of a targeted letter, Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988), or of confusing a reader with an accurate illustration, Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985). In this case, as in those, we conclude that the particular state rule restricting lawyers' advertising is "broader than reasonably necessary to prevent the' perceived evil." Shapero, 486 U. S., at 472, (quoting In re R. M. J., 455 U. S., at 203). Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (restricting in-person solicitation).[15] The need for a complete prophylactic against any claim of specialty is undermined by the fact that use of titles such as "Registered Patent Attorney" and "Proctor in Admiralty," which are permitted under Rule 2-105(a)'s exceptions, produces the same risk of deception. *108 Lacking empirical evidence to support its claim of deception, the Commission relies heavily on the inherent authority of the Illinois Supreme Court to supervise its own bar. JUSTICE O'CONNOR's dissent urges that "we should be more deferential" to the State, asserting without explanation that "the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead."[16] Whether the inherent character of a statement places it beyond the protection of the First Amendment is a question of law over which Members of this Court should exercise de novo review. Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 498-511 (1984). That the judgment below is by a State Supreme Court exercising review over the actions of its State Bar Commission does not insulate it from our review for constitutional infirmity. See, e. g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971). The Commission's authority is necessarily constrained by the First Amendment to the Federal Constitution, and specifically by the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decisionmaking than is concealment of such information. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 770 (1976); *109 Central Hudson Gas & Electric Corp., 447 U. S., at 562. Even if we assume that petitioner's letterhead may be potentially misleading to some consumers, that potential does not satisfy the State's heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public. In re R. M. J., 455 U. S., at 203. The presumption favoring disclosure over concealment is fortified in this case by the separate presumption that members of a respected profession are unlikely to engage in practices that deceive their clients and potential clients. As we noted in Bates v. State Bar of Arizona, 433 U. S., at 379: "It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort." We do not ignore the possibility that some unscrupulous attorneys may hold themselves out as certified specialists when there is no qualified organization to stand behind that certification. A lawyer's truthful statement that "XYZ Board" has "certified" him as a "specialist in admiralty law" would not necessarily be entitled to First Amendment protection if the certification were a sham. States can require an attorney who advertises "XYZ certification" to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law. There has been no showing - indeed no suggestion - that the burden of distinguishing between certifying boards that are bona fide and those that are bogus would be significant, or that bar associations and official disciplinary committees cannot police deceptive practices effectively. Cf. Shapero, 486 U. S., at 477 ("The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements"). *110 "If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective." Bates, 433 U. S., at 375. To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organizations or the standards of a specialty. In re R. M. J., 455 U. S., at 201-203.[17] A State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA. Cf. In re Johnson, 341 N. W. 2d, at 283 (striking down the Disciplinary Rule that prevented statements of being " `a specialist unless and until the Minnesota Supreme Court adopts or authorizes rules or regulations permitting him to do so' "). Information about certification and specialties facilitates the consumer's access to legal services and thus better serves the administration of justice.[18] Petitioner's letterhead was neither actually nor inherently misleading. There is no dispute about the bona fides and the *111 relevance of NBTA certification. The Commission's concern about the possibility of deception in hypothetical cases is not sufficient to rebut the constitutional presumption favoring disclosure over concealment. Disclosure of information such as that on petitioner's letterhead both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys. As the public censure of petitioner for violating Rule 2-105(a)(3) violates the First Amendment, the judgment of the Illinois Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the judgment. Petitioner's letterhead is neither actually nor inherently misleading. I therefore concur in the plurality's holding that Illinois may not prohibit petitioner from holding himself out as a civil trial specialist certified by the National Board of Trial Advocacy (NBTA). I believe, though, that petitioner's letterhead statement is potentially misleading. Accordingly, I would hold that Illinois may enact regulations other than a total ban to ensure that the public is not misled by such representations. Because Illinois' present regulation is unconstitutional as applied to petitioner, however, the judgment of the Illinois Supreme Court must be reversed and the case remanded for further proceedings. The scope of permissible regulation depends on the nature of the commercial speech in question. States may prohibit actually or inherently misleading commercial speech entirely. In re R. M. J., 455 U. S. 191, 203 (1982). They may not, however, ban potentially misleading commercial speech if narrower limitations could be crafted to ensure that the information is presented in a nonmisleading manner. Ibid. I agree with the plurality that petitioner's reference to his NBTA certification as a civil trial specialist is not actually *112 misleading. Ante, at 105-106. The record contains no evidence that any recipient of petitioner's stationery actually has been misled by the statement. I also believe that petitioner's letterhead statement is not inherently misleading such that it may be banned outright. The Court has upheld such a ban only when the particular method by which the information is imparted to consumers is inherently conducive to deception and coercion. In Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), the Court upheld a prophylactic ban on a lawyer's in-person solicitation of clients for pecuniary gain because such solicitation "is inherently conducive to over-reaching and other forms of misconduct." Id., at 464. A statement on a letterhead, however, does not raise the same concerns as face-to-face barratry because the recipient of a letter does not have "a badgering advocate breathing down his neck" and can take time to reflect on the information provided to him. Shapero v. Kentucky Bar Assn., 486 U. S. 466, 475-476 (1988). The Court has also suggested that commercial speech that is devoid of intrinsic meaning may be inherently misleading, especially if such speech historically has been used to deceive the public. In re R. M. J., supra, at 202 (citing Friedman v. Rogers, 440 U. S. 1 (1979), which upheld a ban on the use of trade names by optometrists). The statement about petitioner's NBTA certification does not fit this category, as it does impart some information and as the State has made no showing that similar claims have been used to deceive. Illinois therefore may not prohibit petitioner from including the statement in his letterhead. The statement is nonetheless potentially misleading. The name "National Board of Trial Advocacy" could create the misimpression that the NBTA is an agency of the Federal Government. Although most lawyers undoubtedly know that the Federal Government does not regulate lawyers, most nonlawyers probably do not; thus, the word "National" in the NBTA's name does not dispel the potential implication *113 that the NBTA is a governmental agency. Furthermore, the juxtaposition on petitioner's letterhead of the phrase "Certified Civil Trial Specialist By the National Board of Trial Advocacy" with "Licensed: Illinois, Missouri, Arizona" could lead even lawyers to believe that the NBTA, though not a governmental agency, is somehow sanctioned by the States listed on the letterhead. Cf. post, at 123 (O'CONNOR, J., dissenting). The plurality's assertion that the letterhead is unlikely to mislead a person to think that the NBTA is in some way affiliated with the Government is founded on the assumption that people understand that licenses are issued by governmental authorities, whereas certificates are issued by private organizations. Ante, at 103-104. But the dictionary definition of "certificate" relied on by the plurality in fact suggests that "certified" will often be understood as connoting governmental authorization: "[A] document issued by a school, a state agency, or a professional organization certifying that one has satisfactorily completed a course of studies, has passed a qualifying examination, or has attained professional standing in a given field and may officially practice or hold a position in that field." Webster's Third New International Dictionary 367 (1986 ed.) (emphases added). See also ibid. (defining "certify" as, inter alia, "license"). Indeed, this interpretation accords with many States' practice of certifying legal specialists, see post, at 124 (O'CONNOR, J., dissenting), and other professionals. For instance, many States prescribe requirements for, and "certify" public accountants as, "Certified Public Accountants." See, e. g., Ill. Rev. Stat., ch. 111, ¶ 5500.01 et seq. (1987 and Supp. 1988). See also Webster's, supra, at 367 (defining "certified public accountant" as "an accountant usu[ally] in professional public practice who has met the requirements of a state law and has been granted a state certificate"). The phrase "Certified *114 Civil Trial Specialist By the National Board of Trial Advocacy," without further explanation, is thus potentially misleading, at least when placed in proximity to petitioner's listing of his licenses to practice law in three States. Cf. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 652 (1985) (holding that attorney advertisement promising "if there is no recovery, no legal fees are owed by our clients" was potentially misleading because "members of the public are often unaware of the technical meanings of such terms as `fees' and `costs' - terms that, in ordinary usage, might well be virtually interchangeable"). In addition, the reference to petitioner's certification as a civil trial specialist may cause people to think that petitioner is necessarily a better trial lawyer than attorneys without the certification. Cf. post, at 123 (O'CONNOR, J., dissenting). We have recognized that "advertising claims as to the quality of services . . . are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction." Bates v. State Bar of Ariz., 433 U. S. 350, 383-384 (1977). The plurality discounts the misleading nature of the reference in two ways. First, it asserts that the reference to NBTA certification is not an opinion, but a verifiable fact, and that the requirements for certification are also verifiable facts. Ante, at 101. Second, it suggests that any inference of superiority that a consumer draws from the reference is justified, ante, at 102, apparently because it believes that anyone who passes the NBTA's " `rigorous and exacting' " standards possesses exceptional qualifications, ante, at 95 (quoting In re Johnson, 341 N. W. 2d 282, 283 (Minn. 1983)). Whereas certification as a specialist by a "bogus" organization without "objective and consistently applied standards relevant to practice in a particular area of law" might be misleading, the plurality argues, ante, at 109, NBTA certification suggests no "greater degree of professional qualification than reasonably may be inferred from an evaluation of its rigorous requirements," ante, at 102. *115 Although these characteristics may buttress the plurality's conclusion that petitioner's letterhead statement is not inherently misleading, they do not prevent that statement from being potentially misleading. Facts as well as opinions can be misleading when they are presented without adequate information. Even if, as the plurality suggests, NBTA-certified lawyers are generally more highly qualified for trial work than the average attorney, petitioner's statement is still potentially misleading because a person reasonably could draw a different inference from it. A person could think, for instance, that "Certified Civil Trial Specialist" means that petitioner has an unusually high success rate in civil trials. Alternatively, a person could think that all lawyers are considered by the NBTA for certification as a specialist, so that petitioner is necessarily a better trial lawyer than every lawyer not so certified. Neither inference, needless to say, would be true. The potential for misunderstanding might be less if the NBTA were a commonly recognized organization and the public had a general understanding of its requirements. The record contains no evidence, however, that the NBTA or, more importantly, its certification requirements are widely known. This Court examined a statement similar to petitioner's in In re R. M. J. There, an attorney had been disciplined by the state bar for advertising, among other things, that he was "Admitted to Practice Before THE UNITED STATES SUPREME COURT." 455 U. S., at 197. We found that "this relatively uninformative fact . . . could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court." Id., at 205. We held that the State's total ban on such information was unconstitutional, however, in part because the state court had made no finding that the information was misleading; nor had the State attempted a less restrictive means of preventing deception, *116 such as "requir[ing] a statement explaining the nature of the Supreme Court Bar." Id., at 206. Nevertheless, our acknowledgment that the statement was potentially misleading and our suggestion that the State could require the attorney to provide additional information are instructive. Because a claim of certification by the NBTA as a civil trial specialist is potentially misleading, States may enact measures other than a total ban to prevent deception or confusion. This Court has suggested that States may, for example, require "some limited supplementation, by way of warning or disclaimer or the like, . . . so as to assure that the consumer is not misled." Bates, supra, at 384. Accord, In re R. M. J., supra, at 203 ("[T]he remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation"). The Court's decisions in Shapero and Zauderer provide helpful guidance in this area. In Shapero, the Court held that States may not categorically prohibit lawyers from soliciting business for pecuniary gain by sending personalized letters to potential clients known to face particular legal problems. 486 U. S., at 476. The Court said that States could, however, enact less restrictive measures to prevent deception and abuse, such as requiring that a personalized letter bear a label identifying it as an advertisement or a statement informing the recipient how to report an inaccurate or misleading letter. Id., at 477-478. In Zauderer, the Court held that a State could not ban newspaper advertisements containing legal advice or illustrations because the State had failed to show that it could not combat potential abuses by means short of a blanket ban. 471 U. S., at 644, 648-649. But the Court held that the State could require attorneys advertising contingent-fee services to disclose that clients would have to pay costs even if their lawsuits were unsuccessful to prevent the possibility that people would erroneously think that they would not owe their attorneys any money if they lost their cases. Id., at 650-653. *117 Following the logic of those cases, a State could require a lawyer claiming certification by the NBTA as a civil trial specialist to provide additional information in order to prevent that claim from being misleading.[1] The State might, for example, require a disclaimer stating that the NBTA is a private organization not affiliated with, or sanctioned by, the State or Federal Government. The State also could require information about the NBTA's requirements for certification as a specialist so that any inferences drawn by consumers about the quality of services offered by an NBTA-certified attorney would be based on more complete knowledge of the meaning of NBTA certification. Each State, of course, may decide for itself, within the constraints of the First Amendment, how best to prevent such claims from being misleading.[2] *118 JUSTICE WHITE, dissenting. I agree with JUSTICE MARSHALL that petitioner's letterhead is potentially misleading and with the reasons he gives for this conclusion. Thus, there are four Justices - JUSTICE STEVENS and the three Justices joining his opinion - who believe that the First Amendment protects the letterhead as it is and that the State may not forbid its circulation. But there are five Justices who believe that this particular letterhead is unprotected: JUSTICE O'CONNOR, THE CHIEF JUSTICE, and JUSTICE SCALIA believe the letterhead is inherently misleading and hence would uphold Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility; at least two of us - JUSTICE MARSHALL and myself - find it potentially misleading and would permit the State to ban such letterheads but only if they are not accompanied by disclaimers appropriate to avoid the danger. This letterhead does not carry such a disclaimer. The upshot is that while the State may not apply its flat ban to any and all claims of certification by attorneys, particularly those carrying disclaimers, the State should be allowed to apply its Rule to the letterhead in its present form and forbid its circulation. That leads me to affirm, rather than to reverse, the judgment below. To reverse is to leave petitioner free to circulate his letterhead, not because it is protected under the First Amendment - indeed, it is not - but because five Justices refuse to enforce the Rule even as applied, leaving the State powerless to act unless it drafts a narrower rule that will survive scrutiny under the First Amendment. This is nothing less than a *119 brand of overbreadth, a doctrine that has little if any place in considering the validity of restrictions on commercial speech, which is what is involved in this case. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381 (1977). Bates "established the nonapplicability of overbreadth analysis to commercial speech." Board of Trustees of State University of N. Y. v. Fox, 492 U. S. 469, 483 (1989); accord, Shapero v. Kentucky Bar Assn., 486 U. S. 466, 478 (1988); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 463, n. 20 (1978). This being so, the inquiry is not whether the regulation at issue here is invalid on its face, but whether it was constitutionally applied to forbid circulation of the letterhead in its present form. It is plain enough that it was so applied, for five of us hold that the letterhead is at least potentially misleading and hence must carry an appropriate disclaimer to qualify for circulation. As I see it, it is petitioner who should have to clean up his advertisement so as to eliminate its potential to mislead. Until he does, the State's Rule legally bars him from circulating the letterhead in its present form. I would therefore affirm the judgment. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. This case provides yet another example of the difficulties raised by rote application of the commercial speech doctrine in the context of state regulation of professional standards for attorneys. Nothing in our prior cases in this area mandates that we strike down the state regulation at issue here, which is designed to ensure a reliable and ethical profession. Failure to accord States considerable latitude in this area embroils this Court in the micromanagement of the State's inherent authority to police the ethical standards of the profession within its borders. Petitioner argues for the first time before this Court that the statement on his letterhead that he is a certified trial specialist is not commercial speech. I agree with the plurality that we need not reach this issue in this case. Ante, at 99-100. We *120 generally do not "decide federal constitutional issues raised here for the first time on review of state court decisions." Cardinale v. Louisiana, 394 U. S. 437, 438 (1969). We recently summarized our standards for commercial speech by attorneys in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985): "The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U. S. 1 (1979) . . . . Commercial speech that is not false or deceptive and does not concern unlawful activities. . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Id., at 638. In my view, application of this standard requires us to affirm the Illinois Supreme Court's decision that Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility is a valid measure to control misleading and deceptive speech. "The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the `product' renders [attorney commercial speech] especially susceptible to abuses that the States have a legitimate interest in controlling." In re R. M. J., 455 U. S. 191, 202 (1982). Although certifying organizations, such as the National Board of Trial Advocacy (NBTA), may provide a valuable service to the legal profession and the public, I would permit the States broad latitude to ensure that consumers are not misled or deceived by claims of certification. In In re R. M. J., supra, the Court stated that it "has made clear . . . that regulation - and imposition of discipline - are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive." Ibid. (emphasis added). The plurality in this case correctly notes that the statements in petitioner's letterhead have not been shown actually to deceive consumers, see ante, *121 at 100-101, but it fails adequately to address whether the statements are "inherently likely to deceive," as the Supreme Court of Illinois concluded. In re Peel, 126 Ill. 2d 397, 408, 534 N. E. 2d 980, 985 (1989). Charged with the duty of monitoring the legal profession within the State, the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead. Although we are the final arbiters on the issue whether a statement is misleading as a matter of constitutional law, we should be more deferential to the State's experience with such statements. Illinois does not stand alone in its conclusion that claims of certification are so misleading as to require a blanket ban. At least 19 States and the District of Columbia currently ban claims of certification. See Alaska Code Prof. Resp. DR 2-105 (1990); D. C. Ct. Rules, App. A., DR 2-105 (1989); Haw. Code Prof. Resp. DR 2-105 (1990); Ill. Code Prof. Resp. Rule 2-105 (1989); Ind. Rule Prof. Conduct 7.4 (1990); Iowa Code Prof. Resp. DR 2-105 (1989); Ky. Sup. Ct. Rule 7.4 (1990-1991); Md. Rule Prof. Conduct 7.4 (1990); Mass Sup. Judicial Ct. Rule DR 2-105 (1990); Miss. Rule Prof. Conduct 7.4 (1989); Mo. Sup. Ct. Rule Prof. Conduct 7.4 (1990); Nev. Sup. Ct. Rule Prof. Conduct 198 (1990); Ore. Code Prof. Resp. DR 2-105 (1990); Pa. Rule Prof. Conduct 7.4 (1989); S. D. Rule Prof. Conduct 7.4 (1989); Tenn. Sup. Ct. Rule DR 2-105 (1988-1989); Va. Sup. Ct. Rules, pt. 6, § 2, DR 2-104 (1989); Wash. Rule Prof. Conduct 7.4 (1990); W. Va. Rule Prof. Conduct 7.4 (1990); Wis. Sup. Ct. Rule Prof. Conduct 20:7.4 (1989). Despite the veracity of petitioner's claim of certification by the NBTA, such a claim is inherently likely to deceive the public. The plurality states that "[a] claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, . . . but is simply a fact." Ante, at 101 (citation omitted). This view, however, conflates fact and verifiability. Merely because something is a fact does not make it readily verifiable. A statement, even if *122 true, could be misleading. See also Bates v. State Bar of Arizona, 433 U. S. 350, 383 (1977) (attorney commercial speech "that is false, deceptive, or misleading of course is subject to restraint" (emphasis added)). The ordinary consumer with a "comparative lack of knowledge" about legal affairs should be able to assess the validity of claims and statements made in attorney advertising. Neither petitioner nor the plurality asserts that petitioner's claim of certification on its face is readily understandable to the average consumer of legal services. The plurality verifies petitioner's statement on his letterhead by reference to the record assembled in this case, but that record is not readily available to members of the public. Given the confusion in the court below about the certification standard applied by the NBTA, see 126 Ill. 2d, at 406, 534 N. E. 2d, at 984, there can be little doubt that the meaning underlying a claim of NBTA certification is neither common knowledge nor readily verifiable by the ordinary consumer. And nothing in petitioner's letterhead reveals how one might attempt to verify the claim of certification by the NBTA. At least the claim of admission to the United States Supreme Court at issue in In re R. M. J., supra, which the Court stated "could be misleading," 455 U. S., at 205-206, named a readily recognizable institution or location to which inquiries could be addressed. Reference to the "NBTA" provides no such guidepost for inquiries. The State is, in my view, more than justified in banning claims of certification by the NBTA. The plurality appears to have abandoned altogether any requirement that a statement or claim be verifiable by the ordinary consumer of legal services. Apparently, it would permit advertising claims of certification by any organization so long as the lawyer can "demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law." Ante, at 109. The plurality has thereby deserted the sole policy reason that justifies its headlong plunge into *123 micromanagement of state bar rules - facilitation of a "consumer's access to legal services." Ante, at 110. Facilitation of access to legal services is hardly achieved where the consumer neither knows the organization nor can readily verify its criteria for membership. "[A]dvertising claims as to the quality of services . . . are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction." Bates, supra, at 383-384; see also In re R. M. J., supra, at 201 ("[C]laims as to quality . . . might be so likely to mislead as to warrant restriction"). As the Supreme Court of Illinois properly concluded, certification is tantamount to a claim of quality and superiority and is therefore inherently likely to mislead. 126 Ill. 2d, at 410, 534 N. E. 2d, at 986. Indeed, the plurality's citation of others' descriptions of NBTA certification supports the conclusion that it is intended to attest to the quality of the lawyer's work. The plurality refers to the Task Force on Lawyer Competence of the Conference of Chief Justices, Report with Findings and Recommendations to the Conference of Chief Justices, Publication No. NCSC-021, (May 26, 1982), which stated: "The National Board of Trial Advocacy, a national certification program that provides recognition for superior achievement in trial advocacy, uses a highly-structured certification process in addition to a formal examination to select its members." Id., at 33-34 (emphasis added). Not only does the certification claim lead the consumer to believe that this lawyer is better than those lawyers lacking such certification, it also leads to the conclusion that the State licenses the lawyer's purported superiority. The juxtaposition on petitioner's letterhead of "Licensed: Illinois, Missouri, Arizona" with the claim of NBTA certification increases the likelihood of deception. As the court below reasoned, 126 Ill. 2d, at 406, 534 N. E. 2d, at 984, the proximity of the two statements might easily lead the consumer to conclude that the State has sanctioned the certification. As it is *124 common knowledge that States police the ethical standards of the profession, that inference is likely to be especially misleading. The plurality disposes of this difficulty by drawing an unconvincing distinction between licensing and certification: "We are satisfied that the consuming public understands that licenses . . . are issued by governmental authorities and that a host of certificates . . . are issued by private organizations." Ante, at 103. Yet, no such bright line exists. For example, California is now certifying legal specialists. See Cal. Rules Ct., Policies Governing the State Bar of California Program for Certifying Legal Specialists (1990). See also Ariz. Rule Prof. Conduct ER 7.4 (1990); Ark. Model Rule Prof. Conduct 7.4(c) (1990); Fla. Rule Prof. Conduct 4-7.5(c) (1990); La. Rev. Stat. Ann., Rule of Prof. Conduct 7.4 (1988); N. J. Ct. Rule 1:39 and N. J. Rule Prof. Conduct 7.4 (1989); N. M. Rules Governing Practice of Law, Rule of Prof. Conduct 16-704 (1988); N. C. Ann. Rules, Plan of Certified Legal Specialization, App. H, Rule 5.7 (1989); S. C. Rules on Lawyer Advertising, Ct. Rule 7.4 (Supp. 1989); Tex. State Bar Rules, Art. 10, § 9, DR 2-101(C) (1989); Utah Rule Prof. Conduct 7.4(b) (1990). Thus, claims of certification may well lead the ordinary consumer to conclude that the State has sanctioned such a claim. "[B]ecause the public lacks sophistication concerning legal services," "the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the [attorney commercial speech] arena." Bates, supra, at 383. The Supreme Court of Illinois did not err when it concluded that the ordinary consumer is likely to be misled by the juxtaposition of state bar admission and claims of civil trial specialty. Because the statement of certification on petitioner's letterhead is inherently misleading, the State may prohibit it without violation of the First Amendment. See In re R. M. J., supra, at 203 ("Misleading advertising may be prohibited entirely"). Petitioner does not suggest a less burdensome means of regulating attorney claims of certification than case-by-case *125 determination. Under petitioner's theory, the First Amendment requires States that would protect their consumers from misleading claims of certification to provide an individual hearing for each and every claim of certification, extending well beyond NBTA certification to any organization that may be used by a resourceful lawyer. In my view, the First Amendment does not require the State to establish such an onerous system and permits the State simply to prohibit such inherently misleading claims. As a majority of this Court agree, see ante, at 111 (MARSHALL, J., concurring in judgment, joined by BRENNAN, J.); ante, at 118 (WHITE, J., dissenting); supra, at 121-124 (O'CONNOR, J., dissenting, joined by REHNQUIST, C. J., and SCALIA, J.), petitioner's claim to certification is at least potentially misleading. If the information cannot be presented in a way that is not deceptive, even statements that are merely potentially misleading may be regulated with an absolute prohibition. See In re R. M. J., 455 U. S., at 203. It is difficult to believe that a disclaimer could be fashioned, as the plurality suggests, ante, at 110; see also opinion concurring in judgment, ante, at 117, that would make petitioner's claim of certification on his letterhead not potentially misleading. Such a disclaimer would have to communicate three separate pieces of information in a space that could reasonably fit on a letterhead along with the claim of certification: (1) that the claim to certification does not necessarily indicate that the attorney provides higher quality representation than those who are not certified; (2) that the certification is not state sanctioned; and (3) either the criteria for certification or a reasonable means by which the consumer could determine what those criteria are. Even if the State were to permit claims of certification along with disclaimers, in order to protect consumers adequately, the State would have to engage in case-by-case review to ensure that the misleading character of a particular claim to certification was cured by a particular disclaimer. Alternatively, the State would be forced *126 to fashion its own disclaimer for each organization for which certification is claimed by the attorneys within its borders, provide for certification itself, or, at the least, screen each organization. See, e. g., Ala. Code Prof. Resp. Temp. DR 2-112 (1989) (providing for state screening of certifying organizations). Although having information about certification may be helpful for consumers, the Constitution does not require States to go to these extremes to protect their citizens from deception. In my view, the Court would do well to permit the States broad latitude to experiment in this area so as to allow such forms of disclosure as best serve each State's legitimate goal of assisting its citizens in obtaining the most reliable information about legal services. Petitioner also contends that Rule 2-105 violates the Equal Protection Clause as applied to him on the ground that there is no rational justification for allowing attorneys in certain areas to claim specialization, e. g., admiralty, patent, and trademark, while precluding him from claiming a civil trial specialty. Yet, petitioner's claim is not merely a claim of concentration of practice, which the Illinois rules permit, but rather a claim of quality. It is not irrational for the State to assume that the reporting of professional experience is less likely to mislead the public than would claims of quality. Moreover, while the claim of NBTA certification is misleading in part because the public does not know what meaning to attach to it, the claim of concentration of practice merely states a fact understandable on its face to the ordinary consumer. Finally, as the Supreme Court of Illinois noted, historically lawyers have been permitted to advertise specialization in patent, trademark, and admiralty law because of the difficulties encountered by the general public in finding such attorneys. See 126 Ill. 2d, at 410-411, 534 N. E. 2d, at 986. Locating an attorney who is a civil trial advocate hardly poses the same obstacle. Thus, I would conclude that the regulation does not violate the Equal Protection Clause. *127 For the foregoing reasons, I would uphold Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility and affirm the decision of the court below. NOTES [*] Briefs of amici curiae urging reversal were filed for the American Advertising Federation, Inc., by Philip B. Kurland and Alan S. Madans; for the Association of National Advertisers, Inc., by Burt Neuborne; for the Association of Trial Lawyers of America et al. by Jeffrey Robert White and Russ M. Herman; for Public Citizen by David C. Vladeck and Alan B. Morrison; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, Alan M. Slobodin, and Richard Samp. [1] The First Amendment to the United States Constitution provides in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." If a statement may not be censored by the Federal Government, it is also protected from censorship by the State of Illinois. See Cantwell v. Connecticut, 310 U. S. 296 (1940); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). [2] Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Ford. L. Rev. 227 (1973) (recording the Fourth Annual John F. Sonnett Memorial Lecture delivered on November 26, 1973). The address warned that a lawyer is not qualified, "simply by virtue of admission to the bar, to be an advocate in trial courts in matters of serious consequence." Id., at 240. Other proponents stress more positive reasons for certification such as the creation of "a powerful professional and economic incentive to increase [lawyers'] competence." Brief for Academy of Certified Trial Lawyers of Minnesota as Amicus Curiae 15. [3] See Trial Advocacy as a Specialty: Final Report of the Annual Chief Justice Earl Warren Conference on Advocacy in the United States (sponsored by the Roscoe Pound-American Trial Lawyers Foundation) (1976). The groups sponsoring NBTA include the National District Attorneys Association, the Association of Trial Lawyers of America, the International Academy of Trial Lawyers, the International Society of Barristers, the National Association of Criminal Defense Lawyers, the National Association of Women Lawyers, and the American Board of Professional Liability Attorneys. [4] Brief for NBTA as Amicus Curiae 9-13. The current NBTA requirements are that an applicant: (1) be a bar member in good standing; (2) disclose any misconduct including criminal convictions or professional discipline; (3) show at least five years of actual practice in civil trial law during the period immediately preceding application for certification; (4) show substantial involvement in trial practice, including 30% of professional time in civil trial litigation during each of the five years preceding application; (5) demonstrate experience by appearing as lead counsel in at least 15 complete trials of civil matters to verdict or judgment, including at least 45 days of trial and 5 jury trials, and by appearing as lead counsel in 40 additional contested matters involving the taking of testimony; (6) participate in 45 hours of continuing legal education in civil trial practice in the three years preceding application; (7) be confidentially reviewed by six attorneys, including two against or with whom the applicant has tried a civil matter, and a judge before whom the applicant has appeared within the preceding two years; (8) provide a substantial trial court memorandum or brief that was submitted to a court in the preceding three years; and (9) pass a day-long written examination testing both procedural and substantive law in various areas of civil trial practice. [5] Petitioner has been vice chair of the Insurance and Tort Committee of the General Practice Session of the American Bar Association and an officer of the Tri-City Bar Association. He is a member of the Illinois State Bar Association, the Arizona State Bar Association, the Missouri State Bar Association, the Illinois Trial Lawyers Association, and the Association of Trial Lawyers of America. Hearing Tr., App. G to Pet. for Cert. 28a-29a. [6] Report of the Hearing Panel, App. C to Pet. for Cert. 19a; App. 22-23. [7] App. D to Pet. for Cert. 21a. [8] Disciplinary Rule 2-105(a)(3) (1988). The exceptions are for patent, trademark, and admiralty lawyers. The remainder of Rule 2-105 provides: "Rule 2-105. Limitation of Practice. "(a) A lawyer shall not hold himself out publicly as a specialist, except as follows: "(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation `Patents,' `Patent Attorney,' `Patent Lawyer,' or `Registered Patent Attorney' or any combination of those terms, on his letterhead and office sign. "(2) A lawyer engaged in the trademark practice may use the designation `Trademarks,' `Trademark Attorney' or `Trademark Lawyer,' or a combination of those terms, and a lawyer engaged in the admiralty practice may use the designation `Admiralty,' `Proctor in Admiralty' or `Admiralty Lawyer,' or a combination of those terms, in any form of communication otherwise permitted under Rules 2-101 through 2-104." [9] 126 Ill. 2d, at 406-407, 534 N. E. 2d, at 984-985. The court noted some ambiguity and inconsistency in the descriptions of required trial experience: by petitioner as 40 jury trials carried to verdict, by amicus Association of Trial Lawyers of America as 15 major cases carried to verdict, and by amicus NBTA as 15 complete trials to verdict, at least 5 of which were to a jury. Petitioner's brief to the state court did fail to report the newly revised standards provided by the amici, whose descriptions varied from each other's only in terminology. Brief for Petitioner 23, n. 26. All parties have provided the revised standards to this Court. See n. 4, supra. [10] Of course, many lawyers who do not have or publicize certification are in fact more able than others who do claim such a credential. The Commission does not suggest that the absence of certification leads consumers to conclude that these attorneys are unqualified. In any event, such a negative inference would be far more likely in a State that certifies attorneys under a comprehensive formal program, than in one that provides no official recognition. [11] See, e. g., Ala. Code Prof. Resp. Temp. DR 2-112 (1989); Ariz. Rule Prof. Conduct ER 7.4 (1990); Ark. Model Rule Prof. Conduct 7.4(c) (1990); Cal. Rule Ct., Policies Governing the State Bar of California Program for Certifying Legal Specialists (1990); Conn. Rule Prof. Conduct 7.4A-C (1989); Fla. Rule Regulating Bar 6-4 (1990); Ga. Rules Ct. Ann., DR 2-105(3) (1989); La. Rev. Stat. Ann., Rule of Prof. Conduct 7.4(b) (1988); Minn. Rule of Prof. Conduct 7.4 and Minn. State Bd. of Legal Certification Rules 5, 6, 8 (1990); N. J. Ct. Rule 1:39 and N. J. Rule Prof. Conduct 7.4 (1989); N. M. Rules Governing Practice of Law, Legal Specialization 19-101 et seq. (1988); N. C. Ann. Rules, Plan of Certified Legal Specialization, App. H (1990); S. C. Sup. Ct. Rule 53 (1988); Tex. State Bar Rules, Art. 10, § 9, DR 2-101(C), (1989); Utah Rule Prof. Conduct 7.4(b) (1990). Board certification of specialists in various branches of medicine, handled by the 23 member boards of the American Board of Medical Specialties, is based on various requirements of education, residency, examinations and evaluations. American Board of Medical Specialties, Board Evaluation Procedures: Developing a Research Agenda, Conference Proceedings 7-11 (1981). The average member of the public does not know or necessarily understand these requirements, but board certification nevertheless has "come to be regarded as evidence of the skill and proficiency of those to whom they [have] been issued." American Board of Medical Specialties, Evaluating the Skills of Medical Specialists 1 (J. Lloyd and D. Langsley eds. 1983). [12] Prior to its revision in 1989, the Comment to ABA Model Rule of Professional Conduct 7.4 also prohibited any statement that a lawyer's practice "is limited to," or "concentrated in," an area under the same explanation that these terms had "a secondary meaning implying formal recognition as a specialist." Model Rule 7.4 Comment (1983). When Rule 7.4 was originally proposed in 1983, proponents of unsuccessful amendments to drop all prohibition of terms argued that "the public does not attach the narrow meaning to the word `specialist' that the legal profession generally does. The public would perceive no distinction between a lawyer's claim that he practices only probate law and a claim that he concentrates his practice in probate law." ABA, The Legislative History of the Model Rules of Professional Conduct 189 (1987). The amendments' opponents argued that allowing lawyers to designate themselves as specialists would undermine the States' ability to set up and control specialization programs. Ibid. This position essentially conceded that these terms did not yet have "a secondary meaning implying formal recognition," but only that they could develop such a secondary meaning if state programs came into being. Rule 7.4's exception for designations of "Patent Attorney" and "Proctor in Admiralty" ignores the asserted interest in avoiding confusion from any secondary meaning of these terms. The Comment to Rule 7.4 actually imbues these terms with a historical, virtually formal, recognition, despite the lack of any prerequisites for their use: "Recognition of specialization in patent matters is a matter of long-established policy of the Patent and Trademark Office. Designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts." ABA Model Rule of Professional Conduct 7.4 Comment (1989). [13] JUSTICE O'CONNOR's legal conclusion about the deceptive potential of petitioner's letterhead, like that of the Illinois Supreme Court, rests on a flexible appraisal of the character of the consuming public. For example, her opinion emphasizes the "public's comparative lack of knowledge" about the legal profession and its lack of "sophistication concerning legal services," post, at 120, 124, but simultaneously reasons that the public will believe that all certifications are state sanctioned because of their "common knowledge that States police the ethical standards of the profession" and their specific knowledge that States like California are now certifying legal specialists, post, at 124. These consumers also can distinguish "Registered Patent Attorney" from "Certified Patent Attorney," interpreting the former as an acceptable "reporting of professional experience," but the latter as a deceptive "claim of quality." Post, at 126. We prefer to assume that the average consumer, with or without knowledge of the legal profession, can understand a statement that certification by a national organization is not certification by the State, and can decide what, if any, value to accord this information. [14] The attempt in JUSTICE O'CONNOR's dissent to distinguish In re R. M. J. by reasoning that a consumer can contact the Supreme Court to see if a lawyer is really a member of the Court's Bar, post, at 122, misses the point. Both admission to the Bar of this Court and certification by NBTA are facts, whether or not consumers verify them. The legal question is whether a statement of either fact is nonetheless so misleading that it falls beyond the First Amendment's protections. We found that the advertisement of admission to the Bar of this Court could not be banned, despite recognition that "this relatively uninformative fact is at least bad taste" and "could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court." In re R. M. J., 455 U. S., at 205-206. [15] It is noteworthy that JUSTICE WHITE's reference to the overbreadth doctrine, see post, at 118-119, is potentially misleading. That doctrine allows a party whose own conduct is not protected by the First Amendment to challenge a regulation as overbroad because of its impact on parties not before the Court. In this case we hold that Illinois Disciplinary Rule 2-105 is invalid as applied to petitioner Peel. Accordingly, the overbreadth doctrine to which JUSTICE WHITE refers has no relevance to our analysis. [16] Post, at 121. JUSTICE O'CONNOR's abdication of review would create radical disparities in First Amendment protections from State to State. On the one hand, it finds that the Illinois Supreme Court "properly concluded [that] certification is tantamount to a claim of quality and superiority and is therefore inherently likely to mislead." Post, at 123. Under this analysis, claims of certification by States as well as by private organizations are deceptive and thus fall outside of the First Amendment's protection; indeed, Illinois forbids claims of "certification" as a "specialist" by any entity. See also post, at 121 (listing States that ban certification). On the other hand, JUSTICE O'CONNOR apparently also would defer to the contrary judgments of other States, which have held that the First Amendment protects claims of NBTA certification by members of their bars, e. g., Ex parte Howell, 487 So. 2d 848 (Ala. 1986); In re Johnson, 341 N. W. 2d 282 (Minn. 1983), and have held that claims of official state certification are permissible, see, e. g., post, at 124 (listing States that certify). [17] It is not necessary here - as it also was not in In re R. M. J. - to consider when a State might impose some disclosure requirements, rather than a total prohibition, in order to minimize the possibility that a reader will misunderstand the significance of a statement of fact that is protected by the First Amendment. We agree with JUSTICE MARSHALL, post, at 111, that a holding that a total ban is unconstitutional does not necessarily preclude less restrictive regulation of commercial speech. [18] See Bates v. State Bar of Arizona, 433 U. S. 350, 376 (1977). A principal reason why consumers do not consult lawyers is because they do not know how to find a lawyer able to assist them with their particular problems. Federal Trade Commission, Staff Report on Improving Consumer Access to Legal Services: The Case for Removing Restrictions of Truthful Advertising 1 (1984). JUSTICE O'CONNOR would extend this convenience to consumers who seek admiralty, patent, and trademark lawyers, post, at 126, but not to consumers who need a lawyer certified or specializing in more commonly needed areas of the law. [1] JUSTICE O'CONNOR suggests that any regulation short of a total ban on claims such as petitioner's would require "case-by-case review" of each certification claim and would be unduly burdensome on the State. Post, at 125. On the contrary, a State could easily establish generally applicable regulations setting forth what types of information must accompany a claim of certification or specialty. The state agency in charge of enforcing those regulations could then investigate and adjudicate alleged violations of the regulations, just as such agencies do under existing disciplinary rules. No advance approval of every claim would be required. In any event, this Court's primary task in cases such as this is to determine whether a state law or regulation unduly burdens the speaker's exercise of First Amendment rights, not whether respect for those rights would be unduly burdensome for the State. Because Illinois can prevent petitioner's claim from being misleading without banning that claim entirely, the State's total ban is unconstitutional as applied in this case. Cf. post, at 118-119 (WHITE, J., dissenting). The burden is on the State to enact a constitutional regulation, not on petitioner to guess in advance what he would have to do to comply with such a regulation. [2] The precise amount of information necessary to avoid misunderstandings need not be decided here. The poles of the spectrum of disclosure requirements, however, are clear. A State may require an attorney to provide more than just the fact of his certification as a civil trial specialist by the NBTA. But a State may not require an attorney to include in his letterhead an exhaustive, detailed recounting of the NBTA's certification requirements because more limited disclosure would suffice to prevent the possibility that people would be misled. Cf. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 663-664 (1985) (BRENNAN, J., concurring in part, concurring in judgment in part, and dissenting in part) ("[C]ompelling the publication of detailed fee information that would fill far more space than the advertisement itself. . . would chill the publication of protected commercial speech and would be entirely out of proportion to the State's legitimate interest in preventing potential deception").

155 U.S. 393 (1894) HORNE v. GEORGE H. HAMMOND COMPANY. No. 86. Supreme Court of United States. Argued November 20, 21, 1894. Decided December 17, 1894. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. Mr. Eugene P. Carver, (with whom was Mr. Robert M. Morse on the brief,) for plaintiff in error. Mr. George Putnam for defendant in error. THE CHIEF JUSTICE: The title of this cause describes plaintiff in error as "of Chelsea in said district," and the decedent as "late of Chelsea," and the defendant as "a corporation organized under the laws of the State of Michigan." The writ and the original declaration do not appear in the record. The amended declaration commences thus: "Plaintiff says that she is the widow of the late Granville P. Horne of Chelsea, Suffolk County, Commonwealth of Massachusetts, and that she was duly appointed by the probate court of Suffolk County administratrix of his estate." As the transcript of the record does not show that the Circuit Court had jurisdiction of the suit, which depended upon the citizenship of the parties, and as counsel, upon having their attention called to the matter, have furnished nothing of record which would supply the defect, the judgment must be reversed at the costs of plaintiff in error, and the cause be remanded to the Circuit Court for further proceedings. Robertson *394 v. Cease, 97 U.S. 646, 649; Anderson v. Watt, 138 U.S. 694, 702; Timmons v. Elyton Land Co., 139 U.S. 378; Denny v. Pironi, 141 U.S. 121. Reversed and ordered accordingly.

