Indiana, was valid. A third party subsequently sued Mr. Shannon for room and board furnished the wife, and it was held that the third party was not estopped from showing the invalidity of the Indiana divorce. Not only did this case involve an attempt to set up the estoppel against one who was not even a party to the prior suit, but it is merely another illustration of the well-settled rule that estoppel does not arise unless the particular finding was necessary to the decision in the first suit. For the reasons indicated, we do not consider that the cases cited by counsel support his contention. On the other hand, the authorities mentioned below show that the rule is not as he claims.

Where a decision is rested on two grounds, the ruling on neither is obiter but each is the judgment of the court and of equal validity with the other. United States v. Title Insurance & Trust Company, 265 U.S. 472, 486 (1924); Union Pacific Railroad Company v. Mason City and Fort Dodge Railroad Company, 199 U.S. 160, 166 (1905); Railroad Companies v. Schutte, 103 U.S. 118, 143 (1880); The Choctaw Nation v. United States, 135 F. Supp. 536 (Court of Claims, 1955), cert. den. 352 U.S. 825.

In the last mentioned case, there was involved the Choctaws' claim to ownership of land lying west of the 100th meridian. There had been a prior court decision against them in a case which did not involve this land but which related only to land lying east of the 100th meridian. However, in the earlier case the Choctaws had used as an argument a claim that they owned the land west of the 100th meridian but the court in that case found to the contrary and this was held res judicata in the second suit. (Since the cause of action was not the same in the second suit, there was actually involved the doctrine of collateral estoppel by judgment.)

In Railroad Companies v. Schutte, supra, the Supreme Court said (p. 143):

It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the court as was that on any other of the several matters on which the case as a whole depended.

In Irving Nat. Bank v. Law, 10 F.2d 721 (C.C.A. 2, 1926), it was stated at page 724: “*** if a court decides a case on two grounds, each is a good estoppel." The following rule is set forth in Restatement of the Law of Judgments, section 68, comment "n": "Where the judgment is based upon the matters litigated as alternative grounds, the judgment is determinative on both grounds, although either alone would have been sufficient to support the judgment." Accordingly, we reject this contention of counsel.

Counsel is correct in his statement that under the doctrine of collateral estoppel the point or question to be determined in the second action must be the same as that litigated in the original action and that it must have been a fact which was essential to the first decision (Tait v. Western Maryland Railway Co., 289 U.S. 620, 623 (1933); Yates v. United States, 354 U.S. 298 (1957)). In the last mentioned case, at page 336, the court said that the doctrine of collateral estoppel "makes conclusive in subsequent proceedings only determinations of fact, and mixed fact and law, that were essential to the decision." Counsel also asserts that a finding creates an estoppel only if it was a finding of the ultimate fact in issue. In connection with this contention, the Service stated its position as follows on page 8 of the memorandum which accompanied its motion: "In other words, that there is no distinction between ultimate facts and mediate data so long as they were necessary to the result and were actually litigated; that what is meant by 'evidentiary' facts must be those facts which were not litigated and not put in issue and did not in and of themselves effect the determination that was reached." We do not agree with this statement nor with the view of the Service concerning the analogy between the respondent's case and Local 167, International Brotherhood of Teamsters, etc. v. United States, 291 U.S. 293, 298299 (1934). That case held only that the judgment in the prior criminal case conclusively established that those found guilty were parties to the conspiracy and those persons were estopped in the subsequent civil suit from denying participation in the conspiracy.

In support of this contention, counsel quoted the following which appears in Restatement of the Law of Judgments, 1948 Supplement, section 68, comment "p":

p. Evidentiary facts. The rules stated in this section are applicable to the determination of facts in issue, i.e., those facts upon whose combined occurrence the law raises the duty or the right in question, but not to the determination of merely evidentiary or mediate facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary or mediate facts.

Comment "p" of section 68 of Restatement of the Law of Judgments employs the term "facts in issue" but does not use "ultimate facts" which is the term on which counsel relies. Similarly, Travelers Insurance Co. v. Commissioner of Internal Revenue, 161 F.2d 93 (C.C.A. 2, 1947), cert. den. 332 U.S. 766, and Norton v. Larney, 266 U.S. 511 (1925), cited by counsel, do not even refer to the term "ultimate facts." Hyman v. Regenstein, 258 F.2d 502 (C.A. 5, 1958), does mention ultimate facts but the decision there was predicated on the well-settled principle that a fact decided in an earlier suit is conclusively established between the parties in subsequent litigation provided it was necessary to the result in the first suit, and the court held against Hyman on four alleged frauds-three of them under

the doctrine of collateral estoppel. The Evergreens v. Nunan, 141 F.2d 927 (C.C.A. 2, 1944), cert. den. 323 U.S. 720, is of no assistance to counsel because the court specifically said (pp. 929-931) that the question involved was not the relative conclusiveness of mediate data and ultimate facts in the first suit, and the actual ruling was that no fact decided in the first suit, whether an ultimate fact or a mediate datum, conclusively establishes anything except a fact ultimate in the second suit.

