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CASES ADJUDGED

IN THE SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1943.

EX PARTE ABERNATHY.

NO. — ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT

OF HABEAS CORPUS.*

Decided October 18, 1943. 1. The exercise by this Court of the power conferred upon it to issue

writs of habeas corpus (28 U.S.C. $$ 377, 451) in aid of its appellate jurisdiction is discretionary; and, save in exceptional circumstances, the Court does not exercise the power where an adequate remedy may be had in a lower federal court or where, if the relief sought is from a judgment of a state court, the petitioner has not exhausted his

remedies in the state courts. P. 219. 2. Refusal of the writ, without more, is not an adjudication on the merits and is to be taken as without prejudice to an application to

any other court for the relief sought. P. 220. Applications denied.

PER CURIAM.
The applications are severally denied.

In these cases petitioners invoke the exercise of the jurisdiction conferred on this Court by 28 U. S. C. $$ 377,

* Together with No. —, Ex parte Dexter C. Dayton; No. — Ex parte Frederick T. Hansen and Sam Bonjorno; No. —, Ex parte Floyd J. Kesling; No. —, Ex parte Louis Burall; No. —, Ex parte Oliver Gobin; No. —, Ex parte Peter J. C. Donnelly; No. —, Ex parte Alfred Maurice; No. —, Ex parte Sol Goldsmith; No. , Ex parte Paul Davis; No. —, Ex parte Robert Hutto; No. —, Ex parte Alfred Friters; No. — Ex parte Wilfred Doza; No. —, Ex parte R. J. Hughes; and No. — Ex parte John Russell Miller, also on motions for leave to file petitions for writs of habeas corpus.

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451, to issue writs of habeas corpus in aid of its appellate jurisdiction. Cf. Ex parte Peru, 318 U. S. 578, 582-3. That jurisdiction is discretionary, id. 584; Bowen v. Johnston, 306 U. S. 19, 27, and this Court does not, save in exceptional circumstances, exercise it in cases where an adequate remedy may be had in a lower federal court, Ex parte Current, 314 U. S. 578; Ex parte Spaulding, 317 U. S. 593; Ex parte Hawk, 318 U. S. 746, or, if the relief sought is from the judgment of a state court, where the petitioner has not exhausted his remedies in the state courts, Mooney v. Holohan, 294 U. S. 103, 115; Ex parte Botwinski, 314 U. S. 586; Ex parte Davis, 317 U. S. 592, 318 U. S. 412; Ex parte Williams, 317 U. S. 604. Refusal of the writ, without more, is not an adjudication on the merits and is to be taken as without prejudice to an application to any other court for the relief sought.

UNITED STATES EX REL. McCANN V. ADAMS,

WARDEN, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT.

No. 371. Decided November 8, 1943.

The petition to the District Court for a writ of habeas corpus ade

quately raised the issue, not previously adjudicated, whether, in a prosecution in the District Court which resulted in a judgment of conviction, the petitioner had intelligently—with full knowledge of his rights and capacity to understand them-waived his right to the assistance of counsel and to trial by jury; and, in the circumstances, the petitioner was entitled to an opportunity to establish his claim. P. 221. 136 F. 2d 680, reversed.

PETITION for a writ of certiorari to review the affirmance of an order denying an application for a writ of habeas corpus.

Gene McCann, pro se.

Opinion at the Court.

Solicitor General Fahy. Assistant Attorney General Tom C. Clark, and Mr. Oscur 1. Protost were on the briet for respondents.

PER CURIAL.