289 U.S. 367 (1933) DAUBE v. UNITED STATES. No. 634. Supreme Court of United States. Argued April 10, 11, 1933. Decided May 8, 1933. CERTIORARI TO THE COURT OF CLAIMS. Mr. John E. Hughes, with whom Mr. William Cogger was on the brief, for petitioner. Mr. Whitney North Seymour, with whom Solicitor General Thacher and Messrs. John MacC. Hudson and William W. Scott were on the brief, for the United States. MR. JUSTICE CARDOZO delivered the opinion of the Court. The petitioner brought suit in the Court of Claims upon a claim that for two years, 1918 and 1919, he had overpaid his income tax. As to the tax for 1918, the claim was dismissed upon the merits. As to the tax for *368 1919, it was dismissed upon the ground that suit had not been brought within the time prescribed by law. 59 F. (2d) 842; 1 F. Supp. 771. A writ of certiorari, restricted to the assessment for 1919, brings the case here. The Commissioner, upon an audit of the petitioner's returns, found underassessments for 1916, 1917, and 1920, and overassessments for 1918 and 1919. A notice of the result of the audit was mailed to the petitioner on November 10, 1923, the notice by its terms being provisional and tentative. Later, and on January 31, 1924, the Commissioner signed a schedule of overassessments, $22,151.88 for 1918, and $2,628.26 for 1919, and forwarded the schedule to the Collector of the District of Oklahoma, the petitioner's residence. In accordance with the practice of the bureau, the Collector was instructed to examine the accounts of the taxpayer and apply the excess payments as a credit against taxes due for other years. Upon such examination the Collector found that there were additional assessments, still unpaid, for 1916, 1917, and 1920, in the sum of $11,277.24. This left an excess for 1918 of $10,874.64, and one of $2,628.26 for 1919, a total of $13,502.90. Upon that basis the Collector made out a schedule of refunds and credits, which he returned to the Commissioner with the schedule of overassessments. At this stage complications developed by reason of the tax liability of a partnership of which petitioner was a member. The partnership owed the Government more than fifty thousand dollars, the amount of an excess profits tax for 1917, though the precise extent of the indebtedness was still undetermined. In anticipation of an assessment, petitioner had filed with the bureau an agreement and direction that any refund due to him individually for the year 1918 (but without mention of any other year) should be applied as a credit upon the taxes owing from the partnership. When the schedule of refunds and credits came back from the Collector, the Commissioner overlooked *369 the order, then on file in his office, for the merger of the two accounts, and dealt with them as separate. He made an additional assessment against the partnership for $53,012.47. On the same day, March 29, 1924, he signed an approval of the schedule of refunds and credits without applying any part of the overpayment to the partnership liability, and made out a check to the order of the petitioner for $13,502.90, which he mailed to the Collector. The Collector discovered the mistake, and instead of delivering the check returned it to the Commissioner. Thereupon the Commissioner canceled the check, revoked his earlier instructions, and ordered the Collector to apply the overpayments made by the petitioner individually upon the deficiency then owing from the members of the partnership. This order was proper to the extent of $10,874.64, the 1918 overpayment, for the credit to that extent was in accordance with the petitioner's agreement. It was an error in so far as it included the 1919 overpayment ($2,628.26), for the petitioner's agreement did not cover that year. The Collector did what the Commissioner commanded. No notice, however, of his action was transmitted to the taxpayer. There was no delivery to the taxpayer of a certificate of overassessment. There was no delivery of a copy of any schedule of refunds and credits. Six years went by, almost to the day, without demand or protest. Then, on March 28, 1930, the petitioner began this suit, asking judgment for $24,780.14 with interest. He repudiated all the credits against the partnership deficiency, as well as other credits which there is no need to go into, for he allowed them later on. At the trial the contest narrowed down to two items. The first, $10,874.64, is the overpayment for 1918, as it stood before it was applied upon the partnership assessment. The second, $2,628.26, is the overpayment for 1919. The writ of certiorari brings up the second item to the exclusion of any other. *370 By § 3226 of the Revised Statutes as amended by the Revenue Act of 1921, no suit may be maintained for the recovery of any internal revenue tax erroneously or illegally assessed or collected unless begun within five years from the date of payment. Revenue Act of 1921, c. 136, 42 Stat. 268, § 1318, amending R.S. § 3226; 26 U.S. Code, § 156. This suit was not brought within the time so limited. It is therefore too late, if it is a suit for the recovery of a tax within the meaning of the statute. The petitioner insists that it is not such a suit, but one upon an account stated. The statement of an account gives rise to a new cause of action with a new term of limitation. Bonwit Teller & Co. v. United States, 283 U.S. 258, 265. We are thus brought to the question whether there was such a statement here. If the traditional tests, familiar to the law of contracts, are to be accepted as our guide, there was no account stated between Government and taxpayer. No balance was arrived at as the result of computation and agreement. Volkening v. DeGraaf, 81 N.Y. 268, 271. The Commissioner did not inform the taxpayer that the tax had been overpaid in a determinate amount. The taxpayer did not give assent either expressly or by silence to the outcome of the audit. The essentials of an account stated in any strict or proper sense are lacking altogether. Toland v. Sprague, 12 Pet. 300, 333; Nutt v. United States, 125 U.S. 650, 655; Volkening v. DeGraaf, supra; Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 511, 512; 114 N.E. 846. A different situation was disclosed in the Bonwit Teller case, supra. There the certificate of overassessment had been delivered to the taxpayer. "Upon delivery of the certificate to plaintiff, there arose the cause of action on which this suit was brought." Bonwit Teller & Co. v. United States, supra, p. 265. Cf. Wm. J. Friday & Co. v. United States, 61 F. (2d) 370. *371 The argument is made, however, that the allowance of the schedule of refunds and credits on March 29, 1924, was something near to an account stated, something "equivalent" thereto, though not the standard article to be marked by the standard label. This doctrine of equivalence is borne out, we are told, by cases in this court and elsewhere, which were cited in the Bonwit Teller case and are again pressed upon us now. United States v. Kaufman, 96 U.S. 567, 575; United States v. Savings Bank, 104 U.S. 728; First National Bank of Greencastle v. United States, 15 Ct. Cls. 225. They fall short by a great deal of teaching such a lesson. The Kaufman case will serve as typical of the others, for they vary little in their facts. The Commissioner of Internal Revenue had been authorized by statute to make allowance to brewers for the value of tax stamps lost or wasted. He did make such an allowance, and certified his ruling to the Comptroller of the Treasury. The claimant suing in the Court of Claims to recover the amount of the award was met by the objection that he must prove his claim anew. This court held that the allowance by the Commissioner was effective without more to make out a prima facie case, and spoke of it as at least "equivalent to an account stated between private parties, which is good until impeached for fraud or mistake." There was no question in the case as to the effect of the allowance in lifting the bar of a statute of limitations. The claim had been seasonably filed and diligently pressed. There was no question as to the effect of revocation or rescission. Cf. Ridgway v. United States, 18 Ct. Cls. 707, 714, 715. What had been done by the Commissioner had never been undone. There was only the question as to the probative force of an adjudication by an officer who had been appointed to decide and had definitively decided. The statute had given him the position of an administrative tribunal. *372 He had done all that he could do. He had made the allowance and had certified his action to the disbursing agents of the treasury, whose duty was not to revise, but merely to obey. Notice of his action had been given to the claimant, who had accepted and approved it. Kaufman v. United States, 11 Ct. Cls. 659, 662. The suit was on an award which had all the finality and authority that an award could ever gain. A very different situation is laid before us here. No definitive adjudication in favor of this taxpayer was ever made by the Commissioner or by other competent authority. The transaction never went beyond the stage of intradepartmental conference and parley. The Commissioner had put his hand, it is true, to a schedule of refunds and credits, and had transmitted a check to one of his subordinates to be delivered to the claimant. By none of these acts had he so divested himself of control as to generate rights or interests in favor of the taxpayer if there was revocation or rescission in advance of notice or delivery. There had been messages back and forth between the officers and branches of an administrative bureau. There had been none to the outer world. The Commissioner, after signing the schedule, might scratch out his signature, and declare it inadvertent. Cf. Ridgway v. United States, supra; Austin Co. v. Commissioner, 35 F. (2d) 910. This in substance is what he did. After signing a check and mailing it to his agent, he might cancel the check while the agent still held it, and revoke the authority improvidently granted. The matter was still in fieri. High public interests make it necessary that there be stability and certainty in the revenues of government. These ends are not susceptible of attainment if periods of limitation may be disregarded or extended. By the ruling in the Bonwit Teller case a specific limitation applicable to claims for the recovery of taxes is set aside and superseded whenever the statement of an account sustains the *373 inference of an agreement that the tax shall be repaid. As soon as this appears, a fresh term of limitation is born and set in motion. It is a ruling not to be extended through an enlargement of the concept of an account stated by latitudinarian construction. Girard Trust Co. v. United States, 270 U.S. 163, and United States v. Swift & Co., 282 U.S. 468, are pressed upon us by counsel as helpful to the taxpayer. They do not touch the case at hand. In the case of the Girard Trust Co., a statute called for interest on the amount of the refund to the date of allowance. The claimant made the point that allowance was not perfected unless accompanied by payment, and that interest on the refund should be correspondingly extended. The court rejecting that contention held that allowance was complete within the meaning of the statute when the schedule of refunds was approved by the Commissioner. In the case of Swift & Co., a like ruling was made as to the effect of the approval of a credit. In neither case was there any question as to the existence of an account stated, or as to the effect of an improvident allowance, unknown to the taxpayer. The judgment is Affirmed.

245 U.S. 352 (1917) McGOWAN ET AL. v. COLUMBIA RIVER PACKERS' ASSOCIATION ET AL. No. 78. Supreme Court of United States. Argued November 22, 23, 1917. Decided December 17, 1917. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. *353 Mr. Bert W. Henry, with whom Mr. Franklin T. Griffith, Mr. R.A. Leiter and Mr. Harrison Allen were on the brief, for appellants. Mr. G.C. Fulton, with whom Mr. C.W. Fulton was on the brief, for appellees. *356 MR. JUSTICE HOLMES delivered the opinion of the court. This is a suit brought by the appellee, the Columbia River Packers' Association, as lessee from the United States of fishing sites and riparian rights on Sand Island in the Columbia River, to compel the appellants to remove certain obstructions placed by them upon the bottom of the channel of the river in front of the plaintiff's premises, and to refrain from longer maintaining them there. Upon a bond being given a restraining order was issued on July 7, 1908; answers and a cross-bill were filed in the following August, and a demurrer to the cross-bill was overruled on October 21 of the same year. The suit had been brought in the Western District of Washington upon the belief that Sand Island was in Washington and subject to the jurisdiction that that State exercised in fact. But on November 16, 1908, it was decided by this court that the boundary between Oregon and Washington was the ship channel north of Sand Island, and that Sand Island belonged to the former State. Washington v. *357 Oregon, 211 U.S. 127; s.c. 214 U.S. 205. Thereupon, in June, 1909, the plaintiff filed a petition that the suit be dismissed without prejudice for want of jurisdiction, since it turned out that the land concerned was not within the district for which the court sat. The District Court dismissed the petition and retained jurisdiction of the cause on the ground that by the Act of Congress of March 2, 1853, c. 90, § 21, 10 Stat. 172, 179, organizing the Territory of Washington, and by the Act of February 14, 1859, c. 33, § 2, 11 Stat. 383, admitting Oregon into the Union, concurrent jurisdiction on this part of the river was reserved to Washington, when it subsequently became a State. The plaintiff then filed a supplemental bill in which again it prayed that the suit might be dismissed without prejudice if the court had no jurisdiction; the case proceeded to the taking of evidence and final hearing, the temporary injunction was dissolved, an injunction was issued against the plaintiff's interfering with the defendants' appliances, and a final decree for damages caused by the temporary injunction was entered in favor of the defendants. The plaintiff appealed to the Circuit Court of Appeals, and that court, being of opinion that the bill should have been dismissed on the plaintiff's petition, reversed the decree and ordered the bill to be dismissed. 219 Fed. Rep. 365. 134 C.C.A. 461. The nuisance complained of consisted of set nets, each anchored by a stone weighing about three hundred pounds to which was attached a short cable which was clamped to a wire rope about twenty-five feet long, to which in its turn was attached a buoy of large timbers. The nets were placed between the line of extreme low tide and the channel of the river; they were alleged to interfere with the exercise of the plaintiff's rights, and an abatement of the obstruction was prayed for in the bill. We agree with the Circuit Court of Appeals that, assuming for the purposes *358 of decision that the State of Washington had concurrent jurisdiction "on the Columbia," in the words of the statute (1859, c. 33, § 2), Nielsen v. Oregon, 212 U.S. 315, 319, the jurisdiction did not extend to the removal of such a nuisance as this. It did not reach the bed of the stream, and the officers of the State would have had no authority to intermeddle with the defendants' nets anchored to the bottom. See Wedding v. Meyler, 192 U.S. 573, 585. This was an important part of the relief that the plaintiff sought and when it found that it could not have it, it naturally endeavored to dismiss the bill. It ordinarily is the undisputed right of a plaintiff to dismiss a bill before the final hearing. Carrington v. Holly, 1 Dickens, 280. Cummins v. Bennett, 8 Paige, 79. Kempton v. Burgess, 136 Massachusetts, 192. The discussions have been directed more to the question of costs. When a bill was filed under a mistake common to both parties and in other like cases the plaintiff was allowed to dismiss his bill without costs. Lister v. Leather, 1 DeG. & J. 361, 368 (1857). Broughton v. Lashmar, 5 My. & Cr. 136, 144 (1840). Here the decision of this court put the plaintiff in an unexpected position. The question before the District Court was not whether the bill ought to be retained for a decree in personam if the plaintiff so desired, or even one of costs, but whether it should be retained against the plaintiff's will for a trial that could not, or at least very possibly might be held unable to, give it what it asked. Upon this point also we are of opinion that the Circuit Court of Appeals was right. Its decree of course meant that the bill was dismissed without prejudice, as prayed, but it is better that it should express the fact and with that modification it is affirmed. Decree affirmed.

148 U.S. 573 (1893) GERMAN BANK OF MEMPHIS v. UNITED STATES. No. 693. Supreme Court of United States. Submitted March 30, 1893. Decided April 10, 1893. APPEAL FROM THE COURT OF CLAIMS. *577 Mr. William S. Flippin, Mr. A.H. Garland and Mr. H.J. May for appellants. Mr. Assistant Attorney General Maury for appellees. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. The question in this case is whether the government can be held liable for the amount of certain registered bonds which the Register of the Treasury had cancelled without authority of law, plaintiffs themselves having been held liable to the owners of the bonds for having been parties to the transaction. Briefly stated, the facts are that the bonds were originally issued to "M.E. Cochran, executor or assigns"; that Cochran having died, one Anderson was appointed administrator de bonis non; obtained possession of the bonds; took them to the German National Bank, and requested the bank to sell them for him, exhibiting a paper from the Treasury Department at Washington to the effect that, as the successor of Cochran in the administration of the estate, he had power to *578 transfer them. The bank sent them to the Chemical National Bank of New York, with a similar request to sell. The Chemical National Bank transmitted them to the Register of the Treasury, stating that neither the German National Bank nor the Chemical National Bank wished to be responsible for any irregularities in the papers. In reply, the Register stated that there was on file in that office satisfactory power in favor of the bank to transfer the bonds, and subsequently, at the request of the bank, issued new bonds to the "Chemical National Bank, New York, or assigns." These bonds were sold, the proceeds transmitted to the German National Bank at Memphis, passed to the personal credit of Anderson, and embezzled by him. Suit was thereupon begun against the two banks by the heirs of the estate represented by Cochran and Anderson, upon the theory that, as the bonds ran to "M.E. Cochran, executor or assigns," the banks were apprised of the fact that there was a trust of some kind impressed upon them, which could be ascertained by a reference to the will; and that they bore the unmistakable brand of the rights of ownership of others, without the slightest evidence of claim of any character on the part of Anderson. Having paid the judgment against them, the banks filed this petition, claiming to be subrogated to the rights of the parties who had recovered against them, and to hold the government liable upon the ground that they were induced, by the act and conduct of the Register of the Treasury, to do what had been adjudged to be wrong on their part, and on account of which a decree had been taken against them. Under these circumstances, are the plaintiffs entitled to maintain this suit against the government? Plaintiffs were held liable by the Supreme Court of Tennessee to the heirs of Woodward for the unlawful conversion of the bonds, the court holding that the banks received the bonds and disposed of them under circumstances showing that a breach of trust was meant by Anderson, and under such circumstances as to put them upon inquiry as to his title to the bonds and the motive prompting him to offer them for sale. The court held further that the fact that the bonds were payable to M.E. *579 Cochran, as executor, put them upon inquiry as to whose estate Anderson was administrator of; why there was no assignment upon the bonds; how Anderson came by them; by what authority he proposed to dispose of bonds created by a will when he was not himself the executor; why the bonds had been kept off the market so long; for whose benefit Anderson proposed to invest in securities at a greater rate of interest; and why he should do so when the bonds were a certain security. "These suggestions," said the court, "would have led at once to an inspection of the records, which would have discovered that Anderson had no right whatever to manage or control the bonds, and that his purposes were anything but honest. It was impossible to have read the bonds, however casually, without discovering that there was a trust of some character impressed upon them, which trust could be ascertained by reference to the will." Plaintiffs now seek to hold the government liable upon the ground that the Register of the Treasury participated with them in such conversion. In other words, it is an attempt on the part of one wrongdoer, not merely to enforce contribution from another, but to hold him liable for the entire amount of damages occasioned by their joint negligence. It is only upon the theory that the Register exceeded his power that the plaintiffs have any possible standing. If his conduct in cancelling the original and issuing the new bonds was within the scope of his authority as Register of the Treasury, there is no possible reason for charging him or his principal with liability. Assuming, however, that he was guilty of negligence in reissuing these bonds upon insufficient evidence of the authority of the holder to demand such reissue, (as to which we express no opinion,) it was an act of negligence for which the government is not liable to these plaintiffs. It is a well settled rule of law that the government is not liable for the nonfeasances or misfeasances or negligence of its officers, and that the only remedy to the injured party in such cases is by appeal to Congress. This rule was applied in the cases of United States v. Kirkpatrick, 9 Wheat. 720, 735; United States v. Vanzandt, 11 Wheat. 184; United States v. Nicholl, 12 Wheat. 505; and *580 Dox v. Postmaster-General, 1 Pet. 318, cases of laches in failing to prosecute delinquent officers within a reasonable time; in Gibbons v. United States, 8 Wall. 269, to a case of alleged duress by a military officer; in Jones v. United States, 18 Wall. 662, to the negligence of the government in permitting a dishonest postmaster to remain in office; in Hart v. United States, 95 U.S. 316, to the negligence of an officer of the United States in permitting the removal of distilled spirits from a distillery warehouse before the payment of taxes; in Minturn v. United States, 106 U.S. 437, to the unlawful act of a customs officer in giving up goods without the payment of duty; in Moffat v. United States, 112 U.S. 24, to certain frauds by officers of the United States in issuing land patents; and in Robertson v. Sichel, 127 U.S. 507, to the negligence of an officer of the customs in keeping a trunk of a passenger on the pier instead of sending it to the public store, so that it was destroyed by fire. If this be treated as a case of tort, then it is clear that the government is not liable, not only upon the ground above stated, but because under the act of Congress conferring jurisdiction upon the Court of Claims, 24 Stat. 505, c. 359, there is an express exception of cases sounding in tort. Plaintiffs, however, take the further ground that if, instead of suing the banks, Covington and his wife and daughter had sued in the Court of Claims upon the original bonds, the government could not have shown in defence that the bonds had been cancelled and reissued to the Chemical National Bank, since such cancellation was without authority. Therefore they insist that, having paid these bonds themselves, they are entitled to be subrogated to the claim of the heirs of the estate, and to recover in their own names upon these bonds. There are difficulties, however, in sustaining this position. In the first place, the plaintiffs themselves had no contract with the government, and if they had, such contract was fully performed by the issuing of the new bonds to them. They are not entitled to be subrogated to the heirs of the estate, since their right of subrogation arises from certain conduct of theirs which was adjudged by the Supreme Court of Tennessee to be tortious. *581 It is said that a person who invokes the doctrine of subrogation must come into court with clean hands. Sheldon on Subrogation, § 44; Railroad Co. v. Soutter, 13 Wall. 517; Wilkinson v. Babbitt, 4 Dillon, 207; Guckenheimer v. Angevine, 81 N.Y. 394. They are unfortunately put in the position of claiming through the judgment of the Supreme Court of Tennessee, which held them liable for having participated in the alleged misconduct of the Register of the Treasury. As we hold that they are not entitled to invoke the doctrine of subrogation, it becomes unnecessary for this court to determine as an independent question whether the Register acted within the scope of his authority in cancelling and reissuing the bonds. The opinion of the Supreme Court of Tennessee would not be conclusive upon that point, the government not having been a party to that action. Under no view that we have been able to take of this case can we hold the government liable, and the judgment of the Court of Claims is, therefore, Affirmed.

159 U.S. 682 (1895) BUCKLIN v. UNITED STATES (No. 2). No. 572. Supreme Court of United States. Submitted October 21, 1895. Decided November 18, 1895. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS. Mr. Thomas T. Taylor for plaintiff in error. Mr. Assistant Attorney General Dickinson for defendants in error. MR. JUSTICE HARLAN delivered the opinion of the court. This is the same case as the one just disposed of. The accused being in doubt whether the judgment against him could be reviewed here on appeal, brought this writ of error. The plaintiff in error was indicted in the District Court of the United States for the District of Kansas under section 5392 of the Revised Statutes of the United States, providing that "every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states *683 or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed." By the third section of the act of June 14, 1878, c. 190, 20 Stat. 113, entitled "An act to amend an act entitled `An act to encourage the growth of timber on the Western prairies,'" (18 Stat. 21, c. 55,) it was provided, in reference to the affidavit required to be filed by any person applying for the benefits of that act, "that if at any time after the filing of said affidavit, and prior to the issuing of the patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in that event such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act: Provided, That the party making claim to said land, either as a homestead-settler, or under this act, shall give, at the time of filing his application, such notice to the original claimant as shall be prescribed by the rules established by the Commissioner of the General Land Office; and the rights of the parties shall be determined as in other contested cases." This act, and all laws supplementary thereto or amendatory thereof, were repealed by the act of March 3, 1891, entitled "An act to repeal timber-culture laws and for other purposes." But the repealing act declared that it should not affect any valid rights theretofore accrued or accruing under said laws, but all bona fide claims lawfully initiated before its passage might be protected on due compliance with law, in the same manner, on the same terms and conditions, and subject to the same limitations, forfeitures, and contests, as if the repealing statute had not been enacted. 26 Stat. 1095, c. 561. The indictment charged, in substance, that the accused, for the purpose of contesting a named timber-culture claim that had been made and entered in the proper land office at Wichita, Kansas, presented himself before H.P. Wolcott, the *684 duly appointed, qualified, and acting register of the United States land office at Larned, in the second division of the District of Kansas, and authorized by law to administer oaths in contests relating to timber-culture entries; that the accused, after being sworn by the said register to testify the truth, the whole truth, and nothing but the truth touching his right to enter such contest, did knowingly, wilfully, feloniously, and falsely testify to certain facts (fully set out in the indictment) material to the proceeding of contest; that his testimony was embodied in a deposition, subscribed and sworn to by him before said register, and was by him stated to be true when he did not believe it to be true, and that in so doing he wilfully and corruptly committed perjury, etc. At the time of the trial there were pending in the court below two other separate indictments, one against Thomas Bucklin and one against George Elder, each of whom was indicted for perjury growing out of the same transaction as that set out in the indictment against Daniel A. Bucklin. By order of the court the three cases were consolidated and tried at the same time and by the same jury. Upon the conclusion of the evidence, and after receiving the instructions of the court, and hearing the argument of counsel, the jury retired, and, having deliberated three days, without making a verdict, came into court, in a body, and through their foreman propounded to the court this question: "Can we find a verdict as to some of the defendants and disagree as to the others?" The court answered, "You can find a verdict of guilty as to all, a verdict of not guilty as to all, or you can find some guilty and some not guilty, but you cannot find a verdict as to some and disagree as to others." To this action of the court the accused excepted. The jury again retired, and returned a verdict of guilty as to Daniel A. Bucklin, and not guilty as to each of the other defendants. Motions for new trial and in arrest of judgment having been successively made and overruled, the defendant was sentenced to hard labor in the penitentiary for the term of one year and six months and to pay a fine of one hundred dollars. *685 1. It is assigned for error that the court below consolidated the three indictments, and permitted them to be tried together. As the charges against the defendants, respectively, grew out of the same transaction, both the court and the defendants may have deemed it convenient to have all the cases tried at the same time and by the same jury. It is consistent with the record that the plaintiff in error preferred that the jury which tried the other defendants should try him. But as it does not appear that the plaintiff in error objected at the time to being tried by the same jury with the other parties indicted, nor that he excepted to the order of consolidation, we need not consider whether that order, if objected to seasonably, could have been properly made. He cannot now complain of the action of the court. Logan v. United States, 144 U.S. 263, 296. 2. One of the grounds for arrest of judgment was that the indictment does not state an offence under the laws of the United States. This point does not seem to be pressed in the brief of counsel. It is without merit. The indictment conforms, in every substantial particular, to section 5396 of the Revised Statutes, providing that "in every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court or person before whom the perjury was committed." 3. It is assigned for error that the court overruled the defendants' motion for a new trial. A refusal to grant a new trial cannot be reviewed upon writ of error. Blitz v. United States, 153 U.S. 308, 312; Wheeler v. United States, 159 U.S. 523. 4. But there was error prejudicial to the accused in the *686 instruction to the jury that while they might find a verdict of guilty as to all three defendants on trial, or find some guilty and some not guilty, they could not find a verdict as to some and disagree as to others. The learned Assistant Attorney General refers to section 1036 of the Revised Statutes, providing that "on an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury." He properly insists that that section is not, in terms, applicable to separate indictments, tried together. But he frankly states that the instruction is so clearly erroneous as to suggest the possibility of a mistake in the bill of exceptions. Upon a careful examination of the record we find nothing that justifies the assumption that a mistake occurred in the preparation of the bill of exceptions. Taking the record as disclosing all that occurred at the time the jury came into court for additional instructions, there was error in the ruling that the jury could not find a verdict as to some of the defendants and disagree as to others. The jurors had been deliberating for three days without returning a verdict as to either of the defendants, when they were instructed that their duty was either to find each defendant not guilty, or each guilty, or some guilty and the others not guilty. If some of the jurors wavered in their minds as to the guilt of all the defendants - and the delay in returning the verdict justifies the belief that such was the fact - it may be that the instruction of which complaint is made worked injury to the plaintiff in error. We cannot say that it did not. To say that the court would not receive from the jury a report of a disagreement as to one defendant was, in effect, to announce that the jurors would be held together until the court should deem it to be its duty to discharge them finally, and would not be discharged unless or until they returned a verdict of guilty or not guilty. This tended to coerce the jury into making a verdict. The accused was entitled, of right, to go *687 before a new jury, if the one that tried him was unable to agree that he was guilty of the offence charged. As it was competent for the jury to return a verdict of guilty or of not guilty as to the defendants Thomas Bucklin and George Elder, and to report a disagreement as to Daniel A. Bucklin, the instruction complained of must be held to have been erroneous; and as this error may have injuriously affected the rights of the accused, the judgment is reversed, with directions to grant him a new trial. Reversed.

110 U.S. 1 (1884) GOODWIN & Wife v. COLORADO MORTGAGE INVESTMENT COMPANY OF LONDON (Limited). Supreme Court of United States. Submitted December 20th, 1883. Decided January 7th, 1884. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. *3 Mr. E.T. Wells for plaintiffs in error. No appearance for defendant in error. MR. JUSTICE HARLAN delivered the opinion of the court. The Colorado Mortgage and Investment Company of London (Limited), a corporation organized under the laws of the United Kingdom of Great Britain and Ireland, brought this action against Harrison Goodwin and Elizabeth Goodwin, his wife, to recover the possession of certain real estate in Colorado, and damages for withholding the same. In conformity with a written stipulation by the parties, the case was tried by the court without the intervention of a jury, and judgment rendered for the plaintiff. *4 The lands in controversy were conveyed by Harrison Goodwin to David H. Maffat, jr., in trust to secure certain promissory notes executed by the grantor to the plaintiff, and made payable at Denver, Colorado. The deed provided that in case of default in the payment of the principal or interest of either of the notes, the trustee, on application in writing of the legal holder of the notes, might sell the premises at public auction, after giving four weeks' previous notice of the time and place of sale by advertisement in any newspaper published in Boulder County (where, as we infer, the lands lie), and from the proceeds pay the principal and interest of the notes, whether due and payable by the tenor thereof or not. There was such default, and under the authority given by the deed of trust the lands were sold, the plaintiff becoming the purchaser, and receiving a conveyance therefor from the trustee. The wife of Goodwin filed a separate answer, in which, among other things, it is alleged, that at the time of the execution of the deed of trust, the premises in controversy were, as plaintiff well knew, occupied by her husband and herself as their homestead, and that her husband was a householder. By these allegations it was intended to question the validity, under the laws of Colorado, of the sale of the premises, in pursuance of the before-mentioned deed of trust. The statutes of Colorado, General Laws of Colorado, 1877, ch. 46, provide that every householder in that State, "being the head of a family, shall be entitled to a homestead not exceeding in value the sum of $2,000, exempt from execution and attachment arising from any debt, contract, or civil obligation entered into or incurred after the first day of February, in the year of our Lord 1868" § 1; that "to entitle any person to the benefits of this act, he shall cause the word `homestead' to be entered of record on the margin of his recorded title to the same" § 2; that "such homestead shall only be exempt, as provided in the first section of this act, while occupied as such by the owner thereof or his or her family" § 3; that "when any person dies seized of a homestead, leaving a widow, ... such widow *5... shall be entitled to the homestead" § 4; and that "nothing in this act shall be construed to prevent the owner and occupier of any homestead from voluntarily mortgaging the same: Provided, no such mortgage shall be binding against the wife of any married man who may be occupying the premises with him, unless she shall freely and voluntarily, separate and apart from her husband, sign and acknowledge the same, and the officer taking such acknowledgment shall fully apprise her of her rights and the effect of signing such mortgage" § 6. The assignments of error do not present any question as to the sufficiency of that part of Mrs. Goodwin's answer which impeaches the truth of the officer's certificate of her acknowledgment of the trust deed. But had they done so, it is sufficient, upon this branch of the case, to say that no one is entitled to the benefits of the foregoing statutory provisions unless the word "homestead" be entered on the margin of the recorded title of the premises occupied as a homestead. Such are the express words of the statute, and there is no room left for construction. We are not at liberty to say that the legislature intended actual notice to creditors of the occupancy of particular premises as a homestead to be equivalent to the entry on the record of title of the word "homestead." The requirement that the record of the title shall show that the premises are occupied as a homestead before any person can become entitled to the benefits of the statute, is absolute and unconditional. As the answer of Mrs. Goodwin did not show a compliance, in that respect, with the statute, it was fatally defective. The Constitution of Colorado provides, Art. XV. § 10, that "no foreign corporation shall do any business in this [that] State without one or more known places of business, and an authorized agent or agents in the same, upon whom process may be served." The statutes of the State provide that "foreign corporations shall, before they are authorized or permitted to do any business in this State, make and file a certificate *6 signed by the president and secretary of such corporation, duly acknowledged, with the Secretary of State and in the office of the recorder of deeds of the county in which such business is carried on, designating the principal place where the business of such corporation shall be carried on in this State, and an authorized agent or agents in this State, residing at its principal place of business, upon whom process may be served." General Laws of Colorado, 1877, ch. 19, § 23. Prior to the execution of the before-mentioned deed of trust or of the notes secured by it, the plaintiff caused to be filed in the office of the Secretary of State of Colorado and in the office of the recorder of Arapahoe County, a certificate signed by its president and secretary, and duly acknowledged, which stated "that the principal place where the business of said corporation shall be carried on in the State of Colorado shall be at Denver, in the county of Arapahoe, in said State, and that the general manager of said corporation, residing at the said principal place of business, is the agent upon whom process may be served in all suits that may be commenced against [said] corporation." The contention of plaintiffs in error is that this certificate is materially defective, in that it does not designate the particular individual by name upon whom, as the agent of the corporation, process may be served; that until this foreign corporation filed such a certificate as the statute required, it was prohibited by the Constitution and laws of Colorado from doing any business in that State; and, consequently, that this deed of trust, executed and delivered in Colorado, and upon which its title to the premises in controversy rests, was void. We are of opinion that the certificate in question was in substantial conformity to the law. The requirement of the statute was met by the designation of the "general manager" of the corporation, residing at its principal place of business, as agent to receive service of process. It was not necessary, as we think, to give the name of the particular person who happened, at the date of the certificate, to fill that position. The object of the statute could be best subserved by a certificate of *7 the character filed, for the obvious reason that the death or resignation of the incumbent would not long interfere with the bringing of suits against the corporation. Had there been, when the certificate was filed, no such officer of the corporation as a general manager, there would have been ground to contend that it had not performed the condition essential to its authority to do business in the State. But the answer makes no claim of that kind, but assumes that it was necessary to give the name of some individual upon whom process against the corporation might be served. We do not concur in this construction of the statute. None of the points made by counsel for plaintiffs in error can be sustained, and the judgment must be affirmed. It is so ordered.

144 U.S. 621 (1892) CROTTY v. UNION MUTUAL LIFE INSURANCE COMPANY. No. 248. Supreme Court of United States. Argued March 28, 1892. Decided April 18, 1892. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. *623 Mr. Frederic D. McKenney for plaintiff in error. Mr. J.H. Drummond for defendant in error. MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court. Without noticing other questions discussed by counsel, it is sufficient to consider that of plaintiff's interest in the policy. It is the settled law of this court that a claimant under a life insurance policy must have an insurable interest in the life of the insured. Wagering contracts in insurance have been repeatedly denounced. Cammack v. Lewis, 15 Wall. 643, in which a policy of $3000, taken out to secure a debt of $70, was declared "a sheer wagering policy." Connecticut Mutual Life Insurance Co. v. Schaefer, 94 U.S. 457, 461, in which it was said: "In cases where the insurance is effected merely by way of indemnity, as where a creditor insures the life of his debtor, for the purpose of securing his debt, the amount of insurable interest is the amount of the debt." Warnock v. Davis, 104 U.S. 775. Confessedly, plaintiff sues as a creditor of O'Brien. Within the language quoted, the amount of his insurable interest was *624 the amount of his debt; and the question is whether the policy and the proofs of death contained sufficient evidence of such insurable interest. It is unnecessary to enter into the disputed question, as to how far a policy of insurance taken out by a creditor on the life of his debtor is affected by a change in the relations between debtor and creditor prior to the maturity of the policy; for here the contract was between the insured, O'Brien, and the company; the promise of the company was to him, and to pay to him at the maturity of the policy, with a proviso that if the insured died before the end of the term payment should be made "to Michael Crotty, his creditor, if living; if not, then to the said Michael O'Brien's executors," etc. The words "if not" grammatically stand in antithesis to the words immediately prior, "if living;" and yet considering the purpose of the contract, and the words which follow directly thereafter, it would seem not unreasonable that they refer to a determination of the relation of creditor, and as though the language was, "if not a creditor, then to the said Michael O'Brien's executors," etc. If a policy of insurance be taken out by a debtor on his own life, naming a creditor as beneficiary, or with a subsequent assignment to a creditor, the general doctrine is that on payment of the debt the creditor loses all interest therein, and the policy becomes one for the benefit of the insured, and collectible by his executors or administrators. In 2 May on Insurance (3d ed.,) sec. 459a, the author says: "A creditor's claim upon the proceeds of insurance intended to secure the debt should go no further than indemnity, and all beyond the debt, premiums and expenses should go to the debtor and his representatives, or remain with the company, according as the insurance is upon life or on property." Central Bank v. Hume, 128 U.S. 195, 205. But whatever doubts may exist as to the law applicable to such cases, or the rights of action on such a policy, the plaintiff in this case put his own construction on the contract, and tendered an issue which was accepted by the company. He alleged that he was a creditor at the time of the contract, and at the time of the death. Upon the issue thus presented the case went to trial. The *625 promise of the policy is to pay to Michael Crotty, his creditor, if living; and it is contended that this is an admission on the part of the company sufficient to justify a verdict against it. If an admission at all, it is good only as an admission of the date at which it was made, to wit, the date of the policy. The relation of debtor and creditor is not a permanent one, like that of parent and child, but one which may vary from day to day, changing both in fact and amount, according to the successive business transactions between the parties. So, admission or proof that the relation of debtor and creditor existed between two parties at one date is not admission or proof that months thereafter the same relation and to the same amount subsisted. If it were proven that the relation of debtor and creditor existed at the date of the issuing of the policy, and the beneficiary died the succeeding day, it might be that the nearness of the two dates would carry with it an inference that the relation still subsisted; but it would not do to rest on the same inference when many months had intervened between the date of the policy and the time of death. Again, the indebtedness of O'Brien to plaintiff, if any existed, was a matter peculiarly within the knowledge of plaintiff; and if that indebtedness is an essential factor in his right to recover, justice requires that he should by affirmative testimony establish both the fact and the amount. Still, again, not only does justice between the parties, but also that public policy which denounces wagering contracts, require that the proof of indebtedness should be distinct and satisfactory. It would tend to a successful consummation of wagering contracts in insurance if the mere recital in the policy was held sufficient to sustain a recovery in favor of the alleged creditor, no matter how long after the date of the policy the death of the insured happened. Admissions, whether direct or incidental, should never be carried beyond their actual extent, or the reasonable inforences therefrom, and should not be invoked to work injustice to parties litigant, or thwart the demands of sound public policy. Neither can the statements of the plaintiff in his proofs of *626 death be considered evidence in his favor of the fact that he is a creditor, or the amount of the debt. All that there is in the proofs of death is his own statement, and surely a plaintiff cannot make his sworn statements at another time and place sufficient evidence, on a trial, of the existence of an essential and disputed fact. These statements are evidence against the claimant, and not against the insurance company. Insurance Co. v. Newton, 22 Wall. 32. Nor is the fact that the proofs of death were received by the insurance company without question an admission on its part of the truth of all the matters stated therein. The purpose of proofs of death in life insurance and proofs of loss in fire insurance cases is to put the insurance company in possession of the facts concerning the death or loss as claimed by the beneficiary or insured upon which it is to base its determination as to making or refusing payment, and when it receives such proofs without question it is an admission on its part that they are in form sufficient, but not that all the facts stated therein are true. The policy in this case called for proofs of death; and the company by its answer admitted that satisfactory proofs had been furnished. The fact that, in the blank it prepared and sent to be filled out, it asked many questions which were answered by the claimant, and the proofs thus made were received without objection, did not prevent the company from challenging in court the truth of any fact stated therein essential to the plaintiff's right of recovery, and did not amount to an admission on its part respecting such fact. The case of Life Insurance Company v. Francisco, 17 Wall. 672, is cited by plaintiff as authority for a contrary view. There is perhaps a sentence or two in the opinion which, detached from the rest, and considered apart from the facts of the case, might justify the claim of plaintiff. That was a suit on a contract of life insurance. The insured died before the policy was actually issued. If it had been issued it would have contained a stipulation that "payment of the loss would be made within ninety days after notice of the death, and due proof of the just claim of the assured." The beneficiary was the wife of the insured. On the trial the plaintiff offered evidence to *627 prove the contract and the death of her husband; that she had filled up in the presence of the company's agent the blank forms which it had furnished, and which were always used in making proofs of death; and that he had received without objection and retained them; but offered no evidence as to the contents of those papers. She rested her case upon this testimony, and the court refused an instruction that she could not recover. This court held that such instruction was properly refused. Of course, as a wife, she had an insurable interest. Proof of the contract and of her husband's death established the fact of her right to recover, unless she had failed to furnish due proofs of her just claims; but as the company received them without objection, and did not return them for correction, it was properly held that they were sufficient. All that was in fact determined was that if the proofs were retained without objection the court could not declare them insufficient. Further, in the case before us, the blank which was furnished to the plaintiff by the company, and upon which he prepared the statements, contained this notice: "This blank is furnished (upon application) for the convenience and assistance of the representatives of the insured, and the company reserves the right to consider and determine the question of its liability under any policy without prejudice or presumption by reason of the delivery hereof." So the party had full information in advance that the company's right to challenge its liability would not be in any manner prejudiced by the receipt of these proofs of death, or any statements therein. We see no error in the ruling of the court below, and its judgment is Affirmed. MR. JUSTICE GRAY was not present at the argument and took no part in the decision of this case.

46 U.S. 53 (____) 5 How. 53 MORGAN McAFEE, PLAINTIFF IN ERROR, v. THOMAS C. DOREMUS, JAMES SUYDAM, CORNELIUS R. SUYDAM, AND JOHN NIXON. Supreme Court of United States. *60 The cause was argued by Mr. Chalmers and Mr. Coxe, for the plaintiff in error, and by Mr. Stanton and Mr. Z. Collins Lee, for the defendants in error. *62 Mr. Justice McLEAN delivered the opinion of the court. This case is brought before this court by a writ of error to the District Court of the Northern District of Mississippi. The suit was commenced on a bill of exchange against Isaac Clymer, Benjamin C. Polk, William C. Ivins, and Hiram Clymer, late merchants and partners in trade, under the firm and style of Clymer, Polk, & Co., makers, and Morgan McAfee, indorser. The process was served on Polk and McAfee. The latter pleaded the general issue, and an alias summons was issued against the defendants not served. This writ was served on Isaac Clymer and William C Ivins; and at the succeeding June term the plaintiffs, by leave of the court, discontinued the suit against Clymer, Polk, & Co., leaving McAfee, the indorser, the only defendant. On the trial the plaintiffs offered the deposition of H.B. Cenas, a notary public at New Orleans, to prove a copy of the protest, which was objected to by the defendant; but the court admitted the evidence, and this constitutes the first exception. By the Louisiana acts of 1821 and 1827, the notary is required to record, in a book kept for that purpose, all protests of bills made by him and the notices given to the drawers or indorsers; a certify copy of which record is made evidence. *63 Under these statutes it is held, in Louisiana, that "a certified copy of a protest is sufficient without producing the original." Whittemore v. Leake, 14 Louisiana Reports, 394. It is admitted that in respect to foreign bills of exchange the notarial certificate of protest is of itself sufficient proof of the dishonor of a bill, without any auxiliary evidence. Townsley v. Sumrall, 2 Peters, 179. But the rule is different, under the principles of the common law, in regard to inland bills. The protest offered is certified, under the seal of the notary, "to be a true copy of the original protest, draft, and memorandum of the manner in which the notices were served on file and of record in his office." But the deposition of Cenas, the notary, was relied on as proving the protest and notice. The exception taken was not to the deposition, but to the copy of the protest. It is insisted that the deposition does not identify the protest, and if it does, that it is not competent to prove the copy without accounting for the non-production of the original. In regard to the latter objection, it appears from the statutes above cited, that the notary records the protest and the manner in which notice was given, and this record is, in fact, the original. It is presumed that nothing more than a short memorandum of the demand and notice is taken, from which the record is made in due form; so that there is, strictly, no original except that which is of record. And a copy of this is made evidence by the statute. Now this sufficiently accounts for the non-production of the original; and a sworn or a certified copy is the only evidence of the protest which can be produced. And we think that the copy of the protest was properly considered as a part of the deposition. It was offered in connection with it, and is referred to as "Document A.," as no other meaning can be given to that reference. The commissioner who took the deposition states, the copy was sworn to before him, and the exception was to the "copy" and not that it was no part of the deposition. And the original being a matter of record, and of course not within the power of the plaintiffs in the Circuit Court, a sworn copy was admissible as evidence. After the verdict was rendered against McAfee, the indorser, a motion was made in arrest of judgment on the ground that it appeared from the return of the marshal, the process had been duly served on three of the partners of the firm of Clymer, Polk, & Co., who were the drawers of the bill, and that the suit had been discontinued as to them; which motion the court overruled, and to which the defendant excepted. It appears that the district judge, by a rule of court, adopted nine of the first sections of the statute of Mississippi, entitled "An act to amend the laws respecting suits to be brought against indorsers of promissory notes," &c., approved 13th May 1837, which required *64 suit to be brought against the drawers and indorsers of a bill of exchange jointly. Under this statute the suit was brought against the drawers and also the indorser of the bill. This statute, as adopted by the district judge, was brought before this court in the case of Keary and others v. The Farmers and Merchants' Bank of Memphis, 16 Peters, 89, in which the court held that "the law of Mississippi is repugnant to the provisions of the act of Congress, giving jurisdiction to the courts of the United States." We see no objection, in principle or in practice, to the discontinuance of the suit against the drawers of the bill. Their liability was distinct from that of the indorser. In no respect could the indorser be prejudiced by the discontinuance. As a matter of course it was permitted at the cost of the plaintiffs. In the case of Minor et al. v. The Mechanics' Bank of Alexandria, 1 Peters, 46, the court held, that when the defendants sever in their pleadings, a nolle prosequi ought to be allowed against one defendant," that "it is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matters of form not absolutely subjected to authority may well yield to the substantial purposes of practice." The judgment of the Circuit Court is affirmed, with costs. Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum.

92 U.S. 343 (____) OAKSMITH'S LESSEE v. JOHNSTON. Supreme Court of United States. Mr. Edward Lander and Mr. William A. Meloy for plaintiff in error. Mr. A.G. Riddle, contra. MR. JUSTICE FIELD delivered the opinion of the court. This was an action of ejectment to recover a parcel of land situated in the city of Washington, consisting of the south half of lot fourteen in reservation B, and a portion of the adjoining lot thirteen. For this latter portion the plaintiff obtained judgment; and no question with respect to it is here raised. The only contention in this court relates to the other portion of the demanded premises, - the south half of lot fourteen. To recover this portion, the plaintiff relied principally upon evidence of title arising from the possession of the premises by *344 the lessor of the plaintiff, and parties through whom he claims, for a period of nearly forty years. It was shown, that, as early as 1828, one Thomas Hughes occupied and used the premises, and that he continued from that time to occupy and use them exclusively, either in person or by tenants, until his death in 1837; that by his will he devised his interest and estate in them to his daughter Anna, who, upon his death, continued in like manner in their occupation and use until the entry of the defendant in 1867, having erected in the mean time a brick building thereon. The lessor of the plaintiff, Oaksmith, is the trustee of Anna's estate. The defendant traced title to the premises from the United States through a conveyance of the mayor of Washington, executed in October, 1866, in completion of a sale made by commissioners under the act of Congress of May 7, 1822, 3 Stat. 691, and an ordinance of the city of the same year passed to carry that act into effect. It is conceded, that, previous to the sale, the title was in the United States. It appeared in evidence that the sale was made in September, 1822, to one Henry Weightman, to whom a bond was given for a conveyance upon payment of the purchase-money; that in June, 1830, the purchase-money was paid, and that, in 1832 or 1833, the purchaser permitted Hughes to occupy the premises as his tenant; that in 1853 the purchaser died, leaving Roger Weightman his only surviving heir; and that to him the mayor of the city, in October, 1866, executed the conveyance, and that during the same year he conveyed to the defendant. It also appeared in evidence that the purchase of the premises by Henry Weightman in 1822 was made in trust for Roger Weightman, who, as early as 1830, became the assignee of the bond, and paid the purchase-money; and that the conveyance of the mayor to him, in October, 1866, was obtained upon a representation that the bond had been lost; that Roger Weightman had also purchased the adjoining lot thirteen, and in June, 1830, had received a conveyance of the same from the mayor of Washington, and in March, 1837, had conveyed to Hughes that portion of the lot which the plaintiff recovered in this action. Upon this evidence, assuming it to have established all that *345 it tended to prove, the plaintiff asked of the court several instructions to the jury, amounting, when divested of some repetitions, substantially to these: - 1st, That the jury might presume that Roger Weightman assigned the bond for a conveyance to Thomas Hughes during his life; and that the mayor of the city executed a conveyance of the premises either to Hughes, or, after his death, to his devisee and daughter; and, 2d, That the exclusive and uninterrupted possession of the premises by the devisee of Hughes for more than twenty years prior to the entry of the defendant created a title upon which the plaintiff could recover. The court refused the instructions; and, for their refusal, error is alleged. The objection to the first of these instructions arises from that part which relates to the presumption of a conveyance from the mayor of the city. The title of the property, as already stated, was originally in the United States, and the mayor acted only as their agent in transferring it to the purchaser. It was, therefore, a grant from the government which the court was requested to instruct the jury to presume. It is undoubtedly true, as stated by counsel, that, under some circumstances, grants may be presumed from the government, as well as from individuals, in support of a long-continued possession. The presumption in such cases arises not merely from the possibilities of the loss of documents by the common accidents of time, but from the general experience of men that property is not usually suffered to remain for long periods in the quiet possession of any one but the true owner, and that no other person will deliberately add to the value of the property by permanent improvements. But in this country, at the present day, there can seldom be occasion to invoke the presumption of a grant from the government, except in cases of very ancient possessions running back to colonial days, as, since the commencement of the present century, a record has been preserved of all grants of the government, and of the various preliminary steps up to their issue; and provision is made by law for the introduction of copies of the record when the originals are lost. *346 The act of Congress of May 7, 1822, which authorized the sale of the public reservations, embracing the property in controversy, required the deeds executed to the purchasers by the mayor of the city to be recorded among the land-records of the county of Washington within the time prescribed for the recording of conveyances of real estate; and the ordinance of the city creating a board of commissioners to carry the act of Congress into effect, and direct the sales of the property, provided that the board should keep regular minutes of its acts and proceedings, and lay the same before the board of aldermen and common council at the commencement of every session of the council. If any deed was made by the mayor of the city to Hughes or to his devisee, as the court was requested to instruct the jury to presume, the records of the county and the minutes of the commissioners would no doubt have shown the fact. But these records and minutes were not produced; and no evidence was offered that they made mention of any deed of the premises, either to Hughes or to his devisee. The absence of any evidence on this point was of itself a circumstance sufficient to justify the conclusion that the records and minutes disclosed nothing impairing, or tending to impair, the validity of the conveyance through which the defendant claims. In the absence of such evidence, no presumption could legitimately arise that any other deed was executed by the mayor than the one produced. The court, therefore, properly refused the instruction asked. The long uninterrupted possession of the premises by the devisee, and the valuable improvements made by her, might have justified the presumption of a transfer of the bond from Roger Weightman. But such transfer, if established, would not have availed the plaintiff: it would only have disclosed the possession of an equitable right to a conveyance, which a court of chancery might enforce by compelling a transfer of the legal title from the defendant, if he purchased with notice of the plaintiff's equity, or by decreeing compensation from Roger Weightman, if he conveyed the title to a bona fide purchaser without notice. But in the action of ejectment, in the Federal courts, the legal title must control, and to another forum the plaintiff must look for the enforcement of any equitable rights he may possess. *347 The legal title being in the United States, the Statute of Limitations raises no bar to the action. Mere possession of the land, though open, exclusive, and uninterrupted for twenty years, creates no impediment to a recovery by the government, and of course none to a recovery by one who within that period receives its conveyance. In Burgess v. Gray, 16 How. 48, the plaintiff and those through whom he claimed had been in possession of the land, for which the action was brought, for more than half a century; and, among other grounds, he relied upon this long-continued possession to recover against defendants, who had entered under title derived from the United States. But the court said, "The mere possession of public land without title will not enable the party to maintain a suit against any one who enters on it; and, more especially, he cannot maintain it against persons holding possession under title derived from the proper officers of the government. He must first show a right in himself before he can call into question the validity of theirs." The second instruction was, therefore, properly refused. Judgment affirmed.

