RUTLEDGE, J., dissenting. 334 U.S. It is this treatment of the court's mandate, now accepted by this Court and forming the basis for its disposition of the case without reaching the question certiorari was granted to review, from which I dissent. It confuses settled lines of distinction between different statutes and of decisions relating to them. I think these were correctly drawn and ought to be maintained. If that were done, we would be forced to reach and decide the question now avoided concerning the effect of § 811. Ordinarily it is for the court issuing a mandate to determine its scope and effect, and other courts are bound by its determination. But this is not always so. If it were true, for example, that the silence of a mandate or a judgment regarding interest invariably precluded its recovery, the Court's decision and that of the Circuit Court of Appeals would be correct. But an explicit provision for interest is not always necessary to its inclusion, whether in a judgment or a mandate. In some instances interest attaches as a matter of law, even though the mandate or judgment is wholly silent regarding it. In others explicit mention is necessary to its inclusion. Blair v. Durham, 139 F. 2d 260, and authorities cited. Where the claim for interest rests upon statute, whether the one or the other effect results depends upon the terms and effect of the particular statute on which the claim is founded. Because not all statutes are alike in this respect, the terms and intent of each must be examined, when put in question, to ascertain whether the interest allowed attaches to the judgment or the mandate by operation of law or only upon explicit judicial direction. Usually this is resolved by determining whether the interest allowed is to be given in the court's discretion or as a matter of right. Blair v. Durham, supra. As the Blair opinion points out, ordinarily there is no occasion to mention statutory interest expressly, since it 304 RUTLEDGE, J., dissenting. attaches as a legal incident from the statute allowing it. On the other hand, it has often been declared that interest is not allowed on judgments affirmed by this Court or the Circuit Courts of Appeals unless so ordered expressly." The Blair opinion, however, further notes that all the cases so declaring are founded upon another statute than the one involved here, namely, 28 U. S. C. § 878.10 And, it may be added, the decisions relied upon by this Court and by the Circuit Court of Appeals in this phase of the case presently before us involved either § 878 or the allowance of other relief not based on § 811." It becomes important therefore to ascertain whether the two statutes, §§ 811 and 878, are alike in their effects as requiring or not requiring explicit mention of the interest provided for in order for it to be included in a 8 Massachusetts Benefit Assn. v. Miles, 137 U. S. 689. 9 See the cases cited in note 10. 10 139 F. 2d 260, 261. The authorities cited were In re Washington & Georgetown R. Co., 140 U. S. 91; Boyce's Executors v. Grundy, 9 Pet. 275; De Witt v. United States, 298 F. 182; Green v. Chicago, S. & C. R. Co., 49 F. 907; Hagerman v. Moran, 75 F. 97. 11 None of the cases on which this Court bases its decision involves § 811. They involve either § 878 (Boyce's Executors v. Grundy, 9 Pet. 275; In re Washington & Georgetown R. Co., 140 U. S. 91, which the majority emphasize by quotation); the allowance of interest in the absence of statute as, e. g., where goods are illegally seized and detained (Himely v. Rose, 5 Cranch 313; The Santa Maria, 10 Wheat. 431); or the granting of relief, other than interest, beyond that decreed in the mandate (Ex parte Sibbald v. United States, 12 Pet. 488; Ex parte The Union Steamboat Company, 178 U. S. 317; Kansas City So. R. Co. v. Guardian Trust Co., 281 U. S. 1). Of the cases cited by the Circuit Court of Appeals, see note 6, In re Washington & Georgetown R. Co., supra, is a § 878 case, and Thornton v. Carter, 109 F. 2d 316, does not turn on § 811. Thus, none of the authorities relied on governs the question presented here, viz., whether under § 811 the mandate of the reviewing court excluded interest and was violated by its addition. RUTLEDGE, J., dissenting. 334 U.S. It is this treatment of the court's mandate, now accepted by this Court and forming the basis for its disposition of the case without reaching the question certiorari was granted to review, from which I dissent. It confuses settled lines of distinction between different statutes and of decisions relating to them. I think these were correctly drawn and ought to be maintained. If that were done, we would be forced to reach and decide the question now avoided concerning the effect of § 811. Ordinarily it is for the court issuing a mandate to determine its scope and effect, and other courts are bound by its determination. But this is not always so. If it were true, for example, that the silence of a mandate or a judgment regarding interest invariably precluded its recovery, the Court's decision and that of the Circuit Court of Appeals would be correct. But an explicit provision for interest is not always necessary