656

Opinion of the Court.

posture. . . With due respect for the rule that the findings of the Board are binding upon us if based upon evidence, it becomes impossible to sustain an order upon the adoption of a trial examiner's report which, upon its face, so clearly bears the imprint of bias and prejudice that it lacks all semblance of fair judicial determination." 167 F. 2d at 128-129. To review the court's determination, we granted certiorari. 335 U. S. 857.

First: We are constrained to reject the court's conclusion that an objective finder of fact could not resolve all factual conflicts arising in a legal proceeding in favor of one litigant. The ordinary lawsuit, civil or criminal, normally depends for its resolution on which version of the facts in dispute is accepted by the trier of fact. Where the number of facts in dispute increases, the arithmetical chance of their uniform resolution diminishes-but it does not disappear. Yet it is not mere arithmetical chance which controls our present inquiry, for the facts disputed in litigation are not random unknowns in isolated equations they are facets of related human behavior, and the chiseling of one facet helps to mark the borders of the next. Thus, in the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next. Accordingly, total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact. The gist of the matter has been put well by the Court of Appeals for the Fifth Circuit, speaking through Judge Hutcheson, in granting enforcement of an NLRB order:

"The fact alone . . . of which Respondent makes so much, that Examiner and Board uniformly credited the Board's witnesses and as uniformly discredited those of the Respondent, though the Board's witnesses were few and the Respondent's witnesses were many, would not furnish a basis for a finding

Opinion of the Court.

337 U.S.

by us that such a bias or partiality existed and therefore the hearings were unfair. Unless the credited evidence . . . carries its own death wound, that is, is incredible and therefore, cannot in law be credited, and the discredited evidence . . . carries its own irrefutable truth, that is, is of such nature that it cannot in law be discredited, we cannot determine that to credit the one and discredit the other is an evidence of bias." 2

Suffice it to say in this case that our attention has been called to no credited testimony which "carries its own death wound," and to none discredited which "carries its own irrefutable truth." Indeed, careful scrutiny of the record belies the view that the trial examiner did in fact believe all union testimony or that he even believed the union version of every disputed factual issue. Rather, the printed transcript suggests thoughtful and discriminating evaluation of the facts.

3

2 Labor Board v. Robbins Tire & Rubber Co., 161 F. 2d 798, 800; see Labor Board v. Auburn Foundry, 119 F. 2d 331, 333.

3

Thus, for example, the trial examiner had the following to say by way of footnote to his intermediate report: "No attempt will be made to describe all statements and activities claimed by counsel for the Board to constitute part of the respondent's course of antiunion conduct. Thus, no mention is made of those incidents which the undersigned regards as insubstantial in character or as unsupported by a fair preponderance of credible evidence." 69 N. L. R. B. at 1402, n. 6.

4

* Important issues of fact arose, for example, over whether respondent had been responsible for distributing to the unlicensed seamen (1) copies of a speech hostile to the NMU delivered by a Member of Congress, (2) copies of a union pamphlet entitled "NMU Fights Jim Crow," which the union wished to withhold from circulation for fear the unlicensed seamen would react unfavorably to a union advocating racial equality. As to these issues the trial examiner had the following to say: "The respondent admitted responsibility for the issuance of the Ferbert letters [see text, supra], but denied that it distributed copies of the speech and pamphlet, both of which,

656

Opinion of the Court.

Second: A question remains as to the proper disposition of this case. It is urged upon us by the Board that, there being substantial evidence in the record to support the Board's findings and order, we should remand the case with instructions to enforce the Board's order without further delay. Without doubting the existence here of evidence substantial enough under the Wagner Act, Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229, to warrant the Board's findings, we are not certain whether that standard controls this case. For questions have arisen whether the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. § 1001 et seq., and the Taft-Hartley Act, 61 Stat. 136, 29 U. S. C. (1946 ed., Supp. I), § 141 et seq., enacted between issuance of the Board's order and the Court of Appeals' decision, are applicable to and, if applicable, in any way affect Board procedures and the scope of judicial review of Board orders. The applicability and possible effect of either or both of these statutes apparently were not dealt with by the Court of Appeals, which neither discussed the statutes nor cited cases discussing them; the statutes and their

