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355 U.S. 597
78 S.Ct. 526
2 L.Ed.2d 519
Michael WILSON, Gale Sondergard, Howard Da Silva, et al., Petitioners,v.LOEW'S Incorporated, a Corporation, Paramount Pictures, Inc., a Corporation, et al.
No. 33.
March 3, 1958.
Messrs. Robert W. Kenny and Ben Margolis (Mr. Samuel Rosenwein, on the brief), for petitioners.
Messrs. Irving M. Walker and Herman F. Selvin, for respondents Loew's Incorporated and others.
Messrs. Guy Richards Crump and Henry W. Low, for respondents Doyle and others.
Messrs. Edward J. Ennis and A. L. Wirin, for American Civil Liberties Union, as amicus curiae.
PER CURIAM.
1
The writ is dismissed as improvidently granted because the judgment rests on an adequate state ground.
2
Mr. Justice DOUGLAS, dissenting.
3
By demurrer to petitioners' complaint, the respondents in this case admitted that they agreed with each other to exclude from employment all persons who refused, on the grounds of the Fifth Amendment, to answer questions concerning their political associations and beliefs put by the Un-American Activities Committee of the House of Representatives.
4
The complaint alleged, and the demurrer thereby conceded, that petitioners had considerable experience in the motion-picture industry; and that respondents directly or indirectly controlled all motion-picture production and distribution in the United States and all employment opportunities therein. The California court sustained the demurrer on the ground that petitioners had not 'alleged that but for defendants' alleged interference any one of plaintiffs would, or even probably or possibly would, have been employed in the industry.' 142 Cal.App.2d 183, 195, 298 P.2d 152, 160.
5
This ruling on California law should result in a reversal of this judgment.
6
This is a case of alleged interference with the pursuit of an occupation, not an alleged interference with a particular contract or business relationship. The California cases on interference with the 'right to work' are broad in scope. In James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900, the California Supreme Court held that a union could not exclude Negroes from membership in the union when at the same time there was a closed shop in the industry. The Marinship case was later followed in Williams v. International Brotherhood, 27 Cal.2d 586, 165 P.2d 903, where some of the plaintiffs were former employees. No showing of the possibility of employment was made. In Williams the court emphasized that a 'closed shop agreement with a single employer is in itslef a form of monopoly'; and it condemned attempts by a union 'to control by arbitrary selection the fundamental right to work.' 27 Cal.2d, at page 591, 165 P.2d at page 906. Here on the pleadings the respondents comprise a nation-wide monopoly over the industry and arbitrarily place petitioners on a 'black list.'
7
Dotson v. International Alliance, 34 Cal.2d 362, 210 P.2d 5, held that out-of-state workers, qualified for union membership, could recover damages for 'wrongful interference with their right to work' against the union which denied membership. 34 Cal.2d at page 374, 210 P.2d at page 12. No showing of a likelihood of employment was made in that monopoly situation.
8
Surely then, the failure of these petitioners to allege a particular job opportunity does not mean they did not state a cause of action within the meaning of those California cases. Their pleadings seem to bring them squarely within those decisions. The fact that damages may be uncertain is no barrier to enforcement of the right to work. See Harris v. National Union of Cooks and Stewards, 98 Cal.App.2d 733, 738, 221 P.2d 136, 139.
9
I, therefore, conclude that the lower court, in not mentioning these cases nor differentiating them, and drawing almost entirely on decisions from other jurisdictions, has fashioned a different rule for this case. I can see no difference where the 'right to work' is denied because of race and where, as here, because the citizen has exercised Fifth Amendment rights. To draw such a line is to discriminate against the assertion of a particular federal constitutional right. That a State may not do consistently with the Equal Protection Clause of the Fourteenth Amendment. Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161.
| 89
|
355 U.S. 595
78 S.Ct. 495
2 L.Ed.2d 517
UNITED STATES of America, Petitioner,v.William V. MASSEI.
No. 98.
Argued Jan. 9, 1958.
Decided March 3, 1958.
Mr. Roger Fisher, Washington, D.C., for petitioner.
Mr. Richard Maguire, Boston, Mass., for respondent.
PER CURIAM.
1
The Court of Appeals has based its remand in part on the absence of 'proof of likely source,' which it regards as an 'indispensable' element of the net worth method citing Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, in support of its conclusion. In Holland we held that proof of a likely source was 'sufficient' to convict in a net worth case where the Government did not negative all the possible nontaxable sources of the alleged net worth increase. This was not intended to imply that proof of a likely source was necessary in every case. On the contrary, should all possible sources of nontaxable income be negatived, there would be no necessity for proof of a likely source. The above explanation must be taken into consideration in applying the Holland doctrine to this case. A new trial being permissible under the terms of the order of the Court of Appeals, we affirm its judgment.
2
Affirmed.
