Lead Opinion
delivered the opinion of the Court.
These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F. (2d) 842 and 850: The petition in No. 493 was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments.
The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. Seventy-two others in addition to the petitioners were indicted. Some were not apprehended, some were acquitted and others.pleaded guilty.
The evidehce in the records discloses a conspiracy of amazing magnitude to import, possess and sell liquor un
Olmstead was the leading conspirator and the genera] manager of the business. He made a contribution of $10,000 to the capital; eleven others contributed $1,000 each. The profits were divided one-half to Olmstead and the remainder to the other eleven. Of the séveral offices in Seattle the chief one was in a large office building. In this there .were three telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of his associates, and at .other places in the city. Communication was had frequently with Vancouver, British Columbia. Times were fixed for the deliveries of the “stuff,” to places along Puget Sound néar Seattle and from there the liquor was removed and deposited in the caches already referred to. One of the chief men was always on duty at the main office to receive orders by: telephones and to direct their filling by a corps of men stationed in another room — the “bull peri.” The call numbers of the telephones were given to those known to be likely customers. At times the salés amounted to 200 cases of liquor per day.
The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small
The gathering of evidence continued for many months. Conversations of the conspirators of which refreshing stenographic notes were currently made, were testified to by the government witnesses. They revealed the large business transactions of the partners and their subordinates. . Men at the wires heard the orders given for liquor by customers and the acceptances; they became auditors of the conversations between the partners. All this disclosed the conspiracy charged in the indictment. Many of the intercepted conversations were not merely reports but parts of the criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of the capture of vessels, the arrest of their men and the seizure of cases of liquor in garages and other places. It showed the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which, secured the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as opportunity offered.
The Fourth Amendment provides — “ The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or. affirmation and particularly describing the place to be searched and the persons or things to be seized.” And the Fifth: “No person . . shall be compelled, in any criminal case, to be a witness against himself.”
Boyd v. United States,
The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621) :
Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this evidence amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated.
The statute provided an official demand for the production of a paper or document by the defendant for official search and use as evidence on penalty that by refusal he- should be conclusively held to admit the incriminat
The next case, and perhaps the most important, is Weeks v. United States,
The opinion cited with approval language of Mr. Justice Field in Ex parte Jackson,
In Silverthorne Lumber Company v. United States,
“Thus the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the- whole performance.”
And it held that the illegal character of the original seizure characterized the entire proceeding and under the Weeks case the seized papers must be restored.
In' Amos v. United States,
In Gouled v. The United States,
Agnello v. United States,
There is no room in the present case for applying the Fifth Amendment .unless the Fourth Amendment was first violated. There was no evidence of compulsion to induce the defendants to talk over their many telephones. They were continually and voluntarily transacting business without knowledge of the interception. Our consideration must be confined to the Fourth Amendment.
The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a violation of the Amendment. Theretofore many had supposed that under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was
The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man’s house, his person, his papers and his effects; and to prevent their seizure against his will. This phase of the misuse of governmental power of compulsion is the emphasis of the opinion of the Court in the Boyd case. This appears too in the Weeks case, in the Silverthorne case and ih the Amos case.
Gouled v. United States carried the inhibition against unreasonable searches and seizures to the extreme limit. Its authority is not to be enlarged by implication and must be confined to the precise state of facts disclosed by the record. A representative of the Intelligence Department of the Army, having by stealth obtained admission to the defendant’s office, seized and carried away certain private papers valuable for evidential purposes. This was held an unreasonable search and seizure within the Fourth Amendment. A stealthy entrance in such cir
The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.
It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the interpretation of the Fourth Amendment in respect of wire tapping. But the analogy fails. The Fourth Amendment may have proper application to a sealed letter in the mail because of the constitutional provision for the Postoffice Department and the relations between the Government and those who pay to secure protection of their sealed letters. See Revised Statutes, §§ 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that business everyone else, and § 3929 which forbids any postmaster or other person to open any letter not addressed to himself. It is plainly within the words of the Amendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender’s papers or effects. The letter is a paper, an effect, and in the custody of a Government that forbids carriage except under its protection. .
The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence, was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants, .
This Court in Carroll v. United States,
“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable- search and seizure when it was adopted and in a manner which will conserve public interests as well as the interests and rights of individual citizens,”
Justice Bradley in the Boyd case, and Justice Clark in the Gouled case, said that the Fifth Amendment-and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the ..Constitution in the interest of liberty. But that dan riot justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.
Hester v. United States,
Congress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible iri evidence in federal criminal trials, by direct legislation,
Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house “ or curtilage ” for the purpose of making a seizure.