193 U.S. 526 (1904) YAPLE v. DAHL-MILLIKAN GROCERY COMPANY. No. 181. Supreme Court of United States. Submitted March 15, 1904. Decided April 4, 1904. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. Mr. W.T. McClintick for appellant, cited Pirie v. Trust Co., 182 U.S. 443; 5 Am. Bk. Rep. 814; McKey v. Lee, 105 Fed. Rep. 923; 45 C.C.A. 127; 5 Am. Bk. Rep. 271; Morey Mer. Co. v. Schiffer, 7 Am. Bk. Rep. 670; Gans v. Ellison, 8 Am. Bk. Rep. 153; Kahn v. Exp. & Commission Co., 8 Am. Bk. Rep. 157; Re William Bothwell, 8 Am. Bk. Rep. 213. The date of payment of a check is when it is paid by the bank and not when it is given out by the bankrupt. Re Amasa Lyon, 7 Am. Bk. Rep. 412. There was no appearance or brief for the appellee. *527 THE CHIEF JUSTICE: Two questions are propounded by this certificate, namely: "1. Where a creditor has a claim for a balance due against an insolvent debtor afterwards adjudicated a bankrupt, upon an open account for goods sold and delivered four months before the adjudication in bankruptcy, and during said period makes a number of sales of merchandise on credit to the insolvent debtor, which becomes a part of the debtor's estate, and during the same period receives payments of sums on account, from time to time, which payments are received in good faith without knowledge of the debtor's insolvency on the part of the creditor, the sales exceeding in amount during said period the payments made during the same time, has the creditor under such circumstances received a preference which he is obliged to surrender before his claim shall be allowed under the bankrupt act? "2. If each of such payments is a preference under the act is it to be set off under section 60c of the act by deducting subsequent sales therefrom, carrying forward to the next payment any excess of preferences, but not of sales, treating any excess of preferences as thus ascertained as a sum to be surrendered before the allowance of the creditor's claim?" The first question is answered in the negative on the authority of Jaquith v. Alden, 189 U.S. 78; and the second need not be answered. Certified accordingly.

158 U.S. 448 (1895) HARTER v. TWOHIG. No. 251. Supreme Court of United States. Argued and submitted April 4, 1895. Decided May 27, 1895. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. *451 Mr. Henry W. Harter, with whom was Mr. J.H. Swan on the brief, for appellants. Mr. W.E. Gantt for appellee submitted on his brief. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. *452 In respect of the nature of a conveyance in mortgage at common law, the legal title vested in the mortgagee and was forfeited upon default, but equity established the right of redemption after default. And, variously modified, where the common law doctrine prevails, a mortgage is still regarded as a conveyance in fee, although a conveyance as a security, while in many of the States this has been changed, chiefly by statute, so that a mortgage is regarded merely as a pledge. The common law, so far as applicable, and not inconsistent with the Constitution of the United States or the organic law of the Territory, or with any law of the territorial legislature, was adopted and declared to be law within the Territory of Nebraska by act of March 16, 1855, Laws Nebraska, 1855, 328, but by section 30 of an act approved February 21, 1855, (Ib. p. 166,) it was provided that "in the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof." Thus, irrespective of the terms of the instrument in particular cases, instead of the mortgagee being entitled to immediate possession of the mortgaged property as an incident of the title, the mortgagor was entitled to possession until foreclosure. The conveyance in this case was, however, a trust deed and not a mortgage, and by section 676 of the law of the Territory, also approved March 16, 1855, Laws Nebraska, 55, 119, it was provided: "Deeds of trust of real or personal property may be executed as securities for the performance of contracts, and sales made in accordance with their terms are valid. Or they may be treated like mortgages, and foreclosed by action in the district court." This recognized the distinction between a trust deed and a mortgage, and while providing that a trust deed might be treated like a mortgage and foreclosed as mortgages might be, did not undertake to deal with the legal title which passed by the conveyance to the trustee. The section was in terms adopted from the Code of Iowa of 1851, (Code Iowa, 1851, c. 118, § 2096; Laws Nebraska, 1855, p. 55,) which Code likewise contained the provision as to the retention of the legal title by the mortgagor above quoted from the law of Nebraska of February 21, 1855 (Code Iowa, 1851, § 1210). *453 And it has been repeatedly held by the Supreme Court of Iowa that the legal title vests in the trustee under such a deed. Devin v. Hendershott, 32 Iowa, 192, 194; Newman v. De Lorimer, 19 Iowa, 244; Tucker v. Silver, 9 Iowa, 261; Cook v. Dillon, 9 Iowa, 407. It is true that in Webb v. Hoselton, 4 Nebraska, 308, decided at January term, 1876, the Supreme Court of Nebraska held that a conveyance in the form of a deed of trust to secure the payment of a promissory note conditioned, that in case of failure to pay, the trustee shall sell, or, upon payment, reconvey, is in effect only a mortgage. Of course, in many particulars, the attributes of deeds of trust and mortgages with a power of sale are the same. Both are intended as securities; in both, if not controlled by statute, the legal title passes from the grantor, but in equity he is, before foreclosure, considered the actual owner; and in both the grantor has the right to redeem. But that case did not involve the application of the territorial act to which we have referred, and changes had taken place in legislation during the intervening period. The land in question was unoccupied and wild land, and there being no adverse holding, upon breach of condition, if not before, the legal title which Kountze held drew to it the possession, although in subjection to the right of redemption in Wilbur and his grantees, so that, when this bill was filed to redeem from the trust deed, the question at once arose whether there was then an equity of redemption outstanding which complainant could assert and which a court of equity would recognize. Although actual possession by a mortgagee, under a claim of ownership, continued for the time required by statute might be requisite to convert a mortgage title into a title absolute, yet, notwithstanding that, in a case such as this, whether or not redemption will be accorded, depends upon the equities between the parties. Twenty-nine years had elasped after the breach of condition before this bill was filed, but in the meantime the proceedings for foreclosure complained of had been had. This was in 1876, the sheriff's deed being given in 1877, eleven years before *454 complainant's bill was filed. It is settled law in Nebraska that a judgment rendered against a person or in his favor is reversible after his death if the fact and time of death appear upon the record, or in error coram nobis, if the facts must be shown aliunde; the judgment is voidable and not void, and cannot be impeached collaterally. Jennings v. Simpson, 12 Nebraska, 558; McCormick v. Paddock, 20 Nebraska, 486. Here, however, the petition to foreclose was filed after the death of Isaac Harter, and without pausing to examine the other irregularities relied on, it is sufficient to say that we think the foreclosure decree was void. But if the initiation of those proceedings operated to acknowledge an outstanding right of redemption at that time, their culmination and the deed of the sheriff must be recognized as evidence of the assertion of an extinguishment of such equity. By section 6 of chapter 57 of the General Statutes of Nebraska of 1873, (Gen. Stat. 525,) it was provided that, "An action for the recovery of the title or possession of lands, tenements, or hereditaments, can only be brought within ten years after the cause of such action shall have accrued. This section shall be construed to apply also to mortgages." In McKesson v. Hawley, 22 Nebraska, 692, a sale had taken place under a trust deed, and grantees under the purchaser at the trustee's sale, one Hartley, had taken and held adverse possession of the land for more than ten years prior to the commencement of the action, which was brought to redeem from the trust deed on the ground that the proceedings to sale under it were invalid. The Supreme Court of Nebraska held that the provisions of the above section applied; that an action to redeem from a mortgage was barred in the same time an action to foreclose would be, and could not be maintained after ten years from the date when the right of action accrued, which was in that case as soon as adverse possession was taken under the alleged purchase from the trustee; and the court said: "But it is contended by plaintiff that the possession of defendant and her grantors was not adverse; that the title of the trustee was a recognition of the plaintiff's title, and that, as the foreclosure proceedings were void, defendants could hold *455 only as assignees of the rights of the trustees, and, therefore, not adverse. Such, to our mind, cannot be the law. Notwithstanding the fact that the foreclosure proceedings might have been void, it is clear that the purpose of such proceedings was to cut off and destroy the title of plaintiff; and therefore the conveyance by the trustee to Hartley, had it been legal, would have terminated plaintiff's title. The grantees of Hartley taking and holding the property, or asserting their right to hold it under warranty deeds from him, was clearly adverse to plaintiff. They held as owners and the statute would run in their favor." Even if in the case in hand the possession may be regarded as constructive merely, yet as the legal title was in the trustee and not in Wilbur, and only a bare right to redeem could be transferred to and by Wilbur's grantees, we hold that the same principle by analogy applied to them and to Twohig, which could only be overcome, if at all, by superior equities on his part. And we do not perceive that any such equities existed. It appears from the record that from 1867 to 1877, inclusive, the land was assessed and taxed in the name of Isaac Harter; from 1878 to 1885, inclusive, in the name of Isaac Harter, Jr., one of the heirs of Isaac Harter; and from 1886 to 1889, inclusive, in the name of H.W. Harter, another of said heirs; that after the maturity of the trust deed, Isaac Harter paid the annual taxes from and including those of 1861 to the day of his death, and that his heirs, the appellants, paid the annual taxes from that time down to and including those for 1888; that the land was treated during all this time as belonging to Harter and his heirs, and notoriously known as the "Harter land." It further appears that both Lockwood and Virtue knew of the outstanding trust deed, which was indeed acknowledged before Virtue, and the claim of Harter thereunder, and that Lockwood and his wife knew of the pendency of the foreclosure suit; that Mr. and Mrs. Lockwood left the county and State in 1866 and Virtue in 1864, and never returned, except that Virtue paid a temporary visit there in the summer of 1888, when he conveyed to Twohig, and that the Lockwoods and Virtue paid no attention *456 whatever to the land nor asserted any ownership therein after their departure. The record discloses another fact, that when Virtue left Dakota City he placed his business affairs in the hands of an agent, who attended thereto, and that taxes were paid on certain lands in Dakota City as late as 1877 on behalf of Virtue, while no attention was given to the land in controversy. In the summer of 1888 the affidavit of Isaac Harter, Jr., was filed in the county court, in the course of disposing of other real estate than this, to the effect that Isaac Harter, upon his decease, had left no debts unpaid, and therefrom it also appeared that Isaac Harter died February 27, 1876, whereupon the clerk who had filed the affidavit obtained a quitclaim from Virtue and set up this claim to the land. The land, which was worth perhaps a hundred and twenty dollars in 1858, had suddenly increased in value to about twelve thousand dollars in 1888, chiefly within the year or two preceding. Under these circumstances we think the doctrine of laches was applicable; that the claim was stale; and that no court of equity would be justified in permitting the assertion of an outstanding equity of redemption after such a lapse of time and in the entire absence of the elements of good faith and reasonable diligence. Decree reversed and cause remanded with directions to dismiss the bill.

199 U.S. 473 (1905) MANIGAULT v. SPRINGS. No. 46. Supreme Court of United States. Submitted November 2, 1905. Decided December 4, 1905. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA. *474 Mr. Henry A.M. Smith for appellant. *477 Mr. Theodore G. Barker for appellees. *476 MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court. The gravamen of the bill is the alleged impairment by the statute of 1903 of the contract entered into in 1898, by which defendants agreed to remove the dam then existing, and to allow such creek to remain open and unobstructed. It was also charged that the constitution of South Carolina declaring that all navigable waters should forever remain public highways was a privilege annexed to and constituting a part of the value of the lands, and that the damming of the creek, except for the purpose of the public health, welfare and safety and without due compensation therefor, was a destruction of the property of the plaintiff and a deprivation thereof without due process of law. The specific injury complained of is that the plaintiff is the owner of a rice plantation on the North Santee River, bordering on Minim Creek, a tributary of the Santee, and lying in part just opposite the mouth or entrance of Kinloch Creek; that, relying on the agreement of the defendants, he had also purchased a millsite on the Santee, which could be used for a rice mill or a saw mill, the chief element of value of which was the water connection by means of a canal with Bluff Back Creek, accessible only through Kinloch Creek, and the consequent necessity of keeping Kinloch Creek open and unobstructed; that Kinloch Creek is a water highway, navigable by vessels into the Santee River and thence into the ocean; that the erection and retention of a dam across Kinloch Creek would not only interrupt his use of Kinloch Creek and Bluff Back Creek by preventing access to the public landing on the state road from his plantation on Kinloch Creek, but would obstruct the inflow of the tide of the Santee River through Minim Creek, causing the water from the river to flow back upon the banks to the plantation opposite the mouth of Kinloch *478 Creek, and would thus compel him to raise and strengthen his banks. 1. The first question considered by the court below was whether Kinloch Creek was a navigable water of the United States, as defined in the case of The Montello, 11 Wall. 411; S.C., 20 Wall. 430, or navigable, as navigable streams are defined by the constitution and the laws of South Carolina. The court was of opinion, based apparently upon affidavits not sent up with the record, that the creek was not a navigable stream under these definitions. But the bill alleges that "Kinloch Creek is a navigable stream or water highway," and the cause was determined upon demurrer to the bill, which admits the allegation of the bill that the creek was navigable. As an original proposition we have repeatedly held that, in the absence of legislation by Congress, a State has power to improve its lands and promote the general health by authorizing a dam to be built across its interior streams, though they were previously navigable to the sea by vessels engaged in the coastwise trade. This was decided in Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, in a brief but cogent opinion by Mr. Chief Justice Marshall. An act of the State of Delaware gave the defendant the right to build a dam across the Black Bird Creek, the constitutionality of which act was attacked as an abridgement of the rights of those who had been accustomed to use it for the purposes of navigation. "But this abridgement," said the court (p. 251), "unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance." The act was sustained. See also Pound v. Turck, 95 U.S. 459; Gilman v. Philadelphia, 3 Wall. 713; Huse v. Glover, 119 U.S. 543. We do not think the provision of the constitution of South Carolina interferes with these common law powers of the State over its navigable waters. In Escanaba Company v. Chicago, 107 U.S. 678, 688, it was held that the right of bridging navigable *479 streams extended to the State of Illinois, notwithstanding that the ordinance of 1787, for the government of the Northwest Territory, contained a clause declaring that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free." The power to span these rivers by bridges was put, partly upon the theory that the limitations upon the power of the State whilst in a territorial condition ceased to have any operative force except as voluntarily adopted by her after she became a State of the Union, and partly upon the theory, as said Mr. Justice Field, page 689, that "all highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their character as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways." So also in Cardwell v. Bridge Co., 113 U.S. 205, a provision in the act admitting California, that "all the navigable waters within the said State shall be common highways and forever free," was held not to deprive the State of the power possessed by it to authorize the erection of bridges over navigable waters. Said the court, page 211, "the clause, therefore, in the act admitting California, quoted above, upon which the complainant relies, must be considered, according to these decisions, as in no way impairing the power which the State could exercise over the subject if the clause had no existence." To the same effect, Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1; Hamilton v. Vicksburg &c. R.R. Co., 119 U.S. 280, 284. In Lake Shore &c. R.R. Co. v. Ohio, 165 U.S. 365, it was held that the act of September 19, 1890, conferring upon the Secretary of War the authority to direct the alteration of such bridges so as to render navigation easy and unobstructed, did not deprive the States of authority to bridge such streams. While all of these cases turned upon the power of the State to authorize the erection of bridges, the same principle applies where the legislature deems it necessary to the public welfare *480 to make other improvements for the reclamation of swampy and overflowed lands, though certain individual proprietors may thereby be subjected to expense. The question whether Kinloch Creek could be obstructed without the permission of the Secretary of War does not arise in this case, and is specially disclaimed by the plaintiff. See Lake Shore &c. Railroad Co. v. Ohio, 165 U.S. 365; Leovy v. United States, 177 U.S. 621, 633; Cummings v. Chicago, 188 U.S. 410; Montgomery v. Portland, 190 U.S. 89. The main argument was addressed to the question whether the contract of August, 1898, providing for the removal of the obstruction on December 31 and the free ingress and egress through the creek thereafter, was impaired by the act of the General Assembly of 1903, permitting the defendants by name to construct and maintain the dam in question. It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals. Familiar instances of this are, where parties enter into contracts, perfectly lawful at the time, to sell liquor, operate a brewery or distillery, or carry on a lottery, all of which are subject to impairment by a change of policy on the part of the State, prohibiting the establishment or continuance of such traffic; - in other words, that parties by entering into contracts may not estop the legislature from enacting laws intended for the public good. While this power is subject to limitations in certain cases, there is wide discretion on the part of the legislature in determining what is and what is not necessary - a discretion which *481 courts ordinarily will not interfere with. The leading case upon this point is that of Charles River Bridge v. Warren Bridge, 11 Pet. 420, in which a franchise to maintain a ferry between Cambridge and Boston, under which a bridge was subsequently erected, was held to be subject to the power of the legislature to establish a parallel bridge between the same points. In Stone v. Mississippi, 101 U.S. 814, a charter to a lottery company for twenty-five years was held to be subject to the power of the State to abolish lotteries altogether. Similar cases announcing the same principle are Boyd v. Alabama, 94 U.S. 645; Beer Company v. Massachusetts, 97 U.S. 25; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 672; Mugler v. Kansas, 123 U.S. 623, 665; Chicago &c. R.R. Co. v. Chicago, 166 U.S. 226. It only remains to consider, in connection with this branch of the case, whether the act of the General Assembly of 1903 was a proper exercise of the police power of the State. Of this we have no doubt. Although it was not an exercise of that power in its ordinarily accepted sense of protecting the health, lives and morals of the community, it is defensible in its broader meaning of providing for the general welfare of the people, by the reclamation of swampy, overflowed and infertile lands, and the erection of dams, levees and dikes for that purpose. We have often held that private interests are subservient to that right, except where property is taken for which compensation must be paid, and must give way to any general scheme for the reclamation or improvement of such lands. Indeed, this seems to have been within the contemplation of Congress in its act of September 28, 1850, 9 Stat. 519, to enable the States to reclaim the swamp lands within their limits, the first section of which enacts that "To enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamps and overflowed lands therein, the whole of those swamp and overflowed lands, made unfit thereby for cultivation . . . shall be, and the same are hereby, granted *482 to said State." Section 4 extends this provision to the other States. Although the act has no direct bearing on this case, it recognizes an intent on the part of Congress to allow the States to regulate the disposal of overflowed lands, as the legislature shall deem best for the public interests. That the act of the General Assembly in question was passed upon this theory is indicated by its recitals, that "by reason of the drainage and protection of said lands from overflow, their taxable value will be greatly enhanced, and without the dam provided for in this bill a large part of the land bordering on said creek will eventually become abandoned and valueless, as some portions of it now are," and that this "is the only feasible and practicable scheme for the drainage of said lands." This was the reason given for the passage of the act of the General Assembly of Delaware in the Black Bird Creek case, already cited. Chief Justice Marshall observed (p. 251): "The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the General Government, are undoubtedly within those which are reserved to the States." Several subsequent decisions have confirmed the power of the State to deal, in the absence of Congressional legislation, with their rivers, for the purposes of their internal improvement, such as Withers v. Buckley, 20 How. 84, wherein the right of Mississippi to change the channels or courses of rivers within the State for the purpose of improvement was sustained, and Atkinson v. Philadelphia &c. R.R. Co., 2 Fed. Cases, 105, Case 615, a decision by Mr. Justice Baldwin of this court. The whole subject was recently discussed in the case of Leovy v. United States, 177 U.S. 621, wherein was vindicated the right of the State of Louisiana to authorize the construction and maintenance of levees, drains and other structures necessary and suitable to reclaim swamp and overflowed lands, although there was evidence that the stream there concerned *483 (Red Pass) was useful for some minor purposes of interstate commerce. There was testimony that luggers or yawls chiefly used by fishermen to carry oysters to and from their beds sometimes went through this pass, but it was not shown that passengers ever went through it, or that freight destined for any other State was ever carried through it. In delivering an exhaustive opinion in this case, Mr. Justice Shiras observed (p. 636): "We think that the trial court might well take judicial notice that the public health is deeply concerned in the reclamation of swamp and overflowed lands. If there is any fact which may be supposed to be known by everybody, and, therefore, by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances." While, as already observed, there is a general allegation in the bill that Kinloch Creek was a navigable stream, and was capable of navigation by vessels in the Santee River and thence into the ocean, there is no allegation that it was ever used for that purpose, and the opinion of the court was that it certainly was not a navigable water of the United States, or a public highway under the laws of South Carolina. But, however this may be, we are of opinion that the State had full power, in the absence of legislation by Congress, to authorize the construction of this dam for the avowed purposes of this act. 2. The second assignment of error, that the plaintiff was deprived of his property without compensation, and hence without due process of law, is also unsound. The only allegation of the bill in that connection is that the construction of the dam was not only a destruction of plaintiff's right of navigation and of his access to his lands through Kinloch Creek, but has caused the water to fall back to some extent on the plantation on Minim Creek, just opposite the mouth of Kinloch, so as to compel the plaintiff to raise his dikes. We do not think the overflow to the minor extent indicated constitutes a taking of property within the meaning of *484 the law, when the damage can be prevented by raising the banks, or that if the damage stated did in fact result, that it would justify the interposition of a court of equity. The question whether the overflow of lands constitutes "a taking" within the constitutional provision has been discussed in several cases in this court. Pumpelly v. Green Bay Co., 13 Wall. 166; Transportation Company v. Chicago, 99 U.S. 635; Gibson v. United States, 166 U.S. 269; Scranton v. Wheeler, 179 U.S. 141; Atwater v. Trustees, 124 N.Y. 602. A recent case is that of United States v. Lynah, 188 U.S. 445, wherein it was held that where the Government had placed dams and other obstructions in the Savannah River in such manner as to hinder its natural flow, and to raise the water so as to overflow plaintiff's lands and to cause a total destruction of their value, the proceeding must be regarded as an actual appropriation of the land, and created an obligation upon the Government to make compensation for the land. The case was distinguished from that of Mills v. United States, 46 Fed. Rep. 738, wherein the damage consisted in obliging the plaintiff to raise the levees around his rice fields to prevent the flooding of the fields in high water. "Obviously," said the court, in commenting upon that case, "there was no taking of plaintiff's lands, but simply an injury which could be remedied at an expense, as alleged, of $10,000, and the action was one to recover the amount of this consequential injury. The court rightfully held that it could not be sustained." A still more recent case is that of Bedford v. United States, 192 U.S. 217, in which it is held that damages to lands by flooding as a result of revetments erected by the United States along the banks of the Mississippi River to prevent erosion of the banks from natural causes, are consequential and do not constitute a taking of the lands flooded within the meaning of the Constitution. We think the rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which demands *485 compensation, but otherwise where as in this case plaintiff is merely put to some extra expense in warding off the consequences of the overflow. The damage claimed by the plaintiff in the interruption of access to his lands and the impairment of his right to navigate the creek does not demand separate consideration. We have repeatedly held that where the Government of the United States has, for the purposes of improving the navigation of a river, erected piers or other structures by which access to plaintiff's land is rendered more difficult, there is no claim for compensation. Gibson v. United States, 166 U.S. 269; Scranton v. Wheeler, 179 U.S. 141. We see no reason why the same principle should not apply to cases where the state legislature, exercising its police power, directs a certain dam to be built, and thereby incidentally impairs access to lands above the dam. In both cases the sovereign is exercising its constitutional right - in one case in improving the navigation of the river, and in the other in draining its low lands, and thereby enhancing their value for agricultural purposes. It is suggested that the agreement of 1903 created an easement of access to plaintiff's land, Ladd v. Boston, 151 Massachusetts, 585; Hogan v. Barry, 143 Massachusetts, 538, and that the statute of South Carolina must be construed as overriding private rights of property, and not merely as putting an end to the rights of the public, and as giving to plaintiff a claim for damages for the taking of that easement. But it does not necessarily follow that an injunction should issue. Apparently this covenant did not apply to the millsite, since this was purchased after the covenant was made, but, however this may be, a court of equity is not bound to enjoin a public work authorized by statute, until compensation is paid, where no property is directly appropriated. This is particularly true where the damage is difficult of ascertainment at the time and a reasonable provision is made by the law for compensation. Sweet v. Rechel, 159 U.S. 380; Backus v. Fort Street Union Depot Co., 169 U.S. 557; Cherokee Nation v. *486 Southern Kansas Ry. Co., 135 U.S. 641; Beasley v. Texas & Pacific Ry. Co., 191 U.S. 492; Haverhill Bridge Proprietors v. Essex County Commissioners, 103 Massachusetts, 120; Parker v. Catholic Bishop, 146 Illinois, 158. The state cases are numerous on this point. In view of the incidental character of the damage probably resulting to plaintiff's land from the erection of this dam, and the careful provision of the act that the defendants shall be liable for such damage, we do not think, at least in the absence of an allegation that the defendants are financially irresponsible, that a court of equity would be authorized to enjoin the erection until the damages, which, if they exist at all, must be very difficult of ascertainment, shall be paid. 3. It is also assigned as error that the act of 1903 is obnoxious to the following provisions of the constitution of South Carolina, Article III, section 34, that "The General Assembly of the State shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: . . . II. To lay out, open, alter or work roads or highways." As the case comes from a Federal court, the question is properly before us. Admitting that, for the purposes of transit and travel, a river may be considered a highway - and that seems to have been adjudged by the Supreme Court of South Carolina, Heyward v. Chisholm, 11 Rich. 253, - we think that, in connection with the words "To lay out, open, alter or work roads," the word "highway" is used in its ordinary sense, and as an equivalent to a public road. The power given by this section is evidently inapplicable to water highways, which are neither laid out, opened, altered or worked in the ordinary sense of these words. 4. It is also urged that the act was passed without the formality required by the Revised Statutes of South Carolina of 1893, in which it is declared that no bill for the granting of any privilege or immunity, or for any other private purpose *487 whatsoever, shall be introduced, or entertained in either house of the General Assembly except by petition, to be signed by the persons desiring such privilege, of which sixty days' notice shall be given to all persons interested, and be published in the newspaper having the largest circulation in the county where such privilege is to be enjoyed, once a week for three weeks, etc. As this is not a constitutional provision, but a general law enacted by the legislature, it may be repealed, amended or disregarded by the legislature which enacted it. This law was doubtless intended as a guide to persons desiring to petition the legislature for special privileges, and it would be a good answer to any petition for the granting of such privileges that the required notice had not been given; but it is not binding upon any subsequent legislature, nor does a non-compliance with it impair or nullify the provisions of an act passed without the requirement of such notice. There was no error in the action of the court below, and its judgment is, therefore, Affirmed.

407 U.S. 355 (1972) MUREL ET AL. v. BALTIMORE CITY CRIMINAL COURT ET AL. No. 70-5276. Supreme Court of United States. Argued March 28-29, 1972. Decided June 19, 1972. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. Karl G. Feissner and Andrew E. Greenwald argued the cause for petitioners. With them on the brief were William L. Kaplan and Thomas P. Smith. Henry R. Lord, Deputy Attorney General of Maryland, argued the cause for respondents. With him on the brief were Francis B. Burch, Attorney General, and Edward F. Borgerding and Donald R. Stutman, Assistant Attorneys General. Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, and Russell Iungerich and William R. Pounders, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance. *356 Briefs of amici curiae were filed by Alan F. Charles for the National Legal Program on Health Problems of the Poor, and by Curtis R. Reitz and Julian Tepper for the Prison Research Council of the University of Pennsylvania Law School. PER CURIAM. Petitioners were convicted of various state crimes and sentenced to fixed terms of imprisonment. They were then committed to the Patuxent Institution in lieu of sentence, for an indeterminate period, pursuant to the Maryland Defective Delinquency Law, Md. Ann. Code, Art. 31B. They sought federal habeas corpus, challenging on constitutional grounds the criteria and procedures that led to their commitment, and the conditions of their confinement. They contend, inter alia, that the statutory standard for commitment is impermissibly vague, that they are entitled to put the government to the burden of proof beyond a reasonable doubt, that at the compulsory psychiatric examination prescribed by the statute they were entitled to have the assistance of counsel and to invoke the privilege against self-incrimination, and that they are being denied a constitutional right to treatment. The District Court denied relief sub nom. Sas v. Maryland, 295 F. Supp. 389 (Md. 1969), and the Court of Appeals affirmed sub nom. Tippett v. Maryland, 436 F. 2d 1153 (CA4 1971).[1] We granted certiorari, 404 U. S. 999 *357 (1971), to consider whether, and to what extent, the constitutional guarantees invoked by petitioners apply to this kind of commitment process. After briefing and oral argument, it now appears that this case does not present these issues in a manner that warrants the exercise of the certiorari jurisdiction of this Court. 1. Of the four petitioners, one has been unconditionally released from confinement, and the other three are subject to criminal sentences that have not yet expired, and that would bar their release from custody even if their claims were to prevail.[2] This fact, while not necessarily dispositive of all the claims presented by these petitioners, casts those claims in a different light, not contemplated by our original grant of the writ.[3] Cf. McNeil v. Director, Patuxent Institution, ante, p. 245. 2. Under our decisions in Baxstrom v. Herold, 383 U. S. 107 (1966), Humphrey v. Cady, 405 U. S. 504 (1972), and Jackson v. Indiana, 406 U. S. 715 (1972), petitioners' challenge to the Maryland Defective Delinquency Law should be considered in relation to the *358 criteria, procedures, and treatment that the State of Maryland makes available to other persons, not "defective delinquents," committed for compulsory psychiatric treatment. We are informed that the statutes governing civil commitment in Maryland are presently undergoing substantial revision, designed to provide greater substantive and procedural safeguards to committed persons. Accordingly, it seems a particularly inopportune time for this Court to consider a comprehensive challenge to the Defective Delinquency Law. In these circumstances, the writ of certiorari is therefore dismissed as improvidently granted. It is so ordered. MR. JUSTICE DOUGLAS, dissenting. Patuxent Institution is a special prison used by the State of Maryland for the incarceration of "defective delinquents." Individuals who have demonstrated "persistent aggravated anti-social or criminal behavior," who have "a propensity toward criminal activity," and who have "either such intellectual deficiency or emotional unbalance" as to present "an actual danger to society" may be confined at Patuxent. Md. Ann. Code, Art 31B, § 5 (1971). The initial determination that one is a defective delinquent is made judicially and, for those confined to Patuxent after such a determination, there is the right to seek judicial redetermination of their status at three-year intervals. Id., § 6 et seq. One of the objectives of Patuxent supposedly is to provide treatment for the inmates so that they may be returned to society. Director v. Daniels, 243 Md. 16, 31-32, 221 A. 2d 397, 406 (1966). Should a defective delinquent not receive treatment, or should the treatment prove inadequate to return him to society, the inmate might *359 well remain in Patuxent for the remainder of his life. See McNeil v. Director, Patuxent Institution, ante, p. 245. Petitioners brought this action in the District Court challenging various aspects of their confinement at Patuxent. The District Court denied relief, Sas v. Maryland, 295 F. Supp. 389 (Md. 1969); the Court of Appeals affirmed, Tippett v. Maryland, 436 F. 2d 1153 (CA4 1971); and we granted the petition for a writ of certiorari. 404 U. S. 999. Because I base my decision on narrow grounds, I do not reach the broader issues tendered by petitioners. When a State moves to deprive an individual of his liberty, to incarcerate him indefinitely, or to place him behind bars for what may be the rest of his life, the Federal Constitution requires that it meet a more rigorous burden of proof than that employed by Maryland to commit defective delinquents. The Defective Delinquency Law does not specify the burden of proof necessary to commit an individual to Patuxent, but the Maryland Court of Appeals has determined that the State need only prove its case by the "fair preponderance of the evidence." E. g., Crews v. Director, 245 Md. 174, 225 A. 2d 436 (1967); Termin v. Director, 243 Md. 689, 221 A. 2d 658 (1966); Dickerson v. Director, 235 Md. 668, 202 A. 2d 765 (1964); Purks v. State, 226 Md. 43, 171 A. 2d 726 (1961); Blizzard v. State, 218 Md. 384, 147 A. 2d 227 (1958); and see Sas v. Maryland, 334 F. 2d 506 (CA4 1964); Walker v. Director, 6 Md. App. 206, 250 A. 2d 900 (1969). Petitioners have thus been taken from their families and deprived of their constitutionally protected liberty under the same standard of proof applicable to run-of-the-mill automobile negligence actions.[1] *360 The Court of Appeals disapproved this standard but, because it felt it insignificant, nonetheless held it to be consistent with the requirements of the Due Process Clause: "We might all be happier had [the burden of persuasion] been stated in terms of clear and convincing proof rather than in terms of a preponderance of the evidence. However meaningful the distinction may be to us as judges, however, it is greatly to be doubted that a jury's verdict would ever be influenced by the choice of one standard or the other. We all know that juries apply the preponderance standard quite flexibly, depending upon the nature of the case. In any event, in the present state of our knowledge, choice of the standard *361 of proof should be left to the state. A legislative [sic] choice of the preponderance standard, the same standard governing civil commitments of mentally ill persons who have no history of criminality, ought not to be held in violation of due process requirements when we have no firm foundation for an evaluation of the practical effects of the choice." Tippett v. Maryland, supra, at 1158-1159. Judge Sobeloff dissented in part and would have held the State to a more stringent burden: "The reasonable doubt standard is indispensable in both criminal and juvenile proceedings . . . for `it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' . . . "The objections to the preponderance standard apply with equal force in defective delinquency hearings - indeed they are even more compelling in the latter class of cases, since indefinite incarceration is at stake. Due process commands that the jury must be satisfied beyond a reasonable doubt as to all objective facts in dispute, including the truth of any alleged incidents relied upon by the psychiatrists in reaching their recommendation." Id., at 1165 (citations omitted). In considering the constitutionally mandated burdens of proof applicable to particular types of cases, our decisions have attached greater significance to the varying standards than did the Court of Appeals below. In Speiser v. Randall, 357 U. S. 513, 520-521 (1958), we said: "To experienced lawyers it is commonplace that the outcome of a lawsuit - and hence the vindication of legal rights - depends more often on how the factfinder appraises the facts than on a disputed *362 construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights." And see In re Winship, 397 U. S. 358, 368 (1970) (Harlan, J., concurring). The reason for our continued concern over the applicable burden of proof is that a lawsuit - like any other factfinding process - is necessarily susceptible of error in the making of factual determinations. The nature of the rights implicated in the lawsuit thus determines the allocation and degree of the burden of proof and consequently the party upon whom the risk of errors in the factfinding process will be placed. We applied this reasoning in Speiser, where First Amendment rights were implicated: "In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value - as a criminal defendant his liberty - this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt." 357 U. S., at 525-526 (citations omitted). *363 In Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), MR. JUSTICE BRENNAN, in an opinion joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, again applied these principles and reasoned that the important First Amendment interests present in defamation actions required plaintiffs to meet an extraordinary burden of proof. JUSTICE BRENNAN said, "In libel cases . . . an erroneous verdict for the plaintiff [is] most serious. . . . [T]he possibility of such error . . . would create a strong impetus toward self-censorship which the First Amendment cannot tolerate." Id., at 50. MR. JUSTICE BRENNAN thus concluded that a more rigorous burden of proof was necessary to safeguard the important First Amendment rights involved: "We . . . hold that a libel action . . . by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 52. In re Winship, supra, dealt with an individual's personal liberty which we had characterized as "an interest of transcending value" in Speiser, 357 U. S., at 525. There, we determined that "proof beyond a reasonable doubt" was constitutionally required "because of the possibility that [an individual might] lose his liberty" and because of the stigma of a criminal conviction. 397 U. S., at 363. And see Woodby v. Immigration and Naturalization Service, 385 U. S. 276, 285 (1966). In the present case, petitioners were deprived of their most basic right - their personal liberty - under a burden of proof which was constitutionally inadequate. The *364 right to liberty is one of transcendent value. Without it, other constitutionally protected rights such as the right of free expression and the right of privacy become largely meaningless. Yet Maryland has deprived petitioners of this right, using a burden of proof which fails to give sufficient weight to the interests involved. It is no answer to say that petitioners' commitments were in "civil" proceedings and that the requirement for proof beyond a reasonable doubt is required only in "criminal" cases. In re Gault, 387 U. S. 1 (1967), and In re Winship, supra, specifically rejected this distinction and looked instead at the interests involved and the actual nature of the proceedings. See also Baxstrom v. Herold, 383 U. S. 107 (1966); Specht v. Patterson, 386 U. S. 605 (1967). Nor would it be persuasive to argue that the difficulty in proving one's state of mind requires that the State be afforded the benefit of a lesser burden of proof. Proving a state of mind is no more difficult than many other issues with which courts and juries grapple each day.[2] An individual who is confronted with *365 the possibility of commitment, moreover, runs the risk of losing his most important right - his liberty. Speiser and Winship indicate that an individual's personal liberty is an interest of transcending value for the deprivation of which the State must prove its case beyond a reasonable doubt. I would follow established precedent and hold that a State may not subject individuals to lengthy - if not indefinite - incarceration under a lesser burden of proof. Accordingly, I would reverse the judgment below. NOTES [1] Petitioner Murel was originally committed as a defective delinquent in 1962, and Creswell in 1958; their separate petitions for federal habeas corpus were denied without hearing in 1963. On appeal, the Court of Appeals consolidated these and other similar cases, and remanded all of them for a hearing, sub nom. Sas v. Maryland, 334 F. 2d 506 (CA4 1964). The hearing was deferred, by agreement of the parties, pending the outcome of related litigation in the state courts, which culminated in the decision in Director v. Daniels, 243 Md. 16, 221 A. 2d 397, cert. denied sub nom. Avey v. Boslow, 385 U. S. 940 (1966). The federal habeas hearing was then held in the consolidated cases, which by this time also included that of petitioners Hayes and Avey, who had been committed after the Court of Appeals' remand order. The petitions were again denied, 295 F. Supp. 389 (Md. 1969), and the Court of Appeals affirmed, 436 F. 2d 1153 (CA4 1971). [2] At the start of this litigation nine years ago both Murel and Creswell were subject to confinement that was wholly attributable to the Defective Delinquency Law, their sentences having expired. This is no longer the case because Murel was recently released, and Creswell was convicted and sentenced on new charges. We therefore do not reach their claims. [3] We do not suggest that these claims are moot, or that a case or controversy is lacking, or that habeas corpus is inappropriate to test the special incidents, if any, of these defective-delinquency confinements. See Carafas v. LaVallee, 391 U. S. 234 (1968); Jones v. Cunningham, 371 U. S. 236 (1963); North Carolina v. Rice, 404 U. S. 244, 248 (1971). [1] In petitioner Murel's redetermination hearing on December 21, 1964, for example, the trial court instructed the jury: "The burden is on the State to prove by a preponderance of evidence, as I have stated to you, that the defendant does come within all phases of the definition of a defective delinquent." Trial Transcript 70. The jury instructions in petitioner Creswell's December 20, 1961, redetermination trial were similar: "The burden of proof in this particular case is governed by our normal civil rules of evidence. The burden of proof is on the State to satisfy you that this defendant is a defective delinquent. If the State has not satisfied you by a fair preponderance of the evidence that he is a defective delinquent, or if your minds are in a state of equal balance, or even balance, after considering all the evidence as to whether he is or is not a defective delinquent, then it is your duty to find him to be not a defective delinquent. "However, if you are satisfied by a fair preponderance of the evidence that he is a defective delinquent, then it is your duty to so find him to be such defective delinquent." Trial Transcript 75-76. The record developed in the District Court also included the jury instructions in the October 30, 1959, redetermination hearing of Charles Tippett, who was a petitioner in the District Court: "The Court informs you that having once been determined to be a defective delinquent and now that he comes before you and asks to be released as cured of whatever defect there was, the burden is on him to convince you by a fair preponderance of the testimony that that is so." Trial Transcript 40. [2] Bruce J. Ennis, Staff Attorney of the New York Civil Liberties Union and Director of the Civil Liberties and Mental Illness Project, testified as follows before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st & 2d Sess., 277-278 (1969 and 1970): "As I mentioned earlier, the mentally ill are possibly less dangerous than the mentally healthy. A five and a half year study of 5,000 patients discharged from New York State mental hospitals showed that `patients with no record of prior arrest have a strikingly low rate of arrest after release. . . . Their over-all rate of arrest is less than 1/12 that of the general population and the rate for each separate offense is also far lower, especially for more serious charges.' Another psychiatrist states that there is `not a shred of evidence that the mentally ill are any more dangerous than the mentally healthy.' A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. Some mental patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether a person is mentally ill, but is he an expert at predicting which of the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals. "Because predictions of dangerous behavior are so grossly unreliable, we should authorize confinement only if the predicted danger is proved `beyond a reasonable doubt' rather than by a mere preponderance of the evidence." (Footnotes omitted.)

290 U.S. 56 (1933) GRISWOLD ET AL., EXECUTORS, v. HELVERING, COMMISSIONER OF INTERNAL REVENUE. No. 38. Supreme Court of United States. Argued October 19, 20, 1933. Decided November 6, 1933. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. *57 Mr. Wm. N. Haddad argued the cause, and Mr. Walter T. Fisher filed a brief, for petitioners. Mr. Erwin N. Griswold, with whom Solicitor General Biggs and Messrs. Sewall Key and Wm. Cutler Thompson were on the brief, for respondent. MR. JUSTICE SUTHERLAND delivered the opinion of the Court. Section 402 of the Revenue Act of 1921, c. 136, 42 Stat. 227, 277, 278, imposing an inheritance tax, provides, "Sec. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, . . . ..... "(d) To the extent of the interest therein held jointly or as tenants in the entirety by the decedent and any other person, . . ." The decedent died in 1923, while the foregoing provision was in effect. At the time of his death he and his wife held as joint tenants certain real estate in Illinois, title to which vested in them by conveyance on October 5, 1909. The commissioner valued this real estate at $90,000, and included the whole of it in the value of decedent's gross estate as being within the reach of § 402 (d). Upon appeal to the Board of Tax Appeals, that tribunal, disapproving in part the commissioner's determination, held that the value of only decedent's one-half of the property could be included for the purposes of the tax. 23 B.T.A. 635. The circuit court of appeals affirmed. 62 F. (2d) 591. *58 Whether this application of the statute gives it a retroactive effect is the sole question here involved; and with that we find no difficulty. Under the statute the death of decedent is the event in respect of which the tax is laid. It is the existence of the joint tenancy at that time, and not its creation at the earlier date, which furnishes the basis for the tax. By the judgment under review, only half of the value, that is to say, the value of decedent's interest, has been included, leaving the survivor's interest unaffected. After the creation of the joint tenancy, and until his death, decedent retained his interest in, and control over, half of the property. Cessation of that interest and control at death presented the proper occasion for the imposition of a tax. See Gwinn v. Commissioner, 287 U.S. 224, and cases cited. And since that is all that is sought to be reached by the tax here in question, the complaint that the statute has been given a retroactive application obviously is without substance. The statute as applied does not lay a tax in respect of an event already past, but in respect of one yet to happen. Petitioners insist that Knox v. McElligott, 258 U.S. 546, is to the contrary, but, clearly, it is not. There the tax return included the value of decedent's one-half of the jointly owned property, but did not include the value of the half which had been owned and enjoyed by the surviving joint tenant. Nevertheless, the commissioner undertook to impose a tax in respect of the value of this latter half as well. This court held that to do so was to apply the statute retroactively, and that this, under the circumstances of that case, could not be done. It did not hold, or intend to hold, that the statute was retroactive in so far as the value of the decedent's half of the joint estate was concerned. That question was not there involved. It is the only question here. Judgment affirmed.