3
Mr. Justice DOUGLAS would affirm the judgment below on the opinion of the Court of Appeals, 1 Cir., 241 F.2d 895, 900—901.
| 01
|
355 U.S. 579
78 S.Ct. 433
2 L.Ed.2d 503
John Henry HARMON, III, Petitioner,v.Wilber M. BRUCKER, Individually, and as Secretary of the Department of the Army. Howard D. ABRAMOWITZ, Petitioner, v. Wilber M. BRUCKER, Individually, and as Secretary of the Department of the Army.
Nos. 80, 141.
Argued Jan. 14, 15, 1958.
Decided March 3, 1958.
Mr. David I. Shapiro, New York City, for petitioner Harmon.
Mr. Victor Rabinowitz, New York City, for petitioner Abramowitz.
Mr. Donald B. MacGuineas, Washington, D.C., for respondent.
PER CURIAM.
1
The Secretary of the Army, relying upon 10 U.S.C. § 652a1 (Act of June 4, 1920, § 1, Subch. II, 41 Stat. 809, as amended) and 38 U.S.C. § 693h, 38 U.S.C.A. § 693h (Act of June 22, 1944, 58 Stat. 286, as amended), and upon Department of Defense and Army Regulations deemed to be authorized by those statutes, discharged petitioners from the Army and issued to each of them a discharge certificate in form other than 'honorable.' In so doing, he took into account preinduction activities of petitioners rather than basing his action exclusively upon the record of their military service. After having exhausted available administrative remedies, petitioners separately brought these proceedings in the District Court seeking judgments declaring those determinations and actions of the Secretary to be void as in excess of his powers under the circumstances, and directing him to issue 'honorable' discharge certificates to them. Being of the view that it was without jurisdiction to consider the actions, the District Court dismissed them, 137 F.Supp. 475, and the Court of Appeals affirmed with one judge dissenting, 100 U.S.App.D.C. 190, 243 F.2d 613; 100 U.S.App.D.C. 256, 243 F.2d 834. We granted certiorari, 353 U.S. 956, 77 S.Ct. 863, 1 L.Ed.2d 908, and 354 U.S. 920, 77 S.Ct. 1383, 1 L.Ed.2d 1435.
2
The respective contentions made here may be summarized as follows:
3
(1) Petitioners contend (a) that the Secretary acted in excess of his powers, because the statutes referred to did not authorize, nor support Department of Defense and Army Regulations when taken to authorize, consideration of petitioners' preinduction activities in determining the type of discharges to be issued to them upon separation from the Army, and (b) that the action of respondent in issuing to them less than 'honorable' discharges, and the action of the District Court and of the Court of Appeals in refusing review for what they thought was lack of judicial power, deprived petitioners of due process under the Fifth Amendment, and of a judicial trial under the Sixth Amendment, of the Constitution;
4
(2) Respondent contends (a) that by 10 U.S.C. § 652a, Congress required that, upon separation from the Army, a former soldier be given 'a certificate of discharge, * * * in the manner prescribed by the Secretary of the Department of the Army * * *'; (b) that, inasmuch as all certificates of discharge are not required to be 'honorable' ones, he was authorized to, and did, prescribe various types of discharge certificates running the gamut from the accolade of 'Honorable discharge' to the odious 'Dishonorable discharge'; (c) that by 38 U.S.C. § 693h, 38 U.S.C.A. § 693h, Congress directed the establishment of an Army Review Board with power to review, upon its own motion or that of the former soldier, the type of discharge issued, and 'to change, correct, or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board,' and prescribed that 'the findings thereof (shall) be final subject only to review by the Secretary of the Army'; (d) that the findings of the Board, made under those procedures so afforded to and availed of by petitioners, were final subject only to review by the Secretary of the Army; and (e) that, therefore, such administrative procedure is exclusive and the courts are without jurisdiction to review those findings.
5
In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners' nonconstitutional claim that respondent acted in excess of powers granted him by Congress. Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 23 S.Ct. 33, 38, 47 L.Ed. 90; Philadelphia Co. v. Stimson, 223 U.S. 605, 621—622, 32 S.Ct. 340, 345, 56 L.Ed. 570; Stark v. Wickard, 321 U.S. 288, 310, 64 S.Ct. 559, 571, 88 L.Ed. 733. The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available. Moreover, the claims presented in these cases may be entertained by the District Court because petitioners have alleged judicially cognizable injuries. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 159, 160, 71 S.Ct. 624, 642, 95 L.Ed. 817, and see Army Regulation 615—360, par. 7.
