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ROBERTS, J., dissenting.

309 U.S.

Three revenue acts have since been adopted,16 in none of which has the wording of $ 302 (c) been altered. If there is any life in the doctrine often announced that reënactment of a statute as uniformly construed by the courts is an adoption by Congress of the construction given it, this legislative history ought to be conclusive that the statute, as it now stands, means what this court has said it means.

Little weight can be given to the argument of the Government that the Treasury has not applied to Congress for alteration of the section because of the difficulty of wording a satisfactory amendment. A moment's reflection will show that it would be easy to phrase such an amendment. Whatever the reason for the failure to amend 302 (c), whether hesitancy on the part of the Treasury to recommend such action, or the satisfaction of Congress with the construction put upon the section by this court, or mere inadvertence, the fact remains that the section has been reënacted again and again with the courts' construction plain for all to read.

4. As shown by the matter above quoted from the Treasury Regulations affecting the estate tax," a contingent interest is not to be included in the taxable estate. In the light of this construction, estate tax provisions were reënacted or amended in 1921, 1924, 1926, 1928, 1931, 1932, 1934, 1935, 1936 and 1937.

At the bar, counsel for the Government stated that it had always been the view of the Treasury that the article in question applied only to $ 302 (a) and had no application to $ 302 (c). But we are not concerned with what the Treasury thought about the matter. The regulations were issued to guide taxpayers in complying with the Act. Section 302 is an entirety. Subsections (a) and (c) were



Revenue Act of 1937, 50 Stat. 813; Revenue Act of 1938, 52 Stat. 447; Internal Revenue Code, 53 Stat., Part 1, p. 1.

See Note 3, supra.



ROBERTS, J., dissenting.

not intended to contradict each other, but the latter was to supplement the former. The gross estate was to be computed according to the section as a whole. It is hard to understand how the taxpayer was expected to discriminate between a contingent interest of a decedent under the will of his grandmother and a similar interest under an absolute deed executed by him inter vivos. If the one did not pass from the decedent at death neither did the other.

After the decisions in the St. Louis cases, the Treasury rendered its regulations even more explicit. In Regulations 80 (Revised), promulgated October 26, 1937, a new Article 17 was inserted which is:

“The statutory phrase, 'a transfer ... intended to take effect in possession or enjoyment at or after his death,' includes a transfer by the decedent ...

.. whereby and to the extent that the beneficial title to the property ... or the legal title thereto ... remained in the decedent at the time of his death and the passing thereof was subject to the condition precedent of his death. . .

“On the other hand, if, as a result of the transfer, there remained in the decedent at the time of his death no title or interest in the transferred property, then no part of the property is to be included in the gross estate merely by reason of a provision in the instrument of transfer to the effect that the property was to revert to the decedent upon the predecease of some other person or persons or the happening of some other event.”

If theretofore doubt could have been entertained, it then must have vanished. And with this regulation in force, Congress reënacted § 302 (c) as so interpreted.

What, then, is to be said of the principle that reënactment of a statute which the Treasury, by its regulations, has interpreted in a given sense is an embodiment of the interpretation in the law as reënacted? Surely the principle cannot be avoided, as the Government argues, be

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Argument for Respondent.

of Appeals was without authority by its mandate and by writ of mandamus to forbid this and to require a rehearing of the first

application on the record as originally made. P. 145. 70 App. D. C. 157; 105 F. 2d 36, reversed.

CERTIORARI, 308 U. S. 535, to review an order which granted a writ of mandamus requiring the above-named Commission and its members (a) to set aside its order denying an application of the present respondent and assigning it for rehearing, with other applications for the same broadcasting facilities; and (b) to hear and reconsider the respondent's application on the basis of the record as originally made up when its application was first decided adversely by the Commission and brought before that court on appeal. See 98 F. 2d 288.

Solicitor General Jackson, with whom Messrs. Warner W. Gardner, Robert M. Cooper, William J. Dempsey, William C. Koplovitz, and Benedict P. Cottone were on the brief, for petitioner.

Messrs. Charles D. Drayton and Eliot C. Lovett for respondent.

The procedural framework within which applications for construction permits are considered is such that, if a permit should be issued to the respondent, the facilities could not later be taken away by the Commission and given to another applicant without a hearing held for the purpose of determining whether such action would be proper. Richmond Development Corp. v. Commission, 35 F. 2d 883.

The applicant who, under the Commission's rules, becomes entitled to be heard first and who proceeds to meet the statutory requirements is entitled to a grant without waiting for later applicants to be heard and considered. Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 285; Courier Post Publishing Co. v. Commission, 104 F. 2d 213, 218; Heitmeyer v. Commis

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sion, 95 F. 2d 91, 100; Rio Grande Irrigation & C. Co. v. Gildersleeve, 174 U. S. 603, 609; Weil v. Neary, 278 U. S. 161, 169; Colonial Broadcasters, Inc. v. Federal Communications Comm'n, 105 F. 2d 781, 783; Florida v. United States, 282 U. S. 194, 215; Beaumont, S. L. & W.R. Co. v. United States, 282 U. S. 74; Commission Rule 106.4.

The Commission may not oust the jurisdiction of the court having statutory power of review by setting up, subsequently to the decision of the court on questions of law, a new procedure involving a new record, other issues and other parties. Ford Motor Co. v. Labor Board, 305 U. S. 364, 368, 372; In re Sanford Fork & Tool Co., 160 U. S. 247; Delaware, L. & W.R. Co. v. Rellstab, 276 U. S. 1; Baltimore & Ohio R. Co. v. United States, 279 U. S. 781; Sibbald v. United States, 12 Pet. 488, 492; Barber Asphalt Paving Co. v. Morris, 132 F. 945, 954; Rochester Telephone Corp. v. United States, 307 U. S. 125, 136; In re Potts, 166 U. S. 263, 267; American Telephone & Tel. Co. v. United States, 299 U.S. 232; Communications Act, 1934.

The Court of Appeals has the same power to issue mandamus to protect its jurisdiction in this case as it does in cases on appeal from the District Court.

The respondent exhausted its administrative remedy before resorting to the court below, and it has no plain, speedy and adequate remedy at law.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The court below issued a writ of mandamus against the Federal Communications Commission, and, because important issues of administrative law are involved, we brought the case here. 308 U. S. 535. We are called upon to ascertain and enforce the spheres of authority which Congress has given to the Commission and the courts, respectively, through its scheme for the regula

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