This proceeding is a sequel to Adams v. C. S. G re McCann, 317 C. S. 269. We there reversed an order of the Circuit Court of Appeals of the Second Cireuit discharging the present relator from custody. We did so because we held that, if his waiver was the exercise of an intelligent choice made with the considered approval of the trial court, he could as a matter of law waive his right to a jury trial without being represented by counsel. After the case went back to the Circuit Court of Appeals on mandate and further steps not necessary here to recount were taken the relator filed a petition for a writ of habeas corpus in the District Court which, with supporting affidavits, adequately raised the issue whether in fact he intelligently—with full knowledge of his rights and capacity to understand them—waived his right to the assistance of counsel and to trial by jury. That issue, as appears from our former opinion, was explicitly withdrawn from consideration on the habeas corpus proceedings previously before the Circuit Court of Appeals. 126 F.2d 774. That issue, now fairly tendered by the petition for habeas corpus below, has never been adjudicated on its merits by the lower courts. But it is no longer within the bosom of the trial court. Nor can it be disposed of on the appeal of his conviction, for the claim rests on materials dehors the trial proceedings. It is a claim which the relator should be allowed to establish, if he can. We cannot say that, in the light of the supporting affidavits, the petition for a writ of habeas corpus was palpably unmeritorious, and should have been dismissed without more. We are compelled therefore to accede to the Government's consent to a reversal of the order of the

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Circuit Court of Appeals affirming the order denying the application for the writ of habeas corpus.

The motion for leave to proceed in forma pauperis and the petition for certiorari are therefore granted and the judgment is reversed for further proceedings not inconsistent with this opinion. Petitioner's applications for other relief are denied.

So ordered.

eve

HUNTER COMPANY, INC. v. McHUGH, COMMIS

SIONER OF CONSERVATION, ET AL.

APPEAL FROM THE SUPREME COURT OF LOUISIANA.

No. 25. Argued October 18, 19, 1943.-Decided November 8, 1943.

1. The only order of the State Commissioner of Conservation which

was before the state courts in this case having been superseded by later orders, the cause has become moot so far as it is concerned with the original order; and this Court, in reviewing on appeal the judgment of the highest court of the State, is not free to, and will not, adjudicate the constitutionality of the later orders, where the state court has had no opportunity to pass upon their

validity under state law or the Federal Constitution. P. 226. 2. A State has constitutional power to regulate production of oil and

gas so as to prevent waste and to secure equitable apportionment among landholders of the migratory gas and oil underlying their land, fairly distributing among them the costs of production and of the apportionment. P. 227. 3. Upon the record in this case, Act No. 157 of the Louisiana Acts of

1940 can not be held invalid on its face. P. 228. Dismissed.

APPEAL from a judgment, 202 La. 97, 11 So. 2d 495, which, reversing a decision of a lower state court, sustained the constitutional validity, as applied to the appellant, of an order promulgated by the State Commissioner of Conservation under authority of a state statute providing for regulation of the production of oil and gas.

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Messrs. Joe T. Cawthorn and John M. Madison, with whom Mr. C. Huffman Lewis was on the brief, for appellant.

Messrs. George A. Wilson and T. Hale Boggs, with whom Messrs. Arthur OQuin and M. C. Thompson were on the brief, for the Commissioner of Conservation; and Mr. Arthur OQuin, with whom Messrs. M. C. Thompson and Leon OʻQuin were on the brief, for the Southern Production Co.,-appellees.

Messrs. J. Howard Marshall and Robert E. Hardwicke filed a brief on behalf of Harold L. Ickes, Petroleum Administrator for War, as amicus curiae, supporting the constitutionality of the state Act.

PER CURIAM.

Appellant is the lessee under an oil and gas lease of 190 acres in the Logansport Field in Louisiana. Under permit from the state it has drilled a well on the leased area, which was completed about June 1, 1938, and came into production in December, 1940. To enable it to reach a market for the natural gas produced by this well, appellant has constructed and owns a pipe line which extends from its well to the line of the United Gas Pipe Line Company

"For the prevention of waste and to avoid the drilling of unnecessary wells," § 8 (b) of Act No. 157 of the Louisiana Acts of 1940, authorizes the State Commissioner of Conservation to establish drilling units for any oil or gas pool, except “where conditions are such that it would be impracticable or unreasonable to use a drilling unit at the present stage of development." The statute defines a drilling unit as "the maximum area which may be efficiently and economically drained by one well.”

Section 9 (a) provides that where a drilling unit embraces separately owned tracts the owners may agree to

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