Opinion of FRANKFURTER, J.

333 U.S.

jury, and even to a single member. A State has great leeway in devising its judicial instruments for probing into conduct as a basis for charging the commission of crime. It may, at the same time, surround such preliminary inquiry with safeguards, not only that crime may be detected and criminals punished, but also that charges may be sifted in secret so as not to injure or embarrass the innocent.

Flouting of such a judicial investigatory system may be prevented by the hitherto constitutionally valid power to punish for contempt. There must, however, be such recalcitrance, where the basis of punishment is testimony given or withheld, that the administration of justice is actively blocked. See Ex parte Hudgings, 249 U. S. 378. And the procedural safeguards of "due process" must be observed. Due notice of the charge and a fair opportunity to meet it, are indispensable. This involves an opportunity to canvass the charge in the open and not behind closed doors. So long as a man has ample opportunity to demonstrate his innocence before he is hustled off to jail, he cannot complain that a State has seen fit to devise a new procedure for satisfying that opportunity. Just as it is not violative of due process for a State to take private property for public use and leave to a later stage the constitutional vindication of the right to compensation, it does not seem to me that it would be violative of due process to allow the judgegrand juror of Michigan to find criminal contempt for conduct in his proceedings without the familiar elements of an open trial, provided that the State furnishes the accused a public tribunal before which he has full opportunity to be quit of the finding.

But an opportunity to meet a charge of criminal contempt must be a fair opportunity. It would not be fair, if in the court in which the accused can contest for the first time the validity of the charge against him, he comes

257

Opinion of FRANKFURTER, J.

handicapped with a finding against him which he did not have an adequate opportunity of resisting.

We are here dealing with the attempt of a State having the seventh largest population in the Union to curb or mitigate the commission of crimes by effective prosecution. This procedure has been in operation for over thirty years. It was not heedlessly entered into nor has it been sporadically pursued. In a series of cases it has had the sanction of the highest court of Michigan. While there are indications in the opinion of the Supreme Court of Michigan from which we could infer the constitutional inadequacy of the procedure pursued in this case, we should not decide constitutional issues and conclude that the Michigan system offends the Constitution of the United States, without a clearer formulation of what it is that actually happens under this system, or did happen here, than the case before us reveals.

It is to me significant that the precise issues on which this Court decides this case have never been explicitly challenged before, or passed on, by the Supreme Court of Michigan in the series of cases in which that court had adjudicated controversies arising under the Michigan grand jury system. If a State has denied the due process required by the Fourteenth Amendment, it is more consonant with the delicate relations between the United States and the courts of the United States, and the States and the courts of the States, that the courts of the States be given the fullest opportunity, by proper presentation of the issues, to make such a finding of unconstitutionality.

I do not think that we have had that in this case. For instance, while I could regard it inadmissible under the Fourteenth Amendment to have only a partial and mutilated record of the proceedings before the grand jurorjudge when the contemnor for the first time has the opportunity to meet the accusation against him publicly, the petitioner himself in this case seems to repel the

333 U.S.

JACKSON, J., dissenting.

Certainly, as MR.

suggestion that that is his complaint. JUSTICE JACKSON points out, the first ground of the Court's opinion was not made the basis for inviting our review here. I agree with him in concluding that in the light of our decision the other day in Musser v. Utah, 333 U. S. 95, in conjunction with Rescue Army v. Municipal Court, 331 U.S. 549, the cause should be returned to the Supreme Court of Michigan to enable that court to pass upon these issues.

MR. JUSTICE JACKSON, with whom MR. JUSTICE FRANKFURTER agrees, dissenting.

The principal ground assigned for reversal of the judgment of conviction is the alleged secrecy of the contempt procedure. That ground was not assigned for review in the petition for certiorari to this Court. Nor was it raised in the petition for writ of habeas corpus in the state courts. Therefore, it has not been litigated and the record has not been made with reference to it. On the other hand, the principal question raised by the petition to this Court and argued by the State is not decided by the Court's opinion.

When a case here from a state court involves a question not litigated below, not raised by petitioner here and which the state court has had no opportunity to pass upon, we should remand the case for its further consideration, as was just done in Musser v. Utah, 333 U. S. 95.

2 "Neither in our brief nor in our argument before the court have we urged this court to reverse this conviction merely because the partial return of the witness's testimony to the Supreme Court constituted a denial of due process. . . . The questions we present are much more basic,-the denial of due process in the original commitment. . . . [To] us it is much more shocking that an accused charged with contempt not committed in open court be denied any trial in the lower court than that he be given a trial only upon an incomplete record in the appellate court." Petitioner's "Brief in Answer to Brief of State Bar of Michigan," pp. 13–14.

Syllabus.

UNITED STATES v. LINE MATERIAL CO. ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.

No. 8. Argued April 29, 1947. Reargued November 12-13, 1947.Decided March 8, 1948.

1. Arrangements between two patentees for cross-licensing of their interdependent product patents, and for licensing exclusively by one of them of other manufacturers to make and vend under both patents, which arrangements, together with those entered into separately with other licensees, were intended to and did control the prices at which products embodying both patents were sold in interstate commerce by the patentees and all licensees, held violative of § 1 of the Sherman Act. Pp. 288-299, 305-315.

(a) United States v. General Electric Co., 272 U. S. 476, distinguished. Pp. 299-305, 310–312.

(b) Such a price-fixing arrangement between two or more patentees transcends the limits of the patent monopoly granted to each of them; and it violates § 1 of the Sherman Act, no matter how advantageous it may be to stimulate the broader use of the patents. Pp. 310-313, 314-315.

2. Licensees who, with knowledge of such arrangements, enter into licenses containing price-maintenance provisions are likewise subject to the prohibitions of the Sherman Act. P. 315.

64 F. Supp. 970, reversed.

The United States brought suit under § 4 of the Sherman Act to restrain an alleged violation of § 1 by the appellees. The District Court dismissed the complaint. 64 F. Supp. 970. The United States appealed directly to this Court under the Expediting Act. Reversed and remanded, p. 315.

Assistant Attorney General Berge argued the cause on the original argument for the United States. With him on the brief were George T. Washington, then Acting Solicitor General, Charles H. Weston, Robert G. Seaks, Bartholomew A. Diggins and Leonard J. Emmerglick.

Opinion of the Court.

333 U. S.

Frederick Bernays Wiener argued the cause on the reargument for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Sonnett and Robert G. Seaks.

John Lord O'Brian and Albert R. Connelly argued the cause for appellees. With them on the briefs were Nester S. Foley, Gerhard A. Gesell, Louis Quarles, Maxwell H. Herriott, Clark J. A. Hazelwood, Charles F. Meroni, Needham A. Graham, Jr., W. F. Sonnekalb, Jr., Alexander C. Neave, Harry R. Puch, Jr., Wilder Lucas, Wilber Owen, John A. Dienner, Edward C. Grelle, George B. Turner and John J. O'Connell.

MR. JUSTICE REED delivered the opinion of the Court.

The United States sought an injunction under §§ 1 and 4 of the Sherman Act1 in the District Court against continuance of violations of that Act by an allegedly unlawful combination or conspiracy between appellees, through contracts, to restrain interstate trade in certain patented electrical devices. The restraint alleged arose from a cross-license arrangement between the patent owners, Line Material Company and Southern States Equipment Corporation, to fix the sale price of the devices,

1 26 Stat. 209, as amended by 36 Stat. 1167:

"Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. . . ."

"Sec. 4. The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. . . ."