RUTLEDGE, J., dissenting.

335 U.S.

should delegate to an administrative or executive official the power to impose so broad a prohibition.

The authority here conferred upon the Administrator by the Emergency Price Control Act, in reference to record-keeping and requiring production of records, closely approaches such a command. Congress neither itself specifies the records to be kept and produced upon the Administrator's demand nor limits his power to designate them by any restriction other than that he may require such as "he deems necessary or proper to assist him," § 202 (a), (b), (c), in carrying out his functions of investigation and prescribing regulations under, as well as of administration and enforcement of, the Act. And as the authority to specify records for keeping and production was carried out by the Administrator, the only limitation imposed was that the records should be such as had been "customarily kept." § 14 (b), M. P. R. 426, 8 Fed. Reg. 9546, 9549. Such a restriction is little, if any, less broad than the one concerning which I have indicated doubt that Congress itself could enact consistently with the Fourth Amendment.

The authorization therefore is one which raises serious question whether, by reason of failure to make more definite specification of the records to be kept and produced, the legislation and regulations involved here do not exceed the prohibition of the Fourth Amendment against general warrants and unreasonable searches and seizures. There is a difference, of course, and often a large one, between situations where evidence is searched out and seized without warrant, and others where it is required to be produced under judicial safeguards. But I do not understand that in the latter situation its production can be required under a warrant that amounts to a general one. The Fourth Amendment stands as a barrier to judicial and legislative as well as executive or administrative excesses in this respect.

Although I seriously question whether the sum of the statute, as construed by the Court, the pertinent regulations, and their execution in this case does not go beyond constitutional limitations in the breadth of their inquiry, I express no conclusive opinion concerning this, since for me the statutory immunity applies and is sufficient to require reversal of petitioner's conviction.

UNITED STATES v. HOFFMAN.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA.

No. 97. Argued October 23, 1947. Decided June 21, 1948.

After appellee had produced in an administrative proceeding records kept under a requirement of the Price Administrator's regulations, the Price Administrator petitioned the district court to institute criminal contempt proceedings against him for violating an injunction against selling used cars at over-ceiling prices. The court appointed the United States Attorney and the O. P. A. District Enforcement Attorney as "attorneys to prosecute the criminal charges. . . on behalf of the Court and of the United States." Appellee's motion to dismiss was granted on the ground that he was entitled under § 202 (g) of the Emergency Price Control Act to immunity from prosecution. The Government appealed to this Court under the Criminal Appeals Act. Held:

1. The United States was, in any relevant sense, a party to the proceedings, and the appeal was properly brought under the Criminal Appeals Act. Pp. 78-79.

2. Appellee was not entitled to immunity under § 202 (g) of the Price Control Act and the rule to show cause should not have been dismissed. See Shapiro v. United States, ante, p. 1. P. 79. 68 F. Supp. 53, reversed.

Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Quinn, Philip Elman, Robert S. Erdahl and Irving S. Shapiro.

Opinion of the Court.

335 U.S.

Bernard Margolius argued the cause for appellee. With him on the brief was Joseph B. Danzansky.

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

On Feb. 27, 1946, the Price Administrator filed a petition, in the District Court for the District of Columbia, to institute criminal contempt proceedings against appellee. The petition charged appellee with having made numerous sales of used cars at over-ceiling prices in violation of an injunction previously issued by the District Court. A rule to show cause was issued, but was dismissed on motion of the appellee, on the ground that he was entitled to immunity under § 202 (g) of the Emergency Price Control Act from prosecution for the transactions upon which the petition was founded. 68 F. Supp. 53.

The Government brought this appeal, under the provisions of the Criminal Appeals Act,' to review the decision of the District Court. The main issue is the same as that presented in the companion case, Shapiro v. United States, ante, p. 1, but two additional minor questions are raised:

1. Appellee urges that the appeal was not properly taken by the United States because the Government was not a party to the proceedings in the District Court. The record shows, however, that the litigation was instituted in that court by a petition of the OPA District Enforcement Attorney on behalf of the Price Administrator. When the rule to show cause was issued, the court appointed the United States Attorney and the OPA District Enforcement Attorney as "attorneys to prosecute

134 Stat. 1246, as amended by 56 Stat. 271, 18 U. S. C. (Supp. V, 1946) § 682, and by § 238 of the Judicial Code as amended, 28 U. S. C. § 345.

117

77

Opinion of the Court.

the criminal charges contained in the petition filed herein on behalf of the Court and of the United States." See Rule 42 (b) of the Rules of Criminal Procedure, 327 U. S. 865-66. Thus the United States was, in any relevant sense, a party to the proceedings, and the appeal was properly brought under the Criminal Appeals Act. See United States v. Goldman, 277 U. S. 229, 235 (1928); Ex parte Grossman, 267 U. S. 87, 115 et seq. (1925).

2. The Government mentions a further consideration, not involved in the Shapiro case. The record does not state that the appellee was sworn and produced the records under oath, a condition precedent to the attainment of immunity under a 1906 Amendment, 49 U. S. C. § 48, to the Compulsory Testimony Act of 1893. It is unnecessary to consider this contention both because it does not appear to have been duly raised in the court below, and because the grounds considered and the views set forth in our opinion in the Shapiro case suffice to dispose of this appeal.

The decision of the District Court is reversed and the case remanded for further proceedings.

Reversed.

MR. JUSTICE FRANKFURTER dissents for the reasons stated in his dissenting opinion in Shapiro v. United States, ante, p. 36. MR. JUSTICE JACKSON and MR. JUSTICE MURPHY dissent for the reasons stated in MR. JUSTICE JACKSON'S dissenting opinion in Shapiro v. United States, ante, p. 70. MR. JUSTICE RUTLEDGE dissents for the reasons stated in his dissenting opinion in Shapiro v. United States, ante, p. 71.

MEMPHIS NATURAL GAS CO. v. STONE, CHAIRMAN, STATE TAX COMMISSION.

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI.

No. 94. Argued December 8, 1947.-Decided June 21, 1948.

Petitioner, a Delaware corporation, owns and operates a natural gas pipeline from Louisiana fields to Memphis, Tennessee. Approximately 135 miles of the line lie in Mississippi, and there are two compressor stations in that State. In addition to ad valorem taxes, Mississippi imposes a "franchise or excise" tax of $1.50 for each $1,000 value of capital used, invested or employed within the State. Petitioner, whose business in Mississippi was exclusively interstate, challenged the validity of the latter tax under the Commerce Clause of the Federal Constitution. As applied to petitioner, the Mississippi Supreme Court sustained the tax as recompense to the State for protection of "local activities in maintaining, keeping in repair, and otherwise in manning" the 135 miles of line within the State. Held: The judgment of the State Supreme Court is affirmed. Pp. 80-83, 96.

201 Miss. 670, 29 So. 2d 268, affirmed.

The validity under the Federal Constitution of a state franchise tax imposed on petitioner was sustained by the State Supreme Court. 201 Miss. 670, 29 So. 2d 268. This Court granted certiorari. 331 U. S. 802. Affirmed, p. 96.

Edward P. Russell argued the cause for petitioner. With him on the brief was B. L. Tighe, Jr.

J. H. Sumrall argued the cause and filed a brief for respondent.

MR. JUSTICE REED announced the judgment of the Court and an opinion in which MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join.

The Memphis Natural Gas Company is a Delaware corporation which owns and operates a pipe line for the transportation of natural gas. The line runs from the