541 U.S. 149 (2004) UNITED STATES v. FLORES-MONTANO No. 02-1794. Supreme Court of United States. Argued February 25, 2004. Decided March 30, 2004. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. *150 REHNQUIST, C. J., delivered the opinion for a unanimous Court. BREYER, J., filed a concurring opinion, post, p. 156. Lisa S. Blatt argued the cause for the United States. With her on the briefs were Solicitor General Olson, Assistant Attorney General Wray, Deputy Solicitor General Dreeben, Daniel S. Goodman, and Alfonso Robles. Steven F. Hubachek, by appointment of the Court, 540 U. S. 1043, argued the cause for respondent. With him on the brief were Vincent J. Brunkow and John C. Lemon.[*] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Customs officials seized 37 kilograms - a little more than 81 pounds - of marijuana from respondent Manuel Flores-Montano's gas tank at the international border. The Court of Appeals for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, United States v. Molina-Tarazon, 279 F. 3d 709 (2002), held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. No. 02-50306, 2003 WL 22410705 (Mar. 14, 2003). We hold that the search in question did not require reasonable suspicion. Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken to a secondary inspection station. *151 At the secondary station, a second customs inspector inspected the gas tank by tapping it, and noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under contract with Customs to come to the border station to remove the tank. Within 20 to 30 minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank. The inspector opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes. A grand jury for the Southern District of California indicted respondent on one count of unlawfully importing marijuana, in violation of 21 U. S. C. § 952, and one count of possession of marijuana with intent to distribute, in violation of § 841(a)(1). Relying on Molina-Tarazon, respondent filed a motion to suppress the marijuana recovered from the gas tank. In Molina-Tarazon, a divided panel of the Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in order to be consistent with the Fourth Amendment. 279 F. 3d, at 717. The Government advised the District Court that it was not relying on reasonable suspicion as a basis for denying respondent's suppression motion, but that it believed Molina-Tarazon was wrongly decided. The District Court, relying on Molina-Tarazon, held that reasonable suspicion was required to justify the search and, accordingly, granted respondent's motion to suppress. The Court of Appeals, citing Molina-Tarazon, summarily affirmed the District Court's judgment. No. 02-50306, 2003 WL 22410705 (CA9, Mar. 14, 2003). We granted certiorari, 540 U. S. 945 (2003), and now reverse. *152 In Molina-Tarazon, the Court of Appeals decided a case presenting similar facts to the one at bar. It asked "whether [the removal and dismantling of the defendant's fuel tank] is a `routine' border search for which no suspicion whatsoever is required." 279 F. 3d, at 711. The Court of Appeals stated that "[i]n order to conduct a search that goes beyond the routine, an inspector must have reasonable suspicion," and the "critical factor" in determining whether a search is "routine" is the "degree of intrusiveness." Id., at 712-713. The Court of Appeals seized on language from our opinion in United States v. Montoya de Hernandez, 473 U. S. 531 (1985), in which we used the word "routine" as a descriptive term in discussing border searches. Id., at 538 ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant"); id., at 541, n. 4 ("Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches"). The Court of Appeals took the term "routine," fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person - dignity and privacy interests of the person being searched - simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles. The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the *153 border." United States v. Ramsey, 431 U. S. 606, 616 (1977). Congress, since the beginning of our Government, "has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." Montoya de Hernandez, supra, at 537 (citing Ramsey, supra, at 616-617 (citing Act of July 31, 1789, ch. 5, 1 Stat. 29)). The modern statute that authorized the search in this case, 46 Stat. 747, 19 U. S. C. § 1581(a),[1] derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164, see United States v. Villamonte-Marquez, 462 U. S. 579, 584 (1983), and reflects the "impressive historical pedigree" of the Government's power and interest, id., at 585. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity. That interest in protecting the borders is illustrated in this case by the evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles' fuel tank. Over the past 5½ fiscal years, there have been 18,788 vehicle drug seizures at the southern California ports of entry. App. to Pet. for Cert. 12a. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the vehicle drug seizures, or approximately 25%. Ibid. In addition, instances of persons smuggled in and around gas tank compartments are discovered at the ports of entry of *154 San Ysidro and Otay Mesa at a rate averaging 1 approximately every 10 days. Id., at 16a. Respondent asserts two main arguments with respect to his Fourth Amendment interests. First, he urges that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior. Montoya de Hernandez, supra, at 538. We have long recognized that automobiles seeking entry into this country may be searched. See Carroll v. United States, 267 U. S. 132, 154 (1925) ("Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in"). It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile's passenger compartment. Second, respondent argues that the Fourth Amendment "protects property as well as privacy," Soldal v. Cook County, 506 U. S. 56, 62 (1992), and that the disassembly and reassembly of his gas tank is a significant deprivation of his property interest because it may damage the vehicle. He does not, and on the record cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property.[2] According to *155 the Government, for example, in fiscal year 2003, 348 gas tank searches conducted along the southern border were negative (i. e., no contraband was found), the gas tanks were reassembled, and the vehicles continued their entry into the United States without incident. Brief for United States 31. Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas tank disassemblies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to occur, the motorist might be entitled to recovery. See, e. g., 31 U. S. C. § 3723; 19 U. S. C. § 1630. While the interference with a motorist's possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Government's paramount interest in protecting the border.[3] For the reasons stated, we conclude that the Government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank. While it may be true that some *156 searches of property are so destructive as to require a different result, this was not one of them. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BREYER, concurring. I join the Court's opinion in full. I also note that Customs keeps track of the border searches its agents conduct, including the reasons for the searches. Tr. of Oral Arg. 53-54. This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner. NOTES [*] Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal. John Wesley Hall, Jr., David M. Siegel, and Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. [1] Section 1581(a) provides: "Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance." [2] Respondent's reliance on cases involving exploratory drilling searches is misplaced. See United States v. Rivas, 157 F. 3d 364 (CA5 1998) (drilling into body of trailer required reasonable suspicion); United States v. Robles, 45 F. 3d 1 (CA1 1995) (drilling into machine part required reasonable suspicion); United States v. Carreon, 872 F. 2d 1436 (CA10 1989) (drilling into camper required reasonable suspicion). We have no reason at this time to pass on the reasonableness of drilling, but simply note the obvious factual difference that this case involves the procedure of removal, disassembly, and reassembly of a fuel tank, rather than potentially destructive drilling. We again leave open the question "whether, and under what circumstances, a border search might be deemed `unreasonable' because of the particularly offensive manner in which it is carried out." United States v. Ramsey, 431 U. S. 606, 618, n. 13 (1977). [3] Respondent also argued that he has some sort of Fourth Amendment right not to be subject to delay at the international border and that the need for the use of specialized labor, as well as the hour actual delay here and the potential for even greater delay for reassembly are an invasion of that right. Respondent points to no cases indicating the Fourth Amendment shields entrants from inconvenience or delay at the international border. The procedure in this case took about an hour (including the wait for the mechanic). At oral argument, the Government advised us that, depending on the type of car, a search involving the disassembly and reassembly of a gas tank may take one to two hours. Tr. of Oral Arg. 10. We think it clear that delays of one to two hours at international borders are to be expected.

77 U.S. 507 19 L.Ed. 1028 10 Wall. 507 MESSENGERv.MASON. December Term, 1870 MOTION to dismiss a writ of error to the Supreme Court of the State of Iowa. The case was thus: Mason sued Messenger in one of the county courts of Iowa, to recover the possession of certain land in that State. He relied upon a judgment in partition of the tract, rendered in the District Court of the Territory of Iowa, in April, 1841, in pursuance of a law of that Territory. The defendant objected to the admission of the record of judgment on the ground that the law under which the proceedings were had was unconstitutional and void. The objection was overruled, the record admitted, and a verdict and judgment rendered for the plaintiff. On an appeal to the Supreme Court of the Territory, by the defendant, the judgment was affirmed, and the case was brought here as within the 25th section of the Judiciary Act. The certificate from the Supreme Court of Iowa certified: 'That on the final hearing, the validity of the partition law of Iowa Territory, approved January 4th, 1839, was drawn in question, on the ground that the same was in conflict with the Ordinance of 1787, the Constitution of the United States, the treaties and laws thereof, that the objections thereto were overruled, and the statute held to be valid.' The Territory of Iowa, it should be stated, was not a part of that to which the Ordinance of 1787 originally applied, but was a part of the Louisiana purchase. Prior to June 12th, 1838, it was part of the Territory of Wisconsin.1 The act, however, of the date just mentioned, which set it off and made its organic law, incorporated into its laws, indirectly, many of the provisions of the ordinance by extending to its inhabitants the rights and privileges theretofore secured to the Territory of Wisconsin by its organic law, among which were those found in the ordinance.2 But the section that conferred these rights and privileges upon the new Territory of Iowa, provided that they should be subject 'to be altered, modified, or repealed' by its governor and legislative assembly. Mr. Mason now moved to dismiss the case for want of jurisdiction, submitting that the certificate did not present any Federal question, and that the case was not within the 25th section. Mr. Wills, contra, insisted that it was plain enough by the certificate that a right set up under the Ordinance of 1787 had been denied to his clients in consequence of the partition law of Iowa; and as the Ordinance of 1787, made by the Congress of the Confederation, was continued in force by an act of the Congress of the United States,3 that a Federal question was thus raised. Mr. Justice NELSON delivered the opinion of the court. 1 It is insisted, on the part of the defendant in error, that an examination of the record will show that there is no Federal question in the case of which this court can take cognizance. 2 In the case of Maxwell v. Newbold et al.4 it was held the objection that 'the charge of the court, the verdict of the jury, and the judgment below are each against, and in conflict with the Constitution and laws of the United States,' was not sufficiently specific to raise a question within the provisions of this section. The Chief Justice in delivering the opinion of the court observes, that 'the clause in the Constitution and the law of Congress should have been specified by the plaintiffs in error in the State court, in order that this court might see what was the right claimed by them, and whether it was denied by the decision of the State court.' This court had previously held, in Lawler v. Walker and others,5 that the statement in a certificate of the State court that there was drawn in question the validity of statutes of Ohio, without saying what statutes, was too indefinite, and that the statutes complained of in the case should have been specified. These decisions were reaffirmed in Hoyt v. Shelden.6 It is quite clear, upon these authorities, that the constitutional objection taken in the present case is too general to be noticed on a writ of error under this 25th section. 3 As to the effect of the certificate from the court below, see Commercial Bank v. Buckingham,7 Lawler v. Walker,8 and Porter v. Foley.9 4 One difficulty in bringing the case within this 25th section is, that it makes no provision for the re-examination of a judgment in a State court which upholds the validity of a statute of a Territory in contravention of the Constitution. It applies only to the case where is drawn in question the validity of a statute of, or authority exercised under, any State. The circumstance, therefore, that the court below held the statute of the Territory providing for partition of lands among tenants in common, valid, is of no importance in the case.10 5 It has been urged on the argument, however, in view of the certificate of the court, that a right set up under the Ordinance of 1787, by the defendants at the trial, had been denied them, and that the construction of a law of Congress had thus been drawn in question. 6 Although the organic law of the Territory of Iowa did incorporate into its system of laws, indirectly, many of the provisions of the Ordinance of 1787, by extending to its inhabitants the rights and privileges theretofore secured to the Territory of Wisconsin by its organic law, among which were those found in the ordinance, yet the same section that conferred these rights and privileges upon the Territory of Iowa provided that they should be subject to be altered, modified, or repealed by the governor and legislative assembly of the said Territory. If, therefore, anything is found in this act of partition in conflict with these provisions, to that extent they must be regarded as altered or modified, which affords a complete answer to the ground relied upon under the ordinance. 7 MOTION GRANTED. 8 Mr. Justice MILLER took no part in the decision, having been counsel in the case. 1 5 Stat. at Large, 235. 2 Act of 7th August, 1789, 1 Stat. at Large, 50. 3 § 12. 4 18 Howard, 511. 5 14 Howard, 149. 6 1 Black, 518. 7 5 Howard, 317. 8 14 Ib. 149. 9 24 Id. 413. 10 Scott v. Jones, 5 Howard, 375.

346 U.S. 325 (1953) LEMKE v. UNITED STATES. No. 109. Supreme Court of United States. Decided October 12, 1953. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Bailey E. Bell for petitioner. Acting Solicitor General Davis, Assistant Attorney General Olney, Beatrice Rosenberg and Robert G. Maysack for the United States. PER CURIAM. This case is here on a petition for certiorari to the Court of Appeals for the Ninth Circuit, which dismissed an appeal as premature. Rule 37 (a) (2) of the Federal Rules of Criminal Procedure provides that "An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from . . . ." *326 On March 10, 1952, petitioner was sentenced to six months in jail after a jury verdict finding him guilty of violating § 65-5-81 of the Alaska Compiled Laws Ann., 1949. On March 11, 1952, petitioner filed his notice of appeal. The judgment, however, was not entered until March 14, 1952. Since no notice of appeal was filed after that time, the appeal was dismissed as premature, Judge Pope dissenting. The notice of appeal filed on March 11 was, however, still on file on March 14 and gave full notice after that date, as well as before, of the sentence and judgment which petitioner challenged. We think the irregularity is governed by Rule 52 (a) which reads "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Accordingly we grant the petition for certiorari, reverse the judgment below, and remand the case for further proceedings consistent with this opinion. THE CHIEF JUSTICE took no part in the consideration or decision of this case.

542 U.S. 947 BARRAZAv.DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION. No. 03A1058 (03-11049). Supreme Court of United States. June 29, 2004. 1 Ct. Crim. App. Tex. Application for stay of execution of sentence of death, presented to JUSTICE SCALIA, and by him referred to the Court, granted pending the disposition of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

76 U.S. 415 (____) 9 Wall. 415 THE SUPERVISORS v. DURANT. Supreme Court of United States. *416 Mr. Henry Strong, for the plaintiff in error. *417 Mr. Grant, contra. Mr. Justice STRONG delivered the opinion of the court. Since the decisions which have been made by this court during the last four years, there is almost nothing in the record now before us remaining open for adjudication. Indeed, it is not now contended that mandamus is not a proper remedy in cases like the present, when a relator has obtained a judgment, which can be satisfied only by the levy of a tax, and when the proper officers of the municipality, against which the judgment has been obtained, refuse, or neglect to levy it. That it is a legitimate remedy has been ruled in very many cases.[*] In such a case "the writ is" (to use the language of the court in Riggs v. Johnson County) "neither a prerogative writ, nor a new suit. On the contrary, it is a proceeding ancillary to the judgment which gives the jurisdiction, and, when issued," it "becomes a substitute for the ordinary process of execution, to enforce the payment of the same, as provided in the contract." It is a step toward the execution of the judgment, and necessary to the jurisdiction of the court. It is insisted, however, that even if the Circuit Court may award a mandamus to aid in the enforcement of its judgments, the writ should not have been awarded in this case, because the District Court of Washington County had enjoined the defendants against levying and collecting any tax for the payment of the bonds and coupons, for a portion of which the relator had obtained his judgment. This injunction the defendants pleaded, and to the plea the relator demurred. *418 That such an injunction was wholly inoperative to prevent the Circuit Court of the United States from enforcing its judgment by mandamus to the defendants to compel them to levy the tax which the law authorized and required, is no longer to be doubted. Its invalidity to work such an effect has been placed beyond question by the rulings of this court in the cases already cited. In Riggs v. Johnson County, where it appeared that an injunction had been obtained, in one of the State courts, upon the county commissioners, enjoining them against levying any tax to pay certain municipal bonds and coupons, a mandamus was nevertheless sustained to compel the levy of a tax, at the suit of one who had obtained judgment in the Circuit Court for some of the coupons. That case is full authority for the doctrine that an injunction of a State court cannot control, or in any manner affect the action, the process, or the proceeding of a Circuit Court, not because the latter has any paramount jurisdiction over State courts, but because the tribunals are independent of each other. It is true that in Riggs v. Johnson County it appeared the relator in the information, or suggestion for the mandamus, was not a party to the injunction suit, while the relator here was a party defendant. That, however, can make no difference. The present relator, though made a party with the other defendants, was not enjoined. The decree upon the bill for an injunction was exclusively against the board of supervisors of Washington, at the suit of others than the relator. And had he been enjoined, it is not easy to see how that fact could have limited the power of the Circuit Court. We have already remarked that the true reason why the injunction was not a bar to the mandamus is, that the District Court of the State and the Circuit Court are independent courts, and that neither can interfere with the process or proceedings of the other. It would hardly be contended that a State court can enjoin a defendant against paying a judgment which has been, or may thereafter be recovered in a Circuit Court of the United States. If it may, Federal jurisdiction is a myth. It is at the mercy of State tribunals. Yet there is no substantial difference in principle *419 between the allowance of such an injunction, and that of one against a proceeding in aid of an execution; a mandamus to levy an authorized tax to pay a judgment. The District Courts of Iowa are independent of each other. Will the injunction of one District Court limit the power of another District Court to enforce its judgment? To this no one would hazard an affirmative answer. Certainly the Circuit Courts of the United States are as exempt from State control by State courts, as are the District Courts of the State from control by each other. It is of course immaterial whether the injunction of the District Court of Washington County was before or after the judgment obtained by the relator in the Circuit Court of the United States, or whether before or after the institution of the suit. It is not a question which court first obtained possession of the case. In the case of The Mayor v. Lord,[*] the facts were that the plaintiffs in error had been enjoined against levying a tax, before suit was brought in the Circuit Court, yet it was held that the injunction was no sufficient answer to the alternative mandamus commanding them to levy a tax to pay the judgment afterwards recovered. The plaintiffs in error are thus met at every point of their case by decisions of this court heretofore made, decisions which justify the court below in sustaining the demurrer to their return to the alternative writ, and in awarding a peremptory mandamus. JUDGMENT AFFIRMED WITH COSTS. NOTES [*] The Board of Commissioners of Knox County v. Aspinwall et al. 24 Howard, 376; Von Hoffman v. The City of Quincy, 4 Wallace, 535; Supervisors v. United States, ex rel. State Bank, Id. 435; Riggs v. Johnson County, 6 Wallace, 166; Weber v. Lee County, Id. 210; The Mayor v. Lord, supra, 409. [*] Supra, 409.

128 U.S. 590 (1888) WARE v. ALLEN. No. 99. Supreme Court of United States. Argued November 28, December 3, 1888. Decided December 17, 1888. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI. Mr. Calderon Carlisle, with whom was Mr. Marcellus Green, for appellant. Mr. J.M. Allen for appellees. *592 MR. JUSTICE MILLER delivered the opinion of the court. This is an appeal from the Circuit Court of the United States for the Southern District of Mississippi. The suit was originally commenced in the Chancery Court of Copiah County, in that State, and its equity jurisdiction was based upon a statute of Mississippi authorizing attachments to be issued out of the Courts of Chancery. The case was removed into the Circuit Court of the United States by reason of the diverse citizenship of the parties, and no question was made in that court with regard to the right to proceed in it as a case in equity. W.P. Ware was the plaintiff below, and from a decree dismissing his bill he has taken this appeal. The action was brought upon a written instrument, of which the following is a copy: "NEW ORLEANS, Nov. 7th, 1881. "Ninety days after date we promise to pay W.P. Ware or order ten thousand dollars for two notes of T.P. Ware for five thousand dollars each, dated August 21, '81, one on demand and one at 30 days, provided we are not defeated in the suit against T.P. Ware; if so, this note is void. "Yours truly, "(Signed) ALLEN, WEST & BUSH." The pleadings and the evidence present, without much contradiction, the following leading facts: It appears that T.P. Ware, a brother of the appellant, W.P. Ware, was conducting a mercantile business at Hazlehurst, in the State of Mississippi, and in the course thereof had extensive dealings with the firm of Allen, West & Bush, a mercantile house in the city of New Orleans, by which he became indebted to them at the *593 date of the above paper in the sum of about eighteen thousand dollars. The business of T.P. Ware was conducted almost entirely by his brother, the plaintiff in this action, and was so embarrassed that the debts could not be paid. It would also appear from the testimony that W.P. Ware had, a year or two before, conducted an unsuccessful business at the same place, in his own name, and, being likely to fail, or having become insolvent, had sold out his store and goods to T.P. Ware, his brother, but as agent, for the latter ostensibly, continued to manage or control the business which was thereafter carried on at the same stand in the name of T.P. Ware. In this condition of affairs, W.P. Ware made a visit to Allen, West & Bush, at New Orleans, and had several interviews with them there, during which time the instrument now sued upon was executed. He stated to that firm, in the course of those interviews, that his brother was unable to pay his debts, and that his creditors were becoming impatient; that he himself held two notes made by his brother, for $5000 each, amounting to $10,000, and that he desired defendants to initiate proceedings to attach the goods of T.P. Ware, or to obtain from him an assignment or mortgage which would secure their debt as well as his own. For that purpose he proposed to assign over to them the two notes which he held against his brother, T.P. Ware, taking their obligation to pay him the amount. The defendants were disinclined to enter upon this course of proceeding, stating that they did not know of any cause for which an attachment could be issued or which would justify them in seizing the property of their debtor. The plaintiff replied that he would furnish them with cause for such attachment if they would enter into the arrangement which he proposed, that is to say, that he would show them sufficient reason for the seizing of the property by an attachment. The defendants again expressed their doubt about the success of such a course, but said they would like to consult Judge Harris, who lived in Mississippi, and also their counsel, J.M. Allen. Mr. Ware seemed impatient of this delay, as there was danger that somebody else might attach the property and thus defeat both of their claims; and finally, *594 under his pressure, the notes of T.P. Ware were transferred to the defendant firm, and they gave the instrument upon which this suit is brought. The testimony is ample to show that before the paper was signed or agreed upon, it was distinctly understood that it was to be of no effect unless, upon consultation with Judge Harris or J.M. Allen, or both of them, the defendants were assured that the proceeding was lawful and the attachment for the full amount of both claims could be enforced. It is very true that the plaintiff does not agree to this, in the full extent in which it is thus stated by at least two or three witnesses, but all the circumstances go to confirm the truth of this statement of what actually occurred. As soon as the defendants could do so they asked the opinion of Judge Harris upon the safety of the proposed transaction, and he declined, for reasons growing out of his relationship to Mr. Ware, to give any opinion upon the subject, or to take any part in the matter. The other counsel for the defendants, Mr. Allen, upon whose approval the transaction was to be binding, emphatically disapproved of it, and advised the defendant firm to have nothing to do with it, or with the notes of W.P. Ware against his brother, in any proceedings which they might take to collect their own claim. Accordingly the defendants, after some delay, instituted a suit in attachment against T.P. Ware and seized the goods at Hazlehurst. The amount then sued for was their own debt and no more, to wit, a little over eighteen thousand dollars. This proceeding went on in the usual manner and resulted in a recovery, by Allen, West & Bush, of their debt, or the most of it. It also appears that W.P. Ware was promptly notified of the fact that the firm declined to proceed in the manner he had suggested. These transactions took place in the autumn of 1881, shortly after the execution of the paper sued on here, which matured, according to its terms, on the 7th day of February, 1882. The present suit was commenced in February, 1883. The transaction by which W.P. Ware, who was the acting manager of the affairs of his brother, undertook to secure a *595 large sum out of the remnants of the second failure of that concern, whether it was really owned by W.P. or T.P. Ware, by having that brother give him two notes, one falling due on demand and the other thirty days after date, amounting to $10,000, and by inducing Allen, West & Bush, who had a large bona fide claim against the failing concern, to take these two notes and put them in with their own, and by his aid secure an attachment that would cover all the goods and secure the payment of the debts due to them both, does not commend itself to the conscience of a chancellor. It is bitterly assailed by the defendants as an unmitigated fraud on the part of the plaintiff, with the additional allegation that the failure of W.P. Ware and the sale made to his brother was a fraud also, of which the present transaction was intended to be a repetition. We do not think it necessary to inquire further into the evidence brought to sustain this defence, for we are quite clear that the testimony does establish the agreement alleged by the defendants to have been made at the various interviews between the persons composing the firm of Allen, West & Bush, or some of them, and the plaintiff, at and before the time when they delivered to him the instrument sued on and received from him the two notes made by his brother, T.P. Ware; that the firm were to have an opportunity to consult counsel, upon whom they relied, as to the validity of the transaction; and that if such advice was adverse, then the instrument given by them was to be of no effect. It also sufficiently appears that they were advised, without hesitation, by the counsel to whom they had reference in those conversations about the agreement, that the transaction was not one that would stand the test of a legal investigation. This is to be considered in connection with the fact that the firm only brought suit for their own claim, and have since returned, or offered to return, the notes of W.P. Ware, which were given him by his brother and delivered to them when the paper was executed. We are of opinion that this evidence shows that the contract upon which this suit is brought never went into effect; *596 that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or be ascertained thereafter. The present case is almost identical in its circumstances with that of Pym v. Campbell, in the Court of Queen's Bench, 6 Ell. & Bl. 370, 373. The defendants in that case had signed an agreement for the purchase of an interest in an invention, which the evidence showed was executed with the understanding that it should not be a bargain until a certain engineer, who was to be consulted, should approve of the invention. There was a verdict for the defendants, which was sustained, and the following language was used by Earle, J., on discharging the rule to show cause: "I think that this rule ought to be discharged. The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to show that it was conditional; and if that had been so, it would have been wrong. But I am of opinion that the evidence showed that in fact there was never any agreement at all... . If it be proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party cannot fix it as an agreement upon those signing. The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible." In this view the other judges, including Lord Campbell, Chief Justice, concurred, holding that it having been explained to the plaintiff that the defendants did not intend the paper to be an agreement until the engineer had been consulted, and his approval obtained, and was signed only because it was not convenient for them to remain, it was therefore no agreement, the plaintiff having assented to this and received the writing on these terms. *597 The same principle was announced in the Court of Common Pleas in Davis v. Jones, 17 C.B. 625, in which the distinction is clearly stated by Chief Justice Jervis, between evidence which, although parol, shows the written agreement was not to take effect until certain other things were done, as that rent should not commence running till certain repairs were completed, (although the instrument was signed and delivered,) and evidence which contradicts or varies the meaning of the instrument itself. This is concurred in by Cresswell and Crowder, JJ. Later, in 1861, in Wallis v. Littell, 11 C.B. (N.S.) 369, the same court laid down the same doctrine in regard to an assignment of a lease of a farm which had been made by a tenant to a third party, and the instrument delivered, but with an agreement that it should not take effect until the consent of the landlord was procured. The later refused his consent, and the court held the assignment of the lease, although executed and delivered, had never become operative. This principle was acted upon, and these authorities cited and affirmed, in the case of Wilson v. Powers, 131 Mass. 539, as late as 1881. The doctrine was asserted in this court as early as 1808, in the case of Pawling v. United States, 4 Cranch, 219, where it was held, in a suit upon a collector's bond, that the sureties who signed it could prove by parol evidence that they did so on an express agreement that they were not to be bound until other persons who were named became bound also by signing the bond. Without farther examination of authorities, we are of opinion that the case before us comes within the principle asserted by those we have referred to, and the judgment of the Circuit Court is, therefore, Affirmed.

82 U.S. 380 (1872) 15 Wall. 380 PENNYWIT v. EATON. Supreme Court of United States. *381 Mr. W.M. Rose, in support of the motion; Mr. A.H. Garland, contra. The CHIEF JUSTICE: The Pulaski County Court was requested to hold, that if it appeared from the evidence that the judge who presided in the court at New Orleans and rendered the judgment there, held his office by appointment from a military governor of the State of Louisiana, and under no other authority, the judgment was void. This raised, though somewhat obscurely, the question whether the court so held had any jurisdiction under the Constitution of the United States, and the question was decided against the privilege claimed under the Constitution by the defendants. We cannot, therefore, dismiss the case for want of jurisdiction, although we may have a very clear conviction that the decision of the State court was correct. MOTION DENIED.

191 U.S. 171 (1903) ALLEN v. PULLMAN'S PALACE CAR COMPANY. No. 27. Supreme Court of United States. Argued October 16, 1903. Decided November 16, 1903. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE. *174 Mr. John J. Vertres, with whom Mr. Charles T. Cates, Jr., Attorney General of the State of Tennessee, was on the brief, for plaintiff in error. Mr. William Burry, with whom Mr. J.S. Runnells was on the brief, for the defendant in error. *177 MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court. The taxes in controversy were levied under certain revenue laws of the State of Tennessee. Those for the years 1887 and 1888 provided: "That the rate of taxation on the following *178 privileges shall be as follows: Sleeping cars: Each company doing business in the State, on each car per annum, $500." Section eight of the act provided: "That any and all parties, firms or corporations exercising any of the foregoing privileges must pay this tax, as set forth in this act, for the exercise of such privilege, whether they make a business of it or not." The Tennessee act of 1877, imposing a tax upon the running of sleeping cars, was before this court for consideration in the case of Pickard v. Pullman Co., 117 U.S. 34. That act provided: "That the running or using of sleeping cars or coaches on railroads in Tennessee, not owned by the railroads upon which they are run or used, is declared to be a privilege, and the companies shall be required to pay to the comptroller by the first day of July following fifty dollars ($50) for each and every said cars or coaches used or run over said roads; and if the said privilege tax herein assessed be not paid as aforesaid the comptroller shall enforce the payment of the same by distress warrant." It was held that the tax was a burden upon interstate commerce and void because of the exclusive power of Congress to regulate commerce between the States. Unless the statute now under consideration can be distinguished from the one then construed, the Pickard case is decisive of the present case. Both taxes were imposed under the power granted by the constitution of Tennessee to lay a privilege tax. This power is held by the Supreme Court of the State to give a wide range of legislative discretion. Any occupation, business, employment or the like, affecting the public, may be classed and taxed as a privilege. K. & O. Railroad v. Harris, 99 Tennessee, 684. In the act of 1877 the running and using of sleeping cars on railroads in the State, when the cars are not owned by the railroads upon which they are run, is declared to be a privilege. Under the act of 1887, the tax is specifically imposed upon a privilege. Under the act of 1877, the tax imposed was fifty dollars for each car or coach used or run over the road. Under the act of 1887, each company doing business in the State is *179 required to pay five hundred dollars per annum for the same privilege. The distinction, except in the amount of annual tax exacted, is without substantial difference. Under the earlier act the tax is required for the privilege of running and using sleeping cars on railroads, not owning the cars. In the later act it is exacted for the privilege of doing business in the State. This business consists of running sleeping cars upon railroads not owning the cars and is precisely the privilege to be paid for under the first act, neither more nor less. In neither act is any distinction attempted between local or through cars or carriers of passengers. The railroads upon which the cars are run are lines traversing the State but not confined to its limits. The cars of the Pullman Company run into and beyond the State as well as between points within the State. The act in its terms applies to cars running through the State as well as those whose operation is wholly intra-state. It applies to all alike, and requires payment for the privilege of running the cars of the company regardless of the fact whether used in interstate traffic or in that which is wholly within the borders of the State. There is no decision of the Supreme Court of Tennessee limiting the act in its operation to intra-state traffic. It is true that the comptroller has sought to restrain the operation of the law by imposing the tax for two years upon cars running between Nashville and Memphis and between Nashville and Chattanooga for two years, and fixing one car in each year as the proportion of local business done on interstate cars for two years. But this action does not conclude the State in taxing for other years, and the action taken by the comptroller does not limit the terms of the law affecting interstate commerce. In LeLoup v. Mobile, 127 U.S. 640, 647, it was sought to recover a penalty imposed upon an agent of the Western Union Telegraph Company for failure to pay an annual license tax as required by an ordinance of Mobile. In the course of the opinion denying the right to exact the license fee, Mr. Justice Bradley said: "But it is urged that a portion of the telegraph *180 company's business is internal to the State of Alabama, and therefore taxable by the State. But that fact does not remove the difficulty. The tax affects the whole business without discrimination. There are sufficient modes in which the internal business, if not already taxed in some other way, may be subject to taxation, without the imposition of a tax which covers the entire operations of the company." In Osborne v. Florida, 164 U.S. 650, a license tax upon express companies was sustained, in view of the decision of the Supreme Court of that State that it affected only business of the company within the State. The statute now under consideration requires payment of the sum exacted for the privilege of doing any business when the principal thing to be done is interstate traffic. We are not at liberty to read into the statute terms not found therein or necessarily implied, with a view to limiting the tax to local business, which the legislature in the terms of the act impose upon the entire business of the company. We are of opinion that taxes exacted under the act of 1887 are void as an attempt by the State to impose a burden upon interstate commerce. Other considerations apply in the construction of the act of 1889, under which, or acts identical in terms, taxes were collected from 1889 to 1893, inclusive. It provides, p. 247, 266, c. 130, April 8, 1889: "Sec. 4. The rate of taxation on the following privileges shall be as follows, per annum: . . . Sleeping car companies (in lieu of all other taxes except ad valorem tax). Each company doing business in this State, for one or more passengers taken up at one point in this State and delivered at another point in this State, and transported wholly within the State, per annum, $3,000." Its terms apply strictly to business done in the transportation of passengers taken up at one point in the State and transported wholly within the State to another point therein. It is not necessary to review the numerous cases in this court in which attempts by the States to control or regulate interstate commerce have been the subject of consideration. While they show a zealous care to preserve *181 the exclusive right of Congress to regulate interstate traffic, the corresponding right of the State to tax and control the internal business of the State, although thereby foreign or interstate commerce may be indirectly affected, has been recognized with equal clearness. In the late case of Osborne v. Florida, supra, Mr. Justice Peckham, speaking for the court, said: "It has never been held, however, that when the business of the company, which is wholly within the State, is but a mere incident to its interstate business, such fact would furnish any obstacle to the valid taxation by the State of the business of the company which is entirely local. So long as the regulation as to the license or taxation does not refer to and is not imposed upon the business of the company which is interstate there is no interference with that commerce by the State statute." Granting that the right exists whereby a State may impose privilege or license fees upon business carried on wholly within the State, it is argued that the tax of three thousand dollars per annum, collected for carrying one or more local passengers on cars operating within the State, is assessed upon traffic which bears such small proportion to the entire business of the company within the State, that it could not have been levied in good faith upon purely local business, and is but a thinly disguised attempt to tax the privilege of interstate traffic. If the payment of this tax was compulsory upon the company before it could do a carrying business within the State, and the burden of its payment, because of the minor character of the domestic traffic, rested mainly upon the receipts from interstate traffic, there would be much force in this objection. Upon this proposition we are unable to distinguish this case from Pullman Co. v. Adams, 189 U.S. 420, decided at the last term, wherein it was held that the privilege tax imposed by the State of Mississippi, upon each car carrying passengers from one point in the State to another therein, was a valid tax, notwithstanding the fact that the company offered to show that its receipts from the carrying of the passengers named did not equal the *182 expenses chargeable against such receipts. This conclusion was based upon the right of the company to abandon the business if it saw fit. It was urged that under the constitution of Mississippi the Pullman Company was a common carrier, required to carry passengers, and therefore could not be taxed for the privilege of doing that which it was compelled to do; but in view of a decision of the Supreme Court of Mississippi, sustaining the tax, it was assumed that no such objection existed under the state constitution. Speaking upon this subject, Mr. Justice Holmes, delivering the opinion of the court, said: "If the clause of the state constitution referred to were held to impose the obligation supposed and to be valid, we assume, without discussion, that the tax would be invalid. For then it would seem to be true that the state constitution and the statute combined would impose a burden upon commerce between the States analogous to that which was held bad in Crutcher v. Kentucky, 141 U.S. 47. On the other hand, if the Pullman Company, whether called a common carrier or not, had the right to choose between what points it would carry, and therefore to give up the carriage of passengers from one point to another in the State, the case is governed by Osborne v. Florida, 164 U.S. 650. The company cannot complain of being taxed for the privilege of doing a local business which it is free to renounce. Both parties agree that the tax is a privilege tax." There is additional reason for holding that the Pullman Company may transact its business in Tennessee without paying this privilege tax and continue its interstate business, declining local business, thereby escaping the attempt to tax it upon business wholly within the State. The statute of Tennessee, enacted in 1875, provides: "The rule of the common law giving a right of action to any person excluded from any hotel, or public means of transportation, or place of amusement, is hereby abrogated; and hereafter no keeper of any hotel, or public house, or carrier of passengers for hire, or conductors, drivers or employes of such carrier or keeper, shall be bound, *183 or under any obligation to entertain, carry, or admit any person whom he shall, for any reason whatsoever, choose not to entertain, carry or admit to his house, hotel, carriage or means of transportation or place of amusement, nor shall any right exist in favor of such person so refused admission, but the right of such keepers of hotels and public houses, carriers of passengers and keepers of places of amusement and their employes to control the access and admission or exclusion of persons to or from their public houses, means of transportation, and places of amusement, shall be as perfect and complete as that of any private person over his private house, carriage or private theatre or place of amusement for his family." Shannon's Code, § 3046. Under this act, no carrier is required to admit any passenger to his car or means of transportation. While the Pullman Company may not be technically a common carrier, still we think it comes within the scope and meaning of this act. A sleeping car is obviously a public means of transportation. Under this act, the carrier is not obliged to afford its privileges to those making application therefor. Mr. Justice Blatchford, speaking of the character of the service afforded by sleeping cars, in Pickard v. Pullman Co., 117 U.S. 34, said: "The car was equally a vehicle of transit, as if it had been a car owned by the railroad company, and the special conveniences or comforts furnished to the passenger had been furnished by the railroad company itself." It follows that a tax imposed upon domestic business, under the circumstances shown, cannot be a burden upon interstate commerce in such sense as will invalidate it. Under the judgment of the court below, the Pullman Company was permitted to recover for license taxes levied under both acts. In so far as it permitted a recovery for taxes under the act of 1889 and identical laws of other years, the judgment should be modified. For that purpose, and for further proceedings in accordance with this opinion, the case is remanded to the Circuit Court.

282 U.S. 479 (1931) POTTSTOWN IRON COMPANY v. UNITED STATES. No. 113. Supreme Court of United States. Argued January 9, 1931. Decided February 2, 1931. CERTIORARI TO THE COURT OF CLAIMS. Mr. Paul F. Myers, with whom Mr. John R. Yates was on the brief, for petitioner. Assistant Attorney General Rugg, with whom Solicitor General Thacher and Messrs. Claude R. Branch, Special Assistant to the Attorney General, Charles R. Pollard, and Bradley B. Gilman were on the brief, for the United States. MR. JUSTICE ROBERTS delivered the opinion of the Court. United States v. Swift & Company, ante, p. 468, controls the decision of this case. Here the Commissioner of Internal Revenue, upon audit of petitioner's income and excess-profits tax return for 1918, found an overpayment, and at the same time found an underpayment of similar taxes for the years 1916 and 1917. On January 22, 1926, he made additional assessments of the underpayments for 1916 and 1917 *480 and on January 29 he approved a schedule of overassessments which embraced the overpayment for the year 1918. The schedule was transmitted to the Collector of the appropriate district with the usual instructions and authority to check the overassessment against the taxpayer's account and determine whether the amounts in which the tax liability had been reduced should be abated in whole or in part, and if any part of the overassessment was found to be an overpayment to apply the same against taxes due, if any, making the appropriate entry in his accounts. After this had occurred, petitioner inquired in writing of the Collector as to the status of its account. He replied by letter dated February 23, 1926, stating that he had applied the overassessment to close out the accounts of 1916 and 1917, thus extinguishing the taxpayer's liability as shown by his books. On February 27, 1926, he returned the schedule of overassessments to the Commissioner together with the usual subsidiary schedule of credits and refunds showing how he had credited the overassessment and that there remained a balance of 1918 taxes refundable to the taxpayer amounting to $21,152.12. On April 15, 1926, the Commissioner approved the schedule, thus authorizing the issuance of checks covering the amount to be refunded. The question is whether interest should be allowed the petitioner under § 1019 of the Revenue Act of 1924 (43 Stat. 346) or under § 1116 of the Revenue Act of 1926 (44 Stat. 119). The latter act took effect February 26, 1926. The Court of Claims held that the act of the Commissioner in approving the schedule of refunds and credits and authorizing the issuance of checks on April 15, 1926, constituted the allowance of the claim for credit, and that interest on credits for 1916 and 1917 taxes should be calculated under the Act of 1926, which had then become effective. The petitioner argues that credit was allowed *481 or taken when the Collector, prior to February 26, 1926, made the entries upon his books, and that consequently interest on the credits should be calculated under the provisions of the Act of 1924. We hold, in conformity with our decision in United States v. Swift & Co., supra, that the allowance occurred April 15, 1926, when the Commissioner finally acted on the schedule of refunds and credits. The judgment is Affirmed.