6
This brings us to the merits. The Solicitor General conceded that if the District Court had jurisdiction to review respondent's determinations as to the discharges he issued these petitioners and if petitioners had standing to bring these suits, the action of respondent is not sustainable. On the basis of that concession and our consideration of the law and this record we conclude that the actions of the Secretary of the Army cannot be sustained in law. By § 652a, which provides that no person be discharged from military service 'without a certificate of discharge,' Congress granted to the Secretary of the Army authority to issue discharges. By § 693h it provided for review by the Army Review Board of the exercise of such authority. Surely these two provisions must be given an harmonious reading to the end that the basis on which the Secretary's action is reviewed is coterminous with the basis on which he is allowed to act. Section 693h expressly requires that the findings of the Army Review Board 'shall be based upon all available records of the (Army) relating to the person requesting such review * * *.' We think the word 'records,' as used in the statute, means records of military service, and that the statute, properly construed, means that the type of discharge to be issued is to be determined solely by the soldier's military record in the Army. An authoritative construction of the congressional grant of power is to be found in the regulations of the Department of the Army. Army Regulation 615—375, par. 2(b) states: 'The purpose of a discharge certificate is to record the separation of an individual from the military service and to specify the character of service rendered during the period covered by the discharge.' (Emphasis supplied.) Moreover, the Army's Regulation 615—360, par. 7 (which was in effect during the times here involved), further states: 'Because the type of discharge may significantly influence the individual's civilian rights and eligibility for benefits provided by law, it is essential that all pertinent factors be considered so that the type of discharge will reflect accurately the nature of service rendered. * * *' (Emphasis supplied.)
7
The judgments of the Court of Appeals are reversed and the cases are remanded to the District Court for the relief to which petitioners are entitled in the light of this opinion.
8
Reversed.
9
Mr. Justice CLARK (dissenting).
10
I would affirm these cases on the basis of Judge Prettyman's opinion in the Court of Appeals. Harmon v. Brucker, 100 U.S.App.D.C. 190, 243 F.2d 613. Since this Court does not reach the constitutional claims considered and rejected by Judge Prettyman, however, it is appropriate to add a word about the Court's basis for asserting jurisdiction and reversing on the merits, namely, the finding that the action of the Secretary of the Army was in excess of his statutory authority.
11
At the outset it is well to state what Harmon and Abramowitz, petitioners in these cases, do not contend. They do not contest the decision that their retention in the Army was inconsistent with national security, nor do they claim that the procedures adopted violated their legally protected rights. They concede the Army 'an absolute right to discharge,' but object to issuance of discharge certificates that reflect the determinations underlying the fact of their discharges, insisting that the Secretary be required to issue them honorable discharges. The controversy thus is confined to the type of discharge certificate that may be issued to servicemen discharged because of preinduction activity deemed to render them undesirable security risks.
12
Throughout our history the function of granting discharge certificates has been entrusted by the Congress to the President and, through him, to the respective Secretaries of the Armed Forces. At no time until today have the courts interfered in the exercise of this military function.1 The lack of any judicial review is evidenced by the fact that for over 70 years Congress itself reviewed military discharges and frequently enacted private bills directing the appropriate Secretary to correct the type of discharge certificate given. By legislation in 1944 and 1946, Congress authorized creation of administrative boards to which it transferred the review of military discharges2 in an effort to conserve its own time.3 That legislation makes no provision for judicial review; on the contrary, the 1944 Act expressly states that the findings of the Army Discharge Review Board shall be 'final subject only to review by the Secretary of (the Army),' and the 1946 Act, as amended in 1951,4 expressly provides that the determination of the Board to Correct Military Records shall be 'final and conclusive on all officers of the Government except when procured by means of fraud.' When this legislative expression of finality is viewed in context with the uninterrupted history of congressional review, culminated by Congress' transfer of the review function to administrative bodies, it cannot be said, in the absence of specific legislative grant, that Congress intended to permit judicial review.5 The Court avoids these considerations by positing jurisdiction to review simply on its determination that the Secretary's action exceeded his statutory authority.
13
In reaching this exceptional position, the Court construes § 693h of the 1944 Act, supra, which provides that review of discharges shall be based on 'all available records' of the department involved, to include not 'all available records' of the Army concerning petitioners, but merely those 'solely (concerned with) the soldier's military record in the Army.' (Emphasis added.) This limitation of the clear meaning of the words used by the Congress—so that 'all' is deemed to mean 'some'—is lacking of any justification.
14
The construction adopted does enable the Court to by-pass the constitutional questions raised by petitioners. It is true that we avoid decision of constitutional questions 'unless essential to proper disposition of a case.' But as I see it, this rule should never compel a transparently artificial construction of a statute. The Court's interpretation here of § 693h must leave both the President and the Congress in a quandary as to the solution of an important problem involving the security of our country.