We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment.
What has been said disposes of the only question that comes within the terms of our order granting certiorari in these cases. But some of our number, departing from that order, have concluded that there is merit in the twofold objection overruled in both courts below that evidence obtained through intercepting of telephone messages by government agents wap inadmissible because the mode of obtaining it was unethical and a misdemeanor under the law of Washington. To avoid any misapprehension of our views of that objection we shall deal with' it in both of its phases.
While a Territory, the English common law prevailed in Washington and thus continued after her admission in 1889. The rules of evidence in criminal cases in courts of the United States sitting there, consequently are those of the common law.' United States v. Reid,
The common law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. Professor Greenleaf in his work on evidence, vol. 1, 12th ed., by Redfield, § 254(a) says:
“ It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue, to determine that question.”
Mr. Jones in his work on the same subject refers to Mr. Greenleaf’s statement, and says: ~
“ Where there is no violation of a constitutional guaranty, the verity of the above statement is absolute.” Yol. 5, § 2075, note 3.
The rule is supported by many English and American cases cited by Jones in vol. 5, § 2075, note'3, and § 2076, note 6; and by Wigmore, vol. 4, § 2183. It is recognized by this Court in Adams v. New York,
Nor can we, without the sanction of congressional enactment, subscribe to the suggestion that the courts ‘have a discretion to exclude evidence, the admission of which is not unconstitutional, because unethically secured. This would be at variance with the common law doctrine generally supported by authority. There is no case that sustains, nor any recognized text book that gives color to such a view. Our general experience shows that much evidence has always been receivable although not obtained by conformity to the highest ethics. The history of criminal trials shows numerous cases of prosecutions of oath-bound conspiracies for murder, robbery, and othér crimes, where officers of the law have disguised themselves and joined the Organizations, taken the oaths and given themselves every appearance of active members engaged in the promotion of crime, for the purpose-of securing evidence. Evidence secured by such: means has always been received. .
' A standard which would forbid' the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those, who realize the difficulties in'bringing offenders to justice may well 'deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by' admitting it.
The statute of Washington, ádopted.in 1909, provides (Remington Compiled Statutes, 1922, § 2656-18) that:
“Every person . .. . who shall intercept, read or in any manner interrupt .or delay the sending of a message over any telegraph or telephone line . . ; shall be guilty of a misdemeanor.” .
“.But it could not be supposed, without very plain words to show it, that Congress intended to give the states the power of prescribing the rules of evidence in trials for offenses against the United States. For. this construction would place the criminal jurisprudence of one'sovereignty under the control of another.” ‘ See also Withaup v. United States,
The judgments of the Circuit Court of Appeals are affirmed. The mandates will go down. forthwith under Rule 31.
Affirmed.
Dissenting Opinion
My brother Brandéis has given this case so exhaustive an examination that I desire to add but a few words. While I do not deny it, I am not prepared to say that the penumbra of'the Fourth and Fifth Amendments covers the defendant, although -I fully agree that Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them. Gooch v. Oregon Short Line R. R. Co.,
For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed. See Silverthorne Lumber Co. v. United States,
Dissenting Opinion
dissenting.
The defendants were convicted of conspiring to violate the National Prohibition Act. Before any of'the persons now charged had been arrested or indicted, the telephones by means of which they habitually communicated with one .another and with others had been tapped by federal officers. To this end, a lineman of long experience in wire-tapping was employed, on behalf of the Government and at its expense. He tapped eight telephones, some in the homes of the persons charged, some in their offices. Acting on behalf of the Government and in their official capacity, at least six other prohibition agents listened over the tapped wires and reported the messages taken. Their operations extended over a period of nearly five months. The type-written record of the notes of conversations overheard occupies 775 typewritten pages. By objections seasonably made and persistently renewed, the defendants objected to the admission of the evidence obtained by wire-tapbing, on the ground that the' Government’s wire-tapping constituted an unreasonable search and seizure, in violation of the Fourth Amendment; and that the use as evidence of the conversations overheard compelled the defendants to be witnesses against themselves, in violation of the Fifth Amendment.
The Government makes no attempt to defend the methods employed by its officers. Indeed,- it concedes
“ We must never forget,” said Mr. Chief Justice Marshall in McCulloch v. Maryland,
When the Fourth and Fifth Amendments were adopted, “ the form that evil had theretofore taken,” had been necessarily simple. Force and violence were then the only means known to man by which, a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “ the sanctities of a man’s home and the privacies of life ” was provided in the Fourth and Fifth Amendments by specific language. Boyd v. United States,.