361 U.S. 398 (1960) NATIONAL LABOR RELATIONS BOARD v. DEENA ARTWARE, INC., ET AL. No. 46. Supreme Court of United States. Argued December 8, 1959. Decided February 23, 1960. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR FOR THE SIXTH CIRCUIT. *399 Ralph S. Spritzer argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman, Thomas J. McDermott and Dominick L. Manoli. James G. Wheeler argued the cause for respondents. With him on the brief were Mervin N. Bachman, Thomas J. Marshall, Jr. and Sidney R. Zatz. MR. JUSTICE DOUGLAS delivered the opinion of the Court. This litigation has been long and drawn out and the present case is merely a small segment of it. In 1949 petitioner found that respondent Deena Artware, Inc. (Artware), had violated the National Labor Relations Act, 61 Stat. 136, 29 U. S. C. § 158 (a), by discharging and refusing to reinstate 66 employees who had engaged in a strike (86 N. L. R. B. 732, 95 N. L. R. B. 9); and it ordered Artware "and its officers, agents, successors, and assigns" to offer reinstatement to those employees and to make them whole for any loss of pay suffered by them as a result of the discriminating action. The Court of Appeals in 1952 affirmed the Board's decision with respect to 62 of the 66 employees and entered a decree enforcing the Board's order, 198 F. 2d 645, remanding the case to the Board to determine the amounts due the individual employees. In 1953 Artware offered reinstatement to all of these employees but shortly closed its plant (which was located in Kentucky), never resumed operations, and never paid any back pay to the employees in question. It appears that Weiner, one of the respondents, created a series of corporations, at the top of which was Deena Products, Inc. (Products), an Illinois corporation. Beneath it was a group of subsidiaries - formed under Kentucky law - Artware, Deena of Arlington, Inc., Sippi Products Co., Inc., and Industrial Realty Co., Inc. - all of whose shares, except for qualifying shares, were owned *400 by Products. Weiner owned all the shares of Products, except for qualifying shares; and all the officers and directors of Products and the several subsidiaries were Weiner, his wife, his son, and his secretary. Weiner was president and treasurer of Products and of each of the subsidiaries, including Artware. Artware in 1949 gave Products a promissory note secured by a mortgage on Artware's property, allegedly for advances made. In 1952 Artware made an assignment to Products in partial satisfaction of its indebtedness. In 1953 the Board applied to the Court of Appeals for an order restraining that assignment. It also asked for an order of discovery, alleging that the affairs of Products and Artware were being conducted in such a way as to dissipate Artware's assets and to avoid making the back wage payments. The court denied these motions, holding that, until the amount of back pay was liquidated and payment of the fixed sum refused, there was no warrant for granting that relief (207 F. 2d 798), the court adding that if upon liquidation of Artware "any financial inability" on its part to pay the awards was shown to be "the result of improper actions on its part in the meantime, appropriate contempt action can then be taken." Id., at 802. At that time, the Board had not issued an order determining the specific amounts of back pay owed the individual employees. In 1955 - nearly two years later - it made that determination and entered an order, directing payment of back pay totaling about $300,000; and the Court of Appeals ordered Artware, "its officers, agents, successors and assigns" to pay that amount to specified employees. 228 F. 2d 871. That was on December 16, 1955. In 1957 the Board moved the Court of Appeals for discovery, inspection, and depositions, naming Artware, Weiner, Products, and the other subsidiaries of Products. *401 It alleged that Weiner had caused the assets of Artware to be siphoned off through the other corporations under his control for the purpose of evading the back pay obligation. The Court of Appeals denied the motion, 251 F. 2d 183, holding that a contempt proceeding, rather than discovery, was the proper procedure. On August 20, 1958, the Board petitioned the Court of Appeals to hold Artware, Weiner, Products and the other subsidiaries in civil contempt for failure to pay the amounts due employees under the back pay order. On October 11, 1958, the Board renewed its motion for discovery, inspection, and the taking of depositions from Artware, the affiliated corporations, and Weiner and other officers of these corporations. In its petition the Board made charges of dealings between these corporations and between them and Weiner occurring from 1949 to 1955 which, it maintained, showed both (1) fraud and wrongdoing for the purpose of frustrating the back pay order and (2) the operation of these various corporations "as a single enterprise," each of the corporations performing "a particular function, as a department or division of the one enterprise in the manufacture, sale and distribution of the common product." The allegations (which are summarized in the opinion below, 261 F. 2d 503, 506-507) need not be repeated here, as the Court of Appeals merely held that, although the enforcement order was entered July 30, 1952, it was not made specific as to amounts owed until December 16, 1955. It, therefore, concluded that prior to the latter date the decree was "not sufficiently definite and mandatory to serve as the basis for contempt proceedings." Id., at 510. It, therefore, dismissed the Board's petition for adjudication in civil contempt. It also denied the Board's motion for discovery, inspection, and depositions. 261 F. 2d 503, 510. The case is here on a petition for certiorari, 359 U. S. 983, which we granted in order to consider the *402 validity of the action of the Court of Appeals in dismissing the petition insofar as it charged the existence of "a single enterprise." The Court of Appeals dismissed the petition without considering the second group of allegations made by the Board, viz., that these various corporations were in fact "a single enterprise." And it denied the motion for discovery even as it pertained to that alternative theory of liability. It may have done so because it thought that the issues tendered in the petition related solely to inter-company transactions alleged to be conveyances in fraud of creditors or preferences in favor of some creditors. That seemed to be its preoccupation, as is evident by its references to possible causes of action under Kentucky law to set those transactions aside. Id., at 509. We do not stop to consider what would be a proper formulation of a rule of law governing liability in contempt for frustration of a decree. The Court of Appeals may have considered the transactions and assignments as if they were made between separate and distinct corporations. If they are viewed in that light, we cannot say they are so colorable as to warrant us in reversing the Court of Appeals. But we think the Board is entitled to show that these separate corporations are not what they appear to be, that in truth they are but divisions or departments of a "single enterprise." That is the alternative theory of liability which the Court of Appeals did not consider. We think that the Board is entitled to a hearing on that alternative theory and to discovery in aid of it. The question whether the corporations under Weiner's ownership were only departments or divisions in one single enterprise is in a different category than those that arise under either 13 Eliz. or the modern law of preferences. Whether one corporation is liable for the obligations of an affiliate turns on other considerations. The insulation of *403 a stockholder from the debts and obligations of his corporation is the norm, not the exception. See Pullman Car Co. v. Missouri Pacific R. Co., 115 U. S. 587, 597. Yet as Mr. Justice Cardozo said in Berkey v. Third Avenue R. Co., 244 N. Y. 84, 95, 155 N. E. 58, 61, "Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. Where control is less than this, we are remitted to the tests of honesty and justice." That is not a complete catalogue. The several companies may be represented as one.[1] Apart from that is the question whether in fact the economic enterprise is one, the corporate forms being largely paper arrangements that do not reflect the business realities. One company may in fact be operated as a division of another;[2] one may be only a shell, inadequately financed;[3] the affairs of the group may be so intermingled that no distinct corporate lines are maintained.[4] These are some, though by no means all,[5] of the *404 relevant considerations, as the authorities recognize. See Lattin on Corporations (1959) ch. 2, §§ 13, 14; Stevens on Corporations (1949) § 17; Berle, The Theory of Enterprise Entity, 47 Col. L. Rev. 343. We do not intimate an opinion on the merits of this alternative theory of liability. The authorities we have cited merely indicate the range of inquiry which the petition of the Board presented. Discovery is useful in determining what the facts are. It is, indeed, necessary to determine whether the decree of the court enforcing the Board's order should run to any of the affiliated corporations or their stockholders. When the facts are resolved, it will be time enough to consider what further enforcement decree, if any, would be appropriate.[6] The petition should be reinstated insofar as it charges the existence of "a single enterprise." and the motion for discovery should be granted so that the Board will have an opportunity to prove those allegations. Reversed. MR. JUSTICE STEWART took no part in the consideration or decision of this case. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, concurring in reversal on the grounds herein stated. Due regard for the controlling facts in this case will lay bare their legal significance. This requires that the facts, and the procedural setting in which they are to be considered, be stated with particularity. The respondents are an individual and several corporations. The individual respondent, one Weiner, is the sole stockholder, except for qualifying shares, of Deena Products (Products), an Illinois corporation engaged in the *405 manufacture and sale of lamps. The remaining respondents are wholly owned subsidiaries of Products. They are Deena Artware (Artware), a now defunct Kentucky corporation which formerly engaged in the manufacture of china urns for use as lamps bases; Deena of Arlington, another Kentucky corporation, engaged in the production of shades and the assembly of lamps; Sippi Products Company (Sippi), a Kentucky corporation engaged, as was Artware formerly, in the manufacture of china urns for use as lamp bases; and Industrial Realty Company (Industrial), a Kentucky corporation organized to hold title to the physical assets formerly held by Artware. Weiner has, at all relevant times, completely controlled Products, which in turn has similarly dominated all of the respondent subsidiaries. Weiner served as President, Treasurer[1] and a director of all of the corporations; his wife, son and successive secretaries as the other directors. Artware was organized by products in 1946, and shortly thereafter acquired a factory for the production of lamp bases at Paducah, Kentucky. In 1947 construction was undertaken, allegedly by Products, of a lamp assembly plant adjacent to the Artware plant at Paducah. At about the same time the labor dispute arose which led to the Labor Board orders underlying this proceeding. On October 25, 1949, Artware was found by the Board to have violated § 8 (a) (1), (3) and (5) of the National Labor Relations Act (as amended) and was ordered, inter alia, to reinstate with back pay sixty-six named employees whose discharge during the dispute was found to have been improper. 86 N. L. R. B. 732, 736. On July 30, 1952, the Court of Appeals for the Sixth Circuit, at the Board's petition, granted enforcement of its order. 198 F. 2d 645. At about the same time that court also *406 sustained Artware's recovery against the union of a money judgment for injuries it sustained by virtue of a secondary boycott engaged in by the union during the same dispute. 198 F. 2d 637. The Board then petitioned the Court of Appeals for an injunction against payment of a part of the judgment Artware had recovered against the union, alleging that Artware had undertaken to render itself unable to pay any back pay in the amounts which the Board was authorized to fix by virtue of the court's order of July 30, 1952. The Court of Appeals refused the injunction primarily upon the ground that the definite amount of back pay owing under its order had not yet been determined by the Board. The court noted that if, after such determination, it appeared that Artware had acted improperly, the court could deal with the matter in contempt proceedings. 207 F. 2d 798. As a result of the proceedings to fix the amount of back pay, the Board, by an order of April 21, 1955, directed Artware to pay the back pay it owed various employees in specified amounts totaling about $300,000. 112 N. L. R. B. 371. This order was sustained by the Court of Appeals. 228 F. 2d 871. On a showing that Artware was entirely without assets, had cased operations on April 24, 1953, and had, on November 24, 1954, transferred all its assets to Products, purportedly in satisfaction of a mortgage, the Board sought a discovery order in the Court of Appeals to inquire into the disposition of Artware's assets. The Board proceeded on the assumption that discovery would reveal facts requiring payment of Artware's back-pay debt by the companies affiliated with it. Discovery was denied (one judge dissenting). 251 F. 2d 183. The court's ground for denying discovery was, surprisingly enough, that the Board should first test the legal sufficiency of a complaint charging *407 respondents with contempt. The Board thereupon filed this petition alleging contempt of the court's decree of enforcement of July 30, 1952, and renewed its motion for discovery. The Board's petition charged that pursuant to a plan to frustrate the award of back pay against Deena Artware, conceived by Weiner during or shortly after the dispute with the union and carried out by him through exercise of his control of Products and all its subsidiaries, all of the assets of Artware were systematically transferred to Products and its other subsidiaries for the purpose of rendering Artware unable to pay any back-pay order that might thereafter be enforced against it. It alleged that acts in pursuance of that plan occurred after, and therefore in contempt of, the decree of the Court of Appeals which was entered on July 30, 1952. All of the acts alleged in pursuance of the plan occurred before the entry of the 1955 decree affirming the Board's order to pay specific amounts. The Board charged that Weiner and Products prevented Artware from showing any operating profits and thereby from accumulating assets in the ordinary course of its business, by causing Artware to lower the price at which it sold urns to Products, so that Artware showed losses while Products made substantial profits; and that Weiner and Products caused Artware to issue notes, secured by mortgages on all of its assets, to Products, for which Artware received nothing in return, in order that Artware's assets could be, as they were, transferred to Products after Artware was adjudicated liable to pay back pay. The Board alleged the following: 1. Early in 1948, after Artware, under Weiner's direction, had committed the unfair labor practices so found by the Board, Products began to treat the new assembly plant construction at Paducah adjacent to Artware's plant as if it had been undertaken by Artware, and not, as was *408 the fact, by itself. Artware therefore recorded the losses resulting from abandonment of that construction in July 1948. Nevertheless, when Products undertook alternative new construction at Arlington for the same purpose, it used the construction materials, engineering and architectural plans and services, and other services and materials, which it had already charged to Artware, and did so without paying Artware or crediting it with their value. 2. Products thereafter made further use of its purported shift of the Paducah construction to Deena Artware. About October 31, 1949, a few days after the Board issued its order directing, inter alia, that Artware pay back pay, Products and Weiner caused Artware to execute a note to Products in the amount of $75,459.65, payable within five years, and secured by a mortgage on all the real and personal property of Artware, purportedly in return for advances by Products for the construction at Paducah, despite the fact that the construction had been abandoned more than a year before, and had been undertaken not by Artware, but by Products. A second note, similarly secured, was issued about September 19, 1952, in the amount of $5,797.74. On November 24, 1954, after the Court of Appeals' first enforcement order of July 30, 1952, but before the Board's fixation of the amounts due on April 21, 1955, Weiner and Products caused Artware to transfer to Products all of its assets in satisfaction of these mortgages. In December 1952 Products and Weiner also caused Artware to assign to Products part of the proceeds of the judgment Artware had recovered against the union, as additional security for its obligations to products. In January 1954, $19,320.97 of Artware's recovery was received by Products, the remainder having been assigned to Artware's counsel in payment of attorney's fees. 3. Beginning about March 1949, after the hearing on the Board's complaint against Artware, Products and Weiner caused Artware to lower its prices to Products, *409 causing inflation of Products' profits, and operating losses to Artware. 4. About April 24, 1953, Products and Weiner caused Artware to cease all operations. From that time until November 24, 1954, Products and Sippi used Artware's plant premises, facilities and properties at Paducah, without payment to Artware, and Products obtained from Sippi the supplies it had formerly secured from Artware. On November 24, 1954, Products and Weiner caused Artware to transfer all its assets to Products in satisfaction of its obligations which then, with accrued interest (at 6% payable semi-annually, but not theretofore paid), totaled $105,000, leaving, as Artware's sole unsatisfied obligation, the back-pay order. Thereafter Sippi continued to use the Artware facilities, title to which, about May 4, 1955, Products caused to be transferred to the newly created subsidiary, Industrial. About November 17, 1955, Products and Weiner caused Industrial to lease the facilities formally to Sippi; and since December 1, 1955, Sippi has operated the Artware facilities in the same manner and to the same end as did Artware formerly. The Court of Appeals, on respondents' motion, dismissed the complaint for failure to state a cause of action, and denied the Board's accompanying motion for discovery. It held that since its order of July 30, 1952, in affirming the Board's determination of liability for back pay which the Board had not yet individualized, did not specify the exact monetary amount which Artware owed its various employees, it was "not sufficiently definite and mandatory" to sustain an adjudication of contempt. The basis of this conclusion was not a construction by the court of the special terms of its own decree. This was in terms the order entered by the Board. The court applied what it believed to be a general principle of law that an enforcement decree of a Board order determining liability for back pay, but leaving for a later stage *410 determination of the specific amounts due to individual employees, is too indefinite to sustain contempt proceedings. The respondents urge in support of the decision below that after the 1952 decree Artware was entitled to a further administrative hearing to determine whether the conduct of the named employees after their wrongful discharge disentitled them to recover, and that despite the 1952 decree it might therefore ultimately be determined that Artware was not in fact obligated to make any payment whatever. It follows, the argument runs, that since the Board's 1952 order did not purport to adjudicate a liability free of defenses to make back-pay payments, it could not, for purposes of such payments, be considered final. Accordingly, the 1952 decree which in terms enforced it could not embody a final mandate concerning the payments, disobedience of which could constitute contempt.[2] The Board concedes that the 1952 decree having been entered before any determination of specific amounts owing, it did not direct present payment to be made, and that respondent Artware could not be held in contempt for failure to make payment before the entry of the 1955 decree. But it urges that the 1952 decree could and did impose an immediate and definite obligation upon Artware not to design and execute a plan for the very purpose of disabling itself from obeying the decree which had definitively adjudicated its obligation to pay whatever would be found to be the dollar-and-cents amount of its theretofore established liability. If the allegations in the petition for contempt are sustained by proof, there can *411 be no doubt that Artware disregarded this obligation not to frustrate the 1952 decree. The vital question of the legal implications of enforcement of a Board order rendered in an unfair labor practice proceeding directing reinstatement and payment of back pay, was the sole question dealt with in the opinion below. It was the primary issue between the parties here. It is the issue for our decision. The Board's procedure in unfair labor practice cases is first to hold a hearing to determine whether an unfair labor practice was committed, and, if it was, whether it would "effectuate the policies" of the Act for the Board to order reinstatement with back pay of any employees who were discharged. § 10 (c). In such a proceeding the Board does not concern itself with the amount of back pay actually owing. This is excluded from the proceeding in the interest of the efficient administration of the Act. The determination of specific liabilities may involve a protracted contest. An employee who is wrongfully discharged may, for example, not be entitled to back pay because he failed to accept other employment. Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197-200. Since the determination that the discharge was wrongful is subject to review, extensive proceedings to determine the amount of liability may be rendered superfluous by reversal. And if the determination is sustained and becomes final, it may be expedient for a respondent to reach agreement and avoid further litigation. The propriety of this established two-stage procedure of the Board in these back-pay cases is not questioned. It will not do to hold that because the Board's determination of the duty to make back-pay payments does not result in fixed money judgments, no final order with regard to back pay is in fact entered or enforced. The Board is not, as respondents suggest, merely the statutory *412 representative of the employees for recovery of their losses.[3] Its primary function under § 10, in connection with which it makes specific monetary orders for specific employees, is to prevent the conduct defined as unfair labor practices in § 8. Section 10 (c) provides that once the Board determines that an unfair labor practice occurred, it may make such remedial orders for reinstatement with back pay as will "effectuate the policies" of the Act. We have held that the Board is granted broad discretion over the fashioning of remedial orders by this provision. Phelps Dodge Corp. v. Labor Board, supra, at 195-199. It is plainly within that area of discretion for the Board to order an employer who is found to have violated § 8 by the discriminatory discharge of employees, to refrain from conduct which is solely designed to defeat any remedial back-pay order which may be entered when specific amounts are finally determined. It is equally appropriate for the Court of Appeals, by a decree enforcing the Board's order, to place him at the hazard that if an amount is found to be owing, such conduct subsequent to the decree may be found to be contumacious. The salient fact which brings the Board's remedial power into play under § 10 (c) is its finding that the employer's conduct constituted an unfair labor practice. The separation of that finding from the determination of amounts being an eminently reasonable method for administering the Act, it is irrelevant that as yet undetermined matters subsequent to the discriminatory discharge may in fact disentitle some or all of the employees to receive payment. Cf. McComb v. Jacksonville Paper Co., 336 U. S. 187. Enforcement of such a Board order does not interfere *413 with the ordinary conduct of the respondent's business, or subject it unreasonably to the hazard of contempt. The decree is a form of assurance that business will be conducted with reference to business motives, and not merely so as to evade the remedies designed to enforce the policies of the act. It is further urged, however, that even if power exists in the Board and the courts to enter and enforce such an order of liability for back pay in amounts to be ascertained, the 1952 decree contained no such direction. But the decree on its face is an exercise of the equity power to act in personam to direct a specific course of conduct. To fail to accord it at least the implied effect of a direction not to act solely for the purpose of defeating it, makes of the decree less than a brutum fulmen and transmutes it into a mockery. The Board's determinations are not merely administrative analogues of common-law judgments, and they do not purport to be. As here, they uniformly contain a specific direction to take "affirmative action." In enforcing the Board's orders the Courts of Appeals similarly act not merely to review a common-law judgment, but to "effectuate the policies" of the National Labor Relations Act by enforcement orders directing that action be taken to remove the unfair labor practice found to exist. Every affirmative order in equity carries with it the implicit command to refrain from action designed to defeat it. Such an implication may arise from the mere assumption of jurisdiction as to specific property. See Merrimack River Savings Bank v. Clay Center, 219 U. S. 527, 535-536. Here, although specific property is not involved, the 1952 order was more than an assumption of jurisdiction. It adjudicated a liability to redress the consequences of a discriminatory discharge. Implicit in that adjudication, and the direction to pay in which it was embodied, was the command to the respondent Deena Artware not to conduct its business and transfer *414 all its assets for the sole purpose of evading the specific dollar-and-cents obligations in the offing. In the Merrimack River Savings Bank case, supra, the Court held that "the willful removal beyond the reach of the court of the subject-matter of the litigation or its destruction pending an appeal from a decree praying, among other things, an injunction to prevent such removal or destruction until the right shall be determined, is, in and of itself, a contempt of the appellate jurisdiction of this court." 219 U. S., at 535-536. Our case is a fortiori governed by this principle. Here the Court of Appeals had already adjudicated that the respondents were subject to a liability for back-pay wages, and the individualization of the amounts flowing from this liability merely awaited the determination by the Board. The assumption that no money would be due to any of the workers is so fanciful as surely not to be made the basis of the legal assumption that although the Court of Appeals had adjudicated the liability of the respondents, no liability would follow. By putting beyond reach the means for satisfying the dollar-and-cents amount of their liability, the respondents certainly frustrated the Court of Appeals' power to effectuate enforcement of the liability which it had already established. On the Board's allegations there can be no doubt of the liability of some or all of the other respondents in contempt. Weiner, Products and the subsidiaries are alleged to have been active participants in a deliberate scheme to frustrate enforcement of Artware's liability established by the 1952 decree. The alleged "relations and behaviors" of the several respondents are sufficient to bring them within the terms of Rule 65 (d) of the Federal Rules of Civil Procedure. See Regal Knitwear Co. v. Labor Board, 324 U. S. 9, 14-15. Accordingly, the petition for contempt should have been sustained, and an appropriate motion for discovery *415 should have been granted. The ground here taken to sustain the petition, of course, makes it unnecessary to consider the Board's alternative theory that all respondents constitute a "single enterprise" and as such are liable in contempt for failure to pay the specific amounts decreed in 1955. That ground should, of course, be open for consideration by the Court of Appeals. NOTES [1] See Platt v. Bradner Co., 131 Wash. 573, 230 P. 633. Cf. American Nat. Bank v. National Wall-Paper Co., 77 F. 85, 91. [2] See Foard Co. v. Maryland, 219 F. 827, 829; Portsmouth Cotton Oil Corp. v. Fourth Nat. Bank, 280 F. 879; Dillard & Coffin Co. v. Richmond Cotton Oil Co., 140 Tenn. 290, 296, 204 S. W. 758; Costan v. Manila Electric Co., 24 F. 2d 383, 384-385. Cf. United States v. Delaware, L. & W. R. Co., 238 U. S. 516, 529; Chicago, M. & St. P. R. Co. v. Minneapolis Civic Assn., 247 U. S. 490, 500-502; Erickson v. Minnesota & Ontario Power Co., 134 Minn. 209, 213-215, 158 N. W. 979, 980-981. [3] See Luckenbach S. S. Co. v. W. R. Grace & Co., 267 F. 676, 681; Oriental Investment Co. v. Barclay, 25 Tex. Civ. App. 543, 554-557, 64 S. W. 80, 86-87. For discussion of the situation where a company is "deliberately kept judgment-proof" see Weisser v. Mursam Shoe Corp., 127 F. 2d 344, 346. [4] See The Willem van Driel, 252 F. 35, 38; Wichita Falls & N. W. R. Co. v. Puckett, 53 Okla. 463, 502-505, 157 P. 112, 124-125. Cf. United States v. Lehigh Valley R. Co., 220 U. S. 257, 272-274. [5] Cf. Union Sulphur Co. v. Freeport Texas Co., 251 F. 634, 661-662; Harlan Public Service Co. v. Eastern Constr. Co., 254 Ky. 135, 143, 71 S. W. 2d 24, 29. [6] Cf. Regal Knitwear Co. v. Labor Board, 324 U. S. 9, 16. [1] The respondents' answer denies that Weiner was in fact Treasurer of Artware or the other subsidiaries. [2] The question involved here was not presented for decision in National Labor Relations Board v. New York Merchandise Co., 134 F. 2d 949. To the extent that the opinion in that case is inconsistent with the principles here announced, it is of course disapproved. [3] Nathanson v. Labor Board, 344 U. S. 25, is not to the contrary. We there held simply that a back-pay order does not establish a debt owing to the United States and therefore entitled to priority under § 64 (a) (5) of the Bankruptcy Act, 11 U. S. C. § 104 (a) (5).

145 U.S. 226 (1892) FREEMAN v. ASMUS. No. 323. Supreme Court of United States. Argued April 20, 21, 1892. Decided May 16, 1892. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. *232 Mr. William D. Baldwin for appellant. Mr. Wayne MacVeagh was with him on the brief. Mr. William Bakewell and Mr. Thomas B. Kerr for appellee. *235 MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court. As we are of opinion that the decree below must be reversed, because of the invalidity of the reissue, it is unnecessary to consider any other question. The only claim of the reissue which, it is now contended, was infringed, is the first claim, which reads as follows: "1. A blast furnace with a closed breast, where the slag is discharged through an opening or openings cooled by water, substantially as set forth." Claims 2 to 7, inclusive, of the reissue are substantially in the same language as claims 1 to 6 of the original. Claim 1 in the reissue is entirely new, and it is not contended here that the defendant infringed any of the claims of the original patent, or any claim of the reissue other than claim 1. It was held by the Circuit Court that, while claim 1 of the reissue was not embraced in the original, the matter claimed by that claim was so embraced; that the language of the original specification clearly described the closed-breast furnace; that a furnace built in accordance with the language of the *236 original would be necessarily closed-breasted; that the other element of claim 1 of the reissue, "where the slag is discharged through an opening or openings cooled by water," was no less clearly described in the original; that the drawings originally filed showed the same; that claim 1 of the reissue might, therefore, have been embraced in the patent as first issued, or introduced into the reissue without changing the specification; that the change made by the reissue simply expressed the same thing in different terms; that claim 1 of the reissue was, therefore, not an enlargement of the invention; that such additional claim, omitted through inadvertence, accident or mistake, might be secured by means of a reissue, if applied for within a reasonable time; that in this case the application was made a little after the expiration of one year; and that the question whether the omission occurred through inadvertence, accident or mistake, was a question for the Commissioner of Patents. But we are of opinion that these views cannot prevail in the present case. It is apparent, from the description contained in the specification of the original patent, that Lürmann considered his invention to consist essentially of a removable slag-discharge piece, cast with numerous channels or pipes running through it, formed with a dovetail at its upper end fitted into the bottom of a stationary metallic plate connected with the furnace, and provided with channels or pipes so that water might flow through the slag-discharge piece and plate, conjointly or separately, that they might be cooled while the furnace was in operation. The slag-discharge piece was made removable, and provided with one or more holes, the middle portion of the holes being cylindrical, but each end being conical or flaring. By regulating the flow of water through the slag-discharge piece, its temperature could be lowered sufficiently to allow a coating of slag to choke the discharge-opening, which coating could be melted out by diminishing the flow of water and thus allowing the temperature to rise. The opening could be closed by an iron block when necessary. The fundamental devices claimed by Lürmann as his improvements were (1) the metal plate C, provided with water *237 channels; (2) the removable slag-discharge piece provided with water channels; and (3) the method of regulating the discharge of the slag by raising and lowering the temperature of the slag-discharge piece. The first claim of the original patent claimed a slag-discharge piece provided with a water circulation, connected with a water-cooled plate C, having small hour-glass-shaped discharge openings, and capable of being removed from the furnace when desired. The slag-discharge piece of the second claim was of the same character as that described in the first claim. The third claim was for the shape of the slag-discharge opening, flaring at its ends, and of diminished diameter in the middle. The fourth claim was for the combination of such slag-discharge piece and a series of water channels or pipes. The fifth claim was for the combination of the metallic plate C, with a series of water channels or pipes. The sixth claim was for regulating the discharge of the slag by varying the temperature of the water-cooled slag-discharge piece. Asmus, in his testimony, states that his reason for obtaining a reissue was to make the meaning of the whole invention as clear as possible; that the reason why he did not apply sooner for the reissue was that, in arranging a number of furnaces, they differed more or less in construction, and he had to adapt his construction according to the circumstances; that this made it necessary to give the construction quite different shapes, retaining always the main points; that experience caused him, in order to prevent mistakes, to find a formula which expressed the spirit of the invention in the clearest way possible, and which flowed plainly from the technical description given in the original patent; and that the experience and the reasoning derived from it took up some time. When asked what kind of mistakes he referred to, he said, "That difference in shape might be taken for a different thing." This testimony shows that, instead of desiring merely to remedy formal defects which appeared on the face of the papers, Asmus waited until experience and reasoning had shown him the broadest formula in which to express the claims of his patent so as to cover all possible modifications. *238 While the petition for the reissue states that Asmus believes that the original patent "is inoperative and invalid by reason of a defective specification," he does not make that allegation in his oath, but states in the latter merely that the patent "is not fully valid and available to him;" and in the statement accompanying the petition and oath, his attorneys say that the claim in the original specification is confined to a slag-discharge piece or cinder block constructed and attached in a certain specific manner, and that the new first claim is added "with the view to cover the whole ground of the invention." A comparison of the original specification with that of the reissue shows that the only substantial change made is to insert in the latter enlarged definitions and descriptions of the alleged invention, and the new and enlarged first claim. In the assignment of July 12, 1867, from Lürmann to Asmus, which bears date the same day as the signature of Lürmann to the original specification, the latter says that his invention "is fully described in the specification pertaining to said application, which I have signed under oath." The inventor did not swear to the specification filed for the reissue; and, although his oath was not required to it, as the law stood at the time the reissue was applied for, yet the fact remains that the reissue was wholly the work of the assignee and not at all of the inventor; and it by no means followed that the inventor would ever have asserted that there was any error in the original specification or claims, arising from inadvertence, accident or mistake. The new matter inserted in the specification of the reissue, and hereinbefore set forth in italics, in connection with the omission from the reissue of the parts in brackets contained in the original, constituted a broad definition on which to found claim 1 of the reissue - a claim to "a blast furnace with a closed breast, where the slag is discharged through an opening or openings cooled by water, substantially as set forth." In addition to the description in the original of the connection of the slag-discharge piece with the metallic plate C, it is also stated in the reissue that such slag-discharge piece may be attached to the plate C "in any other desirable manner, or *239 cast solid with the same, if desired." This is new matter, as is also the addition, in the specification of the reissue, that, in the drawing, the plate C is shown above the slag-discharge piece or cinder block, but that it may also be placed below, or in any other desirable position in relation to the same. So, also, it is added in the specification of the reissue that the invention can be applied to blast furnaces of the common construction "by removing the fore hearth and closing the aperture left in the breast of the furnace under the tymp stone by inserting the plate C with the cinder block D." But the material point is the extension of the invention claimed, by the addition of claim 1 of the reissue, the words in which, "substantially as set forth," refer to the new matter in the reissue, that the slag is discharged "through an opening cooled with water in such a manner that the tymp, or fore hearth, and the wall stone can be dispensed with." The intention manifestly was to construe the first claim so as to cover any kind of blast furnace with a closed breast, having a slag-discharge opening cooled in any manner or to any extent by water. There is nothing in the original specification which indicates that any such claim was intended to be made in the original patent. On the contrary, the whole purport of that specification shows that it was intended to claim only a slag-discharge piece or cinder block constructed and attached in a specific manner, as is set forth in the statement of the attorneys of Asmus, accompanying his application for the reissue. This case was decided in the Circuit Court, May 14, 1886; and both before and since that there have been numerous decisions in this court which require that the present reissue be held invalid, although it was applied for within less than a year after the granting of the original patent. Those cases are Mahn v. Harwood, 112 U.S. 354; Coon v. Wilson, 113 U.S. 268; Ives v. Sargent, 119 U.S. 652; Parker & Whipple Co. v. Yale Clock Co., 123 U.S. 87; Matthews v. Ironclad Mfg. Co., 124 U.S. 347; Hoskin v. Fisher, 125 U.S. 217; Flower v. Detroit, 127 U.S. 563; Yale Lock Co. v. Berkshire Bank, 135 U.S. 342; Electric Gas Co. v. Boston Electric Co., 139 U.S. 481. *240 In Mahn v. Harwood, a reissue was held invalid, where it was clear that the only object of it was to enlarge the claims of the original patent. The description was not altered in the least. The claims in the original were clear and explicit, one of them being retained substantially in the reissue. Nothing was altered or changed, except to multiply the claims and make them greater, and that was done, not for the benefit of the original patentee, but for that of his assignee. In Coon v. Wilson, the application for the reissue was made a little more than three months after the granting of the original patent; but it was said that a clear mistake, inadvertently committed, in the wording of the claim, was necessary, without reference to the length of time; that there was no mistake in the wording of the claim of the original; that the description warranted no other claim and did not warrant the claim of the reissue; that the description had to be changed in the reissue to warrant its new claim; and that the description in the reissue was not a more clear and satisfactory statement of what was described in the original, but was a description of a different thing, so ingeniously worded as to cover what was claimed in the reissue. In Ives v. Sargent, the doctrine of Coon v. Wilson was approved and applied. The whole subject was reviewed in Parker & Whipple Co. v. Yale Clock Co., and the dicta in the case of Seymour v. Osborne, 11 Wall. 516, were considered; and it was held that what was suggested or indicated in the original specification was not to be considered as a part of the original invention intended to be covered by the original patent, unless it could be seen, from a comparison of the two patents, that the invention which the original was intended to cover embraced the things thus suggested or indicated in the original specification, and unless the original specification indicated that those things were embraced in the invention intended to have been secured by the original patent. The cases of Mahn v. Harwood and Coon v. Wilson were cited and approved. The case of Parker & Whipple Co. v. Yale Clock Co. is cited and applied in Matthews v. Ironclad Mfg. Co., in Hoskin v. *241 Fisher, in Yale Lock Co. v. James, 125 U.S. 447, 464, and in Flower v. Detroit. In Yale Lock Co. v. Berkshire Bank, a reissue was held invalid, although it was applied for only thirteen days after the granting of the original, because there was not a clear mistake, inadvertently committed, in the wording of the claim; and the cases of Coon v. Wilson, Ives v. Sargent and Parker & Whipple Co. v. Yale Clock Co. were cited and applied. In Electric Gas Co. v. Boston Electric Co., a reissue was held invalid because there was no inadvertence, accident or mistake, such as would authorize a reissue with new claims, and the sole object of the reissue was unlawfully to expand the claims. We are of opinion that the present reissue is invalid, so far as the first claim of it is concerned, because it is not for the same invention as the original patent, and is, therefore, within the express exception of the statute, (Act of July 4, 1836, c. 357, § 13, 5 Stat. 122). There is nothing inconsistent with the foregoing views, in our decision in Topliff v. Topliff, ante, 156. The decree of the Circuit Court is reversed, and the case remanded to that court, with a direction to dismiss the bill, with costs.

178 U.S. 449 (1900) EARLE v. PENNSYLVANIA. No. 218. Supreme Court of United States. Argued April 11, 1900. Decided May 14, 1900. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. *450 Mr. John G. Johnson and Mr. Asa W. Waters for plaintiff in error. Mr. W.H. Addicks was on Mr. Waters' brief. Mr. James C. Stillwell for defendant in error in No. 219, which was argued with this case. MR. JUSTICE HARLAN delivered the opinion of the court. On the 29th day of September, 1897, the Commonwealth of Pennsylvania, at the suggestion and to the use of the Common-wealth Title, Insurance and Trust Company, trustee for Mary Rodgers, obtained judgment upon a bond in the Court of Common Pleas for the county of Philadelphia against one James Long for the sum of $31,499. A writ of attachment issued upon that judgment, and on the 5th day of October, 1897, an alias writ was issued against the Chestnut Street National Bank of Philadelphia, as garnishee. The writ was served on October 28, 1897, and commanded the bank to show cause in that court on a day named why the judgment against Long, with costs of writ, should not be levied on the effects of the defendant in the hands of the bank. Afterwards, on November 6, 1897, special interrogatories were filed by the plaintiff, and a rule was entered requiring the bank, as garnishee, to answer the same within a named time. Subsequently the bank filed its answer in the attachment proceedings, and November 24, 1897, it filed an answer to the special interrogatories; and, on December 15, 1897, a rule was entered by plaintiff for judgment against the bank, as garnishee, on its answers. A few days later, on the 23d day of December, 1897, the bank suspended payment of its obligations, and by order of the Comptroller of the Currency of the United States closed its *451 to business; and January 29, 1898, the present plaintiff in error, Earle, was appointed by that officer as receiver of the bank and duly qualified as such. Subsequently, May 5, 1898, Earle, as receiver, entered his appearance in the above action and filed a suggestion of record setting forth his appointment and qualification, and on the following day filed an affidavit stating his appointment as receiver. On the succeeding day a motion was made and filed (entered as a rule) by the receiver to vacate and dismiss the attachment served upon the bank, garnishee, for want of jurisdiction in the Court of Common Pleas under section 5242 of the Revised Statutes of the United States, the receiver insisting that all the proceedings in attachment against the bank were null and void. The rule entered December 15, 1897, for judgment against the bank and the rule to vacate and dismiss the attachment for want of jurisdiction in the Court of Common Pleas were heard, and that court, on May 21, 1898, made absolute the rule for judgment and entered the following: "And now, to wit, May 21, 1898, upon the hearing of the attachment in the above case and the interrogatories of the plaintiff and the answer of the garnishee thereto, it is adjudged that the above-named garnishee has a deposit in money belonging to the above-named defendant of $2900, with interest from October 28, 1897; and also that the said garnishee has 77 shares of `National Gas Trust stock' and 33 shares of the capital stock of the Eighth National Bank of Philadelphia belonging to the said defendant and pledged by him with the said garnishee for payment by him to it of the sum of $17,831, with interest thereon from April 22, 1897, and that the plaintiff have execution of any dividends on the said deposit of $2900, with interest, in common with the other creditors of said garnishee, less $35 counsel fee for the said garnishee's counsel, and that if the said garnishee refuse or neglect, on demand by the sheriff, to pay the same, then the same to be levied of the said garnishee according to law, as in the case of a judgment against it for its proper debt, and also that the plaintiff have leave to issue a writ of fieri facias against the above-named defendant for the sale of the said 77 shares of `National Gas Trust stock' and 33 shares of the capital *452 stock of the Eighth National Bank of Philadelphia, pledged by the defendant with the garnishee, subject to the garnishee's claim under said pledge of the sum of $17,831, with interest thereon from April 22, 1897, or so much thereof as shall be necessary to satisfy the plaintiff's judgment against the defendant in this case, with costs." The rule to vacate and dismiss the proceedings in attachment for want of jurisdiction in the Court of Common Pleas was discharged. The cause was carried to the Supreme Court of Pennsylvania, where the judgment of the Court of Common Pleas was affirmed. By the Revised Statutes of the United States it is provided: "§ 5234. On becoming satisfied, as specified in sections 5226 and 5227, that any [national banking] association has refused to pay its circulating notes as therein mentioned, and is in default, the Comptroller of the Currency may forthwith appoint a receiver and require of him such bond and security as he deems proper. Such receiver, under the direction of the Comptroller, shall take possession of the books, records and assets of every description of such association, collect all debts, dues and claims belonging to it, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct, and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders. Such receiver shall pay over all money so made to the Treasurer of the United States, subject to the order of the Comptroller, and also make report to the Comptroller of all his acts and proceedings. "§ 5235. The Comptroller shall, upon appointing a receiver, cause notice to be given, by advertisement in such newspapers as he may direct, for three consecutive months, calling on all persons who may have claims against such association to present the same and make legal proof thereof. "§ 5236. From time to time, after full provision has been first made for refunding to the United States any deficiency in *453 redeeming the notes of such association, the Comptroller shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held." "§ 5242. All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding in any state, county or municipal court." Sections 5234, 5235 and 5236 above quoted have reference to the affairs and property of national banks in the hands of receivers and the administration of its assets by the Comptroller; and the words in section 5242, "no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding in any state, county or municipal court," are to be construed in connection with the previous parts of the same section declaring null and void certain transfers, assignments, deposits and payments made after the commission by the bank "of an act of insolvency, or in contemplation thereof," with the intent to prevent the application of the bank's assets in the manner prescribed by Congress, or with a view to the preference by the *454 bank of one creditor to another. Whatever may be the scope of section 5242, an attachment sued out against the bank as garnishee is not an attachment against the bank or its property, nor a suit against it, within the meaning of that section. It is an attachment to reach the property or interests held by the bank for others. After the Chestnut Street National Bank had been served as garnishee with the attachment sued out in the Long suit but before it went into the hands of a receiver, it admitted in its answers to special interrogations in the suit against Long that it was indebted to Long on a clearing-house due bill, and also that it held as collateral security for his debt to it certain shares of the stock of the National Gas Trust, as well as certain shares of the stock of the Eighth National Bank of Philadelphia. By the service of the attachment upon the bank, the plaintiff in the attachment acquired a right to have the money and property belonging to Long in the hands of the bank applied in satisfaction of its judgment against him, subject of course to the bank's lien for any debt due to it at that time from him. The bank therefore became bound to account to the plaintiff in the attachment for whatever property or money it held for the benefit or to the use of Long at the time the attachment was served upon it. And the right thus acquired by the service of the attachment was not lost by the suspension of the bank and the appointment of the receiver. The assets of the bank passed to the receiver burdened, as to the interest that Long had in them, with a lien in favor of the plaintiff in the attachment which could not be disregarded or displaced by the Comptroller of the Currency. We must not, however, be understood as holding that the distribution of the bank's assets in the hands of the receiver could have been in anywise directly controlled by the state court or seized under an attachment or execution in the hands of any state officer. On the contrary, the direction in the statute that the receiver pay over all moneys realized by him from the assets of the bank to the Treasurer of the United States, subject to the order of the Comptroller, furnished a rule of conduct for him which neither an order of nor any proceedings in the state court could affect, modify or change. The *455 scheme of the statute relating to suspended national banks is that from the time of a bank's suspension all its assets, of whatever kind, as they are at the time of suspension, pass in the first instance, to the receiver, the proceeds thereof to be distributed by the Comptroller among those whose claims are proved to his satisfaction or are adjudicated by some court of competent jurisdiction. So when the Chestnut Street National Bank suspended and went into the hands of a receiver the entire control and administration of its assets were committed to the receiver and the Comptroller, subject, however, to any rights of priority previously acquired by the plaintiff through the proceedings in the suit against Long. It results that the state court did not err in overruling the motion of the receiver to vacate and dismiss the attachment issued in the suit brought against Long and served upon the bank as garnishee prior to its suspension. The proceedings in the state court prior to the appointment of a receiver were all in due course of law. We do not understand that to be controverted. But we are of opinion that the order of judgment of May 21, 1898, was erroneous in some particulars. As the bank did not cease to exist as a corporation upon its suspension and the appointment of a receiver, it was competent for the state court to determine, as between the plaintiff in the attachment and the bank, what rights were acquired by the former as against the latter by the service of the attachment; and its judgment, thus restricted, could have been brought to the attention of the Comptroller for his guidance in distributing the assets of the bank. To this extent the judgment below is affirmed. But, for the reasons already stated, we hold that the state court had no authority to order execution in favor of the plaintiff of any dividends upon the money on deposit in the bank to Long's credit at the time the bank was served with the attachment, and direct the sale of the shares of stock originally held by the bank as collateral security, but which passed upon the suspension of the bank to the custody of the receiver. This part of the judgment should be set aside. It is proper to say that the rights acquired by the defendant in error under the garnishee proceedings can be made effective upon application *456 to the Comptroller, to whom Congress has entrusted the power to distribute the assets of a suspended bank among those entitled thereto. The decree is reversed to the extent indicated, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed.