15
It is to be regretted that the Justice Department and the Army are at loggerheads over the proper disposition of these cases on the merits. However, the frank confession thereof by the Solicitor General is hardly sufficient reason to abandon our long-established policy of no review in such matters. If injustice has been done I have confidence in the Congress or the President to correct it. The proper recourse of petitioners is in that direction.6
16
Judge Prettyman aptly stated: 'Surely the President may apply to military personnel the same program and policies as to security and loyalty which he applies to civilian personnel * * *. (I)f (Harmon) can be discharged as a security risk, the Army can determine whether he is or is not a security risk. And in that determination surely no data is more relevant and material than are his (preinduction) habits, activities and associations.' 100 U.S.App.D.C. at page 197, 243 F.2d at page 620. The same type of data is commonly accepted among civilian agencies as relevant to the security screening of its employees. Those agencies also issue discharges in the form of severance papers based upon, and frequently reciting security grounds. Such papers reflect the true condition upon which the discharge is made. It seems incongruous to me that the military services should not be able to do as much. I would not require the Secretary to issue a discharge certificate which on its face falsifies the real grounds for its issuance.
1
Now 10 U.S.C.A. §§ 3811, 8811.
1
See the numerous cases cited by Judge Prettyman in support of this conclusion. 100 U.S.App.D.C. at page 195, 243 F.2d at page 618.
2
Servicemen's Readjustment Act of 1944, § 301, 58 Stat. 286, 38 U.S.C. § 693h, 38 U.S.C.A. § 693h; Legislative Reorganization Act of 1946, § 207, 60 Stat. 837, as amended, 65 Stat. 655, 5 U.S.C. § 191a, 5 U.S.C.A. § 191a.
3
S.Rep. No. 1400, 79th Cong., 2d Sess. 7.
4
65 Stat. 655, 5 U.S.C. § 191a, 5 U.S.C.A. § 191a.
5
Neither the Court nor petitioners claim that the review provisions of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq., have any application to these cases. Parenthetically, the Selective Service Act of 1948, which authorizes promulgation of regulations covering discharges prior to expiration of the regular service period, 62 Stat. 606, 50 U.S.C.Appendix, § 454(b), 50 U.S.C.A.Appendix, § 454(b), specifically states, 'All functions performed under this title * * * shall be excluded from the operation of the Administrative Procedure Act * * *.' 62 Stat. 623, 50 U.S.C.Appendix, § 463(b), 50 U.S.C.A.Appendix, § 463(b).
6
See Orloff v. Willoughby, 1953, 345 U.S. 83, 93—94, 73 S.Ct. 534, 539—540, 97 L.Ed. 842.
| 12
|
355 U.S. 484
78 S.Ct. 483
2 L.Ed.2d 436
UNITED STATES of America, Appellant,v.TOWNSHIP OF MUSKEGON, a Municipal Corporation, et al. CONTINENTAL MOTORS CORPORATION, Etc., Appellant, v. TOWNSHIP OF MUSKEGON, a Municipal Corporation, et al.
Nos. 37, 38.
Argued Nov. 14, 1957.
Decided March 3, 1958.
Mr. Roger Fisher, Washington, D.C., for appellant United States of america.
Mr. Victor W. Klein, Detroit, Mich., for appellant Continental Motors Corp.
Mr. Harold M. Street, Muskegon, Mich., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
As the Government points out in its jurisdictional statement 'this appeal presents precisely the same basic question' as is raised in No. 26, United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, also decided today. That question is whether Public Act 189, of 1953, of the State of Michigan is unconstitutional as applied to a corporation using government property in connection with a business conducted for its own private gain.
2
In this case the United States owns a manufacturing plant at Muskegon, Michigan. In 1952 it granted Continental Motors Corporation the right to use this plant in the course of performing several supply contracts Continental had with the Government. No rent was charged as such but Continental agreed not to include any part of the cost of the facilities furnished by the Government in the price of the goods supplied under the contracts.
3
On January 1, 1954, Continental was assessed a tax under Public Act 189. As in No. 26, this tax was levied because of Continental's use of tax-exempt property in its private business and was measured by the value of the exempt property which it was then using. Continental refused to pay the tax and this suit was brought by state authorities in a state court to recover the amount assessed. The United States intervened, contending that the tax was invalid because it imposed a levy on government property. But the lower court rejected this contention and entered judgment for the plaintiffs. The Michigan Supreme Court affirmed, 346 Mich. 218, 77 N.W.2d 799. We noted probable jurisdiction of an appeal from this decision by both Continental and the United States, 352 U.S. 963, 77 S.Ct. 357, 1 L.Ed.2d 319, and now affirm the judgment below on the basis of our decision in No. 26.
4
There are only two factual differences between this case and No. 26. First, Continental is not using the property under a formal lease but under a 'permit'; second, Continental is using the property in the performance of its contracts with the Government. We do not believe that either fact compels a different result.
5
Constitutional immunity from state taxation does not rest on such insubstantial formalities as whether the party using government property is formally designated a 'lessee.' Otherwise immunity could be conferred by a simple stroke of the draftsman's pen. The vital thing under the Michigan statute, and we think permissibly so, is that Continental was using the property in connection with its own commercial activities. The case might well be different if the Government had reserved such control over the activities and financial gain of Continental that it could properly be called a 'servant' of the United States in agency terms. But here Continental was not so assimilated by the Government as to become one of its constituent parts. It was free within broad limits to use the property as it thought advantageous and convenient in performing its contracts and maximizing its profits from them.