A sufficient answer is found in Boyd v. United States,
In Ex parte Jackson,
Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no “search”’or “seizure” when a defendant is required to produce a document in the orderly process of a court’s procedure. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence inadmissible simply because The information leading to the issue of the subpoena has been unlawfully secured. Silverthorne Dumber Co. v. United States,
Decisions, of this Court applying the principle of the Boyd case have settled these things. Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper;
The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of . his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts,'their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights arid the right most valued by civilized men.' To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment-. And the use, as evidence
Applying to the Fourth and Fifth Amendments • the established rule of construction, the defendants’ objections to the evidence obtained by wire-tapping must, in my opinion, be sustained. It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants’ premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men bpm to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Independently of the constitutional question, I am of opinion that the judgment should be reversed. By the laws of Washington, wire-tapping is a crime.
As Judge Rudkin said below: “Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals. ... We are concerned only with the acts of federal agents whose powers are limited and controlled by the Constitution of the United States.” The Eighteenth Amendment has not in terms, empowered Congress to authorize anyone to violate the criminal laws of a' State. And Congress has never purported to do so. , Compare Maryland v. Soper,
When these unlawful acts were committed, they were crimes only of the officers individually. The Government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the Government, having full'knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers’ crimes. Compare The Paquete Habana,
Will this Court by sustaining the judgment below sanction such conduct on the part of the Executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands.
The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime,, however long, makes one an outlaw. The court’s aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress.
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law ‘the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
Notes
Otis’ Argument against Writs of Assistance. See Tudor, James Otis, p. 66; John Adams, Wbrks, Vol. II, p. 524; Minot, Continuation of the History of Massachusetts Bay, Vol. II, p. 95.
Entick v. Carrington, 19 Howell’s State Trials, 1030, 1066.
In Interstate Commerce Commission v. Brimson,
Gouled v. United States,
Weeks v. United States,
Boyd v. United States,
Ex parte Jackson,
Weeks v. United States,
Gouled v. United States, 255 U. S. 298.
Boyd v. United States,
Silverthorne Lumber Co. v. United States, 251 U. S. 385. Compare Gouled v. United States, 255 U. S. 298, 307. Id. Stroud v. United States,
The point is thus stated by counsel for the telephone companies, who háve filed .a brief as amici curiae: “ Criminals will not escape detection and conviction merely because evidence obtained by tapping wires of a public telephone system is inadmissible, if it should be so held; but, in any event, it is better that a few criminals escape than that the privacies of life of all the people be exposed to .the agents of the government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the. courts. Legislation making wire tapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful.”
In the following states it is- a' criminal offense to intercept a mes-’ sage sent by telegraph and/or telephone: Alabama, Code, 1923, § 5256; Arizona, Revised Statutes, 1913, Penal Code, § 692; Arkansas, Crawford & Moses Digest, 1921, § 10246; California, Deering’s Penal Code, 1927, § 640; Colorado, Compiled Laws, 1921, § 6969; Connecticut, General Statutes, 1918, § 6292; Idaho, Compiled Statutes, 1919, §§ 8574, 8586; Illinois, Revised Statutes, 1927, c. 134, § 21; Iowa, Code, '1927, § 13121; Kansas, Revised Statutes, 1923, c. 17, § ,1908; Michigan, Compiled Laws, 1915, § 15403; Montana, Penal
In the following states it is a criminal offense for a company engaged in the transmission of messages by telegraph and/or telephone, or its employees, or, in many instances, persons conniving with them, to disclose or to assist in the disclosure of any message: Alabama, Code, 1923, §§ 5543, 5545; Arizona, ’ Revised Statutes, 1913, Penal Code, §§ 621, 623, 691; Arkansas, Crawford & Moses Digest, 1921, § 10250; California, Deering’s Penal Code, 1927, §§ 619, 621, 639, 641; Colorado, Compiled Laws, 1921, §§ 6966, 6968, 6970; Connecticut, General Statutes, 1918, § 6292; Florida, Revised General Statutes, 1920, §§ 5754, 5755; Idaho, Compiled Statutes, 1919, §§ 8568, 8570; Illinois, Revised Statutes, 1927, c. 134, §§ 7, 7a; Indiana, Burns’ Revised Statutes, 1926, § 2862; Iowa, Code, 1924, § 8305; Louisiana, Acts, 1918, c. 134, p. 