In connection with this contention, counsel also cited Yates v. United States, supra. One of the defendants in that case was Schneiderman who claimed that the court had made determinations favorable to him in a denaturalization proceeding and that these were conclusive under the doctrine of collateral estoppel in a subsequent criminal proceeding. The court held that the prior determinations did not create an estoppel in the second proceeding because the issues were different and the first suit involved a period prior to 1927 whereas the second suit involved the period from 1948 to 1951. Schneiderman urged that, even if the prior determinations were not conclusive, they should be given partial conclusive effect but the court stated that the doctrine of collateral estoppel does not establish any such concept. It was in this connection that the court made the following statement at page 338: "The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or 'mediate' facts are concerned, the doctrine of collateral estoppel is inoperative." Counsel quoted and relied on the second sentence. When considered in context, however, it is clear that it relates only to the facts in the subsequent proceeding and has nothing to do with the relative conclusiveness of mediate and ultimate facts in the first suit.

The remaining case cited by counsel in support of his contention is King v. Chase, 15 N.H. 9 (1844). In that case also there is no reference to "ultimate facts," although the case does illustrate a view of a few courts that "ultimate fact" should be defined as "final fact." However, the facts in the case were not as counsel stated them. The first suit was for taking away a large quantity of oats and the second suit was for taking 30 tons of hay and other articles. In the first suit, the finding that the plaintiff had no title to the oats must have been predicated on the opinion that the mortgage he held was fraudulent. The court concluded that the title to the property in the second suit had not been tried.

While only King v. Chase, supra, lends any support to counsel's contention that only ultimate facts found in the first suit become an estoppel in the second suit, there are judicial decisions to that effect. The matter is discussed in 142 A.L.R., pages 1243 to 1252,

inclusive. From what is there stated, it appears that the courts generally agree that the doctrine of collateral estoppel is confined to the ultimate facts in the first action and that it does not extend to evidentiary facts. However, difficulty arises in defining the meaning of ultimate fact, as distinguished from evidentiary fact, for the purposes of the rule. The question is discussed in the "Comment Note" in A.L.R. by considering ultimate fact under the concepts of: (1) a pleadable fact or fact in issue, (2) a material element of legal relationship in controversy, (3) an essential fact, and (4) a final fact.

In discussing the concept of ultimate fact as a final fact, the "Comment Note" in A.L.R. refers to King v. Chase, supra, as the leading case illustrating the view of some courts under which they treat as an ultimate fact only what was actually the final issue between the parties and consider as evidentiary any fact from which the ultimate fact is derived regardless of whether such evidentiary fact was essential to the judgment. However, it is stated in the "Comment Note" (142 A.L.R. at page 1248) that a comparatively small number of cases hold that, under such circumstances, the determination of a litigated question does not create an estoppel and that these cases express a minority view. Considering counsel's reliance on King v. Chase, supra, as well as the general tenor of his argument, it seems apparent that his contention is that it is only the final issue in the first suit which becomes an estoppel. We dismiss this contention since it is our opinion that such a definition of ultimate fact is contrary to the view of the majority of the courts.

While we reject the concept that it is only the final issue in the first action which creates a collateral estoppel in the second suit, there is no question but that such an estoppel occurs if "ultimate fact" is considered as being a fact in issue or a material element of the suit or an essential fact. However, under those circumstances, the use of the word "ultimate" actually adds nothing to the determination of the question in this respondent's case. We will, therefore, make our determination in his case in accordance with the principles stated in Cromwell v. County of Sac, 94 U.S. 351 (1876), and Southern Pacific Railroad Co. v. United States, 168 U.S. 1 (1897).

In Cromwell v. County of Sac, supra, at page 353, it was said: *** where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered." In Southern Pacific Railroad Co. v. United States, supra, at pages 48-49, the Supreme Court made the following statement: "The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed

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in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified." These rules have been quoted in many subsequent decisions (Partmar Corporation v. Paramount Pictures Theatres Corporation, supra, at page 91; United States v. International Building Co., 345 U.S. 502, 504–505 (1953), reh. den. 345 U.S. 978; United States v. Munsingwear, Inc., 340 U.S. 36, 38 (1950); Mercoid Corporation v. Mid-Continent Investment Co., 320 U.S. 661, 671 (1944); United States v. Moser, 266 U.S. 236, 241 (1924)).

In the denaturalization suit, the court found that the respondent was an active member of the Communist Party and attended closed meetings of the Party at least from 1930 to 1936, inclusive; that in November 1932, together with other communists who had been selected or approved by the Communist Party, he went to Moscow, U.S.S.R., where he attended the Lenin School; and that about 1934 he became section organizer for the New Kensington district of the Party. The court also found that the respondent had penetrated sufficiently far into the councils of the Communist Party to be thoroughly familiar with its ultimate objective of overthrowing the Government of the United States by force and violence if necessary, and that from 1930 to 1936 the respondent was committed to the ultimate objectives of the Party. The court also found that in 1946 he joined the District of Columbia Communist Party.

We will first consider the questions which were at issue and controverted in the denaturalization suit and which were directly determined by the court. Since the Service and counsel did not offer in evidence a copy of the complaint and the answer in that action, we have found it necessary to determine the issues in that proceeding on the basis of the pertinent statutory provision, the judgment (Exh. 2), and the opinion of the court (Exh. 4; 152 F. Supp. 169). 8 U.S.C. 1451 (a) authorizes the institution of denaturalization proceedings "on the ground that such order [of admission to citizenship] and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation."

Counsel apparently considers that one of the issues in the denaturalization proceeding was whether the respondent was attached to the principles of the Constitution of the United States. After stating in the penultimate paragraph of the opinion that the respondent's naturalization must be revoked because it was procured by material misrepresentations and concealment, it was stated that the same result was required by the court's findings that the respondent was not sincere in his representation that he was attached to the