the record establishes, came through the mails. There is no substantial evidence in the record showing that the respondent was responsible for the distribution of the speech. The Jim Crow pamphlet, which set forth the Union's opposition to racial discrimination in employment, was admittedly a publication of the Union. While there is evidence that the Union and its organizers did not issue or use that pamphlet as part of its campaign to organize the respondent's vessels, and some support for the assertion that the respondent was responsible for its distribution is to be found in the evidence . . . showing the manner in which the respondent's supervisory personnel used the pamphlet and its subject matter in playing upon the racial prejudices, antagonisms and fears of the employees, the record is likewise bare of substantial evidence tracing responsibility for its distribution to the respondent. Consequently, and in view of the respondent's disclaimer of responsibility, it is found that the respondent did not cause the distribution of the pamphlet or the speech." 69 N. L. R. B. at 1400.

impact have not been briefed with any elaboration before this Court. These questions should be considered in the first instance by the Court of Appeals. Accordingly, in order to afford such an opportunity, we remand the cause to the Court of Appeals for proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE JACKSON reserves opinion as to the sufficiency of the evidence under the Wagner Act in view of the Court's determination to return the case to the Court of Appeals.

INTERSTATE OIL PIPE LINE CO. v. STONE,

CHAIRMAN STATE TAX COMMISSION.

APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. No. 287. Argued January 13, 1949.-Decided June 20, 1949. Appellant owns and operates pipe lines used to transport oil from lease tanks to railroad loading racks in Mississippi. Delivery of the oil to appellant by the owner is accompanied by instructions for shipping it interstate. The oil is pumped from the loading racks into railroad tank cars; and, if no tank cars are available, it is stored, but never longer than a week. In the bills of lading, which covered only the rail shipment, the owner is designated as shipper and appellant as his agent, and the out-of-State destination is indicated. Mississippi levied against appellant a tax measured by appellant's receipts from the transportation of the oil from the lease tanks to the loading racks. Held: The tax did not violate the Commerce Clause of the Federal Constitution. Pp. 663-665, 668.

203 Miss. 715, 35 So. 2d 73, affirmed.

A state tax levied against a pipe-line company was sustained by the State Supreme Court against a claim of invalidity under the Federal Constitution. 203 Miss. 715, 35 So. 2d 73. On appeal to this Court, affirmed, p. 668.

662

Opinion of RUTLEDGE, J.

Phelan H. Hunter argued the cause for appellant. With him on the brief were Villard Martin and Garrett Logan. J. H. Sumrall argued the cause and filed a brief for appellee.

MR. JUSTICE RUTLEDGE announced the judgment of the Court and the following opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join.

This appeal questions the power of Mississippi, as affected by the commerce clause, to impose a tax measured by gross receipts from the operation of a pipe line wholly within the state.

Appellant is a Delaware corporation which has qualified to do business in Mississippi as a foreign corporation. It owns and operates pipe lines which are used to transport oil from lease tanks in various oil fields in Mississippi to loading racks adjacent to railroads elsewhere in the state. From these racks the oil is pumped into railroad tank cars for shipment outside the state. If there are no tank cars available the oil is stored in tanks near the racks. But such delays in loading are usually of short duration and never exceed a week, according to appellant's uncontradicted statement. When delivered to appellant the oil is accompanied by shipping orders from the producer or owner directing that the oil be transported to out-of-state destinations. There are no refineries in Mississippi. There is no through bill of lading from the point of origin at the fields to the destination outside the state. Appellant ships the oil by rail as agent of the owner on bills of lading showing the owner as shipper,

Appellant also gathers oil which is transported through the Mississippi pipe lines directly into interstate trunk lines, through which the oil is carried outside the state. Mississippi has not attempted to tax the receipts attributable to shipments of this kind.