(dissenting).

Since any action taken by the division is, under this order, “to he in conformity with this court’s Rule 23, as amended,” this means that if the division is of the same opinion it was before then the case is at an end. When the various petitions presently remaining undisposed of were filed, amended Rule 23 was not in effect. Normally such a rule should operate prospectively, and upon future petitions only. To apply such procedure retrospectively in the circumstances of this case would in my opinion be an abdication of the duty which this court owes to these litigants.

I think our duty is a very simple one. It is solely to do the best we can. By that I mean that it is the duty of this court, as now constituted, to spare no effort to bring this important litigation to a right conclusion. We have here a case involving an apparently novel point of law. To date the judges who have considered its merits are equally divided as to who should win. Mr. Justice Jackson and Judge Fee think the plaintiff should prevail. Judge Healy and Judge Byrne think otherwise. There remain six judges of this court whose power to break this tie is clear. The question is, is it our duty to do so ? I think it is. I cannot think of a situation more clearly requiring action rather than abstention, decision rather than avoidance. The case is now in our hands as a full court. 1 I think it is our duty to keep *376 it.there, to hear arguments on it, and to decide it.

. It would be possible to give what is said in the court’s footnote 6 a meaning with which I would not agree. As the opinion of the Supreme Court discloses, there has been some difference of opinion among the judges of this court as to the significance of certain language used in our former opinion. See 345 U.S. at page 266, 73 S.Ct. 656 . Whether that language was what the court decided, or mere dictum, the Supreme Court at any rate quoted it 345 U.S. at pages 264-265, 73 S.Ct. at pages 665, 666, of its opinion, and proceeded to disagree with it. That language was: “Circuit judges other than those designated to sit on such court or division are not members of it, and officially they play, and are entitled to play, no part in its deliberations at any stage. * * * ‘A petition for rehearing in any such case, whatever its form or wording, must necessarily be treated as addressed to and is solely for disposition by the court or division to which the case was assigned for determination.’ ” As the Supreme Court put it, if the quoted lan *376 guage of our former opinion was a ruling which “came as a matter of statutory compulsion * * * it rests on an erroneous interpretation of § 46(c).” Since the Supreme Court decision in this case it has been clear that any time a majority of all the judges of this court choose to order a hearing or rehearing en banc in any case whatever, they may do so.