to its inclusion, whether in a judgment or a mandate. In some instances interest attaches as a matter of law, even though the mandate or judgment is wholly silent regarding it. In others explicit mention is necessary to its inclusion. Blair v. Durham, 139 F. 2d 260, and authorities cited. Where the claim for interest rests upon statute, whether the one or the other effect results depends upon the terms and effect of the particular statute on which the claim is founded. Because not all statutes are alike in this respect, the terms and intent of each must be examined, when put in question, to ascertain whether the interest allowed attaches to the judgment or the mandate by operation of law or only upon explicit judicial direction. Usually this is resolved by determining whether the interest allowed is to be given in the court's discretion or as a matter of right. Blair v. Durham, supra. As the Blair opinion points out, ordinarily there is no occasion to mention statutory interest expressly, since it 304 RUTLEDGE, J., dissenting. ations where the relief sought was discretionary, to this claim arising only under § 811. The same thing happened in the Circuit Court of Appeals. However, the two sections differ so greatly in their terms, as bearing on whether the mandate's failure to mention interest excluded it, that there can be no justification for confusing or identifying them in this respect. The decisions construing § 878 are neither controlling nor pertinent to that problem when it arises under § 811. Petitioner's only claim is under the latter section. He seeks as of right interest given by § 811 and attaching to the judgment entered in his favor regardless of the mandate's omission to mention interest. This claim in my opinion is well grounded, to whatever extent § 811 allows interest. To that extent interest attaches and was meant to attach by operation of law, and regardless of the mandate's specificity, to the judgment rendered for the plaintiff. The extent to which the section gives interest is, of course, a distinct question, depending in this case on whether the section contemplates that the interest shall begin to run at one date or another. Since the Court does not decide that question, I reserve decision upon it. But I dissent from the refusal to decide it now. The question is of considerable importance for the proper and uniform administration of the statute; it is not entirely without difficulty; 15 and the uncertainty 15 Cf. note 4. The matter is somewhat complicated by the anomaly which would result from a decision that, while § 878 provides for allowance of interest as damages for delay when a decision is affirmed, neither that section nor § 811 explicitly provides any such indemnity when a judgment for the defendant is reversed with directions to enter judgment for the plaintiff; and by the considerations, obviously relevant on the face of § 811, see note 3, relative to securing uniformity in the allowance of interest as between the federal courts and courts of the state in which the federal court sits. Cf. Massachusetts Benefit Assn. v. Miles, 137 U. S. 689; cf. also Erie R. Co. v. Tompkins, 304 U.S. 64. 792588 0-48-25 There as well as the conflict of decision should be ended. is no good reason for permitting their indefinite continuance, to the perplexity of courts and counsel, and to an assured if unpredictable amount of injustice to litigants. PATERNO v. LYONS, COMMISSIONER OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 583. Argued April 28, 1948.-Decided June 1, 1948. Indicted in a New York state court for receiving stolen property, petitioner was permitted to plead guilty to attempted grand larceny second degree, a lesser offense not charged in the indictment. He failed to avail himself, within the time prescribed, of state law remedies for challenging the validity of the conviction under state law. Later he was convicted for another offense and sentenced as a second offender. Thereafter he attacked the validity of the first conviction under state and federal law. Upon review here of a judgment denying relief, held: 1. The decision of the highest court of the State that acceptance of the plea of guilty to the lesser offense did not deprive petitioner of his right under the state constitution to be prosecuted for an infamous crime only upon a grand jury indictment was binding here. Pp. 318-319. 2. The remedies provided by state law for challenging the validity of the conviction under state law (viz., motion to withdraw plea of guilty, motion in arrest of judgment, or direct appeal) were adequate from the standpoint of the due process of law guaranteed by the Fourteenth Amendment, at least in the absence of any showing that petitioner was without opportunity effectively to take advantage of such remedies. P. 319. 3. In view of the relationship of the two offenses under the state statutes, the indictment charging only receiving stolen property afforded petitioner reasonable notice and information of the lesser offense to which he pleaded guilty; and he was not in this respect denied due process of law. Pp. 319–322. 297 N. Y. 617, 75 N. E. 2d 630, affirmed. |