It is generally held that the Supreme Court may not review a state court judgment, making definite rulings on questions otherwise reviewable by the Court, which calls for the ascertainment by a master or a lower court of an account upon which a further decree is to be entered. California Nat. Bank v. Stateler, 171 U. S. 447; Sand Springs Home v. Naharkey, 299 U. S. 588. But this is not a mechanical rule. It is not applied, for example, to a judgment directing immediate delivery of physical property where an accounting for profits is to follow. Forgay v. Conrad, 6 How. 201; Carondelet Canal & Nav. Co. v. Louisiana, 233 U. S. 362; Radio Station WOW v. Johnson, 326 U. S. 120. In such a case, the accounting is deemed a severed controversy and not part of the main litigation. The Court, in allowing review of the judgment, presupposes "that the Federal questions that could come here have been adjudicated by the State court, and that the accounting which remains to be taken could not remotely give rise to a Federal question. 326 U. S. at 127. On the other hand, a judgment to the effect that a taking by eminent domain is for public use, where the amount of compensation has not been determined, is not considered final, especially where the property will not change hands until after the award of compensation. Grays Harbor Logging Co. v Coats-Fordney Co., 243 U. S. 251. In the later hearing on assessment of compensation, new federal questions can arise or the award may be so generous that the condemnee will be willing to drop the litigation.

Similarly, a state court judgment has been held lacking in finality where it compelled certain action to be taken but offered various alternative ways to comply, some of which might involve further administrative and judicial proceedings. Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62. As long as the precise alternative had not been selected, the Court could not be certain how the litigant would be affected by the judgment.

And this was true even though the federal issues would have been substantially identical whatever alternative was chosen.

In short, if the judgment does in fact contemplate further discretionary action on remand, it is not final and cannot be reviewed by the Supreme Court even though it conclusively adjudicates the federal issues. Only after the highest state court renders another judgment on appeal from the additional discretionary action of the lower court, a judgment which meets all the tests of finality, can review be had. The fact that the highest state court in the second appeal refuses to reconsider the federal issues decided in the first appeal does not deprive the Supreme Court of jurisdiction to review the second judgment. Great Western Tel. Co. v. Burnham, 162 U. S. 339; Louisiana Nav. Co. v. Oyster Commission, 226 U. S. 99, 102; Urie v. Thompson, 337 U. S. 163, 172-3; cf. United States v. United States Smelting Co., 339 U. S. 186, a federal case. Otherwise the orderly process of review would be frustrated, and the litigant would lose all chance for Supreme Court scrutiny of his federal rights.

But if the first judgment of the highest state court is final in that the remand is only for ministerial purposes, a practical problem may arise where the fact of appealable finality is not clear to the litigant. He may decide to exercise an abundance of caution by securing another (and plainly final) judgment on appeal from the ministerial action of the trial court. This second judgment likely will regard the controversy as foreclosed by the prior judgment under doctrines of res judicata or law of the case, doctrines which are non-federal in nature and which will not support Supreme Court jurisdiction. Is the litigant thereby foreclosed from securing review because of the commendable desire to remove all possible doubts as to the finality of the first judgment?

The Supreme Court has not yet supplied a definite answer to this question. In Rio Grande Western R. Co. v. Stringham, 239 U. S. 44, the Court held that such a second judgment was non-reviewable, but the circumstances were unusual in that the Court also had before it the first judgment and was able to take the case on that basis. It can well be urged that application should here be made of the rule used in situations where the first judgment is not final but does conclusively determine the federal issues—namely, that the refusal of the highest state court on the second appeal to reconsider the questions resolved in the first appeal does not preclude the Supreme Court from reviewing those questions by assuming jurisdiction over the second judgment. Compare, however, Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, and dissenting opinion at p. 516. But pending some definite ruling on the matter, it is best to seek review of the first judgment whenever its finality is a reasonable possibility, and, if unsuccessful, to bring up the second judgment later.

Conditional finality

A state court judgment modifying and reversing a lower court decree but permitting no further proceedings if the appellee consents to the modification is final for purposes of review by the Supreme Court if the record shows that such consent has been given. Atherton v. Fowler, 91 U. S. 143, 146. But where such consent is not given, thereby necessitating further proceedings, the judgment is not final. Mississippi Central R. Co. v. Smith, 295 U. S. 718; Great Northern R. Co. v. Galbreath Cattle Co., 264 U. S. 571.

Finality in injunction cases

In injunction proceedings a judgment of the highest state court is final only where it effectively disposes of the action. Thus a judgment lacks finality if it does no more than rule on

And this was true even though the federal issues would have been substantially identical whatever alternative was chosen.

In short, if the judgment does in fact contemplate further discretionary action on remand, it is not final and cannot be reviewed by the Supreme Court even though it conclusively adjudicates the federal issues. Only after the highest state court renders another judgment on appeal from the additional discretionary action of the lower court, a judgment which meets all the tests of finality, can review be had. The fact that the highest state court in the second appeal refuses to reconsider the federal issues decided in the first appeal does not deprive the Supreme Court of jurisdiction to review the second judgment. Great Western Tel. Co. v. Burnham, 162 U. S. 339; Louisiana Nav. Co. v. Oyster Commission, 226 U. S. 99, 102; Urie v. Thompson, 337 U. S. 163, 172-3; cf. United States v. United States Smelting Co., 339 U. S. 186, a federal case. Otherwise the orderly process of review would be frustrated, and the litigant would lose all chance for Supreme Court scrutiny of his federal rights.

But if the first judgment of the highest state court is final in that the remand is only for ministerial purposes, a practical problem may arise where the fact of appealable finality is not clear to the litigant. He may decide to exercise an abundance of caution by securing another (and plainly final) judgment on appeal from the ministerial action of the trial court. This second judgment likely will regard the controversy as foreclosed by the prior judgment under doctrines of res judicata or law of the case, doctrines which are non-federal in nature and which will not support Supreme Court jurisdiction. Is the litigant thereby foreclosed from securing review because of the commendable desire to remove all possible doubts as to the finality of the first judgment?

The Supreme Court has not yet supplied a definite answer to this question. In Rio Grande Western R. Co. v. Stringham, 239 U. S. 44, the Court held that such a second judgment was non-reviewable, but the circumstances were unusual in that the Court also had before it the first judgment and was able to take the case on that basis. It can well be urged that application should here be made of the rule used in situations where the first judgment is not final but does conclusively determine the federal issues—namely, that the refusal of the highest state court on the second appeal to reconsider the questions resolved in the first appeal does not preclude the Supreme Court from reviewing those questions by assuming jurisdiction over the second judgment. Compare, however, Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, and dissenting opinion at p. 516. But pending some definite ruling on the matter, it is best to seek review of the first judgment whenever its finality is a reasonable possibility, and, if unsuccessful, to bring up the second judgment later.

Conditional finality

A state court judgment modifying and reversing a lower court decree but permitting no further proceedings if the appellee consents to the modification is final for purposes of review by the Supreme Court if the record shows that such consent has been given. Atherton v. Fowler, 91 U. S. 143, 146. But where such consent is not given, thereby necessitating further proceedings, the judgment is not final. Mississippi Central R. Co. v. Smith, 295 U. S. 718; Great Northern R. Co. v. Galbreath Cattle Co., 264 U. S. 571.

Finality in injunction cases

In injunction proceedings a judgment of the highest state court is final only where it effectively disposes of the action. Thus a judgment lacks finality if it does no more than rule on