151 U.S. 186 (1894) MILLER v. EAGLE MANUFACTURING COMPANY. No. 143. Supreme Court of United States. Argued December 11, 12, 1893. Decided January 8, 1894. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA. *187 Mr. H.A. Toulmin and Mr. John T. Morgan for appellants. Mr. L.L. Bond filed a brief for appellants. Mr. George H. Christy, (with whom was Mr. Nathaniel French on the brief,) for appellee. MR. JUSTICE JACKSON delivered the opinion of the court. The appellee, as assignee of letters patent No. 222,767, dated December 16, 1879, and No. 242,497, dated June 7, 1881, issued to Edgar A. Wright, for certain new and useful improvements in wheeled cultivators, brought this suit against the appellants, who were the defendants in the court below, for the alleged infringement thereof. The defences made in that court were that Wright was not the first and original inventor of the improvements described in the patents; that the same were shown and described in previous devices and letters patent, set forth in the answer; that the invention shown in each of the patents in suit is identical; that in each the supposed improvements relate to a spring and its attachments; that the function and operation of the parts are exactly the same in each; that one or both of the letters patent in controversy were issued without authority of law, and therefore void; that in view of the state of the art at the date of the alleged improvements of Wright, the letters patent granted to him did not exhibit any patentable invention, and for that reason are invalid; that the defendants were not engaged in the manufacture of cultivators, but have *188 sold cultivators manufactured by P.P. Mast & Co., of Springfield, Ohio, constructed under and in accordance with various letters patent owned by that company; that they sold the cultivators of this company without notice or reason to suppose that they were an infringement of the patents of Wright, and that they do not, in fact, infringe the same. The class of cultivators to which the Wright patents in question relate are of the ordinary character of wheeled, straddled-row cultivators, having vertical swinging beams, or drag bars, to carry the shovels or plows, suspended from an arch or frame, mounted on two wheels, a tongue fastened to the frame and beams connected with the horizontal portions of the arch, which serves as an axle for the wheels, and surrounding the axle on each side a pipe box, to which the beam is secured, the pipe box revolving on the axle, and the beam carrying the shovels adjusted so as to swing up or down with the pipe box, according to the direction in which it is turned. The patented device consists of a round steel rod, or wire spring, having at its fixed end a coil attached to the swinging beam, or plow bars, and extending from the coil a slightly curved arm, the outer end of which terminates in a bend or shoulder, from which the rod continues to form a short arm terminating in a sharp bend, or curl, at the free end of the spring. This spring is so adjusted that the outer or free end thereof bears against the under side of an adjustable grooved roller, fixed upon an outwardly extending arm upon the upright portion of the axle. This spring, with its adjustment, is intended to have a duplex action, covering the double effect, of either raising or depressing the beams carrying the shovels. The curvature of the spring is such that as it moves along the groove of the roller it presses against the latter at different points of its periphery, and thereby the direction of its action is shifted or changed, as the position of the swinging beam is changed. Such changes in the direction of its action will assist in drawing or pulling the beam upwards in a vertical direction, giving it increased leverage as the spring is moved forward in its bearings on the roller. In his original application, filed May 23, 1879, Wright fully *189 described his improved device for use in connection with cultivators and claimed for it, not only its lifting and depressing action, but also its lifting power, which increased as the beams were raised. An interference with other pending applications being anticipated as to the broad claims of the invention, the application was divided, on November 12, 1879, for the purpose of obtaining one patent for the lifting and depressing effect of the spring on the beams, and another for the lifting power of the spring, increasing as the beams rise, the latter being sought upon the original application, while the former was based upon the divisional application of November 12, 1879. Patent No. 222,767, for the double effect or duplex action of the improved spring, was granted on December 16, 1879, and thereafter on June 7, 1881, patent No. 242,497, for the single effect of increased lifting force in raising the plow beams, was granted, after interference had been disposed of. The court below sustained the validity of both patents, and held that the defendants infringed the first, second, third, fourth, and sixth claims of patent No. 222,767, and the first, second, third, and fourth claims of the patent granted June 7, 1881, (No. 242,497). The complainant waiving an accounting for profits and damages, a final decree was entered, enjoining the defendants from making, using, or selling to others to be used, cultivators constructed and operated in the manner and upon the principle described in the letters patent in controversy. From this decree the present appeal is prosecuted. The appellants assign numerous errors, which need not be separately noticed and considered, as they are embraced in the general proposition that the court erred in holding that the patents sued on were valid, and that the cultivators sold by the defendants infringed the same. In the specification, forming part of the letters patent 222,767, issued December 16, 1879, under the divided application filed November 12, 1879, the patentee states: "The object of my invention is to give the operator mechanical assistance in raising and lowering the plows without interfering with their usual action and movement, to prevent the *190 plows from rising out of the ground accidentally, and to limit their descent; and to this end the invention consists in a spring which serves the double purpose of lifting or holding down the plows at will, as may be required; in so constructing and applying a spring that it exerts a lifting action on the plow only when the latter is raised above its usual operative position; in so constructing and applying a spring that it limits the descent of the plow; also, in details of minor importance, hereinafter described. "In carrying out my invention the one spring may be adapted to serve all or either one or more of the offices above enumerated, and may be modified in its form, construction, and arrangement, as desired, provided its mode of action is retained." It further stated that the improved springs may be attached to either the plows, as shown in figures 1 and 2, or to the axle, as shown in figure 3, on the opposite page. The improvements are described in the specification as follows: "As shown in Figs. 2 and 3, each spring consists of a round steel rod or wire having at the fixed end a coil, a, and extending from the coil a long slightly-curved arm, b, the outer end of which terminates in a sharp bend or shoulder, c, from which the rod continues to form a short arm, d, the end of which has a sharp bend or curl, e, as represented in Figs. 2 and 3. "When the spring is to be applied to the plow beam, as shown in Figs. 1 and 2, I first provide the upright portion of the axle with an outwardly-extending arm or rod, E, carrying a laterally-adjustable grooved roller, F, to serve as a bearing for the free end of the spring. The coiled end of the spring is then seated in a metal bearing-plate, G, which is secured rigidly but adjustably to the beam by means of a bolt, H, as shown, the free end of the spring being at the same time seated against the under side of the roller, and the parts so adjusted that when the beam is in its lowermost position the extreme end e of the spring will bear against the front of the roller, and the spring be under a strong tension. "When the beam and its shovels are down in an operative position, so that the shovels enter the ground, the portion d *191 *192 of the spring bears beneath the roller, as shown in Fig. 1, and serves to hold the beam down, so as to keep the shovels in the ground, but at the same time allows them a limited vertical movement when required. "Whenever the shovels enter to the full depth desired, the end e of the spring encounters the roller, and serves to check the descent and to suspend the beams. "When the beam is raised, the spring continues to urge or hold them down until the bend or angle e of the spring passes the roller, whereupon the spring instantly changes its action, and tends to lift the beam." The specification then proceeds to state: "I am aware that cultivator plows have heretofore suspended when in action by springs which exerted little or no lifting force when the shovels were lifted above the ground, and which exerted an increasing lifting force as the shovels descended. "I am also aware that springs actuated by manual devices, and not automatic, have been employed to force cultivator shovels into the ground. "I am not aware, however, that any one has hitherto applied a spring in such a manner that it served both to elevate and hold down the beam or shovels, nor that any one has suspended the beams by a spring which would lift the whole or the greatest part of the weight to the highest point required, and still permit an easy motion of the shovels in the ground with little or no tendency to rise therefrom; neither am I aware that any one has ever caused a lifting or depressing spring, which permitted a movement of the beam and shovels, to limit their descent. "I therefore claim to be the inventor of each and all of said features, broadly considered; and it is obvious that they may be changed, modified, or altered in the form of embodiment as desired, it being obvious to the skilled mechanic that there are many equivalent ways of securing the same end without departing from the limits of my invention. "I do not claim in the present patent the broad idea of a lifting spring which acts with increasing force as the beam *193 rises, as I have made the same the subject of a separate application bearing date prior hereto; but, "Having described my invention, what I do claim is - "1. In combination with a vertically-swinging beam or drag-bar, a spring, substantially as described and shown, arranged to urge the beam downward when in action and urge it upward when it is lifted above the operative position. "2. In combination with a vertically-swinging beam or drag-bar, a double-acting automatic spring, substantially as described, serving the double purpose of holding the beam down to its work and of assisting to lift it when it is thrown out of action. "3. In combination with a vertically-swinging beam or drag-bar, a spring, substantially as shown, adapted to exert an automatic spring action upward or downward upon the beam, according to the position of the latter. "4. In a cultivator, the combination of a frame, a vertically-swinging beam or drag-bar attached thereto, and an automatic spring, substantially as described, connected with one of said members, and arranged to urge the beam downward while the latter is in an operative position, but not when it is raised above said position. . . . "6. In a cultivator, the combination of a main frame, a vertically-moving beam or drag-bar connected therewith, and a spring, substantially as described, interposed between said parts and acting vertically upon the beam, said spring being constructed and arranged to pass a centre or dead point as the beam moves vertically, and in passing said point cease or change the direction of its action on the beam." The second patent, No. 242,497, issued June 7, 1881, while describing in both the specification and the drawings the same invention or device covered by the patent of December 16, 1879, attempts to limit the invention and patent to the lifting operation of the springs, increasing as the beams are raised. The specification, forming a part of this patent, states that - "The invention relates to that class of machines, generally wheeled, which have vertically-swinging beams or drag-bars *194 to carry the shovels or plow points; and the object of the invention is to render the operations of the machine easier and less laborious to the attendants by applying springs thereto in such manner that they will assist the operator in raising the beams and shovels attached thereto from their operative to their inoperative positions, and this without having the springs exert any objectionable lifting strain upon the beams when the latter are in action. "To this end the invention consists in applying lifting springs in such manner that they exert upon the beams a maximum power or strain when the latter are above an operative position. "The spring, operating in accordance with my improved plan, may be made and applied in various forms, which will readily suggest themselves to the skilled mechanic without departing from the limits of my invention. "My springs may be arranged to sustain the whole or any desired portion of the weight of the beams when the latter are raised, and they may be arranged to exert a slight lifting strain when the beams are in action, or, if preferred, arranged to cease their lifting strain entirely at such time. "The essential feature of my invention consists in applying a lifting spring or springs in such manner that they do not increase their lifting strain as the beam is depressed, the construction preferred being such that the springs exert an increased lifting action as the beams rise from an operative to an inoperative position. "I am aware that springs have been applied in various ways to assist in lifting the beams in this class of machines; but in all cases their arrangement was such that they acted with an increased lifting strain as the beams were lowered, the consequence of which arrangement was, that the springs exerted their greatest upward strain when the shovels were in the ground, at the time when it was desirable that the shovel should not be lifted, and on the other band, exerted but little force when the beams were elevated, and when it was required that they should be sustained to relieve the operator. This old action, it will be seen, is the reverse of that which is *195 desired, and the principal object of my invention is to reverse the old mode of action and have the springs act with little or no upward strain when the shovels are in the ground, but with a strong upward pressure when the beams are lifted. "The accompanying drawings illustrate one manner of embodying my invention. The springs represented in the drawings are adapted to serve the double purpose of holding the beams down, and of lifting them, or assisting to lift them, when they are raised above an operative position. No claim is made in the present case to this duplex action of the springs, nor to the peculiar form or arrangement of the springs, otherwise than as regards the feature of exerting an increasing or a maximum strain on the beams as the latter rise, the peculiar construction of the spring being already covered in a patent hitherto granted to me." After describing the drawings and the operation of the spring, the specification proceeds as follows: "While it is believed that the form of spring represented in the drawings is preferable to all others, the invention includes, as before stated, any spring so combined with the beam or its equivalent that a greater or stronger lifting force or effect is exerted upon the beam when the latter is above the operative position than when it is in use; or, in other words, the invention includes any and all beam-lifting springs the effect of which is lessened or avoided when the beam descends to an operative position. "I believe myself to be the first to apply a spring in such manner as to secure the above mode of action, and the first to so apply a spring in such manner that as it loses tension it acts with an increasing force or effect to lift the beam, or, in other words, with an effect which is not lessened by the decrease in the tension of the spring within the usual limits of operation. "Among other arrangements which may be substituted for that shown is that of having a radius bar or link introduced between the spring and beam as a substitute for the curved spring and roller." Having thus described his invention, the patentee claimed - *196 "1. In a cultivator, the combination of a vertically swinging drag-bar or beam and a lifting spring which acts with increasing force or effect on the beam as the latter rises, and vice versa. "2. In a wheeled cultivator, the combination of a vertically moving beam and a lifting spring, substantially as described, whereby an increasing upward strain is communicated to the beam as the latter rises. "3. The combination of a wheeled frame, a vertically moving beam or drag-bar attached thereto, and a lifting spring, substantially as described, which exerts a greater strain or effect upon the beam when the latter is elevated than when it is depressed. "4. The combination of a vertically moving beam, a lifting spring, and a shifting or changing bearing or fulcrum, whereby the lifting action or effect of the spring upon the beam is increased as the beam is elevated, substantially as described and shown." It is not deemed necessary to make a separate analysis of the respective claims alleged to be infringed. The novelty of Wright's invention consists, as held by the court below, in the application of a double acting spring to assist the operator in either lifting the plow beams, or the plows attached thereto, or in sinking them deeper in the earth, as occasion might require, while the cultivator is in service. The first patent, issued in 1879, covered both the lifting and depressing actions or operations, while the second patent covered only the lifting effect. The spring device which was designed to accomplish these effects, or operations, is the same in both patents. The drawings in each of the patents are identical, and the specification in each is substantially the same. Under these circumstances can it be held that the second patent has any validity, or must it be treated as having been anticipated by the grant of the 1879 patent? If, upon a proper construction of the two patents - which presents a question of law to be determined by the court, (Heald v. Rice, 104 U.S. 737, 749,) and which does not seem to have been passed upon and decided by the court below - they should be *197 considered as covering the same invention, then the later must be declared void, under the well-settled rule that two valid patents for the same invention cannot be granted either to the same or to a different party. Thus in Suffolk Company v. Hayden, 3 Wall. 315, it was held that where two patents, showing the same invention or device, were issued to the same party, the later one was void, although the application for it was first filed, thereby deciding that it is the issue date and not the filing date which determines priority to patents issued to the same inventor on the same machine. In James v. Campbell, 104 U.S. 356, 370, 382, the court say: "It is hardly necessary to remark that the patentee could not include in a subsequent patent any invention embraced or described in a prior one, granted to himself, any more than he could an invention embraced or described in a prior patent granted to a third person. Indeed, not so well; because he might get a patent for an invention before patented to a third person in this country, if he could show that he was the first and original inventor, and if he should have an interference declared. . . . If he was the author of any other invention than that which the specification describes and claims, though he might have asked to have it patented at the same time, and in the same patent, yet, if he has not done so, and afterwards desires to secure it, he is bound to make a new and distinct application for that purpose, and make it the subject of a new and different patent." When a patentee anticipates himself, he cannot, in the nature of things, give validity to the second patent. In Mosler Safe Co. v. Mosler, 127 U.S. 354, it was held that a patent having issued for a product, as made by a certain process, a later patent could not be granted for the process which results in the product. In McCreary v. Pennsylvania Canal Co., 141 U.S. 459, 467, it was held that where a party owned two patents, showing substantially the same improvement, the second was void, the court saying: "It is true that the combination of the earlier patent in this case is substantially contained in the later. If *198 it be identical with it, or only a colorable variation from it, the second patent would be void, as a patentee cannot take two patents for the same invention." In Underwood v. Gerber, 149 U.S. 224, it was ruled that where a patentee obtained two patents on the same day, upon applications filed on the same day, they could not be treated as one patent with two claims, and that the complainant in suing upon the second, or the one having the latest number, could not use the first, or the one with the earlier number, to help sustain the action. In Odiorne v. Amesbury Nail Factory, 2 Mason, 28, the reason for the rule since established by the above cited cases was stated to be that the power to create a monopoly is exhausted by the first patent; and for the further reason that a new and later patent for the same invention would operate to extend or prolong the monopoly beyond the period allowed by law. The result of the foregoing and other authorities is that no patent can issue for an invention actually covered by a former patent, especially to the same patentee, although the terms of the claims may differ; that the second patent, although containing a broader claim, more generical in its character than the specific claims contained in the prior patent, is also void; but that where the second patent covers matter described in the prior patent, essentially distinct and separable from the invention covered thereby and claims made thereunder, its validity may be sustained. In the last class of cases it must distinctly appear that the invention covered by the later patent was a separate invention, distinctly different and independent from that covered by the first patent; in other words, it must be something substantially different from that comprehended in the first patent. It must consist in something more than a mere distinction of the breadth or scope of the claims of each patent. If the case comes within the first or second of the above classes, the second patent is absolutely void. It is insisted on the part of the appellee that "whether this invention shall be protected in part of its features by one *199 patent, and as to the rest by another, or shall be completely protected by a single patent, is a matter which concerns solely the Patent Office and the inventor." Under the rule announced in the foregoing authorities this proposition cannot be sustained. The second and principal contention of the appellee is that the patent of 1881 covers a distinct and separate invention from the first, and in support of that proposition the appellee relies upon the rule announced in Garratt v. Seibert, 98 U.S. 75, 77; Sewall v. Jones, 91 U.S. 171, 190, and Merrill v. Yeomans, 94 U.S. 568. These cases do not, however, establish the appellee's position. In Garratt v. Seibert the arrangement for the operation of the device in the second patent was entirely different from the original patent. In Sewall v. Jones it was held that there might be a patent for the process and one for the product. In Merrill v. Yeomans it was held that where a patent described an apparatus, a process, and a product, and the claims covered only the apparatus and the process, the law provided a remedy by a surrender of the patent and a reissue, for the purpose of embracing the product. A single invention may include both the machine and the manufacture it creates, and in such cases, if the inventions are really separable, the inventor may be entitled to a monopoly of each. It is settled also that an inventor may make a new improvement on his own invention of a patentable character, for which he may obtain a separate patent, and the cases cited by the appellee come to this point, and to this point only, that a later patent may be granted where the invention is clearly distinct from, and independent of, one previously patented. It clearly appears from a comparison of the two patents, and their respective specifications and drawings, that the first function or object of the patent of 1879, relating to the lifting power of the spring, is identical with the sole object or function covered by the patent of 1881, and that the improved device and combination for the accomplishment of the lifting operation are identical in both patents. *200 The invention covered by the first patent, as stated in the specification, consists in a spring which serves the double purpose of lifting or holding down the plows at will; and it is further stated that one spring may be adapted to serve all, or either one, or more, of the offices above enumerated. The patent of 1879 thus embraces both the lifting and the depressing effects or operations of the spring device, while that of 1881 seeks to cover only the increased lifting effect of the same device. The first patent clearly includes the second. No substantial distinction can be drawn between the two, which have the same element in combination, and the same spring arrangement and adjustment to accomplish precisely the same lifting effect, increasing as the beams are raised from their operative positions. The matter sought to be covered by the second patent is inseparably involved in the matter embraced in the former patent, and this, under the authorities, renders the second patent void. If the two patents in question had been granted to different parties, it admits of no question that the last would have been held an infringement of the first, for the reason that the patent of 1879 just as clearly includes as a part of the invention the increased lifting effect of the spring device, increasing as the beams are raised, as that disclosed in the patent of 1881. It certainly did not involve patentable novelty to drop or omit from the patent a claim for the depressing action of the spring arrangement which might be effected by any mere mechanical contrivance. This view of the case is sustained by the statement in the specification forming a part of the patent of 1881, in which it is said: "The springs represented in the drawings are adapted to serve the double purpose of holding the beams down, and of lifting them, or assisting to lift them, when they are raised above the operative position. No claim is made in the present case to this duplex action of the springs, nor to the peculiar form or arrangement of the springs otherwise than as regards the feature of exerting or increasing a maximum strain on the beams, as the latter rise, the peculiar construction of the spring being already covered in a patent hitherto granted to me." *201 This statement admits that the peculiar construction of the spring device, by means of which the lifting effect was to be accomplished, was already covered in a patent previously granted to the patentee - referring to the patent of 1879. In thus admitting the existence of a prior patented device, identical with that described in the second specification and drawings, it is difficult to understand upon what principle the patentee can be allowed to withdraw from the operation of such prior patent, one of its distinct elements, and make it the subject of a second distinct patent. It is not the result, effect, or purpose to be accomplished which constitutes invention, or entitles a party to a patent, but the mechanical means or instrumentalities by which the object sought is to be attained, but a patentee cannot so split up his invention for the purpose of securing additional results, or of extending, or of prolonging the life of any or all of its elemental parts. Patents cover the means employed to effect results. Rubber Tip Pencil Co. v. Howard, 20 Wall. 498, 507; Fuller v. Yentzer, 94 U.S. 288. The prior invention covered the means, and the only means, by which the results sought by the patent of 1881 were to be accomplished, and it is settled that the patentee of such prior device would be entitled to all of its uses, whether described or not. Roberts v. Ryer, 91 U.S. 150; Stow v. Chicago, 104 U.S. 547. Under these authorities a single element or function of a patented invention cannot be made the subject of a separate and subsequent patent, and it, therefore, follows that this increased lifting effect of the spring device, sought to be covered by the 1881 patent, being clearly shown and described in the specification, drawings, and claims of the 1879 patent, was not the subject-matter of a valid patent. This conclusion is no way affected by the reservation attempted to be made in the 1879 patent, of the "broad idea of a lifting spring which acts with increasing force as the beam rises," for the reason that the broad idea sought to be reserved is embodied in identically the same mechanical device constituting the invention and covered by the first patent, which completely occupies all the ground that was reserved. The *202 spring and its connecting apparatus is the same in each patent, and the claims of the first covered the double automatic action - upward or downward. There is nothing in the specification or claims to indicate that in the first patent the lifting action is in any degree slighter or weaker, as the beam rises, than in the second patent. On the contrary, both specifications clearly indicate that the spring device acts with increasing force in each patent as the beam rises. In addition to this, it distinctly appears that every claim of the 1881 patent could have been properly included and made a part of the claims of the 1879 patent. With the exception of the first broad claim of the 1881 patent, each of the other claims include the spring device with the limiting and qualifying words, "substantially as described," and by virtue of its reference to the specification, the lifting element of the spring device is shown to be the same in each patent. There is nothing in either patent, or the specification or claims thereof, to indicate that there is any greater or stronger lifting action in the one than in the other. It is thus shown that one and the same mechanical device, which covers the entire invention, is described in each of the patents; and the effort to secure a second patent on one part thereof, or on its function, after such part or its action had been clearly described and covered by a prior patent, cannot be sustained. To hold under these circumstances that the first and second patents, in respect to the lifting effect of the same spring device, present distinct inventions, or that both are valid for the same invention, would involve the drawing of distinctions too refined for the practical administration of the patent law. But aside from this 1879 patent, we think that the broad claim of the 1881 patent is clearly anticipated by the patent of W.P. Brown, No. 190,816, dated May 15, 1877, for an improved coupling for cultivators. The specification, forming a part of this patent, states that to "render the manipulation of the plows or cultivator easy, I provide an arrangement whereby either springs, weights, or the draft bar may be utilized for sustaining a part of the weight of the said cultivators, when they are lifted from the ground to be hung up or shifted laterally. *203 In accomplishing this I construct the pipe box with a hooked arm m to lock the pipe box; and as the cultivator beam in the rear is rigidly attached to the pipe box, by the stirrup or sleeve, the spring has a tendency to rock the pipe box and assist the driver in lifting the cultivators." The flat curved spring device shown in this patent, with the link or arm connecting its free end with the plow beam, exerts little or no force when the drag-bars, carrying the plows, are in an operative position; but when the latter are raised above their normal position, and, as they are lifted, the spring exerts an increased lifting effect, sufficient to suspend the drag-bars and attached shovels in the air. While differing in form and mode of attachment, this Brown device clearly anticipates the first broad claim of the patent of 1881. It admits of little or no question that if this Brown patent was one of later date than the Wright patent of 1881, it would be held to be an infringement thereof, and, under the authorities, "that which infringes if later, anticipates if earlier." Peters v. Active Mfg. Co., 129 U.S. 530; Thatcher Heating Co. v. Burtis, 121 U.S. 286, 295; Grant v. Walter, 148 U.S. 547, 554; Gordon v. Warder, 150 U.S. 47; Knapp v. Morss, 150 U.S. 221. In this view of the case it is not deemed necessary to determine whether the C.A. Hague patent, No. 243,123, of June 21, 1881, or the Berlew & Kissell patent, No. 260,447, dated July 4, 1882, anticipated that of Wright. The proofs do not show with sufficient clearness that either of these parties perfected and put in practical operation the spring device incorporated in their patents prior to the date of the invention of Wright. The proofs show, however, that they were experimenting - as was Wright - in 1876, 1877, and 1878 with springs for cultivators, but the evidence tends strongly to show that they did not perfect any operative device prior to May 1, 1879. The remaining branch of the case turns upon the proper construction to be placed upon the 1879 patent, in view of the state of the art as illustrated in prior devices and patents. The Peter Monaghan patent, No. 26,606, dated December *204 27, 1859, for an improvement in cotton cultivators, contains a bow-shaped spring, with deflected ends, one of which is secured to the cross-pieces of the shafts, while the other is free, and is in contact with the frame to which are attached the shovels. The spring shown in this patent is of such construction and location as to exert a constant lifting effect on the frame carrying the shovels, and when the operator releases the handles acts automatically in lifting the frame and in holding the plows above their operative position. A similar flat or curved spring device is shown in the A.H. Allison patent, No. 61,649, dated January 29, 1867, for corn and cotton cultivators, where one end of the spring is fastened to the cross-beam of the main frame, while the free end bears and raises the cross-head to which is suspended the shovels. The shovels are made to enter the ground by means of a lever which forces the beam down, and by releasing the lever the springs operate to raise the shovels from the ground, and suspend them above their operative position. In the H.N. Dalton patent, No. 95,437, dated October 5, 1869, for an improvement in a spring for a gang plow, the spring is coiled around a crank axle upon which the wheels revolve in the ordinary manner. The coiled spring is of such strength that when released by the lever or other appliances governing it, the axle is turned by the force of the spring, thereby raising the frame to which the plow is attached. One of the objects accomplished by the coiled spring is to enable the operator to lift the gang plow entirely from the ground. Again, a spring device closely resembling that of the Wright invention is shown by the letters patent 154,666, dated September 1, 1874, issued to Marquis L. Gorham, relating to wheeled straddle-row cultivators, consisting of an improved device by means of which shovels are held and adjusted on the shovel standards. The device described in the specification and drawings consists of a spiral regulating spring, in connection with suspension rods and drag-beams, so constructed as to suspend the drag-bars to any height, or regulate the depth at which the shovels or plows shall work. The suspension rods connected with the spiral spring are arranged to assist in *205 raising the drag-bars for the purpose of elevating the plows in a fixed position when turning or moving the machine. This spring device is connected with the beams, and by means of screw nuts may be contracted so as to regulate the height of the drag-bars carrying the shovels. The spring device in this patent exerts, automatically, an increased lifting force as the beams are raised, or elevated above their operative position. The second claim of that patent is "the suspension rods d, regulating springs g, drag-bars i, in combination with hangers e, to which they are attached, substantially as they are described." In addition to the foregoing spring improvements in cultivators, and like implements, letters patent for door-spring devices were issued to H.S. Frost in 1867, and to L.A. Warner in August, 1875, and April, 1879, which have automatic horizontal action in operating or closing the door, corresponding exactly in principle, operation, and function with the vertical action in the Wright spring device. These door springs and their adjustment close or open the door just as the dead centre is passed, either in an outward or inward direction. One or more witnesses testified in this case that these door-spring devices could readily be adapted to cultivators by the exercise of ordinary mechanical skill, and be made to perform, by change in position, the lifting and depressing action of the Wright spring. The witness Hague stated that he actually so applied these door springs in 1877 and 1878. We need not determine in this case whether the use of such springs in cultivators is analogous to their original use, so as to form anticipating devices. They show, however, the state of the art in reference to spring devices for producing action in different directions. It is shown in the testimony that the spring device described in Wright's patent of 1879 interfered with the lateral motion of the beams, and therefore interfered with their successful operation. It also appears that the spring had a constant tendency to fly off the wheel, which compelled the adoption of a loop or bail (not described as a part of his device) to counteract such tendency; and further, that the springs were *206 subject to frequent breakage, so that their use was discontinued in 1883, about which time the appellee commenced the use of the same spring device as that employed in the cultivators manufactured by P.P. Mast & Company, under the patents issued to Gardiner & Downey, No. 237,740, February 15, 1881; Berlew & Kissell, No. 260,447, July 4, 1882; and to J.M. Elder, No. 222,391, December 9, 1879, and sold by the appellants. The form of spring as shown in these patents was substantially adopted in 1883 by the appellee, on the theory that the Wright patent comprehended all forms of springs for accomplishing the upward and downward action. The use of this substituted spring for that described in the patent is, to some extent, explained by the fact, which appears in the record, that Wright obtained letters patent 259,656, dated June 13, 1882, for certain improvements in walking straddle-row cultivators, the specification forming part of which states "that the invention relates to an improved manner of constructing the frame and applying the springs for the purpose of raising, or assisting the operator to raise, the beams or drags-bars, the springs having, in some cases, the additional function of holding the shovels to their proper place in the ground. The improvement consists mainly in providing the frame with axles capable of rotating independently of the wheels, coupling the wheels directly to the axles, and providing the axles with arms arranged to coöperate with a spring, a weight, or draft device to which the team is attached." The spring in this 1882 patent of Wright's is spiral, encircling a rod, and bears upon collars on the lower ends of the same. This rod is pivoted to another rod which is firmly fastened to the axle. When the shovels are in an operative position the spring performs no function. But when the rod attached to the axle, and pivoted to the rod upon which the spring is mounted, is thrown off its centre, then the function of the spring is to depress or elevate the shovels, just as the pivoted rod connected with the spring is thrown backward or forward. The real object of the spring is to raise the shovels, which is accomplished by slightly elevating the handles. This *207 action deflects the straight downward pressure of the spring to an angle formed by the bent joint between the rigidly attached rod on the axle and rod encircled by the spring, thereby causing the axle to revolve forward. When the spring is straight and in a vertical line with the axle it performs no function whatever, just precisely the same as with the door spring when the door is in the neutral position, or on the dead centre. The form of this spring, and its mode of operation, is identical with that adopted by the appellee in 1883, in place of the original spring device, shown in the patent of 1879. The taking out of this patent, covering precisely what is now claimed for the patent of 1879, clearly indicates that the latter patent was not supposed to extend to the device covered by the 1882 patent, which is not distinguishable from the prior patents issued to Gardiner & Downey, Berlew & Kissell, and J.M. Elder, under which P.P. Mast & Company construct the cultivators sold by the appellants. The range of equivalents depends upon the extent and nature of the invention. If the invention is broad or primary in its character, the range of equivalents will be correspondingly broad, under the liberal construction which the courts give to such inventions. The doctrine is well stated in Morley Machine Co. v. Lancaster, 129 U.S. 263, 273, where it is said: "Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new, all subsequent machines which employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in the separate mechanisms which go to make up the machine." Tested by this rule, and in view of the prior devices and the great variety of springs in use previous to the granting of his patent, Wright cannot be treated as a pioneer in the art. Neither can he, nor his assignee, be allowed to invoke the doctrine of equivalents, such as the courts extend to primary inventions, so as to include all forms of spring devices and adjustments which operate to perform the same function, or accomplish the same result. *208 Again, the issuance of the patents to Gardiner & Downey, Berlew & Kissell, and Elder creates a prima facie presumption of a patentable difference from that of the Wright patent of 1879. Corning v. Burden, 15 How. 252; Duff v. Sterling Pump Co., 107 U.S. 636. We think it manifest, from the prior state of the art, if the invention covered by his patent of 1879 was not anticipated, and if it has any validity, that it must be limited and confined to the specific spring device which is described in the specification and shown in the drawings forming parts of the letters patent. Being thus limited, there is clearly no infringement in the device used by the appellants or their principals, P.P. Mast & Company. The specific device described in and covered by the Wright patent could not be used in the appellants' combination, nor the appellants' spring in the appellees' combination. This interchangeability, or non-interchangeability, is an important test in determining the question of infringement. Prouty v. Ruggles, 16 Pet. 336; Brooks v. Fiske, 15 How. 212; Eames v. Godfrey, 1 Wall. 78. In respect to the so-called depressing action of the spring, when the drag-bars and shovels are lowered to an operative position, it is perfectly manifest that little or no effect is produced in that direction, for the reason that the downward movement of the shovels is limited, and more greatly restricted than the upward movement of the beams or drag-bars, the range of movement, in other words, not being in the downward line anything like that in the upward direction of the drag-bars. Hence, the depressing effect of the spring is of no practical importance. The operator holding the handles of the cultivator is not assisted, to any appreciable extent, in keeping the plows in the ground by the depressing action of the spring. The downward action or position of the shovels is not required to go, and does not in fact go, below their operative position, at which point the spring device becomes practically inoperative. Our conclusion on the whole case is that the patent of 1881 is anticipated by that of 1879; that the first claim thereof is *209 anticipated by the Brown patent; that the patent of 1879, in view of the state of the art, is to be limited and restricted, if it has any validity at all, to the specific spring therein described; and, as thus restricted, it is clearly not infringed. We are, therefore, of opinion that the decree of the court below should be Reversed, and the cause remanded, with directions to dismiss the bill.