6
If under certain conditions the State can tax Continental for use of government property in connection with its business conducted for profit—and as set forth in No. 26 we are of the opinion that it can—the fact that Continental was carrying out a contract with the Government does not materially alter the case. Continental was still acting as a private enterprise selling goods to the United States. In a certain loose way it might be called an 'instrumentality' of the United States, but no more so than any other private party supplying goods for his own gain to the Government. In a number of cases this Court has upheld state taxes on the activities of contractors performing services for the United States even though they were closely supervised in performing these functions by the Government. See, e.g., James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3; Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9; Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793.
7
The Curry case seems squarely in point. There a contractor acting pursuant to a cost-plus contract with the United States purchased certain materials. These materials were shipped to a government construction project where they were used by the contractor in the performance of the contract. By agreement title to the materials passed to the Government as soon as they were shipped by the vendor. The State imposed a tax on the contractor, based on the value of the materials, for using them after they had been delivered to the work site. This Court unanimously upheld that state use tax, although it clearly amounted to a tax on the use of government property in performing a government contract.
8
Affirmed.
9
Mr. Justice WHITTAKER, with whom Mr. Justice BURTON joins, dissenting.
10
Though the tax involved in these appeals rests upon the same Michigan statute and generally the same legal principles as No. 26, United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, also decided today, the facts are sufficiently different to render this tax even more clearly unconstitutional than the one there sustained.
11
Here the Government did not even lease nor rent its plant. It simply entered into a contract with Continental providing that the latter would produce certain military supplies at a price equal to its cost, plus a fixed fee; that the work would be done in the Government's plant which was to be furnished without rent (and also that the Government would furnish certain other facilities, and might furnish certain materials, required to produce the supplies) and that Continental would not include in its 'cost' for the supplies any charge for the plant and other facilities and materials furnished by the Government.
12
Continental, thus, had no leasehold estate, tenancy, or other property interest in the plant; and the right to use the plant belonged to and was provided by the Government as a part of the facilities which, under the contract, it was to furnish for production of the supplies. It thus seems plain to us that the Government itself was actually using its plant in the full and only sense that the 'Government,' being an abstraction, can ever use its military plants. United States v. Allegheny County, 322 U.S. 174, 187—188, 64 S.Ct. 908, 915—916, 88 L.Ed. 1209. Therefore, Continental not only had no estate in this real estate to be taxed, but, moreover, it had no independent right of use of the Government's plant to be subjected to a use tax. We think it must follow, even under the majority's interpretation of the law which we believe to be erroneous—that the tax here imposed by the State, however it may be viewed, is a direct tax against the Government and is, hence, invalid.
13
For these reasons and also those stated in my dissenting opinion in No. 26, as well as those stated in my dissenting opinion in City of Detroit v. Murray Corporation, 355 U.S. 511, 475, 78 S.Ct. 462, 479, also decided today, I dissent, and would reverse the decision and judgment below.
14
For concurring opinions of Mr. Justice FRANKFURTER and Mr. Justice HARLAN, see 355 U.S. 489, 505, 78 S.Ct. 486, 492.
| 78
|
355 U.S. 587
78 S.Ct. 442
2 L.Ed.2d 510
UNITED STATES of America, Petitioner,v.B. F. BALL CONSTRUCTION COMPANY, Inc., and United Pacific Insurance Company.
No. 97.
Argued Jan. 27, 1958.
Decided March 3, 1958.
Rehearing Denied April 14, 1958.
See 356 U.S. 934, 78 S.Ct. 770.
Mr. Alexander F. Prescott, Washington, D.C., for petitioner.
Mr. Josh H. Groce, San Antonio, Tex., for respondents.
PER CURIAM.
1
The judgment is reversed. The instrument involved being inchoate and unperfected, the provisions of § 3672(a), Revenue Act of 1939, 53 Stat. 449, as amended, 53 Stat. 882, 56 Stat. 957, 26 U.S.C.A. § 3672(a), do not apply. See United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53; United States v. City of New Britain, 347 U.S. 81, 86—87, 74 S.Ct. 367, 370—371, 98 L.Ed. 520. The claim of the interpleader for its costs is controlled by United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268.
2
Mr. Justice WHITTAKER, with whom Mr. Justice DOUGLAS, Mr. Justice BURTON and Mr. Justice HARLAN join, dissenting.
3
The question presented is whether an 'assignment' made by a subcontractor to his performance-bond surety of all sums to become due for performance of the subcontract, as security for any indebtedness or liability thereafter incurred by the subcontractor to the surety, constituted the surety a 'mortgagee' of those sums within the meaning of § 3672(a) of the Internal Revenue Code of 1939, as amended.
