Schulte v. Gangi/Dissent Frankfurter

Mr. Justice FRANKFURTER, with whom Mr. Justice BURTON concurs, dissenting.

Substantially for the reasons given by Judge Rifkind, 53 F.Supp. 844, I would restore his judgment in the District Court and reverse that of the Circuit Court of Appeals. 150 F.2d 694. For purposes of judicial enforcement, the 'policy' of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air. Before a hitherto familiar and socially desirable practice is outlawed, where overreaching or exploitation is not inherent in the situation, the outlawry should come from Congress. To that end, some responsibility at least for a broad hint to the courts, if not for explicitness, should be left with Congress.

The late CHIEF JUSTICE participated n the hearing and disposition of this case and had joined in this dissent.