343 U.S. 341 (1952) MADSEN v. KINSELLA, WARDEN. No. 411. Supreme Court of United States. Argued January 8, 1952. Decided April 28, 1952. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. *342 Joseph S. Robinson argued the cause for petitioner. With him on the brief were Dayton M. Harrington and James D. Graham, Jr. Robert W. Ginnane argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg, J. F. Bishop and John M. Raymond. MR. JUSTICE BURTON delivered the opinion of the Court. The principal question here is whether a United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try a civilian citizen of the United States, who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband in violation of § 211 of the German Criminal *343 Code. The homicide occurred in October, 1949, within the United States Area of Control in Germany. For the reasons hereafter stated, we hold that such court had that jurisdiction. The present proceeding originates with a petition for a writ of habeas corpus filed by petitioner, Yvette J. Madsen, in the United States District Court for the Southern District of West Virginia, seeking her release from the Federal Reformatory for Women in West Virginia where she is serving a sentence imposed by a United States Court of the Allied High Commission for Germany. She contends that her confinement is invalid because the court which convicted and sentenced her had no jurisdiction to do so. The District Court, after a hearing based on exhibits and agreed facts, discharged the writ and remanded petitioner to the custody of the respondent warden of the reformatory. 93 F. Supp. 319. The Court of Appeals affirmed. 188 F. 2d 272. Because of the importance and novelty of the jurisdictional issues raised, we granted certiorari. 342 U. S. 865. I. Petitioner's status in Germany. - Petitioner is a native-born citizen of the United States who lawfully entered the American Zone of Occupied Germany in 1947 with her husband, Lieutenant Madsen of the United States Air Force. In 1949, she resided there, with him, in a house requisitioned for military use, furnished and maintained by military authority. She was permitted to use the facilities of the United States Army maintained there for persons in its service and for those serving with or accompanying the United States Armed Forces. In brief, her status was that of a civilian dependent wife of a member of the United States Armed Forces which were then occupying the United States Area of Control in Germany. October 20, 1949, following her fatal shooting of her husband at their residence at Buchschleg, Kreis Frankfurt, Germany, she was arrested there by the United *344 States Air Force Military Police. On the following day, before a "United States Military Government Court,"[1] she was charged with the murder of her husband in violation of § 211 of the German Criminal Code.[2] In February, 1950, she was tried by "The United States Court of the Allied High Commission for Germany, Fourth Judicial District."[3] That court was composed of three United States civilians, two of whom had been appointed as district judges and one as a magistrate by or under the authority of the Military Governor of the United States Area of Control.[4] The court adjudged her guilty and sentenced *345 her to 15 years in the Federal Reformatory for Women at Alderson, West Virginia, or elsewhere as the Secretary of the Army might direct. In May, the "Court of Appeals of the United States Courts of the Allied High Commission for Germany," composed of five United States civilians appointed by the Military Governor of the Area,[5] affirmed the judgment but committed her to the custody of the Attorney General of the United States or his authorized representative. The Director of the United States Bureau of Prisons designated the Federal Reformatory for Women at Alderson, West Virginia, as the place for her confinement.[6] II. Both United States courts-martial, and United States Military Commissions or tribunals in the nature of such commissions, had jurisdiction in Germany in 1949-1950 to try persons in the status of petitioner on the charge against her. - Petitioner does not here attack the merits of her conviction nor does she claim that any nonmilitary court of the United States or Germany had jurisdiction to try her.[7] It is agreed by the parties to this proceeding that a regularly convened United States general court-martial would have had jurisdiction to try her. The United States, however, contends, and petitioner denies, that the United States Court of the Allied High Commission for Germany, which tried her, also had jurisdiction *346 to do so. In other words, the United States contends that its courts-martial's jurisdiction was concurrent with that of its occupation courts, whereas petitioner contends that it was exclusive of that of its occupation courts. The key to the issue is to be found in the history of United States military commissions[8] and of United States occupation courts in the nature of such commissions. Since our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.[9] They have been called our common-law war *347 courts.[10] They have taken many forms and borne many names.[11] Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in *348 each instance to the need that called it forth. See In re Yamashita, 327 U. S. 1, 18-23. In the absence of attempts by Congress to limit the President's power, it appears that, as Commander-in-Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States. His authority to do this sometimes survives cessation of hostilities.[12] The President has the urgent and infinite responsibility not only of combating the enemy but of governing any territory occupied by the United States by force of arms.[13] The policy of Congress to refrain from legislating in this *349 uncharted area does not imply its lack of power to legislate. That evident restraint contrasts with its traditional readiness to "make Rules for the Government and Regulation of the land and naval Forces; . . . ."[14] Under that clause Congress has enacted and repeatedly revised the Articles of War which have prescribed, with particularity, the jurisdiction and procedure of United States courts-martial. Originally Congress gave to courts-martial jurisdiction over only members of the Armed Forces and civilians rendering functional service to the Armed Forces in camp or in the field.[15] Similarly the Articles of War at first dealt with nonmilitary crimes only by surrendering the accused to the civil authorities. Art. 33, American Articles of War of 1806, Winthrop's Military Law and Precedents (2d ed. 1920 reprint) 979. However, in 1863, this latter jurisdiction was enlarged to include many crimes "committed by persons who are in the military service of the United States . . . ."[16] Still it did not cover crimes committed by civilians who, like petitioner, were merely accompanying a member of the Armed Forces. *350 Finally, in 1916, when Congress did revise the Articles of War so as to extend the jurisdiction of courts-martial to include civilian offenders in the status of petitioner, it expressly preserved to "military commissions, provost courts, or other military tribunals" all of their existing concurrent jurisdiction by adding a new Article which read in part as follows: "II. COURTS-MARTIAL. ..... "C. JURISDICTION. ..... "ART. 15. NOT EXCLUSIVE. - The provisions of these articles conferring jurisdiction upon courts-martial *351 shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals." 39 Stat. 651, 652, 653.[17] Article 15 thus forestalled precisely the contention now being made by petitioner. That contention is that certain provisions, added in 1916 by Articles 2 and 12 extending the jurisdiction of courts-martial over civilian offenders and over certain nonmilitary offenses, automatically *352 deprived military commissions and other military tribunals of whatever existing jurisdiction they then had over such offenders and offenses. Articles 2 and 12, together, extended the jurisdiction of courts-martial so as to include "all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States . . . ."[18] The 1916 Act also increased the nonmilitary offenses for which civilian offenders could be tried by courts-martial.[19] Article 15, however, completely disposes of that contention. It states unequivocally that Congress has not deprived such commissions or tribunals of the existing jurisdiction which they had over such offenders and offenses as of August 29, 1916. 39 Stat. 653, 670. See In re Yamashita, 327 U. S. 1, and Ex parte Quirin, 317 U. S. 1. *353 The legislative history strengthens the Government's position. During the consideration by Congress of the proposed Articles of War, in 1916, Judge Advocate General of the Army Crowder sponsored Article 15 and the authoritative nature of his testimony has been recognized by this Court. In re Yamashita, supra, at 19 note, 67-71. Before the Senate Subcommittee on Military Affairs he said: "Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commission. A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation `persons subject to military law,' and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced: . . . ." "It just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts-martial, so that the military commander in the field in time of war will be at liberty to employ either form of court that happens to be convenient." S. Rep. No. 130, 64th Cong., 1st Sess. 40.[20] *354 The concurrent jurisdiction thus preserved is that which "by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals." (Emphasis supplied.) 39 Stat. 653, 41 Stat. 790, 10 U. S. C. § 1486. The "law of war" in that connection includes at least that part of the law of nations which defines the powers and duties of belligerent powers occupying enemy territory pending the establishment of *355 civil government.[21] The jurisdiction exercised by our military commissions in the examples previously mentioned extended to nonmilitary crimes, such as murder and other crimes of violence, which the United States as the occupying power felt it necessary to suppress. In the case of In re Yamashita, 327 U. S. 1, 20, following a quotation from Article 15, this Court said, "By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military commission contemplated by the common law of war."[22] The enlarged jurisdiction of the courts-martial therefore did not exclude the concurrent jurisdiction of military commissions and of tribunals in the nature of such commissions. *356 III. The United States Courts of the Allied High Commission for Germany were, at the time of the trial of petitioner's case, tribunals in the nature of military commissions conforming to the Constitution and laws of the United States. - Under the authority of the President as Commander-in-Chief of the United States Armed Forces occupying a certain area of Germany conquered by the allies, the system of occupation courts now before us developed gradually. The occupation courts in Germany are designed especially to meet the needs of law enforcement in that occupied territory in relation to civilians and to nonmilitary offenses. Those courts have been directed to apply the German Criminal Code largely as it was theretofore in force. (See Appendix, infra, pp. 362-371, entitled "Chronology of Establishment of United States Military Government Courts and Their Jurisdiction Over Civilians in the United States Area of Control in Germany 1945-1950.") The President, as Commander-in-Chief of the Army and Navy, in 1945 established, through the Commanding General of the United States Forces in the European Theater, a United States Military Government for Germany within the United States Area of Control. Military Government Courts, in the nature of military commissions, were then a part of the Military Government. By October 20, 1949, when petitioner was alleged to have committed the offense charged against her, those courts were known as United States Military Government Courts. They were vested with jurisdiction to enforce the German Criminal Code in relation to civilians in petitioner's status in the area where the homicide occurred. September 21, 1949, the occupation statute had taken effect. Under it the President vested the authority of the United States Military Government in a civilian acting as the United States High Commissioner for Germany. He gave that Commissioner "authority, under the immediate supervision of the Secretary of State (subject, *357 however, to consultation with and ultimate direction by the President), to exercise all of the governmental functions of the United States in Germany (other than the command of troops) . . . ." Executive Order 10062, June 6, 1949, 14 Fed. Reg. 2965, Appendix, infra, p. 367; Office of the United States High Commissioner for Germany, Staff Announcement No. 1, September 21, 1949, Appendix, infra, p. 368. Under the Transitional Provisions of Allied High Commission, Law No. 3, Article 5, 14 Fed. Reg. 7458, Appendix, infra, p. 369, preexisting legislation was applied to the appropriate new authorities. Finally by Allied High Commission, Law No. 1, Article 1, 15 Fed. Reg. 2086, Appendix, infra, p. 370, effective January 1, 1950, the name of the "United States Military Government Courts for Germany" was changed to "United States Courts of the Allied High Commission for Germany." They derived their authority from the President as occupation courts, or tribunals in the nature of military commissions, in areas still occupied by United States troops. Although the local government was no longer a "Military Government," it was a government prescribed by an occupying power and it depended upon the continuing military occupancy of the territory. The government of the occupied area thus passed merely from the control of the United States Department of Defense to that of the United States Department of State. The military functions continued to be important and were administered under the direction of the Commander of the United States Armed Forces in Germany. He remained under orders to take the necessary measures, on request of the United States High Commissioner, for the maintenance of law and order and to take such other action as might be required to support the policy of the United States in Germany. Executive Order 10062, supra. *358 The judges who served on the occupation courts were civilians, appointed by the United States Military Governor for Germany, and thereafter continued in office or appointed by the United States High Commissioner for Germany. Their constitutional authority continued to stem from the President. The members of the trial court were designated by the Chief Presiding District Judge as a panel to try the case. The volume of business, the size of the area, the number of civilians affected, the duration of the occupation and the need for establishing confidence in civilian procedure emphasized the propriety of tribunals of a nonmilitary character.[23] With this purpose, the Military Government Courts for Germany, substantially from their establishment, have had a less military character than that of courts-martial.[24] In 1948, provision *359 was made for the appointment of civilian judges with substantial legal experience. The rights of individuals were safeguarded by a code of criminal procedure dealing with warrants, summons, preliminary hearings, trials, evidence, witnesses, findings, sentences, contempt, review of cases and appeals.[25] This subjected German and United *360 States civilians to the same procedures and exhibited confidence in the fairness of those procedures.[26] It is suggested that, because the occupation statute took effect September 21, 1949, whereas the crime charged occurred October 20, 1949, the constitutional authority for petitioner's trial by military commission expired before the crime took place. Such is not the case. The authority for such commissions does not necessarily expire upon cessation of hostilities or even, for all purposes, with a treaty of peace. It may continue long enough to permit the occupying power to discharge its responsibilities fully. Santiago v. Nogueras, 214 U. S. 260; Neely v. Henkel, 180 U. S. 109, 124; Burke v. Miltenberger, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164.[27] IV. Petitioner and the offense charged against her came within the jurisdiction assigned to the court which tried her. - Under United States Military Government Ordinance *361 No. 31, August 18, 1948, Article 7, 14 Fed. Reg. 126, Appendix, infra, p. 365, the United States gave its Military Government District Courts "criminal jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United Nations." It thus excepted from the jurisdiction of those occupation courts military men and women who were subject to military law but expressly gave those courts jurisdiction over civilian men and women who were subject to military law. Article of War 2 (d) further defined "any person subject to military law" as including "all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States . . . ."[28] This included petitioner. Article 7 of United States Military Government Ordinance No. 31 further provided, however, that "No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Command." 14 Fed. Reg. 126, Appendix, infra, p. 365. That authorization appears in the official correspondence relating to the case of Wilma B. Ybarbo. The correspondence includes a written endorsement from the proper authority, dated December 11, 1948, covering not only the Ybarbo case but also the case "of any dependent of a member of the United States Armed Forces . . . ." See Appendix, infra, p. 367. The applicability of the German Criminal Code to petitioner's offense springs from its express adoption by the United States Military Government. The United States Commanding General, in his Proclamation No. 2, September 19, 1945, stated that, except as abrogated, suspended or modified by the Military Government or by the Control *362 Council for Germany, "the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation . . . ." 12 Fed. Reg. 6997, Appendix, infra, p. 363.[29] Section 211 of the German Criminal Code accordingly was applicable to petitioner on October 20, 1949. The United States also expressly required that its civilians be tried by its occupation courts rather than by the German courts. United States Military Government Law No. 2, German courts, Art. VI (i) (c) and (d), 12 Fed. Reg. 2191, 2192, Appendix, infra, p. 364. United States Military Government Ordinance No. 2, Art. II (2) (iii), 12 Fed. Reg. 2190-2191, Appendix, infra, p. 363. The jurisdiction of the United States Courts of the Allied High Commission for Germany to try petitioner being established, the judgment of the Court of Appeals affirming the discharge of the writ of habeas corpus for petitioner's release from custody is Affirmed. APPENDIX TO OPINION OF THE COURT. Chronology of Establishment of United States Military Government Courts and Their Jurisdiction Over Civilians in the United States Area of Control in Germany 1945-1950. (Emphasis supplied throughout except in headings.) 1. June 5, 1945. - Allied Powers assumed "supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated *363 above, of the said authority and powers does not effect the annexation of Germany." Declaration by Commanding Generals representing the United States, the Soviet Union, Great Britain and the French Provisional Government, THE AXIS IN DEFEAT - A Collection of Documents on American Policy Toward Germany and Japan, published by the United States Department of State, p. 63. 2. July 14, 1945. - Commanding General, United States Armed Forces in Europe, established a Military Government under his authority in the United States Zone of Occupation - Military Government - United States Area of Control, Proclamation No. 1, 12 Fed. Reg. 6997. 3. September 19, 1945. - Commanding General, United States Forces, European Theater, proclaimed: "Article II. Except as heretofore abrogated, suspended or modified by Military Government or by the Control Council for Germany, the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation, until repealed by, or superseded by a new law enacted by the Control Council for Germany, or by Military Government or the states hereby constituted or by other competent authority." Military Government - United States Area of Control, Proclamation No. 2, 12 Fed. Reg. 6997. 4. 1946. - Military Government Courts, as distinguished from courts-martial, were given jurisdiction over all persons in the occupied territory, including civilians subject to military law and over offenses under the laws of the occupied territory. ". . . Article II; jurisdiction. (1) Military Government courts shall have jurisdiction over all persons in the occupied territory except persons other than civilians who are subject to military, naval or air force law and are serving under the command *364 of the Supreme Commander, Allied Expeditionary Force, or any other Commander of any forces of the United Nations. "(2) Military Government Courts shall have jurisdiction over: "(i) All offences against the laws and usages of war. "(ii) All offences under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces. "(iii) All offences under the laws of the occupied territory or of any part thereof." United States Military Government Ordinance No. 2, Military Government Courts, 12 Fed. Reg. 2190-2191. 5. 1946. - German courts were denied jurisdiction in certain criminal cases, including those involving any national of the United Nations or any dependent accompanying any of the Armed Forces of any of the United Nations. ". . . Article VI; limitations on jurisdiction. (1) Except when expressly authorized by Control Council or Military Government Law, ordinance or regulation, or by order of the Director of Military Government of the appropriate Land, no German court shall assert or exercise jurisdiction in the following cases or classes or [of] cases: "(i) Criminal cases involving: "(a) Any of the United Nations, or "(b) The Armed Forces of any of the United Nations, or "(c) Any person serving with any such Forces or a dependent accompanying any of them, or "(d) Any national of the United Nations, or . . . ." United States Military Government, Law No. 2, German courts, 12 Fed. Reg. 2191, 2192. *365 6. August 18, 1948. - United States Military Government Courts for Germany established. ". . . Ordinance No. 31; United States Military Government Courts for Germany; creation of the courts - (a) Article 1; judicial system. A system of courts is hereby established for the United States Area of Control of Germany . . . . ..... "(c) Article 3; District Courts. (1) A District Court is hereby established for each judicial district within the United States Area of Control. ..... "(3) Each District Court shall consist of one or more District Judges and one or more Magistrates who shall sit singly except as provided in subparagraph (5) of this paragraph. ..... "(5) A District Court composed of three District Judges or two District Judges and a Magistrate may hear and decide any civil or criminal case, and, in the latter, may impose any lawful sentence including death. A majority of such Court shall decide any case before it, provided that no sentence of death shall be imposed except by the unanimous decision of the Court. ..... "(8) Where an accused is charged with an offense under German law, the Court shall be limited to the sentence or other penal provision of such law. ..... "JURISDICTION OF THE COURTS "(g) Article 7, jurisdiction of District Courts in criminal cases. (1) District Courts shall have criminal *366 jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United Nations. No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Command. No member of an Allied Mission, visiting governmental official, or person subject to the military law of any country other than the United States, shall be brought to trial for any offense except upon authorization of the Military Governor. "(2) District Courts shall have jurisdiction to hear and decide cases involving: "(i) Offenses under legislation issued by or under the authority of the Allied Control Council; "(ii) Offenses under United States Military Government Legislation; "(iii) Offenses under German law in force in the Judicial District of the Court." 14 Fed. Reg. 124, 125, 126. 7. December 11, 1948. - The Commander-in-Chief of the United States European Command endorsement addressed to the Chief Attorney, United States Military Government Courts for Germany: "Authorization is hereby given for trial of any dependent of a member of the United States Armed Forces or of any dependent of a civilian employee of the Department of the Army for any non-military offenses before the appropriate Military Government Court established by Military Government Ordinance No. 31 unless, in a particular case, this headquarters has directed trial by Court Martial." Resp. Ex. 4, R. 71. *367 8. May 12, 1949. - Occupation statute promulgated by Military Governors and Commanders-in-Chief of the Western Zones of Germany - to become effective at a later date. It declared that - "1. During the period in which it is necessary that the occupation continue . . . [the occupying powers] desire and intend that the German people shall enjoy self-government to the maximum possible degree consistent with such occupation. The Federal State and the participating Laender [states] shall have, subject only to the limitations in this Instrument, full legislative, executive and judicial powers in accordance with the Basic Law and with their respective constitutions. "2. In order to ensure the accomplishment of the basic purposes of the occupation, powers in the following fields are specifically reserved . . . . ..... "(e) Protection, prestige, and security of Allied forces, dependents, employees and representatives, their immunities and satisfaction of occupation costs and their other requirements; . . . ." 14 Fed. Reg. 7457. 9. June 6, 1949. - Executive Order 10062 of the President Establishing the Position of United States High Commissioner for Germany: "2. The United States High Commissioner for Germany, hereinafter referred to as the High Commissioner, shall be the supreme United States authority in Germany. The High Commissioner shall have the authority, under the immediate supervision of the Secretary of State (subject, however, to consultation with and ultimate direction by the President), to exercise all of the governmental functions of the United States in Germany (other than the command *368 of troops), including representation of the United States on the Allied High Commission for Germany when established, and the exercise of appropriate functions of a Chief of Mission within the meaning of the Foreign Service Act of 1946. ..... "4. In the event that the High Commissioner shall assume his duties in accordance with this Executive Order prior to the date that the Military Government of the United States Zone of Germany is terminated, he shall during such interval report to the Secretary of Defense, through the Secretary of the Army, and shall be the United States Military Governor with all the powers thereof including those vested in the United States Military Governor under all international agreements." 14 Fed. Reg. 2965. 10. September 21, 1949. - Council of Allied High Commission declared occupation statute to be in force as promulgated May 12, 1949. 14 Fed. Reg. 7456. 11. September 21, 1949. - United States High Commissioner for Germany, in accordance with Executive Order 10062, assumed the authority residing in the United States Military Governor and the Office of Military Government for Germany for the governmental functions of the United States in Germany: "2. The Office of the U. S. High Commissioner for Germany is hereby established as the agency through which the authority vested in the U. S. High Commissioner shall be exercised. Its organization shall be as shown in the attached charts [including U. S. High Commission Courts, Court of Appeals, District Courts], and its functions shall be assigned among its constituent elements as set forth in separate issuances, effective this date." Office of the United States High Commissioner for Germany, Staff Announcement No. 1, Resp. Ex. 1, R. 67, 68. *369 12. September 21, 1949. - The United States High Commissioner for Germany announced that the United States Courts for Germany, as established by Staff Announcement No. 1 (and previously established as the "United States Military Government Courts for Germany," pursuant to United States Military Government Ordinance No. 31) "form an independent judicial unit responsible directly to the United States High Commissioner. The integrated system provides for district judges and magistrates at the district court level and for a Chief Judge and associate judges of the Court of Appeals." Office of the United States High Commissioner for Germany, Staff Announcement No. 5, Resp. Ex. 2, R. 69. Similar announcement was made as to the Office of General Counsel and of the Chief Attorney. Staff Announcement No. 6, Resp. Ex. 3, R. 70. 13. September 21, 1949. - "Allied Forces" defined by Allied High Commission: "In the absence of any indication to the contrary, in legislation of the Allied High Commission: ..... "3. The expression `Allied Forces' shall include - "(a) The Occupation Authorities. "(b) The Occupation Forces and their members. "(c) Non-German nationals, civilian or military, who are serving with the Occupation Authorities. "(d) Members of the families and non-German persons in the service of the persons referred to in subparagraphs (a) (b) and (c) of this paragraph." Allied High Commission, Law No. 2, Art. 1, 14 Fed. Reg. 7457. 14. September 21, 1949. - Transitional Provisions proclaimed by Allied High Commission for Germany adapting existing legislation to the provisions of the occupation statute effective September 21, 1949. *370 "ARTICLE 5 "References in any legislation enacted before the entry into force of the Occupation Statute to the Control Council, the Supreme Commander Allied Expeditionary Force, the Commanding General, the Armed Forces, Military Government, the Military Governor and to other authorities shall, where the context so requires or admits, be deemed to refer to the appropriate authorities exercising the particular functions mentioned in such legislation." Allied High Commission, Law No. 3, 14 Fed. Reg. 7458. 15. November 25, 1949. - Judicial powers were reserved, from the German courts, as to members of families of members of the Occupation Forces, thus bringing them under the jurisdiction of the occupation courts. "The Council of the Allied High Commission enacts as follows: "ARTICLE 1 "Except when expressly authorized, either generally or in specific cases, by the High Commissioner of the Zone in which the Court is located, German Courts shall not exercise criminal jurisdiction: "(a) (i) Over the Allied Forces; . . . ." Allied High Commission, Law No. 13, 15 Fed. Reg. 1056. 16. December 28, 1949 (Effective January 1, 1950). - Occupation courts were changed. "The United States High Commissioner for Germany enacts as follows: "ARTICLE 1 "Article 1 of United States Military Government Ordinance No. 31, `United States Military Government Courts for Germany', is hereby amended by *371 changing the last sentence of said Article to read as follows: " `The Courts so created shall be known as the United States Courts of the Allied High Commission for Germany.' " "ARTICLE 2 "Article 4 of United States Military Government Ordinance No. 31, `United States Military Government Courts for Germany', is hereby amended by changing the first sentence of Section 2 of said Article to read as follows: " `The Court of Appeals shall consist of a Chief Justice and eight Associate Justices.' " "ARTICLE 3 "Wherever the term `United States Military Government Courts for Germany' or the terms `Chief Judge' or `Associate Judge' or `Associate Judges' of the Court of Appeals are used in any legislation and regulations now in force, such terms shall be deemed to refer to the United States Courts of the Allied High Commission for Germany and the Chief Justice and an Associate Justice or Associate Justices of the Court of Appeals of such Courts, respectively." Allied High Commission, Law No. 1, 15 Fed. Reg. 2086. MR. JUSTICE BLACK, dissenting. Petitioner, a United States citizen, is now serving a fifteen-year sentence for murdering her husband. At the time of the alleged crime, she was living in the United States Area of Control in Germany with her husband who was an Air Force lieutenant on active duty in Germany. It appears that the court that tried her and the law she was judged by were not established or authorized by the *372 Congress. Executive officers acting under presidential authority created the system of courts that tried her, promulgated the edicts she was convicted of violating, and appointed the judges who took away her liberty. The very first Article of the Constitution begins by saying that "All legislative Powers herein granted shall be vested in a Congress" and no part of the Constitution contains a provision specifically authorizing the President to create courts to try American citizens. Whatever may be the scope of the President's power as Commander in Chief of the fighting armed forces, I think that if American citizens in present-day Germany are to be tried by the American Government, they should be tried under laws passed by Congress and in courts created by Congress under its constitutional authority. NOTES [1] See United States Military Government Ordinance No. 31, August 18, 1948, 14 Fed. Reg. 124-128. See Appendix, infra, p. 365. [2] The agreed statement of facts states: "4. Section 211 of the German Criminal Code reads as follows in English translation: " `Murder - Mord " `211. (As in force prior to 4 September 1941). Whoever intentionally kills a human being is guilty of murder if the killing was accomplished with premeditation, and shall be punished by death. " `211. (As amended 4 September 1941, RGBI I, 549). The murderer shall be punished by death. " `A murderer is hereby defined as one who kills a human being out of the morbid desire to kill (Mordlust); " `For the satisfaction of sexual desire; " `For cupidity (Habgier) or any other base motives; " `In a treacherous or cruel manner or by means causing common danger, or " `In order to make possible or to conceal another offense. " `If, in especially exceptional cases, the death penalty is not suitable (angemessen), punishment of confinement for life in a penitentiary shall be imposed.' " The agreed statement also contains a translation of §§ 44 and 51 of the German Criminal Code providing for reduction of sentence under circumstances which were deemed applicable to petitioner by the trial court. [3] See Allied High Commission, Law No. 1, Art. 1, December 28, 1949, 15 Fed. Reg. 2086, Appendix, infra, pp. 370-371. [4] See United States Military Government Ordinance No. 31, Art. 13, August 18, 1948, 14 Fed. Reg. 127. [5] See notes 1, 3 and 4, supra. [6] See 38 Stat. 1084-1085, 10 U. S. C. § 1452, and, since May 31, 1951, see Art. 58 of the Uniform Code of Military Justice, 64 Stat. 126, 50 U. S. C. (Supp. IV) § 639. [7] There was no nonmilitary court of the United States in Germany. She enjoyed the immunity from the jurisdiction of all German courts which had been granted to nationals of the United Nations and to families of members of the occupation forces. United States Military Government Law No. 2, Art. VI (1), 12 Fed. Reg. 2191, 2192, Appendix, infra, p. 364; Allied High Commission, Law No. 2, Art. 1, 14 Fed. Reg. 7457, Appendix, infra, p. 369; Allied High Commission, Law No. 13, Art. 1, 15 Fed. Reg. 1056-1057, see Appendix, infra, p. 370. [8] "By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offenses which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. . . . There [Their] competency has been recognized not only in acts of Congress, but in executive proclamations, in rulings of the courts, and in the opinions of the Attorneys General. During the Civil War they were employed in several thousand cases; . . . ." Howland, Digest of Opinions of the Judge-Advocates General of the Army (1912), 1066-1067. [9] In speaking of the authority and occasion for the use of a military commission, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (2d ed. 1920 reprint), says at 831: ". . . it is those provisions of the Constitution which empower Congress to `declare war' and `raise armies,' and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its original sanction. Its authority is thus the same as the authority for the making and waging of war and for the exercise of military government and martial law. The commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war. In some instances . . . Congress has specifically recognized the military commission as the proper war-court, and in terms provided for the trial thereby of certain offences. In general, however, it has left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war and other offences not cognizable by court-martial. "The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offences defined in a written code. It does not extend to many criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required. . . . Hence, in our military law, the distinctive name of military commission has been adopted for the exclusively war-court, which . . . is essentially a distinct tribunal from the court-martial of the Articles of war." For text of General Scott's General Order No. 20, as amended by General Order No. 287, September 17, 1847, authorizing the appointment of military commissions in Mexico, see Birkhimer, Military Government and Martial Law (2d ed. rev. 1904), App. I, 581-582. See also, Duncan v. Kahanamoku, 327 U. S. 304; In re Yamashita, 327 U. S. 1; Santiago v. Nogueras, 214 U. S. 260; Neely v. Henkel, 180 U. S. 109; Mechanics' & Traders' Bank v. Union Bank, 22 Wall. 276, 279 note; The Grapeshot, 9 Wall. 129, 132; Cross v. Harrison, 16 How. 164, 190; II Halleck, International Law (3d ed. 1893), 444-445. For an example of the exercise of jurisdiction in a murder case by a Provisional Court established in Louisiana, in 1862, by executive order of the President of the United States and an opinion by the Provisional Judge reviewing the constitutional authority for the establishment of his court, see United States v. Reiter, 27 Fed. Cas. No. 16,146. [10] While explaining a proposed reference to military commissions in Article of War 15, Judge Advocate General Crowder, in 1916, said, "A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law." S. Rep. No. 130, 64th Cong., 1st Sess. 40. [11] Such as Military Commission, Council of War, Military Tribunal, Military Government Court, Provisional Court, Provost Court, Court of Conciliation, Arbitrator, Superior Court, and Appellate Court. And see Winthrop, op. cit. 803-804. [12] It has been recognized, even after peace has been declared, pending complete establishment of civil government. See Duncan v. Kahanamoku, 327 U. S. 304; In re Yamashita, 327 U. S. 1, 12-13; Santiago v. Nogueras, 214 U. S. 260; Neely v. Henkel, 180 U. S. 109; Burke v. Miltenberger, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164. [13] See Article 43 of The Hague Regulations respecting the laws and customs of war on land with special relation to military authority over the territory of a hostile state (1907): "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." 36 Stat. 2306. "Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist. . . . The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead - in the discretion of the governing authority." Winthrop, op. cit. 800. [14] U. S. Const., Art. I, § 8, cl. 14. [15] Article XXXII of the American Articles of War of 1775 was taken from Article XXIII of Section XIV of the British Articles of War of 1765. It provided only that "All suttlers and retailers to a camp, and all persons whatsoever, serving with the continental army in the field, though not inlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army." (Emphasis supplied.) Winthrop's Military Law and Precedents (2d ed. 1920 reprint) 956, and see 941 and 950. Article 60 of the Articles of War of 1806 was similar. It substituted "retainers" for "retailers." Id., at 981. Article 60 was slightly amended in 1874. By 1916, as Article 63, Congress still provided, as to civilians, merely that "All retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war." (Emphasis supplied.) Id., at 991, and see 98-99. [16] The Enrollment Act of 1863 conferred upon courts-martial jurisdiction over many nonmilitary crimes if committed by soldiers in time of war. That Act incidentally recognized a concurrent jurisdiction over such crimes in military commissions: "SEC. 30. . . . in time of war, insurrection, or rebellion, murder, assault and battery with an intent to kill, manslaughter . . . shall be punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishments for such offences shall never be less than those inflicted by the laws of the state, territory, or district in which they may have been committed." (Emphasis supplied.) 12 Stat. 736. In the codification published as the Revised Statutes of 1874, the incidental reference to military commissions was omitted. Article of War 58 at 234. Petitioner attaches substantial significance to the omission. It seems clear, however, that regardless of what effect, if any, may attach to that omission in its relation to the jurisdiction of military commissions over persons in the military service, it has no effect on the jurisdiction of military commissions over civilians not "in the military service." This section of the Act of 1863 was enacted so as to place soldiers who committed certain nonmilitary crimes under the jurisdiction of military courts. See Caldwell v. Parker, 252 U. S. 376. The section did not relate to the jurisdiction of courts or commissions over civilians not in the military service. Cong. Globe, 37th Cong., 3d Sess. 988, 1256, 1377, 1384 (1863). For discussion of the phrase "in the military service" as used in Articles 58 and 60, see Gen. Crowder's testimony. S. Rep. No. 229, 63d Cong., 2d Sess. 104. [17] In 1920, Article of War 15 was reenacted with the addition of "by statute or" before the words "by the law of war." 41 Stat. 790, 10 U. S. C. § 1486. It was in that form in 1949 and 1950. It was again reenacted May 5, 1950, as the present Article 21 of the Uniform Code of Military Justice, effective May 31, 1951. 64 Stat. 115, 145, 50 U. S. C. (Supp. IV) § 581. The hearings, in 1949, on the latter legislation are of some significance here. They disclosed that the United States Military Government Courts in Germany were then exercising, in the occupied territory, criminal jurisdiction over United States civilians accompanying the Armed Forces. Attention even was called to the recent case of Wilma B. Ybarbo. Like petitioner in the instant case, she was a civilian dependent wife of a member of the United States Armed Forces in Germany, charged with the murder of her husband in violation of the German Criminal Code. She was convicted by the United States Military Government Court for the Third Judicial District. The Court of Appeals of the United States Military Government Courts, March 14, 1949, upheld her conviction, on a lesser charge, and sentenced her to five years' imprisonment. In its opinion, the latter court reviewed the basis for its jurisdiction. United States Military Government v. Ybarbo, 1 U. S. M. G. Court of Appeals 207. See also, Hearings before a Subcommittee of the House Committee on Armed Services on H. R. 2498, Uniform Code of Military Justice, 81st Cong., 1st Sess. 876, 975, 1061. With this practice before them, the Committees of both Houses of Congress recommended the reenactment of Article of War 15 as Article 21 of the new code. They said, "This article preserves existing Army and Air Force law which gives concurrent jurisdiction to military tribunals other than courts martial." S. Rep. No. 486, 81st Cong., 1st Sess. 13; H. R. Rep. No. 491, 81st Cong., 1st Sess. 17. [18] The 1916 Act substituted, for Article 63 (see note 15, supra), a new Article 12 which provided that "General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, and any other person who by the law of war is subject to trial by military tribunals: . . . ." (Emphasis supplied.) 39 Stat. 652, 41 Stat. 789, 62 Stat. 629, 10 U. S. C. (Supp. IV) § 1483. A new Article 2 then defined "any person subject to military law" so as to include - "(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles; . . . ." (Emphasis supplied.) 39 Stat. 651, 41 Stat. 787, 10 U. S. C. § 1473 (d). [19] In 1916, new Articles 92 and 93 expanded the jurisdiction of courts-martial over murder and certain other nonmilitary crimes so as to cover their commission by any "person subject to military law." That phrase, through Article 2, included civilians in the status of petitioner. See note 18, supra. For Articles 92 and 93, see 39 Stat. 664, 41 Stat. 805, 62 Stat. 640, 10 U. S. C. (Supp. IV) §§ 1564, 1565. See note 16, supra, for the substance of Article 30 of the Articles of War of 1863 and of Article 58 of the Articles of War of 1874. [20] In explaining like provisions to the House Committee on Military Affairs in 1912, General Crowder previously had said: "The next article, No. 15, is entirely new, and the reasons for its insertion in the code are these: In our War with Mexico two war courts were brought into existence by orders of Gen. Scott, viz, the military commission and the council of war. By the military commission Gen. Scott tried cases cognizable in time of peace by civil courts, and by the council of war he tried offenses against the laws of war. The council of war did not survive the Mexican War period, and in our subsequent wars its jurisdiction has been taken over by the military commission, which during the Civil War period tried more than 2,000 cases. While the military commission has not been formally authorized by statute, its jurisdiction as a war court has been upheld by the Supreme Court of the United States. It is an institution of the greatest importance in a period of war and should be preserved. In the new code the jurisdiction of courts-martial has been somewhat amplified by the introduction of the phrase `Persons subject to military law.' There will be more instances in the future than in the past when the jurisdiction of courts-martial will overlap that of the war courts, and the question would arise whether Congress having vested jurisdiction by statute the common law of war jurisdiction was not ousted. I wish to make it perfectly plain by the new article that in such cases the jurisdiction of the war court is concurrent. ..... ". . . I was influenced to propose the article [15] largely, perhaps, by experience during our second intervention in Cuba. It was not very long after that intervention had been inaugurated until two soldiers were charged with homicide of some natives. There was no civil court of the United States having jurisdiction. Plainly the court-martial could not try them, as the condition was not war. There were two courses open: First, to surrender them for trial before a Cuban court . . . the second course was to utilize the extraordinary authority which inhered in the office of the provisional governor and which extended to the making of laws, to promulgate a special decree creating a provisional court for the trial of these men. This second course was followed, and the accused soldiers were tried by a court composed of officers of the Army, which administered the provisions of the Spanish criminal code. Should we be confronted again with the necessity of intervention, that situation is likely to repeat itself." S. Rep. No. 229, 63d Cong., 2d Sess. 53, 98-99. [21] See note 9, supra. [22] In Ex parte Quirin, 317 U. S. 1, 28, this Court said: "By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war has invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war." In that case the military commission's conviction of saboteurs, including one citizen of the United States, was upheld on charges of violating the law of war as defined by statute. Id., at 35-38. [23] The Government estimates that the United States Area of Control has a German population of about 17,000,000, plus United Nations nationals, including refugees. As of November 30, 1949, it estimates that there were in Germany about 34,000 dependents of members of United States Armed Forces, plus 4,700 civilian employees with 5,000 dependents. Other United States agencies had 4,100 employees in Germany. The occupation courts have been handling at least 1,000 criminal cases a month, including from 25 to 30 cases involving American civilians. See also, general account of the development of the Military Government Courts in Clay, Decision in Germany (1950), 246-248. [24] United States Military Government Ordinance No. 2, in 1946, provided - "(e) Article V; rights of accused. (1) Every person accused before a Military Government Court shall be entitled: "(i) To have in advance of trial a copy of the charges upon which he is to be tried; "(ii) To be present at his trial, to give evidence and to examine or cross-examine any witness; but the court may proceed in the absence of the accused if the accused has applied for and been granted permission to be absent, or if the accused is believed to be a fugitive from justice; "(iii) To consult a lawyer before trial and to conduct his own defense or to be represented at the trial by a lawyer of his own choice, subject to the right of the court to debar any person from appearing before the court; "(iv) In any case in which a sentence of death may be imposed, to be represented by an officer of the Allied Forces, if he is not otherwise represented; "(v) To bring with him to his trial such material witnesses in his defense as he may wish, or to have them summoned by the court at his request, if practicable; "(vi) To apply to the court for an adjournment where necessary to enable him to prepare his defense; "(vii) To have the proceedings translated, when he is otherwise unable to understand the language in which they are conducted;. . . ." 12 Fed. Reg. 2191. [25] United States Military Government Ordinances 32 and 33, code of criminal procedure for United States Military Government Courts for Germany, 14 Fed. Reg. 128-133. Field Manual 27-5 (1947), at page 66, provides: "Military government tribunals are not governed by the provisions of the Manual for Courts-Martial nor by the limitations imposed on courts-martial by Articles of War. Experience has demonstrated that in administering justice in an occupied area, it is desirable to follow forms of judicial procedure which are generally similar to the forms of procedure to which the people are accustomed." Cf. the order of President Lincoln of October 20, 1862, establishing a Provisional Court in New Orleans, Louisiana, as a "court of record for the State of Louisiana" with a civilian as - "a provisional judge, to hold said court, with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and admiralty, and particularly all such powers and jurisdiction as belong to the District and Circuit courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States in Louisiana; his judgments to be final and conclusive. . . . These appointments [of prosecuting attorney, marshal and clerk of the court] are to continue during the pleasure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoration of the civil authority in that city and the State of Louisiana." (Emphasis supplied.) Mechanics' & Traders' Bank v. Union Bank, 22 Wall. 276, 279 note; and see United States v. Reiter, 27 Fed. Cas. No. 16,146. [26] They did not provide for juries. The presentment or indictment of a grand jury required in a federal capital case by the Fifth Amendment to the Constitution of the United States, under the terms of that Amendment, has no application to "cases arising in the land or naval forces . . . ." The right of trial by jury required in federal criminal prosecutions by the Sixth Amendment is similarly limited. See Ex parte Quirin, 317 U. S. 1, 40, 43-45; Ex parte Milligan, 4 Wall. 2, 123, 138. [27] ". . . The status of military government continues from the inception of the actual occupation till the invader is expelled by force of arms, or himself abandons his conquest, or till, under a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the prevailing belligerent." Winthrop, op. cit. 801. [28] See note 18, supra. [29] Cf. Dow v. Johnson, 100 U. S. 158, 166; Ketchum v. Buckley, 99 U. S. 188, as illustrations of the practice of recognizing the existing law of the occupied area; and Winthrop, op. cit. 800.

Cite as: 579 U. S. ____ (2016) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16A52 _________________ GLOUCESTER COUNTY SCHOOL BOARD v. G. G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM ON APPLICATION TO RECALL AND STAY [August 3, 2016] The application to recall and stay the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 15-2056, presented to THE CHIEF JUSTICE and by him referred to the Court, is granted and the preliminary injunction entered by the United States District Court for the Eastern District of Virginia on June 23, 2016, is hereby stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certi- orari is granted, the stay shall terminate upon the issu- ance of the judgment of this Court. JUSTICE BREYER, concurring. In light of the facts that four Justices have voted to grant the application referred to the Court by THE CHIEF JUSTICE, that we are currently in recess, and that grant- ing a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court con- siders the forthcoming petition for certiorari, I vote to grant the application as a courtesy. See Medellín v. Texas, 554 U. S. 759, 765 (2008) (BREYER, J., dissenting). JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN would deny the application.

256 U.S. 575 (1921) SUTTON, TRUSTEE OF ESTATE OF HILLSBORO DREDGING COMPANY, BANKRUPT, v. UNITED STATES. No. 307. Supreme Court of United States. Argued April 29, 1921. Decided June 1, 1921. APPEAL FROM THE COURT OF CLAIMS. *576 Mr. John B. Sutton, with whom Mr. M. Walton Hendry was on the brief, for appellant. Mr. Frank Davis, Jr., Special Assistant to the Attorney General, with whom Mr. Geo. T. Stormont and Mr. Wm. D. Harris were on the brief, for the United States. *577 MR. JUSTICE BRANDEIS delivered the opinion of the court. The River and Harbor Act of July 25, 1912, c. 253, 37 Stat. 201, 209, made this appropriation: "Improving channel from Clearwater Harbor through Boca Ceiga Bay to Tampa Bay, Florida: Completing improvement and for maintenance, twenty thousand dollars." Sealed proposals were solicited, and on January 21, 1913, a contract was made by the War Department with the Hillsboro Dredging Company to do work at unit rates for dredging soft material and for excavating rock. The appropriation was ample to defray the cost at these rates, assuming that the quantities of material to be removed did not greatly exceed the estimates presented by the specifications. It was provided by the contract that United States "inspectors will keep a record of the work done" and also that, "within the limits of available funds the United States reserves the right to require the removal of such yardage as will complete the work . . . be it more or less than the quantity above estimated. . . ." Work was begun under the contract in June, 1913, and payments were made monthly on estimates of the government inspector. Upon these estimates both the Government and the contractor relied. About May 15, 1914, it was discovered that through a mistake of the inspector so much work had already been done that, if paid for at the unit rates, it would call for an amount far in excess of the appropriation available. The government engineer in charge ordered operations discontinued immediately; and this contractor had no further connection with the work. The work already done amounted at the unit price to $25,032.31. The aggregate appropriation available for the improvement - including an additional $3,000 made by Act of March 4, 1913, c. 144, 37 Stat. 801, 809 - was $23,000. Against this appropriation the Government *578 charged $1,732.90 for superintendence and office expenses. The balance - $21,267.10 - it paid to the contractor, leaving unsatisfied a claim, at the unit rates, of $3,042.74, for material dredged or excavated, and a further claim of $1,551 for the cost of blasting rock which was not removed because of the order to cease work. To recover these sums the assignee in bankruptcy of the Hillsboro Company brought this suit in the Court of Claims. That court entered judgment for the Government, 55 Ct. Clms. 193; and the case is here on appeal. First. It is urged that the Secretary of War was authorized by Congress to make, and that he did make, a contract with the Hillsboro Company not only to proceed with the work, but for its completion; and that the United States is, therefore, liable, even though the appropriation proved to be insufficient. Two appropriations had been made for this project before the Act of 1912 above referred to; one by Act of June 25, 1910, c. 382, 36 Stat. 630, 644, of $29,500, for "improving channel from Clearwater Harbor"; the other by Act of February 27, 1911, c. 166, 36 Stat. 933, 941, of a like amount for "completing improvement." The Act of 1912 provided by § 8 (37 Stat. 233) that "whenever the appropriations made, or authorized to be made, for the completion of any river and harbor work shall prove insufficient therefor, the Secretary of War may, in his discretion, on the recommendation of the Chief of Engineers, apply the funds so appropriated or authorized to the prosecution of such work." But by none of these acts was any authority conferred upon the Secretary of War to complete the improvement or to contract to expend more than the amount then appropriated. On the other hand, § 3733 of the Revised Statutes provides that no contract "for any public improvement . . . shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose." See *579 also §§ 3732 and 5503. And the Act of June 30, 1906, c. 3914, provides by § 9 (34 Stat. 697, 764) that "No Act of Congress hereafter passed shall be construed . . . to authorize the execution of a contract involving the payment of money in excess of appropriations made by law, unless such Act shall in specific terms declare an appropriation to be made or that a contract may be executed." The Secretary of War was, therefore, without power to make a contract binding the Government to pay more than the amount appropriated. See Bradley v. United States, 98 U.S. 104, 113, 114. Those dealing with him must be held to have had notice of the limitations upon his authority. But there is nothing in the contract indicating a purpose to bind the Government for any amount in excess of the appropriation. On the contrary, it limits to the amount of the appropriation the work which may be done. By Act of October 2, 1914, c. 313, 38 Stat. 725, Congress appropriated the sum of $20,000,000 "to be expended under the direction of the Secretary of War and the supervision of the Chief of Engineers, for the preservation and maintenance of existing river and harbor works, and for the prosecution of such projects heretofore authorized as may be most desirable in the interests of commerce and navigation, and most economical and advantageous in the execution of the work." Out of the sum so appropriated $12,000 was allotted by the Secretary for completing the Clearwater Harbor Improvement; and out of this sum there was paid to the contractor in November, 1914, $3,046.44, being the unpaid balance at unit prices for the material removed prior to May 15, 1914. This payment was later disallowed by the auditor for the War Department and the Comptroller of the Treasury and was deducted from payments made to the contractor under a wholly different contract for work in North and South Carolina. It is clear that the Act of 1914 did not *580 authorize the application of any part of the appropriation to work theretofore done. The payment therefrom having been unauthorized, did not bind the Government; and if it was entitled to recover the money, the method pursued in doing so was proper. Wisconsin Central R.R. Co. v. United States, 164 U.S. 190; Grand Trunk Western Ry. Co. v. United States, 252 U.S. 112. Second. It is contended that since the contract provided that the government "inspectors will keep a record of the work done," since their estimates were relied upon by the contractor, and since by reason of the inspector's mistake the contractor was led to do work in excess of the appropriation, the United States is liable as upon an implied contract for the fair value of the work performed. But the short answer to this contention is that since no official of the Government could have rendered it liable for this work by an express contract, none can by his acts or omissions create a valid contract implied in fact. The limitation upon the authority to impose contract obligations upon the United States is as applicable to contracts by implication as it is to those expressly made. Nor did the subsequent use of the excavation by the Government imply a promise to pay for it if at any time thereafter Congress should appropriate money to be applied in completing the improvement. "Whenever a structure is permanently affixed to real property belonging to an individual, without his consent or request, he cannot be held responsible because of its subsequent use. It becomes his by being annexed to the soil; and he is not obliged to remove it to escape liability. He is not deemed to have accepted it so as to incur an obligation to pay for it, merely because he has not chosen to tear it down, but has seen fit to use it." United States v. Pacific Railroad, 120 U.S. 227, 240. And the work here in question was not done with the consent or at the request of the United States; for neither the government inspectors *581 nor the Secretary of War had authority either to obligate the Government or accept voluntary services. See Rev. Stats., § 3679, as amended March 3, 1905, c. 1484, § 4, 33 Stat. 1257, and February 27, 1906, c. 510, § 3, 34 Stat. 48. There is no necessity to consider what may be the equitable rule where there is a claim of unjust enrichment through work done upon the land of another under a mistake of fact. See Bright v. Boyd, 1 Story, 478; 2 Story, 608; Williams v. Gibbes, 20 How. 535, 538; Canal Bank v. Hudson, 111 U.S. 66, 82-83; Armstrong v. Ashley, 204 U.S. 272, 285. Nor need we consider whether the doctrine is ever applicable to transactions with the Government. For the right to sue the United States in the Court of Claims here invoked must rest upon the existence of a contract express or implied in fact. United States v. North American Transportation & Trading Co., 253 U.S. 330, 335. Third. While the contractor cannot recover for work done in excess of the appropriation he is entitled to payment to the extent of the available appropriation. The amount appropriated was $23,000. The contractor received only $21,267.10. It appears that the balance, $1,732.90, was applied to superintendence and office expenses; and the findings of fact state that the contractor "was charged with expenses of inspection during an extension of time beyond the contract period amounting to $722.47." The appropriate expense of superintendence is clearly chargeable against the appropriation. But if through mistake of the Government's representatives more work is done, and work is continued for a longer period than was contracted for or authorized, the expenses of superintendence incident to the mistake should be borne by the Government; and the contractor should not be made to suffer by the depletion of the appropriation. The fund otherwise available for work actually performed should be applied to that purpose. *582 The findings of fact leave us in doubt whether there has been charged against this appropriation any sum for superintendence in excess of amounts properly chargeable; and counsel were unable to remove these doubts, to which attention was called at the argument. Unless the parties can agree as to the facts, the case should be remanded to the Court of Claims to determine what, if any, amount was erroneously charged against the appropriations aggregating $23,000; and for the amount of such improper charges, if any, judgment should be entered for the petitioner. Except as stated the judgment is Affirmed.