4
Ball Construction Company had contracted to construct a housing project in San Antonio, Texas. On July 17, 1951, it entered into a subcontract with Jacobs under which the latter agreed to do the necessary painting and decorating of the buildings, and to furnish the labor and materials required, for a stipulated price. The terms of the subcontract required Jacobs to furnish to Ball a corporate surety bond, in the amount of $229,029, guaranteeing performance of the subcontract. On July 21, 1951, Jacobs, to induce respondent, United Pacific Insurance Company, to sign the bond as surety, assigned to the surety all sums due or to become due under the subcontract, as collateral security to the surety for any liability it might sustain under its bond through nonperformance of the subcontract, and for 'the payment of any other indebtedness or liability of the (subcontractor to the surety) whether (t)heretofore or (t)hereafter incurred,' not exceeding the penalty of the bond. On April 30, 1953, a balance of $13,228.55 became due from Ball under the subcontract, but, because of outstanding claims of materialmen against Jacobs, Ball did not pay the debt. In May, June, and September, 1953, the District Director of Internal Revenue filed, in the proper state office, federal tax liens against Jacobs, aggregating $17,010.85. Between December 1953 and March 1954—thus during the coexistent period of the bond and the assignment—Jacobs incurred indebtedness, independent of the subcontract, to the surety in the amount of $12,971.88.
5
The surety, contending that its assignment of July 21, 1951, constituted it a 'mortgagee' within the meaning of § 3672(a), claimed priority of right to the $13,228.55 fund over the subsequently filed federal tax liens. The Government disputed the claim and asserted a superior right to the fund under its tax liens. Several creditors of Jacobs, holding unpaid claims for materials furnished for and used in performing the subcontract, asserted priority to a portion of the fund over the claims of both the surety and the Government. Because of these rival claims, Ball instituted this interpleader action, under which he impleaded the surety, the Government, and the materialmen, and paid the fund into the registry of the court to abide the judgment. Before conclusion of the trial the materialmen's claims were satisfied. The District Court held that, by the terms of the 'assignment' and on its date of July 21, 1951, the surety became a mortgagee of the fund and that its right thereto was superior, under § 3672(a), to the subsequently filed federal tax liens. R. F. Ball Const. Co. v. Jacobs, 140 F.Supp. 60. The Court of Appeals, adopting that opinion, affirmed. 239 F.2d 384.
6
This Court now reverses summarily, citing United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520, and United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53. We believe those cases are not in point nor in any way controlling. Neither of them even involve either the question here presented or the statute here conceded by the parties to be controlling. Rather, they involved entirely different facts, presented very different questions, and were controlled by and decided upon other statutes. They were controlled by and decided upon §§ 3670 and 3671 of the Internal Revenue Code of 1939,1 which, in pertinent part, provided: 'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property * * * belonging to such person' (§ 3670) from the time '* * * the assessment list was received by the collector * * *.' (§ 3671.) Whereas the statute governing this case, as the parties concede, is § 3672(a) of the Internal Revenue Code of 1939, as amended,2 which, in pertinent part, provided: 'Such lien shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector—(1) * * * in the office in which the filing of such notice is authorized by the law of the State * * * in which the property subject to the lien is situated * * *.'
7
The controversy in New Britain was over that portion of the proceeds of a real estate mortgage foreclosure sale which exceeded the amount of the mortgage. The City of New Britain, in virtue of its unpaid annual ad valorem tax liens which attached to the real estate on October 1 in each of the years 1947 through 1951, and its water-rent liens which had accrued from December 1, 1947, to June 1, 1951, claimed priority of right to the fund over general federal tax liens against the mortgagor which had been effected under §§ 3670 and 3671 by deposit of assessment lists in the Collector's office on various dates between April 26, 1948, and September 21, 1950. Thus, some of the City's liens had attached to the real estate prior to receipt by the Collector of the assessment lists and some had not.
8
This Court was not there dealing with any mortgage, pledge or other contractual lien, but was only dealing, as it said, with 'statutory liens' (id., 347 U.S. 84, 74 S.Ct. 369); and in deciding the issue of their priority it observed that, although §§ 3670 and 3671 created a lien in favor of the United States upon all property of the taxpayer as of the time the assessment list was received by the Collector, 'Congress (had) failed to expressly provide for federal priority * * *' (id., 347 U.S. 85, 74 S.Ct. 370) under those sections, and the Court held '* * * that priority of these statutory liens is (to be) determined by (the) principle of law (that) 'the first in time is the first in right." Ibid. The Court then vacated the judgment of the state court and remanded the case for determination of the order of priority of the various liens asserted, in accordance with the opinion.
