lic charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. See cases collected in 6 A. L. R. 1281-1287 for a discussion as to whether a showing of complete destitution should be made under this and similar statutes."

A person petitioning for certiorari or appealing to the Supreme Court who seeks to proceed in forma pauperis must move for leave so to appear in the Supreme Court itself, not in the lower court. (In appeals, he may also have to move below if he wishes to be relieved of paying any costs or fees imposed by the lower court,' and of putting up security for the costs of the appeal to the Supreme Court.) The customary practice is for the motion for leave to file, together with the party's accompanying affidavit, in typewritten form, to be submitted to the Court with the petition for certiorari, usually also typewritten, or the appeal papers. When that is done, payment of the advance deposit for court fees will not be required. The Court will then consider the motion and the petition (or appeal papers) together. If the petition for certiorari is denied, the current practice is for no ruling to be announced on the motion to appear in forma pauperis. This has the practical effect of allowing the petitioner or appellant to proceed up to this point without paying fees or costs. If certiorari is granted or probable jurisdiction noted, the Court will issue an order granting or denying the motion to proceed in forma pauperis. The granting

7 The federal in forma pauperis statute does not apply to costs and fees

in state courts.

of the motion will, of course, make it unnecessary for the party to pay any costs or fees. The record will then be printed at public expense for use in the argument on the merits.

A petition for certiorari in forma pauperis, like any other petition, should be accompanied by a copy of the record. But if it is impossible for a petitioner to procure a copy of the record because of his poverty, the Court will accept the petition without the record, and will itself request the lower court to send up the record if it thinks an examination of the record necessary to the disposition of the case.

A respondent or appellee may also submit a motion for leave to proceed in forma pauperis. This enables him to file his briefs in typewritten form, and to avoid a judgment for costs if he should lose the case. He does not have to pay costs in advance in any event. Forms of a motion and affidavit appear at pp. 37980, infra.

Veterans' reemployment cases

The Selective Service Acts of 1940 (§8 (e), 54 Stat. 891, 50 U.S.C. App., §308 (e)) and 1948 (§9 (d), 62 Stat. 616, 50 U.S.C. App., Supp. II, §459 (d)), provide that in suits by veterans for reemployment benefits "no fees or court costs shall be taxed against" any person who may apply "for such benefits". This provision applies to the Supreme Court as well as to lower

courts.

Seamen's suit without prepaying costs

8

Section 1916 of Title 28 U.S.C. (1948) provides:

"In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement

As in Uveges v. Pennsylvania, 335 U. S. 437, 443.

of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor."

This makes it unnecessary for seamen in the cases specified to pay costs in advance or to make any deposit therefor. Lower courts have held that this statute means only that prepayment of costs is unnecessary, but that a seaman may be charged with costs if the final judgment goes against him." The Supreme Court has not ruled on the question. In practice, however, in so far as the Clerk of the Supreme Court is concerned, costs are not collected at all if they are not prepaid.

E. The record

The record to be filed consists of a copy of the transcript of record before the lower court certified by the clerk of that court, both by signature and seal of the court, as the true record in the case, minus any portions counsel for both parties agree may be omitted.

Number of copies

The rules require ten printed copies of the record for use in connection with the petition for certiorari. These requirements must be met, except in in forma pauperis cases, or where special leave of court is obtained to file a lesser number. The Court has on rare occasions, for good cause, granted a motion to consider a petition on a reduced number of copies of the record. Cleveland Trust Co. v. Schriber-Schroth Co., 309 U. S. 648, 674. In addition to the ten, one copy of the record must be served on counsel for each respondent, and petitioner's counsel will probably want at least one for himself. So a minimum of twelve records should be obtained, and more if there are more than two counsel in the case. The filing of a single

9

The Eastern Prince, 22 F. Supp. 880, 883 (W. D. Wash); Taylor v. Calmar S.S. Co., 35 F. Supp. 335 (E. D. Pa.).

certified copy, however, together with the petition, within the time specified, is sufficient to make the filing timely. The other nine copies, if available, should be filed at the same time. As will appear, if the copies are not available, the Clerk will have to reprint the record, in which case forty copies will be printed. Rule 38 (7). Thirty copies are necessary if certiorari is granted and the case heard on the merits, so that twenty must be filed in addition to the original ten if the Clerk does not reprint.

A considerable amount of money can be saved if, when a record is printed in a lower court, enough additional copies are printed to allow for the requirements of the Supreme Court as well as of the lower court. This should certainly be done if the parties can reasonably anticipate the possibility that a petition for certiorari may be filed. Fifty extra copies should be ample, and they can be obtained at that time much more inexpensively than if the record has to be reprinted from scratch.

Content of the certified record

In general. Rule 38 (1) provides that the petition "shall be accompanied by a certified transcript of the record in the case, including the proceedings in the court to which the writ is asked to be directed." The phrase "certified transcript of the record in the case" would seem to mean the entire record before the lower court. The Clerk of the Supreme Court construes the Rule as meaning the entire transcript below, except such portions as the parties stipulate may be omitted. This interpretation is followed where the entire record before the court below has been printed (by the clerk or as appendices to the brief), or where none has been printed. It is not strictly observed, however, where some but not all of the record has been printed (by the clerk or as appendices). Then the clerks of both the lower courts and the Supreme Court, despite the absence of a stipulation, treat the printed portion as all that need be certified unless counsel for either party requests that

additional matter be included. This is a sensible assumption, since the parties will usually have printed the pertinent portions of the record for use in the court below. Particularly where the appendix-type record is employed, counsel often want unprinted parts, or all, of the original transcript to be before the Supreme Court. The precise manner in which the parties should designate these additional portions is not too clear. In practice the Clerk accepts any arrangement satisfactory to the parties, or to the petitioner if respondent's wishes are not expressed.

10

Inasmuch as the Rule governing this subject is not very specific, and is not applied consistently in all circumstances in actual practice, clarification of the Rule would seem desirable.

Although the Rules do not so state, the desirable course, when petitioner's counsel wishes to have certified less than the entire record before the court below or more than the record printed below, is for him to try to stipulate with opposing counsel as to what should be omitted or excluded. This should be taken up sufficiently early so as to permit the record to be prepared and certified in time to accompany the petition for certiorari.

If for lack of time or other reason, no stipulation is obtainable, the clerk of the lower court will certify, in addition to what has been printed, those portions of the record which are designated by counsel for petitioner. If either party subsequently determines that other parts of the record should be certified, he should request the clerk below to certify to the Supreme Court a supplement to the certified record. If the record cannot otherwise be adequately completed to the satis

10 If petitioner does not advise respondent in advance, respondent may not know that a petition for certiorari is to be filed until it is served on him. He thus has no opportunity to make known his views as to what shall be in the record prior to the filing of the record by the petitioner.