"In his work on the Court, as in his previous public career, Harold Burton could not be catalogued. He was never cynical, acid or vitriolic. He was always mild and unassuming. He was always hard-working and selfeffacing. He proceeded through the force of his ideas, and not the strength of his words. As a commentator in the New York Times said at the time of his retirement: 'He has never been found among those public figures who automatically seem to give off sparks. It has been a long time since the Justice created headlines; he has been too busy and too earnest for that.'

"Just before his retirement in 1958, Justice Burton received the Bowdoin Prize, the highest award of his alma mater, made in recognition 'of his distinctive contribution through his outstanding service to his nation and his fellow man.' At that time, his eight colleagues on the Court wrote: 'Justice Burton has regarded his position on the Court as a trusteeship, and has dedicated himself to it wholly and without stint. His indefatigable energies for keen analysis have earned the respect of those who served with him, as his gentle, understanding, and undemanding nature has earned their deep affection and esteem.' And in the letter which the members of the Court wrote to Justice Burton at the time of his retirement, they said: 'Without exception, we believe that of all the Justices who have sat on this Bench, not one has adhered more closely than you to the ideal for which we all strive— "Equal Justice Under Law." 358 U. S. x, xi.

"With these words, which take on the character of res judicata, we close these remarks about the career of Justice Burton. Much of his contribution during his service on the Court was made in ways which will be fully appreciated only by those who are professionally the officers of the Court. His was a life of service, through which he made important contributions to the nation and to the law. It is accordingly fitting that we members of the bar of the Court should submit the following Resolutions.

""We do

"Resolve that we, the bar of the Supreme Court of the United States, express our profound sorrow at the death of Justice Harold Hitz Burton, and our deep appreciation for his contributions of public service, where he served with equal distinction and effectiveness in the Executive, Legislative and Judicial branches of the government, in the armed forces, and in civil life at all levels of our governmental system as an officer of his city, state, and nation, and as a Justice of the Supreme Court who was in all places unexcelled in his dispassionate search for light and truth:

"It is further Resolved

""That the Attorney General be asked to present these Resolutions to the Court, and to request that they be inscribed upon its permanent records, and that copies of these Resolutions be forwarded to the widow and children of Justice Burton." "

Mr. Attorney General Katzenbach addressed the Court as follows:

Mr. Chief Justice, May It Please the Court:

The Bar of this Court met today to honor the memory of Harold Hitz Burton and to recall for posterity, as vividly as dry words permit, the many admirable qualities of the man, the distinguished capacities in which he served his community and his country, and, of particular importance to those assembled here, the contribution he made to the rule of law during his thirteen years as an Associate Justice of this Court.

Those who knew him most intimately have already paid fitting tribute to the traits of mind and character which transformed Harold Burton's acquaintances to friends and his friends to admirers. They have, in a sense, reaffirmed what was known by all who were ever affected by his public or private endeavors that the private citi

zen, like the public servant, embodied qualities of courage, dedication and fairness which placed him in the front rank of men.

As an infantry captain, Ohio state legislator, Mayor of Cleveland and Senator from Ohio, he was well served by these powerful personal attributes. On many different battlefields, his quiet fortitude enabled him to face hostile forces with equanimity.

Coming to this Court from the rough-and-tumble of politics and legislative compromise, Harold Burton succeeded, swiftly and with remarkable ease, in channeling the talents which had contributed to his earlier success. into the more contemplative cast required of members of this Court. During each of his many eventful terms on this Court, Mr. Justice Burton demonstrated anew the qualities of fairness, tenacity and devotion to principle which had marked his earlier career.

His appointment to this Court was itself a tribute to his judicious and dispassionate temper. For his political affiliation was different from that of President Truman, who nominated Harold Burton for the first opening on the Court during his tenure in office. The President's choice was particularly striking in the light of his own commitment to vigorous rivalry between our major political parties; it must have been influenced by the qualities of fairness and openmindedness which he saw demonstrated by Harold Burton during their association in the Senate of the United States and in their joint service upon its committees. Justice Burton's nomination was, in every sense, a nonpartisan one because it placed upon this Court a man who was singularly free of preconceptions, prejudices, or predilections.

President Truman's judgment of his fairness was by no means the first. From the outset men had appreciated in him a disarming simplicity, objectivity of judgment and directness of expression. In politics, as later on this Court, these qualities stood him in good stead. He was first elected Mayor of Cleveland in 1935 as an Inde

pendent-Republican candidate when the city was overwhelmingly Democratic. In the major battle of his administration four years later, Mayor Burton-then an avowed Republican-did not hesitate to take on the Republican governor of Ohio on the urgent question of relief.

Again, repeatedly, as a Senator, Mr. Burton's independent convictions led him against the current of his party's leadership and what others read as popular opinion-most particularly in the Senate debate over LendLease and, in 1943 in a bipartisan resolution which he drafted calling for American leadership in forming a United Nations organization.

From the inception of his judicial career, Justice Burton devoted to the business of deciding cases and writing opinions the same care and energy that had made him an outstanding legislator and administrator. His first opinion for the Court concerned the application of the Fair Labor Standards Act to a corporation engaged in electrical contracting and in the sale of motors and generators. In determining that the Act applied to the corporation's employees, Justice Burton wove his way, in great detail, through the relevant history of the statute-including the debates on the floor of the Congress and meticulously defining ambiguous statutory terms by reference to authorities ranging from the unabridged dictionary and the Encyclopedia of Social Sciences to industrial manuals issued by the Bureau of the Budget and the Social Security Board.

The precision manifested by this maiden effort emerged time and again in his opinions on questions of statutory construction. As a former legislator, he knew that legislative intent is a restless and shifting creature which almost never stands still long enough to be identified; but he persisted in the dominant concern of searching out the real wish of Congress by placing the statute in historical perspective and determining how Congress resolved the problem before it. He would then reconcile and align

statutory provisions in a manner calculated to carry out that wish as applied to the facts of the case before him without intruding his own view of policy.

Justice Burton left behind him in the legislative chambers all a priori notions of what statutes should say or what proper legislative policy might be. His judgment invariably rested upon an exhaustive examination of all available material casting light upon the meaning of legislation at hand. "He would not," as the poet said, "make his judgment blind." And yet, Justice Burton was wary lest finely drawn lines frustrate the purpose for which legislation was enacted. In his first Term on the Court, he alone dissented from the holding in Commissioner v. Wilcox that embezzled money did not constitute income within the meaning of the Internal Revenue Code; in his next-to-last Term, he wrote a majority opinion rejecting the argument that a certain federal criminal statute should be limited in its application to persons committing acts which would have been crimes under the common law. In each instance, it was his view that the very fine line sought to be drawn could not be harmonized with the will of Congress. And his dissent in Wilcox was, of course, vindicated by subsequent decisions.

When, in his view, fine lines were warranted, Justice Burton could draw them with the adeptness of the most skillful attorney. His carefully limited opinion in Joint Anti-Fascist Refugee Committee v. McGrath, in which his vote was the necessary one for reversal, is proof enough of that. And the hallmark of his opinions for the Courtan introductory sentence beginning: "This case presents two questions . . ." or "The issue here is whether . . ." or "The question before us is . . ."-epitomized his careful lawyerlike attitude towards the decision-making responsibility which resides with this Court. In Justice Burton's view, cases heard by this Court invariably narrowed themselves down to precise issues, and it was on the merits of those issues of law alone that they were to be decided. To him, who the parties were was irrelevant.