41 WARREN, C. J., dissenting. kept within limits that will minimize abuse. While experience has shown the necessity of recognizing that courts possess this authority, experience has also proven that restrictions appropriate to the purposes of the power must fence in its exercise. Hence Congress, by legislation dating back more than a hundred years, has put geographic and procedural restrictions upon the power of the United States courts to punish summarily for contempt. "The Court did so for a reason deeply imbedded in our legal system and by that very fact too often neglected. Times of tension, which are usually periods of war and their aftermath, bring it to the surface. Reflecting no doubt their concern over untoward events in law enforcement arising out of the First World War, Mr. Justice Brandeis and Mr. Justice Holmes gave quiet warning when they observed that 'in the development of our liberty insistence upon procedural regularity has been a large factor.' Burdeau v. McDowell, 256 U. S. 465, 477. It is not for nothing that most of the provisions of our Bill of Rights are concerned with matters of procedure. "That is what this case is about-'procedural regularity.' Not whether these petitioners have been guilty of conduct professionally inexcusable, but what tribunal should sit in judgment; not whether they should be punished, but who should mete out the appropriate punishment; not whether a Federal court has authority to prevent its proceedings from being subverted, but how that authority should be exercised so as to assure the rectitude of legal proceedings and at the same time not detract from the authority of law itself." And, shortly thereafter, the Court adopted this viewpoint. See Offutt v. United States, 348 U. S. 11. The importance of procedural regularity often lies in advising WARREN, C. J., dissenting. 359 U.S. the defendant of the procedure he must expect and giving him time to prepare. Also, judicial reflection is an invaluable by-product of procedures that are designed to be no more precipitous than necessary to meet the demands of the situation. Here, there was no demonstrated need for haste and no resultant benefit (except in saving the United States Attorney's office the time and effort of preparing for a hearing on notice). There had already been a fully committed contempt before the grand jury which might have been prosecuted within a short time giving petitioner only "a reasonable time for the preparation of the defense." This Court with its supervisory power over the administration of criminal justice in the federal courts, McNabb v. United States, 318 U. S. 332, 340, should not permit the utilization of summary contempt procedures where immediate action is not necessary for the preservation of the respect and dignity of the federal courts. Improvident use of summary procedures only weakens that respect.10 In the light of the sentences given in this type of case, I doubt if any judge in the federal system would summarily send a witness to the penitentiary for 15 months for merely refusing to testify in a grand jury investigation of whether a trucker is operating without an ICC certificate. It is quite obvious that much of the sentence was for some reason collateral to that investigation. It is not sufficient for the purpose of increasing punishment to act on the suspicion that the refusal of the witness to testify may redound to the interest of a racketeer, and on that basis deny him the protections that Congress has seen fit to accord to all witnesses before grand juries. If such factors are to play a part in the sentence the witness is entitled to a hearing on notice. 16 Reliance upon the improper application of Rule 42(a) to petitioner in this case, makes it unnecessary to discuss the issue raised in Green v. United States. 356 U. S. 165, 193 (dissenting opinion) 41 WARREN, C. J., dissenting. Unfortunately, the failure to adhere to procedural regularity may be glossed over in the investigation of matters of burning public interest, but it should be remembered that the deprivation of the rights of a witness in such an investigation must apply as a precedent to people in all walks of life, both good and bad. I suggest that the full import of the decision in this case will not be recognized until it is applied at some future time in other types of investigations and to other people. I would reverse the conviction. GANGER ET AL. v. CITY OF MIAMI. APPEAL FROM THE SUPREME COURT OF FLORIDA. No. 153. Argued March 2-3, 1959.-Decided March 9, 1959. Appeal dismissed for want of a properly presented substantial federal question. Reported below: 101 So. 2d 116, 123. Thomas H. Anderson and Herbert L. Nadeau argued the cause for appellants. With them on the brief was Clyde Epperson. Milton M. Ferrell argued the cause and filed a brief for appellee. PER CURIAM. The appeal is dismissed for want of a properly presented substantial federal question. TOWNSEND v. SAIN, SHERIFF, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 552, Misc. Decided March 9, 1959. Certiorari granted; judgment vacated; and case remanded. George N. Leighton and William R. Ming, Jr. for appellant. Benjamin S. Adamowski for respondents. PER CURIAM. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the United States Court of Appeals for the Seventh Circuit is vacated and the case is remanded. United States ex rel. Jennings v. Ragen, Warden, 358 U. S. 276. Syllabus. SECURITIES AND EXCHANGE COMMISSION v. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 290. Argued January 15, 19, 1959.- Respondent corporations, calling themselves "life insurance" companies and submitting to regulation by the insurance commissioners of the District of Columbia and several States, offer for sale in interstate commerce so-called "variable annuity" contracts, which have some of the features of conventional life insurance and annuity contracts but which entitle the purchasers, not to a specified definite amount per annum, but only to fluctuating amounts based upon pro rata participations in respondents' investment portfolios and the gains and losses thereon. Held: Such "variable annuity" contracts are "securities" which must be registered with the Securities and Exchange Commission under the Securities Act of 1933, and the issuers are subject to regulation under the Investment Company Act of 1940, since such contracts are not "insurance" policies or "annuity" contracts and respondents are not "insurance" companies or engaged in the "business of insurance," within the meaning of the exemption provisions of those Acts or the McCarranFerguson Act. Pp. 66-73. (a) While the States have traditionally regulated the business of insurance, their characterization of particular contracts is not conclusive, since the construction of the exemption provisions of the Federal Acts presents federal questions. Pp. 68-69. (b) the issuer of a "variable annuity" contract that has no element of fixed return does not assume any investment risk, which is inherent in the concepts of "insurance" and "annuity." Pp. 71-73. 103 U. S. App. D. C. 197, 257 F. 2d 201, reversed. *Together with No. 237, National Association of Securities Dealers. Inc., v. Variable Annuity Life Insurance Co. of America et al., also on certiorari to the same Court. |