9
We think it is not only apparent that § 3672(a) had no application to that case but also that the Court expressly so declared. It noted that the City of New Britain contended that, because applicable state statutes provided that real estate tax and water-rent liens should take precedence over all other liens and encumbrances and § 3672(a) subordinated federal tax liens to antecedent mortgages, the Court should hold that the City's tax and water-rent liens—having priority over mortgages—were prior in rank to the federal tax liens; but the Court disagreed, saying: 'There is nothing in the language of § 3672((a)) to show that Congress intended antecedent federal tax liens to rank behind any but the specific categories of interests set out therein * * *.' Id., 347 U.S. at page 88, 74 S.Ct. at page 372. (Emphasis supplied.) As we have observed, supra, 'the specific categories of interests set out' in § 3672(a) were and are those of 'any mortgagee, pledgee, purchaser, or judgment creditor.'
10
In the Security Trust case a creditor instituted a suit in California against one Styliano on a note and, on October 17, 1946, pursuant to provisions of the California Code of Civil Procedure, procured an attachment of a parcel of real estate owned by Styliano. While the attachment suit was pending the Government, on December 3, 5 and 10, 1946, filed notices of federal tax liens against Styliano in the proper state office. Thereafter, on April 24, 1947, judgment was rendered against Styliano in the attachment suit, thus perfecting the attachment lien on the real estate. Subsequently Styliano sold the real estate, subject to these liens, and the purchaser filed a suit to quiet his title, impleaded the attachment lienor and the Government, and paid the purchase price into the registry of the court to abide the judgment. The California trial court ordered the fund to be applied, first, in payment of the attachment lien, and, second, in payment of the federal tax liens. The California District Court of Appeal affirmed. Winther v. Morrison, 93 Cal.App.2d 608, 209 P.2d 657. On certiorari this Court reversed, pointing out that, under the law of California as declared in Puissegur v. Yarbrough, 29 Cal.2d 409, 412, 175 P.2d 830, 831—832, an attaching creditor obtains 'only a potential right or a contingent lien' until a judgment perfecting the lien is rendered, and that meanwhile the lien 'is contingent or inchoate—merely a lis pendens notice that a right to perfect a lien exists.' United States v. Security Trust & Savings Bank, 340 U.S. at page 50, 71 S.Ct. at page 113. Naturally in those circumstances, the tax liens which became perfected in December 1946 were superior to the attachment lien which did not become perfected until May 1947. There, as in New Britain, this Court was not dealing with any mortgage, pledge or other contractual lien, or with any question of priority of an antecedent mortgage over subsequently filed tax liens.
11
It thus seems quite clear to us that the New Britain and Security Trust cases did not involve the question here presented nor deal with the statute here conceded to be controlling and, therefore, they do not in any way support the Court's decision here.
12
We also think that, under the law and the facts in this record, the 'assignment' was in legal effect a 'mortgage,' and inasmuch as it antedated the filing of the federal tax liens it was superior to them under the expressed terms of § 3672(a). That section does not define the term 'mortgagee' and, hence, we must assume that it was there used in its ordinary and common-law sense. United States v. Gilbert Associates, Inc., 345 U.S. 361, 364, 73 S.Ct. 701, 703, 97 L.Ed. 1071; United States v. Security Trust & Savings Bank, supra, 340 U.S. at page 52, 71 S.Ct. at page 114 (concurring opinion). Substance, not form or labels, controls the nature and effect of legal instruments. 'State law creates legal interests and rights.' Morgan v. Commissioner, 309 U.S. 78, 80, 626, 60 S.Ct. 424, 425, 426, 84 L.Ed. 585, 1035. The law of Texas, where the questioned assignment was made and was to be performed, makes such an 'assignment' a valid mortgage. Southern Surety Co. v. Bering Mfg. Co., Tex.Civ.App., 295 S.W. 337, 341; Williams v. Silliman, 74 Tex. 626, 12 S.W. 534. Although the relation of a state-created right to federal laws for the collection of federal credits is a federal question, the State's classification of state-created rights must be given weight. United States v. Security Trust & Savings Bank, supra, 340 U.S. at pages 49—50, 71 S.Ct. at pages 112—113. Here, the State's determination that such assignments are mortgages in legal effect, and its classification of them accordingly, is not met by anything of countervailing weight. The period of the assignment was coextensive with the bond. The bond remained effective throughout the period here involved and, hence, so did the assignment. The fact that the assignment was of property to be afterwards acquired did not affect its validity as a 'mortgage,' Conard v. Atlantic Ins. Co., 1 Pet. 386, 448, 26 U.S. 386, 448, 7 L.Ed. 189, nor did uncertainty in the amount (not exceeding the fixed maximum) of the generally identified obligation, so secured, do so. Ibid. Neither does the fact that the instrument was not recorded under the State's fraudulent conveyance statutes—thus to impart constructive notice to subsequent purchasers, mortgagees and the like—make any difference here, for the instrument was valid between the parties to it, and Congress, by § 3672(a), expressly subordinated federal tax liens to antecedent mortgages. The questioned assignment conveyed to the surety all sums then due and thereafter to become due under, and for performance of, the then existing subcontract performance of which was guaranteed by the surety's bond—as security for the payment of sufficiently identified but contingent and unliquidated obligations which the subcontractor might incur to the surety during the coextensive period of the bond and the assignment. In these circumstances, I think it is clear that the assignment was in legal effect a mortgage, completely perfected on its date, in all respects choate, and valid between the parties; and inasmuch as it antedated the filing of the federal tax liens it was expressly made superior to those liens by the terms of § 3672(a).