522 U.S. 479 (1998) NATIONAL CREDIT UNION ADMINISTRATION v. FIRST NATIONAL BANK & TRUST CO. et al. No. 96-843. United States Supreme Court. Argued October 6, 1997. Decided February 25, 1998.[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT *480 *481 *482 Thomas, J., delivered an opinion, which was for the Court except as to footnote 6. Rehnquist, C. J., and Kennedy and Ginsburg, JJ., joined that opinion in full, and Scalia, J., joined except as to footnote 6. O'Connor, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined, post, p. 503. Solicitor General Waxman argued the cause for the federal petitioner. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, David C. Frederick, Douglas N. Letter, Jacob M. Lewis, Michael E. Robinson, and John K. Ianno. John G. Roberts, Jr., argued the cause for petitioner AT&T Family Federal Credit Union et al. With him on the briefs were Paul J. Lambert, Jonathan S. Franklin, and Brenda S. Furlow. Michael S. Helfer argued the cause for respondents. With him on the briefs were Louis R. Cohen, Christopher R. Lipsett, John J. Gill III, and Michael F. Crotty.[†] Justice Thomas delivered the opinion of the Court, except as to footnote 6.[*] Section 109 of the Federal Credit Union Act (FCUA), 48 Stat. 1219, 12 U. S. C. § 1759, provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within *483 a well-defined neighborhood, community, or rural district." Since 1982, the National Credit Union Administration (NCUA), the agency charged with administering the FCUA, has interpreted § 109 to permit federal credit unions to be composed of multiple unrelated employer groups, each having its own common bond of occupation. In this action, respondents, five banks and the American Bankers Association, have challenged this interpretation on the ground that § 109 unambiguously requires that the same common bond of occupation unite every member of an occupationally defined federal credit union. We granted certiorari to answer two questions. First, do respondents have standing under the Administrative Procedure Act to seek federal-court review of the NCUA's interpretation? Second, under the analysis set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), is the NCUA's interpretation permissible? We answer the first question in the affirmative and the second question in the negative. We therefore affirm. I A In 1934, during the Great Depression, Congress enacted the FCUA, which authorizes the chartering of credit unions at the national level and provides that federal credit unions may, as a general matter, offer banking services only to their members. Section 109 of the FCUA, which has remained virtually unaltered since the FCUA's enactment, expressly restricts membership in federal credit unions. In relevant part, it provides: "Federal credit union membership shall consist of the incorporators and such other persons and incorporated and unincorporated organizations, to the extent permitted by rules and regulations prescribed by the Board, as may be elected to membership and as such shall each, subscribe to at least one share of its stock and pay the *484 initial installment thereon and a uniform entrance fee if required by the board of directors; except that Federal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, commu- nity, or rural district." 12 U. S. C. § 1759 (emphasis added). Until 1982, the NCUA and its predecessors consistently interpreted § 109 to require that the same common bond of occupation unite every member of an occupationally defined federal credit union. In 1982, however, the NCUA reversed its longstanding policy in order to permit credit unions to be composed of multiple unrelated employer groups. See IRPS 82-1, 47 Fed. Reg. 16775 (1982). It thus interpreted § 109's common bond requirement to apply only to each employer group in a multiple-group credit union, rather than to every member of that credit union. See IRPS 82-3, 47 Fed. Reg. 26808 (1982). Under the NCUA's new interpretation, all of the employer groups in a multiple-group credit union had to be located "within a well-defined area," ibid., but the NCUA later revised this requirement to provide that each employer group could be located within "an area surrounding the [credit union's] home or a branch office that can be reasonably served by the [credit union] as determined by NCUA." IRPS 89-1, 54 Fed. Reg. 31170 (1989). Since 1982, therefore, the NCUA has permitted federal credit unions to be composed of wholly unrelated employer groups, each having its own distinct common bond. B After the NCUA revised its interpretation of § 109, petitioner AT&T Family Federal Credit Union (ATTF) expanded its operations considerably by adding unrelated employer groups to its membership. As a result, ATTF now has approximately 110,000 members nationwide, only 35% of *485 whom are employees of AT&T and its affiliates. See Brief for Petitioner NCUA 9. The remaining members are employees of such diverse companies as the Lee Apparel Company, the Coca-Cola Bottling Company, the Ciba-Geigy Corporation, the Duke Power Company, and the American Tobacco Company. See App. 54-79. In 1990, after the NCUA approved a series of amendments to ATTF's charter that added several such unrelated employer groups to ATTF's membership, respondents brought this action. Invoking the judicial review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 702, respondents claimed that the NCUA's approval of the charter amendments was contrary to law because the members of the new groups did not share a common bond of occupation with ATTF's existing members, as respondents alleged § 109 required. ATTF and petitioner Credit Union National Association were permitted to intervene in the action as defendants. The District Court dismissed the complaint. It held that respondents lacked prudential standing to challenge the NCUA's chartering decision because their interests were not within the "zone of interests" to be protected by § 109, as required by this Court's cases interpreting the APA. First Nat. Bank & Trust Co. v. National Credit Union Admin., 772 F. Supp. 609 (DC 1991). The District Court rejected as irrelevant respondents' claims that the NCUA's interpretation had caused them competitive injury, stating that the legislative history of the FCUA demonstrated that it was passed "to establish a place for credit unions within the country's financial market, and specifically not to protect the competitive interest of banks." Id., at 612. The District Court also determined that respondents were not "suitable challengers" to the NCUA's interpretation, as that term had been used in prior prudential standing cases from the Court of Appeals for the District of Columbia Circuit. Ibid. *486 The Court of Appeals for the District of Columbia Circuit reversed. First Nat. Bank & Trust Co. v. National Credit Union Admin., 988 F. 2d 1272, cert. denied, 510 U. S. 907 (1993). The Court of Appeals agreed that "Congress did not, in 1934, intend to shield banks from competition from credit unions," 988 F. 2d, at 1275, and hence respondents could not be said to be "intended beneficiaries" of § 109. Relying on two of our prudential standing cases involving the financial services industry, Investment Company Institute v. Camp, 401 U. S. 617 (1971), and Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), the Court of Appeals nonetheless concluded that respondents' interests were sufficiently congruent with the interests of § 109's intended beneficiaries that respondents were "suitable challengers" to the NCUA's chartering decision; therefore, their suit could proceed. See 988 F. 2d, at 1276-1278.[1] On remand, the District Court applied the two-step analysis that we announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and held that the NCUA had permissibly interpreted § 109. 863 F. Supp. 9 (DC 1994). It first asked whether, in enacting § 109, Congress had spoken directly to the precise question at issue - whether the same common bond of occupation must unite members of a federal credit union composed of multiple employer groups. See id., at 12. It determined that because § 109 could plausibly be understood to permit an occupationally defined federal credit union to consist of several employer "groups," each having its own distinct common bond of occupation, Congress had not unambiguously addressed this question. See ibid. The District Court then *487 stated that it was unnecessary to decide, under the second step of Chevron, whether the NCUA's interpretation was reasonable, because respondents had not "seriously argued" that the interpretation was unreasonable. See 863 F. Supp., at 13-14. Accordingly, the District Court entered summary judgment against respondents. See ibid. The Court of Appeals again reversed. 90 F. 3d 525 (CADC 1996). It held that the District Court had incorrectly applied the first step of Chevron: Congress had indeed spoken directly to the precise question at issue and had unambiguously indicated that the same common bond of occupation must unite members of a federal credit union composed of multiple employer groups. See 90 F. 3d, at 527. The Court of Appeals reasoned that because the concept of a "common bond" is implicit in the term "group," the term "common bond" would be surplusage if it applied only to the members of each constituent "group" in a multiple-group federal credit union. See id., at 528. It further noted that the NCUA had not interpreted § 109's geographical limitation to allow federal credit unions to comprise groups from multiple unrelated "neighborhood[s], communit[ies], or rural district[s]" and stated that the occupational limitation should not be interpreted differently. See id., at 528-529. The NCUA's revised interpretation of § 109 was therefore impermissible.[2] See id., at 529. Because of the importance of the issues presented,[3] we granted certiorari. 519 U. S. 1148 (1997). *488 II Respondents claim a right to judicial review of the NCUA's chartering decision under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U. S. C. § 702. We have interpreted § 10(a) of the APA to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact. See, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152 (1970) (Data Processing).[4] For a plaintiff to have prudential standing under the APA, "the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute . . . in question." Id., at 153. Based on four of our prior cases finding that competitors of financial institutions have standing to challenge agency action relaxing statutory restrictions on the activities of those institutions, we hold that respondents' interest in limiting the markets that federal credit unions can serve is arguably within the zone of interests to be protected by § 109. Therefore, respondents have prudential standing under the APA to challenge the NCUA's interpretation. A Although our prior cases have not stated a clear rule for determining when a plaintiff's interest is "arguably within the zone of interests" to be protected by a statute, they nonethe *489 less establish that we should not inquire whether there has been a congressional intent to benefit the would-be plaintiff. In Data Processing, supra, the Office of the Comptroller of the Currency (Comptroller) had interpreted the National Bank Act's incidental powers clause, Rev. Stat. § 5136, 12 U. S. C. § 24 Seventh, to permit national banks to perform data processing services for other banks and bank customers. See Data Processing, supra, at 151. The plaintiffs, a data processing corporation and its trade association, alleged that this interpretation was impermissible because providing data processing services was not, as was required by the statute, "[an] incidental powe[r] . . . necessary to carry on the business of banking." See 397 U. S., at 157, n. 2. In holding that the plaintiffs had standing, we stated that § 10(a) of the APA required only that "the interest sought to be protected by the complainant [be] arguably within the zone of interests to be protected or regulated by the statute. . . in question." Id., at 153. In determining that the plaintiffs' interest met this requirement, we noted that although the relevant federal statutes - the National Bank Act, 12 U. S. C. § 24 Seventh, and the Bank Service Corporation Act, 76 Stat. 1132, 12 U. S. C. § 1864 - did not "in terms protect a specified group[,] . . . their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable." Data Processing, 397 U. S., at 157. "[A]s competitors of national banks which are engaging in data processing services," the plaintiffs were within that class of "aggrieved persons" entitled to judicial review of the Comptroller's interpretation. Ibid. Less than a year later, we applied the "zone of interests" test in Arnold Tours, Inc. v. Camp, 400 U. S. 45 (1970) (per curiam) (Arnold Tours). There, certain travel agencies challenged a ruling by the Comptroller, similar to the one contested in Data Processing, that permitted national banks to operate travel agencies. See 400 U. S., at 45. In holding *490 that the plaintiffs had prudential standing under the APA, we noted that it was incorrect to view our decision in Data Processing as resting on the peculiar legislative history of § 4 of the Bank Service Corporation Act, which had been passed in part at the behest of the data processing industry. See 400 U. S., at 46. We stated explicitly that "we did not rely on any legislative history showing that Congress desired to protect data processors alone from competition." Ibid. We further explained: "In Data Processing . . . [w]e held that § 4 arguably brings a competitor within the zone of interests protected by it. Nothing in the opinion limited § 4 to protecting only competitors in the data-processing field. When national banks begin to provide travel services for their customers, they compete with travel agents no less than they compete with data processors when they provide data-processing services to their customers." Ibid. (internal citations and quotation marks omitted). A year later, we decided Investment Company Institute v. Camp, 401 U. S. 617 (1971) (ICI). In that case, an investment company trade association and several individual investment companies alleged that the Comptroller had violated, inter alia, § 21 of the Glass-Steagall Act, 1932,[5] by permitting national banks to establish and operate what in essence were early versions of mutual funds. We held that the plaintiffs, who alleged that they would be injured by the competition resulting from the Comptroller's action, had standing under the APA and stated that the case was controlled by Data Processing. See 401 U. S., at 621. *491 Significantly, we found unpersuasive Justice Harlan's argument in dissent that the suit should be dismissed because "neither the language of the pertinent provisions of the Glass-Steagall Act nor the legislative history evince[d] any congressional concern for the interests of petitioners and others like them in freedom from competition." Id., at 640. Our fourth case in this vein was Clarke v. Securities Industry Assn., 479 U. S. 388 (1987) (Clarke). There, a securities dealers trade association sued the Comptroller, this time for authorizing two national banks to offer discount brokerage services both at their branch offices and at other locations inside and outside their home States. See id., at 391. The plaintiff contended that the Comptroller's action violated the McFadden Act, which permits national banks to carry on the business of banking only at authorized branches, and to open new branches only in their home States and only to the extent that state-chartered banks in that State can do so under state law. See id., at 391-392. We again held that the plaintiff had standing under the APA. Summarizing our prior holdings, we stated that although the "zone of interests" test "denies a right of review if the plaintiff's interests are . . . marginally related to or inconsistent with the purposes implicit in the statute," id., at 399, "there need be no indication of congressional purpose to benefit the would-be plaintiff," id., at 399-400 (citing ICI ). We then determined that by limiting the ability of national banks to do business outside their home States, "Congress ha[d] shown a concern to keep national banks from gaining a monopoly control over credit and money." 479 U. S., at 403. The interest of the securities dealers in preventing national banks from expanding into the securities markets directly implicated this concern because offering discount brokerage services would allow national banks "access to more money, in the form of credit balances, and enhanced opportunities to lend money, viz., for margin purchases." Ibid. The case was thus analogous to Data Processing and ICI: "In those *492 cases the question was what activities banks could engage in at all; here, the question is what activities banks can engage in without regard to the limitations imposed by state branching law." 479 U. S., at 403. B Our prior cases, therefore, have consistently held that for a plaintiff's interests to be arguably within the "zone of interests" to be protected by a statute, there does not have to be an "indication of congressional purpose to benefit the would-be plaintiff." Id., at 399-400 (citing ICI); see also Arnold Tours, 400 U. S., at 46 (citing Data Processing ). The proper inquiry is simply "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected . . . by the statute." Data Processing, 397 U. S., at 153 (emphasis added). Hence in applying the "zone of interests" test, we do not ask whether, in enacting the statutory provision at issue, Congress specifically intended to benefit the plaintiff. Instead, we first discern the interests "arguably . . . to be protected" by the statutory provision at issue; we then inquire whether the plaintiff's interests affected by the agency action in question are among them. Section 109 provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759. By its express terms, § 109 limits membership in every federal credit union to members of definable "groups." Because federal credit unions may, as a general matter, offer banking services only to members, see, e. g., 12 U. S. C. §§ 1757(5) - (6), § 109 also restricts the markets that every federal credit union can serve. Although these markets need not be small, they unquestionably are limited. The link between § 109's regulation of federal credit union membership and its limitation on the markets that federal credit unions can serve is unmistakable. Thus, even if it cannot be said *493 that Congress had the specific purpose of benefiting commercial banks, one of the interests "arguably . . . to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve.[6] This interest is precisely the interest of respondents affected by the NCUA's interpretation of § 109. As competitors of federal credit unions, respondents certainly have an interest in limiting the markets that federal credit unions can serve, and the NCUA's interpretation *494 has affected that interest by allowing federal credit unions to increase their customer base.[7] Section 109 cannot be distinguished from the statutory provisions at issue in Clarke, ICI, Arnold Tours, and Data Processing. Although in Clarke the McFadden Act appeared to be designed to protect only the interest of state banks in parity of treatment with national banks, we nonetheless determined that the statute also limited "the extent to which [national] banks [could] engage in the discount brokerage business and hence limit[ed] the competitive impact on nonbank discount brokerage houses." Clarke, 479 U. S., at 403. Accordingly, although Congress did not intend specifically to protect securities dealers, one of the interests "arguably . . . to be protected" by the statute was an interest in restricting national bank market power. The plaintiff securities dealers, as competitors of national banks, had that interest, and that interest had been affected by the interpretation *495 of the McFadden Act they sought to challenge, because that interpretation had allowed national banks to expand their activities and serve new customers. See ibid. Similarly, in ICI, even though in enacting the GlassSteagall Act, Congress did not intend specifically to benefit investment companies and may have sought only to protect national banks and their depositors, one of the interests "arguably . . . to be protected" by the statute was an interest in restricting the ability of national banks to enter the securities business. The investment company plaintiffs, as competitors of national banks, had that interest, and that interest had been affected by the Comptroller's interpretation allowing national banks to establish mutual funds. So too, in Arnold Tours and Data Processing, although in enacting the National Bank Act and the Bank Service Corporation Act, Congress did not intend specifically to benefit travel agents and data processors and may have been concerned only with the safety and soundness of national banks, one of the interests "arguably . . . to be protected" by the statutes was an interest in preventing national banks from entering other businesses' product markets. As competitors of national banks, travel agents and data processors had that interest, and that interest had been affected by the Comptroller's interpretations opening their markets to national banks. See also Nations Bank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 (1995) (deciding that the Comptroller had permissibly interpreted 12 U. S. C. § 24 Seventh to allow national banks to act as agents in the sale of annuities; insurance agents' standing to challenge the interpretation not questioned). C Petitioners attempt to distinguish this action principally on the ground that there is no evidence that Congress, when *496 it enacted the FCUA, was at all concerned with the competitive interests of commercial banks, or indeed at all concerned with competition. See Brief for Petitioner ATTF 21-22. Indeed, petitioners contend that the very reason Congress passed the FCUA was that "[b]anks were simply not in the picture" as far as small borrowers were concerned, and thus Congress believed it necessary to create a new source of credit for people of modest means. See id., at 25. The difficulty with this argument is that similar arguments were made unsuccessfully in each of Data Processing, Arnold Tours, ICI, and Clarke. In Data Processing, the Comptroller argued against standing for the following reasons: "[P]etitioners do not contend that Section 24 Seventh had any purpose . . . to protect the interest of potential competitors of national banks. The reason is clear: the legislative history of the Section dispels all possible doubt that its enactment in 1864 (13 Stat. 101) was for the express and sole purpose of creating a strong national banking system . . . . To the extent that the protection of a competitive interest was at the bottom of the enactment of Section 24 Seventh, it was the interest of national banks and not of their competitors." Brief for Comptroller of the Currency in Association of Data Processing Service Organizations, Inc. v. Camp, O. T. 1969, No. 85, pp. 19-20. Similarly, in Arnold Tours, the Comptroller contended that the position of the travel agents was "markedly different from that of the data processors," who could find in the legislative history "some manifestation of legislative concern for their competitive position." Memorandum for Comptroller of the Currency in Opposition in Arnold Tours, Inc. v. Camp, O. T. 1970, No. 602, pp. 3-4. And in ICI, the Comptroller again urged us not to find standing, because - *497 "[t]he thrust of the legislation, and the concern of the drafters, was to protect the banking public through the maintenance of a sound national banking system . . . . . . . . . "There was no Congressional objective to protect mutual funds or their investment advisers or underwriters." Brief for Comptroller of Currency in Investment Company Institute v. Camp, O. T. 1970, No. 61, pp. 27-29 (internal quotation marks omitted). "Indeed, the Congressional attitude toward the investment bankers can only be characterized as one of distaste. For example, in discussing the private investment bankers, Senator Glass pointed out that many of them had `unloaded millions of dollars of worthless investment securities upon the banks of this country.' " Id., at 30, n. 22 (citation omitted). Finally, in Clarke, the Comptroller contended that "[t]here is no doubt that Congress had only one type of competitive injury in mind when it passed the [McFadden] Act - the type that national and state banks might inflict upon each other." Brief for Federal Petitioner in Clarke v. Securities Industry Assn., O. T. 1985, No. 85-971, p. 24. In each case, we declined to accept the Comptroller's argument. In Data Processing, we considered it irrelevant that the statutes in question "d[id] not in terms protect a specified group," because "their general policy [was] apparent[,] and those whose interests [were] directly affected by a broad or narrow interpretation of [the statutes] [were] easily identifiable." 397 U. S., at 157. In Arnold Tours, we similarly believed it irrelevant that Congress had shown no concern for the competitive position of travel agents in enacting the statutes in question. See 400 U. S., at 46. In ICI, we were unmoved by Justice Harlan's comment in dissent that the Glass-Steagall Act was passed in spite of its positive effects on the competitive position of investment banks. See 401 U. S., at 640. And in Clarke, we did not debate whether *498 the Congress that enacted the McFadden Act was concerned about the competitive position of securities dealers. See 479 U. S., at 403. The provisions at issue in each of these cases, moreover, could be said merely to be safety-and-soundness provisions, enacted only to protect national banks and their depositors and without a concern for competitive effects. We nonetheless did not hesitate to find standing. We therefore cannot accept petitioners' argument that respondents do not have standing because there is no evidence that the Congress that enacted § 109 was concerned with the competitive interests of commercial banks. To accept that argument, we would have to reformulate the "zone of interests" test to require that Congress have specifically intended to benefit a particular class of plaintiffs before a plaintiff from that class could have standing under the APA to sue. We have refused to do this in our prior cases, and we refuse to do so today. Petitioners also mistakenly rely on our decision in Air Courier Conference v. Postal Workers, 498 U. S. 517 (1991). In Air Courier, we held that the interest of Postal Service employees in maximizing employment opportunities was not within the "zone of interests" to be protected by the postal monopoly statutes, and hence those employees did not have standing under the APA to challenge a Postal Service regulation suspending its monopoly over certain international operations. See id., at 519. We stated that the purposes of the statute were solely to increase the revenues of the Post Office and to ensure that postal services were provided in a manner consistent with the public interest, see id., at 526 - 527. Only those interests, therefore, and not the interests of Postal Service employees in their employment, were "arguably within the zone of interests to be protected" by the statute. Cf. Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990) (stating that an agency reporting company would not have prudential standing to challenge the agency's failure to comply with a statutory mandate to conduct *499 hearings on the record). We further noted that although the statute in question regulated competition, the interests of the plaintiff employees had nothing to do with competition. See Air Courier, supra, at 528, n. 5 (stating that "[e]mployees have generally been denied standing to enforce competition laws because they lack competitive and direct injury"). In this action, not only do respondents have "competitive and direct injury," but, as the foregoing discussion makes clear, they possess an interest that is "arguably. . . to be protected" by § 109. Respondents' interest in limiting the markets that credit unions can serve is "arguably within the zone of interests to be protected" by § 109. Under our precedents, it is irrelevant that in enacting the FCUA, Congress did not specifically intend to protect commercial banks. Although it is clear that respondents' objectives in this action are not eleemosynary in nature,[8] under our prior cases that, too, is beside the point.[9] III Turning to the merits, we must judge the permissibility of the NCUA's current interpretation of § 109 by employing the analysis set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Under that analysis, we first ask whether Congress has "directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously *500 expressed intent of Congress." Id., at 842-843. If we determine that Congress has not directly spoken to the precise question at issue, we then inquire whether the agency's interpretation is reasonable. See id., at 843-844. Because we conclude that Congress has made it clear that the same common bond of occupation must unite each member of an occupationally defined federal credit union, we hold that the NCUA's contrary interpretation is impermissible under the first step of Chevron. As noted, § 109 requires that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district. " Respondents contend that because § 109 uses the article "a" - "i. e., one" - in conjunction with the noun "common bond," the "natural reading" of § 109 is that all members in an occupationally defined federal credit union must be united by one common bond. See Brief for Respondents 33. Petitioners reply that because § 109 uses the plural noun "groups," it permits multiple groups, each with its own common bond, to constitute a federal credit union. See Brief for Petitioner NCUA 29-30. Like the Court of Appeals, we do not think that either of these contentions, standing alone, is conclusive. The article "a" could be thought to convey merely that one bond must unite only the members of each group in a multiple-group credit union, and not all of the members in the credit union taken together. See 90 F. 3d, at 528. Similarly, the plural word "groups" could be thought to refer not merely to multiple groups in a particular credit union, but rather to every single "group" that forms a distinct credit union under the FCUA. See ibid. Nonetheless, as the Court of Appeals correctly recognized, additional considerations compel the conclusion that the same common bond of occupation must unite all of the members of an occupationally defined federal credit union. *501 First, the NCUA's current interpretation makes the phrase "common bond" surplusage when applied to a federal credit union made up of multiple unrelated employer groups, because each "group" in such a credit union already has its own "common bond." See ibid. To use the facts of this action, the employees of AT&T and the employees of the American Tobacco Company each already had a "common bond" before being joined together as members of ATTF. The former were bonded because they worked for AT&T, and the latter were bonded because they worked for the American Tobacco Company. If the phrase "common bond" is to be given any meaning when these employees are joined together, a different "common bond" - one extending to each and every employee considered together - must be found to unite them. Such a "common bond" exists when employees of different subsidiaries of the same company are joined together in a federal credit union; it does not exist, however, when employees of unrelated companies are so joined. See ibid. Put another way, in the multiple employer group context, the NCUA has read the statute as though it merely stated that "[f]ederal credit union membership shall be limited to occupational groups," but that is simply not what the statute provides. Second, the NCUA's interpretation violates the established canon of construction that similar language contained within the same section of a statute must be accorded a consistent meaning. See Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U. S. 214, 225 (1992). Section 109 consists of two parallel clauses: Federal credit union membership is limited "to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759 (emphasis added). The NCUA concedes that even though the second limitation permits geographically defined credit unions to have as members more than one "group," all of the groups must come from the same "neighborhood, *502 community, or rural district." See Brief for Petitioner NCUA 37. The reason that the NCUA has never interpreted, and does not contend that it could interpret, the geographical limitation to allow a credit union to be composed of members from an unlimited number of unrelated geographic units, is that to do so would render the geographical limitation meaningless. Under established principles of statutory interpretation, we must interpret the occupational limitation in the same way. Petitioners have advanced one reason why we should interpret the occupational limitation differently. They contend that whereas the geographical limitation uses the word "within" and is thus "prepositional," the occupational limitation uses the word "having" and is thus "participial" (and therefore less limiting). See Brief for Petitioner NCUA 31. There is, however, no reason why a participial phrase is inherently more open-ended than a prepositional one; indeed, certain participial phrases can narrow the relevant universe in an exceedingly effective manner - for example, "persons having February 29th as a wedding anniversary." Reading the two parallel clauses in the same way, we must conclude that, just as all members of a geographically defined federal credit union must be drawn from the same "neighborhood, community, or rural district," members of an occupationally defined federal credit union must be united by the same "common bond of occupation." Finally, by its terms, § 109 requires that membership in federal credit unions "shall be limited." The NCUA's interpretation - under which a common bond of occupation must unite only the members of each unrelated employer group - has the potential to read these words out of the statute entirely. The NCUA has not contested that, under its current interpretation, it would be permissible to grant a charter to a conglomerate credit union whose members would include the employees of every company in the United States. Nor can it: Each company's employees would be a "group," and *503 each such "group" would have its own "common bond of occupation." Section 109, however, cannot be considered a limitation on credit union membership if at the same time it permits such a limitless result. For the foregoing reasons, we conclude that the NCUA's current interpretation of § 109 is contrary to the unambiguously expressed intent of Congress and is thus impermissible under the first step of Chevron.[10] The judgment of the Court of Appeals is therefore affirmed. It is so ordered. Justice O'Connor, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting. In determining that respondents have standing under the zone-of-interests test to challenge the National Credit Union Administration's (NCUA's) interpretation of the "common bond" provision of the Federal Credit Union Act (FCUA), 12 U. S. C. § 1759, the Court applies the test in a manner that is contrary to our decisions and, more importantly, that all but eviscerates the zone-of-interests requirement. In my view, under a proper conception of the inquiry, "the interest sought to be protected by" respondents in this action is not "arguably within the zone of interests to be protected" by the common bond provision. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). Accordingly, I respectfully dissent. I Respondents brought this suit under § 10(a) of the Administrative Procedure Act (APA), 5 U. S. C. § 702. To establish their standing to sue here, respondents must demonstrate *504 that they are "adversely affected or aggrieved by agency action within the meaning of a relevant statute." Ibid.; see Air Courier Conference v. Postal Workers, 498 U. S. 517, 523 (1991); Lujan v. National Wildlife Federation, 497 U. S. 871, 882-883 (1990). The two aspects of that requirement correspond to the familiar concepts in standing doctrine of "injury in fact" under Article III of the Constitution and "zone of interests" under our prudential standing principles. See, e. g., Bennett v. Spear, 520 U. S. 154, 162 (1997). First, respondents must show that they are "adversely affected or aggrieved," i. e., have suffered injury in fact. Air Courier, supra, at 523; National Wildlife Federation, supra, at 883. In addition, respondents must establish that the injury they assert is "within the meaning of a relevant statute," i. e., satisfies the zone-of-interests test. Air Courier, supra, at 523; National Wildlife Federation, supra, at 883, 886. Specifically, "the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ), falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." National Wildlife Federation, supra, at 883; see also Air Courier, supra, at 523-524. The "injury respondents complain of," as the Court explains, is that the NCUA's interpretation of the common bond provision "allows persons who might otherwise be their customers to be . . . customers" of petitioner AT&T Family Federal Credit Union. Ante, at 488, n. 4. Put another way, the injury is a loss of respondents' customer base to a competing entity, or more generally, an injury to respondents' commercial interest as a competitor. The relevant question under the zone-of-interests test, then, is whether injury to respondents' commercial interest as a competitor "falls within the zone of interests sought to be protected by the [common bond] provision." E. g., Air Courier, supra, at 523-524. For instance, in Data Processing, where the plaintiffs - like respondents here - alleged competitive injury to *505 their commercial interest, we found that the plaintiffs had standing because "their commercial interest was sought to be protected by the . . . provision which they alleged had been violated." Bennett, supra, at 176 (discussing Data Processing). The Court adopts a quite different approach to the zoneof-interests test today, eschewing any assessment of whether the common bond provision was intended to protect respondents' commercial interest. The Court begins by observing that the terms of the common bond provision - "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district," 12 U. S. C. § 1759 - expressly limit membership in federal credit unions to persons belonging to certain "groups." Then, citing other statutory provisions that bar federal credit unions from serving nonmembers, see §§ 1757(5) - (6), the Court reasons that one interest sought to be protected by the common bond provision "is an interest in limiting the markets that federal credit unions can serve." Ante, at 493. The Court concludes its analysis by observing simply that respondents, "[a]s competitors of federal credit unions, . . . certainly have [that] interest . . . , and the NCUA's interpretation has affected that interest." Ante, at 493-494 (emphasis added). Under the Court's approach, every litigant who establishes injury in fact under Article III will automatically satisfy the zone-of-interests requirement, rendering the zone-ofinterests test ineffectual. See Air Courier, supra, at 524 ("mistak[e]" to "conflat[e] the zone-of-interests test with injury in fact"). That result stems from the Court's articulation of the relevant "interest." In stating that the common bond provision protects an "interest in limiting the markets that federal credit unions can serve," ante, at 493, the Court presumably uses the term "markets" in the sense of customer markets, as opposed to, for instance, product markets: *506 The common bond requirement and the provisions prohibiting credit unions from serving nonmembers combine to limit the customers a credit union can serve, not the services a credit union can offer. With that understanding, the Court's conclusion that respondents "have" an interest in "limiting the [customer] markets that federal credit unions can serve" means little more than that respondents "have" an interest in enforcing the statute. The common bond requirement limits a credit union's membership, and hence its customer base, to certain groups, 12 U. S. C. § 1759, and in the Court's view, it is enough to establish standing that respondents "have" an interest in limiting the customers a credit union can serve. The Court's additional observation that respondents' interest has been "affected" by the NCUA's interpretation adds little to the analysis; agency interpretation of a statutory restriction will of course affect a party who has an interest in the restriction. Indeed, a party presumably will bring suit to vindicate an interest only if the interest has been affected by the challenged action. The crux of the Court's zone-ofinterests inquiry, then, is simply that the plaintiff must "have" an interest in enforcing the pertinent statute. A party, however, will invariably have an interest in enforcing a statute when he can establish injury in fact caused by an alleged violation of that statute. An example we used in National Wildlife Federation illustrates the point. There, we hypothesized a situation involving "the failure of an agency to comply with a statutory provision requiring `on the record' hearings." 497 U. S., at 883. That circumstance "would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings," and so the company would establish injury in fact. Ibid. But the company would not satisfy the zoneof-interests test, because "the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters." Ibid.; see Air Courier, *507 498 U. S., at 524. Under the Court's approach today, however, the reporting company would have standing under the zone-of-interests test: Because the company is injured by the failure to comply with the requirement of on-the-record hearings, the company would certainly "have" an interest in enforcing the statute. Our decision in Air Courier, likewise, cannot be squared with the Court's analysis in this action. Air Courier involved a challenge by postal employees to a decision of the Postal Service suspending its statutory monopoly over certain international mailing services. The postal employees alleged a violation of the Private Express Statutes (PES) - the provisions that codify the Service's postal monopoly - citing as their injury in fact that competition from private mailing companies adversely affected their employment opportunities. 498 U. S., at 524. We concluded that the postal employees did not have standing under the zone-of-interests test, because "the PES were not designed to protect postal employment or further postal job opportunities." Id., at 528. As with the example from National Wildlife Federation, though, the postal employees would have established standing under the Court's analysis in this action: The employees surely "had" an interest in enforcing the statutory monopoly, given that suspension of the monopoly caused injury to their employment opportunities. In short, requiring simply that a litigant "have" an interest in enforcing the relevant statute amounts to hardly any test at all. That is why our decisions have required instead that a party "establish that the injury he complains of . . . falls within the `zone of interests' sought to be protected by the statutory provision" in question. National Wildlife Federation, supra, at 883 (emphasis added); see Bennett, 520 U. S., at 176. In Air Courier, for instance, after noting that the asserted injury in fact was "an adverse effect on employment opportunities of postal workers," we characterized "[t]he question before us" as "whether the adverse effect on the *508 employment opportunities of postal workers . . . is within the zone of interests encompassed by the PES." 498 U. S., at 524; see also National Wildlife Federation, supra, at 885 - 886 (noting that asserted injury is to the plaintiffs' interests in "recreational use and aesthetic enjoyment," and finding those particular interests "are among the sorts of interests [the] statutes were specifically designed to protect"). Our decision last Term in Bennett v. Spear is in the same vein. There, the Fish and Wildlife Service, in an effort to preserve a particular species of fish, issued a biological opinion that had the effect of requiring the maintenance of minimum water levels in certain reservoirs. A group of ranchers and irrigation districts brought suit asserting a "competing interest in the water," alleging, in part, injury to their commercial interest in using the reservoirs for irrigation water. 520 U. S., at 160. The plaintiffs charged that the Service had violated a provision of the Endangered Species Act requiring "use [of] the best scientific and commercial data available." Id., at 176. We did not ask simply whether the plaintiffs "had" an interest in holding the Service to the "best data" requirement. Instead, we assessed whether the injury asserted by the plaintiffs fell within the zone of interests protected by the "best data" provision, and concluded that the economic interests of parties adversely affected by erroneous biological opinions are within the zone of interests protected by that statute. Id., at 176-177 (observing that one purpose of the "best data" provision "is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives"). The same approach should lead the Court to ask in this action whether respondents' injury to their commercial interest as competitors falls within the zone of interests protected by the common bond provision. Respondents recognize that such an inquiry is mandated by our decisions. They argue that "the competitive interests of banks were *509 among Congress's concerns when it enacted the Federal Credit Union Act," and that the common bond provision was motivated by "[c]ongressional concerns that chartering credit unions could inflict an unwanted competitive injury on the commercial banking industry." Brief for Respondents 24-25. The Court instead asks simply whether respondents have an interest in enforcing the common bond provision, an approach tantamount to abolishing the zone-of-interests requirement altogether. II Contrary to the Court's suggestion, ante, at 494-495, its application of the zone-of-interests test in this action is not in concert with the approach we followed in a series of cases in which the plaintiffs, like respondents here, alleged that agency interpretation of a statute caused competitive injury to their commercial interests. In each of those cases, we focused, as in Bennett, Air Courier, and National Wildlife Federation, on whether competitive injury to the plaintiff's commercial interest fell within the zone of interests protected by the relevant statute. The earliest of the competitor standing decisions was Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970), in which we first formulated the zone-of-interests requirement. There, an association of data processors challenged a decision of the Comptroller of the Currency allowing national banks to provide data processing services. The data processors alleged violation of, among other statutes, § 4 of the Bank Service Corporation Act, 76 Stat. 1132, which provided that "[n]o bank service corporation may engage in any activity other than the performance of bank services." 397 U. S., at 154-155. We articulated the applicable test as "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . . in question." Id., at 153. *510 In answering that question, we assessed whether the injury asserted by the plaintiffs was to an interest arguably within the zone of interests protected by the relevant statute. The data processors, like respondents here, asserted "economic injury" from the "competition by national banks in the business of providing data processing services." Id., at 152, 154. We concluded that the data processors' "commercial interest was sought to be protected by the anticompetition limitation contained in § 4," Bennett, supra, at 176 (discussing Data Processing ), explaining that the provision "arguably brings a competitor within the zone of interests protected by it," 397 U. S., at 156. Our decision in Data Processing was soon followed by another case involving § 4 of the Bank Service Corporation Act, Arnold Tours, Inc. v. Camp, 400 U. S. 45 (1970) (per curiam). Arnold Tours was similar to Data Processing, except that the plaintiffs were a group of travel agents challenging an analogous ruling of the Comptroller authorizing national banks to provide travel services. The travel agents, like the data processors, alleged injury to their commercial interest as competitors. 400 U. S., at 45. Not surprisingly, we ruled that the travel agents had established standing, on the ground that Congress did not "desir[e] to protect data processors alone from competition" through § 4. Id., at 46. Unlike in this action, then, our decisions in Arnold Tours and Data Processing turned on the conclusion that economic injury to competitors fell within the zone of interests protected by the relevant statute. We decided Investment Company Institute v. Camp, 401 U. S. 617 (1971) (ICI), later in the same Term as Arnold Tours. The case involved a challenge by an association of investment companies to a regulation issued by the Comptroller that authorized national banks to operate mutual funds. The investment companies alleged that the regulation violated provisions of the Glass-Steagall Act, 1933, 48 Stat. 162, barring national banks from entering the business *511 of investment banking. We found that the investment companies had standing, but did not rest that determination simply on the notion that the companies had an interest in enforcing the prohibition against banks entering the investment business. Instead, we observed that, as in Data Processing, "Congress had arguably legislated against . . . competition" through the Glass-Steagall Act. 401 U. S., at 620-621. The final decision in this series was Clarke v. Securities Industry Assn., 479 U. S. 388 (1987). That case involved provisions of the McFadden Act, 44 Stat. 1228, allowing a national bank to establish branch offices only in its home State, and then only to the extent that banks of the home State were permitted to have branches under state law. The statute defined a "branch" office essentially as one that offered core banking services. The Comptroller allowed two banks to establish discount brokerage offices at locations outside the allowable branching area, on the rationale that brokerage services did not constitute core banking services and that the offices therefore were not "branch" offices. Representatives of the securities industry challenged the Comptroller's action, alleging a violation of the statutory branching limitations. We held that the plaintiffs had standing under the zone-ofinterests test, but again, not simply on the ground that they had an interest in enforcing the branching limits. Instead, we found that, as in ICI, Congress had "arguably legislated against . . . competition" through those provisions. 479 U. S., at 403 (internal quotation marks omitted). Specifically, Congress demonstrated "a concern to keep national banks from gaining a monopoly control over credit and money through unlimited branching." Ibid.; see also id., at 410 (Stevens, J., concurring in part and concurring in judgment) ("The general policy against branching was based in part on a concern about the national banks' potential for becoming massive financial institutions that would establish *512 monopolies on financial services"). The Court makes no analogous finding in this action that Congress, through the common bond provision, sought to prevent credit unions from gaining "monopoly control" over the customers of banking services. It is true, as the Court emphasizes repeatedly, see ante, at 488-492, 494-498, that we did not require in this line of decisions that the statute at issue was designed to benefit the particular party bringing suit. See Clarke, supra, at 399 - 400. In Arnold Tours and Data Processing, for instance, it was sufficient that Congress desired to protect the interests of competitors generally through § 4 of the Bank Service Corporation Act, even if Congress did not have in mind the particular interests of travel agents or data processors. See Arnold Tours, supra, at 46. In Clarke, likewise, the antibranching provisions of the McFadden Act may have been intended primarily to protect state banks, and not the securities industry, from competitive injury. Respondents thus need not establish that the common bond provision was enacted specifically to benefit commercial banks, any more than they must show that the provision was intended to benefit Lexington State Bank, Piedmont State Bank, or any of the particular banks that filed this suit. In each of the competitor standing cases, though, we found that Congress had enacted an "anticompetition limitation," see Bennett, 520 U. S., at 176 (discussing Data Processing ), or, alternatively, that Congress had "legislated against . . . competition," see Clarke, supra, at 403; ICI, supra, at 620 - 621, and accordingly, that the plaintiff-competitor's "commercial interest was sought to be protected by the anticompetition limitation" at issue, Bennett, supra, at 176. We determined, in other words, that "the injury [the plaintiff] complain[ed] of . . . [fell] within the zone of interests sought to be protected by the [relevant] statutory provision." National Wildlife Federation, 497 U. S., at 883. The Court fails to undertake that analysis here. *513 III Applying the proper zone-of-interests inquiry to this action, I would find that competitive injury to respondents' commercial interests does not arguably fall within the zone of interests sought to be protected by the common bond provision. The terms of the statute do not suggest a concern with protecting the business interests of competitors. The common bond provision limits "[f]ederal credit union membership . . . to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759. And the provision is framed as an exception to the preceding clause, which confers membership on "incorporators and such other persons and incorporated and unincorporated organizations. . . as may be elected . . . and as such shall each, subscribe to at least one share of its stock and pay the initial installment thereon and a uniform entrance fee." Ibid. The language suggests that the common bond requirement is an internal organizational principle concerned primarily with defining membership in a way that secures a financially sound organization. There is no indication in the text of the provision or in the surrounding language that the membership limitation was even arguably designed to protect the commercial interests of competitors. Nor is there any nontextual indication to that effect. Significantly, the operation of the common bond provision is much different from the statutes at issue in Clarke, ICI, and Data Processing. Those statutes evinced a congressional intent to legislate against competition, e. g., Clarke, supra, at 403, because they imposed direct restrictions on banks generally, specifically barring their entry into certain markets. In Data Processing and ICI, "the question was what activities banks could engage in at all," and in Clarke, "the question [was] what activities banks [could] engage in without regard to the limitations imposed by state branching law." 479 U. S., at 403. *514 The operation of the common bond provision does not likewise denote a congressional desire to legislate against competition. First, the common bond requirement does not purport to restrict credit unions from becoming large, nationwide organizations, as might be expected if the provision embodied a congressional concern with the competitive consequences of credit union growth. See Brief for Petitioner NCUA 25-26 (Navy Federal Credit Union has 1.6 million members; American Airlines Federal Credit Union has 157,000 members); see also S. Rep. No. 555, 73d Cong., 2d Sess., 2 (1934) (citing "employees of the United States Government" as a "specific group with a common bond of occupation or association"). More tellingly, although the common bond provision applies to all credit unions, the restriction operates against credit unions individually: The common bond requirement speaks only to whether a particular credit union's membership can include a given group of customers, not to whether credit unions in general can serve that group. Even if a group of would-be customers does not share the requisite bond with a particular credit union, nothing in the common bond provision prevents that same group from joining a different credit union that is within the same "neighborhood, community, or rural district" or with whose members the group shares an adequate "occupation[al] or association[al]" connection. 12 U. S. C. § 1759. Also, the group could conceivably form its own credit union. In this sense, the common bond requirement does not limit credit unions collectively from serving any customers, nor does it bar any customers from being served by credit unions. In Data Processing, ICI, and Clarke, by contrast, the statutes operated against national banks generally, prohibiting all banks from competing in a particular market: Banks in general were barred from providing a specific type of service (Data Processing and ICI), or from providing services at a particular location (Clarke). Thus, whereas in Data Proc- *515 essing customers could not obtain data processing services from any national bank, and in Clarke customers outside of the permissible branching area likewise could not obtain financial services from any national bank, in this action customers who lack an adequate bond with the members of a particular credit union can still receive financial services from a different credit union. Unlike the statutes in Data Processing, ICI, and Clarke, then, the common bond provision does not erect a competitive boundary excluding credit unions from any identifiable market. The circumstances surrounding the enactment of the FCUA also indicate that Congress did not intend to legislate against competition through the common bond provision. As the Court explains, ante, at 493, n. 6, the FCUA was enacted in the shadow of the Great Depression; Congress thought that the ability of credit unions to "come through the depression without failures, when banks have failed so notably, is a tribute to the worth of cooperative credit and indicates clearly the great potential value of rapid national credit union extension." S. Rep. No. 555, at 3-4. Credit unions were believed to enable the general public, which had been largely ignored by banks, to obtain credit at reasonable rates. See id., at 2-3; First Nat'l Bank & Trust Co. v. National Credit Union Administration, 988 F. 2d 1272, 1274 (CADC), cert. denied, 510 U. S. 907 (1993). The common bond requirement "was seen as the cement that united credit union members in a cooperative venture, and was, therefore, thought important to credit unions' continued success." 988 F. 2d, at 1276. "Congress assumed implicitly that a common bond amongst members would ensure both that those making lending decisions would know more about applicants and that borrowers would be more reluctant to default." Ibid.; see ante, at 493, n. 6; A. Burger & T. Dacin, Field of Membership: An Evolving Concept 7-8 (2d ed. 1992). The requirement of a common bond was thus meant to ensure that each credit union remains a cooperative institution *516 that is economically stable and responsive to its members' needs. See 988 F. 2d, at 1276. As a principle of internal governance designed to secure the viability of individual credit unions in the interests of the membership, the common bond provision was in no way designed to impose a restriction on all credit unions in the interests of institutions that might one day become competitors. "Indeed, the very notion seems anomalous, because Congress' general purpose was to encourage the proliferation of credit unions, which were expected to provide service to those would-be customers that banks disdained." Id., at 1275; see also Branch Bank & Trust Co. v. National Credit Union Administration Bd., 786 F. 2d 621, 625-626 (CA4 1986), cert. denied, 479 U. S. 1063 (1987). That the common bond requirement would later come to be viewed by competitors as a useful tool for curbing a credit union's membership should not affect the zone-of-interests inquiry. The pertinent question under the zone-of-interests test is whether Congress intended to protect certain interests through a particular provision, not whether, irrespective of congressional intent, a provision may have the effect of protecting those interests. See Clarke, 479 U. S., at 394 (the "matter [is] basically one of interpreting congressional intent"); id., at 400; 988 F. 2d, at 1276 ("To be sure, as time passed - as credit unions flourished and competition among consumer lending institutions intensified - bankers began to see the common bond requirement as a desirable limitation on credit union expansion. . . . But that fact, assuming it is true, hardly serves to illuminate the intent of the Congress that first enacted the common bond requirement in 1934"). Otherwise, competitors could bring suits challenging the interpretation of a host of provisions in the FCUA that might have the unintended effect of furthering their competitive interest, such as restrictions on the loans credit unions can make or on the sums credit unions can borrow. See 12 U. S. C. §§ 1757(5), (6). *517 In this light, I read our decisions as establishing that there must at least be some indication in the statute, beyond the mere fact that its enforcement has the effect of incidentally benefiting the plaintiff, from which one can draw an inference that the plaintiff's injury arguably falls within the zone of interests sought to be protected by that statute. The provisions we construed in Clarke, ICI, and Data Processing allowed such an inference: Where Congress legislates against competition, one can properly infer that the statute is at least arguably intended to protect competitors from injury to their commercial interest, even if that is not the statute's principal objective. See Bennett, 520 U. S., at 176-177 (indicating that zone-of-interests test is satisfied if one of several statutory objectives corresponds with the interest sought to be protected by the plaintiff). Accordingly, "[t]here [was] sound reason to infer" in those cases "that Congress intended [the] class [of plaintiffs] to be relied upon to challenge agency disregard of the law." Clarke, supra, at 403 (internal quotation marks omitted). The same cannot be said of respondents in this action, because neither the terms of the common bond provision, nor the way in which the provision operates, nor the circumstances surrounding its enactment, evince a congressional desire to legislate against competition. This, then, is an action where "the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." 479 U. S., at 399. The zone-of-interests test "seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives," id., at 397, n. 12, and one can readily envision circumstances in which the interests of competitors, who have the incentive to suppress credit union expansion in all circumstances, would be at odds with the statute's general aim of supporting the growth of credit unions that are cohesive and hence financially stable. *518 The Court's attempt to distinguish Air Courier, ante, at 498-499, is instructive in this regard. The Court observes that here, unlike in Air Courier, the plaintiffs suffer "competitive and direct injury." 498 U. S., at 528, n. 5. But the lack of competitive injury was pertinent in Air Courier because the statutes alleged to have been violated - the PES - were "competition statutes that regulate the conduct of competitors." Ibid. The common bond provision, for all the noted reasons, is not a competition law, and so the mere presence of "competitive and direct injury" should not establish standing. See Hardin v. Kentucky Util. Co., 390 U. S. 1, 5-6 (1968). Thus, while in Air Courier "the statute in question regulated competition [but] the interests of the plaintiff employees had nothing to do with competition," ante, at 499, here, the common bond provision does not regulate competition but the interests of the plaintiff have everything to do with competition. In either case, the plaintiff's injury is at best "marginally related" to the interests sought to be protected by the statute, Clarke, supra, at 399, and the most that can be said is that the provision has the incidental effect of benefiting the plaintiffs. That was not enough to establish standing in Air Courier, and it should not suffice here. IV Prudential standing principles "are `founded in concern about the proper - and properly limited - role of the courts in a democratic society.'" Bennett, supra, at 162 (quoting Warth v. Seldin, 422 U. S. 490, 498 (1975)). The zone-ofinterests test is an integral part of the prudential standing inquiry, and we ought to apply the test in a way that gives it content. The analysis the Court undertakes today, in my view, leaves the zone-of-interests requirement a hollow one. As with the example in National Wildlife Federation, where the reporting company suffered injury from the alleged statutory violation, but the injury to the company's commercial interest was not within the zone of interests protected by *519 the statute, here, too, respondents suffer injury from the NCUA's interpretation of the common bond requirement, but the injury to their commercial interest is not within the zone of interests protected by the provision. Applying the zoneof-interests inquiry as it has been articulated in our decisions, I conclude that respondents have failed to establish standing. I would therefore vacate the judgment of the Court of Appeals and remand the action with instructions that it be dismissed. NOTES [*] Together with No. 96-847, AT&T Family Federal Credit Union et al. v. First National Bank & Trust Co. et al., also on certiorari to the same court. [†] Briefs of amici curiae urging reversal were filed for the Ad Hoc Small Employers Group et al. by Paul G. Gaston, Richard J. Dines, and Christiane Gigi Hyland; for the California Credit Union League by Thomas H. Ott, Craig A. Horowitz, Wayne D. Clayton, and Joseph A. McDonald; for the Consumer Federation of America, Inc., et al. by Joseph C. Zengerle; for the National Association of Federal Credit Unions by John F. Cooney, Ronald R. Glancz, Melissa Landau Steinman, William J. Donovan, and Fred M. Haden; and for the National Association of State Credit Union Supervisors by Stanley M. Gorinson, John Longstreth, and C. Stephen Trimmier. Leonard J. Rubin filed a brief for the Independent Bankers Association of America et al. as amici curiae urging affirmance. [*] Justice Scalia joins this opinion, except as to footnote 6. [1] The Court of Appeals' holding that respondents had prudential standing conflicted with a decision of the United States Court of Appeals for the Fourth Circuit reached prior to this Court's decision in Clarke v. Securities Industry Assn., 479 U. S. 388 (1987). See Branch Bank & Trust Co. v. National Credit Union Administration Bd., 786 F. 2d 621 (1986), cert. denied, 479 U. S. 1063 (1987). [2] A panel of the Court of Appeals for the Sixth Circuit later reached a similar conclusion, with one judge dissenting. See First City Bank v. National Credit Union Administration Bd., 111 F. 3d 433 (1997). [3] According to the NCUA, since 1982, thousands of federal credit unions have relied on the NCUA's revised interpretation of § 109. See Pet. for Cert. in No. 96-843, p. 14. Moreover, following the Court of Appeals' decision on the merits, the United States District Court for the District of Columbia granted a nationwide injunction prohibiting the NCUA from approving the addition of unrelated employer groups to any federal credit union. See Brief for Petitioner ATTF 14, n. 5. [4] In this action, it is not disputed that respondents have suffered an injury in fact because the NCUA's interpretation allows persons who might otherwise be their customers to be members, and therefore customers, of ATTF. [5] Under § 21 of the Glass-Steagall Act, it is unlawful "[f]or any person, firm, [or] corporation . . . engaged in the business of issuing . . . securities, to engage at the same time to any extent whatever in the business of receiving deposits." § 21 of the Banking Act of 1933, 48 Stat. 189, 12 U. S. C. § 378(a). [6] The legislative history of § 109, upon which petitioners so heavily rely, supports this conclusion. Credit unions originated in mid-19th-century Europe as cooperative associations that were intended to provide credit to persons of small means; they were usually organized around some common theme, either geographic or associational. See General Accounting Office, Credit Unions: Reforms for Ensuring Future Soundness 24 (July 1991). Following the European example, in the 1920's many States passed statutes authorizing the chartering of credit unions, and a number of those statutes contained provisions similar to § 109's common bond requirement. See A. Burger & T. Dacin, Field of Membership: An Evolving Concept 6 (2d ed. 1992). During the Great Depression, in contrast to widespread bank failures at both the state and national level, there were no involuntary liquidations of state-chartered credit unions. See S. Rep. No. 555, 73d Cong., 2d Sess., 2 (1934). The cooperative nature of the institutions, which state-law common bond provisions reinforced, was believed to have contributed to this result. See Credit Unions: Hearing before a Subcommittee of the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 19-20, 26 (1933). A common bond provision was thus included in the District of Columbia Credit Union Act, which Congress passed in 1932; it was identical to the FCUA's common bond provision enacted two years later. When Congress enacted the FCUA, sponsors of the legislation emphasized that the cooperative nature of credit unions allowed them to make credit available to persons who otherwise would not qualify for loans. See S. Rep. No. 555, supra, at 1, 3. The legislative history thus confirms that § 109 was thought to reinforce the cooperative nature of credit unions, which in turn was believed to promote their safety and soundness and allow access to credit to persons otherwise unable to borrow. Because, by its very nature, a cooperative institution must serve a limited market, the legislative history of § 109 demonstrates that one of the interests "arguably . . . to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve. [7] Contrary to the dissent's contentions, see post, at 503, 509, our formulation does not "eviscerat[e]" or "abolis[h]" the zone of interests requirement. Nor can it be read to imply that, in order to have standing under the APA, a plaintiff must merely have an interest in enforcing the statute in question. The test we have articulated - discerning the interests "arguably . . . to be protected" by the statutory provision at issue and inquiring whether the plaintiff's interests affected by the agency action in question are among them - differs only as a matter of semantics from the formulation that the dissent has accused us of "eviscerating" or "abolishing," see post, at 504 (stating that the plaintiff must establish that "the injury he complains of . . . falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint" (internal quotation marks and citation omitted)). Our only disagreement with the dissent lies in the application of the "zone of interests" test. Because of the unmistakable link between § 109's express restriction on credit union membership and the limitation on the markets that federal credit unions can serve, there is objectively "some indication in the statute," post, at 517 (emphasis deleted), that respondents' interest is "arguably within the zone of interests to be protected" by § 109. Hence respondents are more than merely incidental beneficiaries of § 109's effects on competition. [8] The data processing companies, travel agents, investment companies, and securities dealers that challenged the Comptroller's rulings in our prior cases certainly did not bring suit to advance the noble goal of maintaining the safety and soundness of national banks, or to promote the interests of national bank depositors. [9] Unlike some of our prudential standing cases, no suggestion is made in this action that Congress has sought to preclude judicial review of agency action. See, e. g., Block v. Community Nutrition Institute, 467 U. S. 340 (1984). [10] We have no need to consider § 109's legislative history, which, as both courts below found, is extremely "murky" and a "slender reed on which to place reliance." 90 F. 3d, at 530 (internal quotation marks and citation omitted).