228; Maine, Revised Statutes, 1916, c. 60, § 24; Maryland, Bagby’s Code, 1926, § 489; Michigan, Compiled Statutes, 1915, § 15104; Minnesota, General Statutes, 1923, §§ 10423, 10424; Mississippi, Hemingway’s Code, 1927, § 1174; Missouri, Revised Statutes, 1919, § 3605; Montana, Penal Code, 1921, § 11494; Nebraska,' Compiled Statutes, 1922, § 7088; Nevada, Revised Laws, 1912, §§ 4603, 4605, 4609, 4631; New Jersey, Compiled Statutes, 1910, p. 5319; New York, Consolidated Laws, e. 40, §§ 552, 553; North Carolina, Consolidated Statutes, 1919, §§ 4497, 4498, 4499; North Dakota, Compiled Laws, 1913, § 10078; Ohio, Page’s General Code, 1926, §§ 13388,13419; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson’s Laws, 1920, §§ 2260, 2262, 2266; Pennsylvania, Statutes, 1920, §§ 6306,
The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat. 1253, 1278, provides that “if any officer, agent, operator, clerk,-or employee .of any telegraph company, or any other person, shall wilfully divulge to any other person than the party from whom the same was received, or to whom the same was addressed, or his agent or attorney, any message received or sent, or intended to be sent, over any telegraph line, or the contents, substance, purport, effect, or meaning of such message, or any part thereof, ... the person so offending shall be deemed guilty of a misdemeanor, and shall be punished by a fine not to exceed one thousand dollars or imprisonment not to exceed one year, or by both such fine and imprisonment, in the discretion of the court.”
The Act of October 29,1918, c. 197,40 Stat. 1017*, provided: “ That whoever during the period of governmental operation of the telephone and telegraph systems of the United States . . . shall, -without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap' any telegraph or telephone line, or wilfully interfere with, the operation of such telephone and telegraph systems or with the transmission of any telephone or telegraph message, or with the delivery of any such message, or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly'authorized to receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year, or both.”
The Radio Act, February 23, 1927, c. 169, § 27, 44 Stat. 1162, 1172, provides that “no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person.”
The above figures relate to Case! No. 493. In Nos. 532-533, the Government evidence fills 278 pages, of which 140. are Recitals of the evidence obtained by wire-tapping.
According to the Government’s brief, p. 41, “The Prohibition Unit of the Treasury disclaims it [wire-tapping] and the Department of Justice has frowned on it.” See also “ Prohibition Enforcement,” 69th Congress, 2d Session, Senate Doc. No. 198, pp. iv, v, 13, 15, referred to Committee, January 25, 1927; also Same, Part 2.
See Hannay v. Eve,
See Creath’s Administrator v. Sims,
Compare State v. Simmons,
See Armstrong v. Toler,
See Lutton v. Benin, 11 Mod. 50; Barlow v. Hall, 2 Anst. 401; Wells v. Gurney, 8 Barn. & Cress. 769; Ilsley v. Nichols,
Coppell v. Hall,
Dissenting Opinion
dissenting.
I sincerely regret that I cannot support the opinion and judgments of the Court in these cases.
The Court is required, to construe the provision of the Fourth Amendment that declares: “ The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” The Fifth Amendment prevents the use of evidence obtained through searches and seizures in violation of the rights of the accused protéeted by the Fourth Amendment.
The single question for consideration is this: May the Government, consistently with that clause, have its officers whenever they see fit, tap wires, listen to, take down and report, the private messages and conversations transmitted by telephones?
The United States maintains that “ The ‘ wire tapping ’ operations of the federal prohibition agents were not a ‘ search and- seizure ’ in violation of the security óf the ‘ persons, houses, papers and effects ’ of the petitioners in the constitutional sense or within the intendment of the Fourth Amendment.” The Court, adhering to and reiterating the principles laid down and applied in prior decisions
.The question, at issue depends upon a just appreciation of the facts.
In Boyd v. United States,
This Coffrt has always construed the Constitution in the light of the principles upon which it was founded.
When the facts in these cases are truly estimated, a fair application of that principle decides the constitutional question in favor of the petitioners. With great deference, I think they should be given a new? trial.
Ex parte Jackson,
Dissenting Opinion
dissenting.
I concur in the opinions of Mr. Justice Holmes and Mr. Justice Brandéis. I agree also with that of Mr. Justice Butler so far as it deals with the merits. The effect of the order granting certiorari was to limit the argument to a single question, but I do not understand that it restrains the Court from a consideration of any question which we find to be presented by the record, for, under Jud. Code, § 240(a), this Court determines a case here on certiorari “with the same power and authority, and with like effect, as if the cause' had been brought [here] by unrestricted writ of error or appeal.”