Johnson v. New York, New Haven & Hartford Railroad Company/Dissent Minton

Mr. Justice MINTON, dissenting.

I agree with all that Mr. Justice FRANKFURTER has said in upholding the action of the Court of Appeals in returning the case to the District Court with directions to enter a verdict for the defendant. I would add another reason why I think the action was valid.

After the Cone, Globe Liquor and Fountain cases were decided, Congress in 1948 revised the Judicial Code, and in 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, clearly authorized the action taken by the Court of Appeals here. Section 2106 reads as follows:

'The Supreme Court or any other court of appellate     jurisdiction may affirm, modify, vacate, set aside or reverse      any judgment, decree, or order of a court lawfully brought      before it for review, and may remand the cause and direct the      entry of such appropriate judgment, decree, or order, or      require such further proceedings to be had as may be just      under the circumstances.'

To me, this statute is controlling. We found it controlling of the action of the Court of Appeals in a criminal case. Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335. Mr. Justice BLACK, who now speaks for the Court, dissented in the Bryan case because he thought Cone controlling. By act of Congress, the discretion now rests with the Court of Appeals to grant a new trial or to direct a verdict according to law on the record already made.