13
For these reasons, I dissent and would affirm the decision and judgment of the Court of Appeals.
1
53 Stat. 448 and 449, 26 U.S.C. (1952 ed.) §§ 3670 and 3671, 26 U.S.C.A. §§ 3670, 3671.
2
53 Stat. 449, as amended by § 401 of the Revenue Act of 1939, c. 247, 53 S.Ct. 882, and § 505 of the Revenue Act of 1942, c. 619, 56 Stat. 957, 26 U.S.C. § 3672(a), 26 U.S.C.A. § 3672(a).
| 56
|
355 U.S. 554
78 S.Ct. 496
2 L.Ed.2d 484
ANDREW G. NELSON, Inc., Appellant,v.UNITED STATES of America et al.
No. 16.
Argued Dec. 11, 1957.
Decided March 3, 1958.
Rehearing Denied April 14, 1958.
See 356 U.S. 934, 78 S.Ct. 770.
Mr. Paul E. Blanchard, for appellant.
Mr. Roger Fisher, Washington, D.C., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
This appeal concerns the scope of a contract carrier permit granted appellant by the Interstate Commerce Commission under the 'grandfather clause' of the Motor Carrier Act of 1935.1 The Commission interpreted 'stock in trade of drug stores,' a commodity description in appellant's permit, to authorize carriage of only those goods which at time of movement are, or are intended to become, part of the stock in trade of a drugstore. On the basis of that interpretation, an appropriate cease and desist order prohibiting carriage of unauthorized goods was entered. 63 M.C.C. 407. After a three-judge District Court refused to enjoin enforcement of the order, 150 F.Supp. 181, direct appeal was taken to this Court, and we noted probable jurisdiction. 1956, 352 U.S. 905, 77 S.Ct. 146, 1 L.Ed.2d 115. For reasons hereinafter stated we affirm the judgment of the District Court.
2
Appellant's predecessor, Andrew G. Nelson, having operated as a contract carrier before enactment of the Motor Carrier Act, applied for a permit to continue his operation subsequent to passage of the Act, as contemplated by § 209(a) thereof. The application described Nelson's complete operation as 'transportation * * * of store fixtures and miscellaneous merchandise, and household goods of employes, for Walgreen Co., in connection with the opening, closing and remodeling of stores.' In a supporting affidavit Nelson stated that he was 'an interstate contract carrier of property for the Walgreen Company and for it alone * * * to and from Walgreen Retail Stores * * * the commodities so transported (being) usually store fixtures and equipment and merchandise for the opening stock.' Filed with the affidavit were 17 delivery receipts showing contract carriage for Walgreen in 1934—1935.
3
On March 13, 1942, the Commission issued the permit in controversy without a hearing, relying on the application and supporting papers filed by Nelson. The permit authorized contract carriage of '(n)ew and used store fixtures, new and used household goods, and stock in trade of drug stores'2 over irregular routes in 10 States. Upon Nelson's incorporation in 1951, the Commission issued an identical permit to the corporation, the appellant here. In 1954, an investigation by the Commission to determine if appellant was operating beyond the bounds of its permit authority revealed that appellant was carrying a wide range of commodities for many kinds of shippers, including groceries for grocery stores, beer and wine to liquor distributors, dry glue to manufacturers of gummed products, and automobile batteries to department stores. The Commission held that such carriage, all of which appellant attempted to justify under the description 'stock in trade of drug stores,' violated § 209 of the Act, which prohibits contract carriage without a permit authorizing the business in question.
4
Appellant contends that the critical language of the permit, 'stock in trade of drug stores,' is a generic description of commodities by reference to place of sale, entitling it to transport goods like those stocked by present-day drugstores to any consignee within the authorized operating territory. The Commission, however, regards these words as a description of commodities by reference to intended use, authorizing a more limited carriage: goods moving to a drugstore for sale therein, or if moving elsewhere, then with the intention at the time of movement that they ultimately will become part of the goods stocked by a drugstore. Appellant argues that the intended use of the goods is of no consequence here because (1) intended use restrictions are never applied to commodity descriptions by reference to place of sale, and (2) intended use restrictions were developed by the Commission long after issuance of Nelson's permit and cannot now be applied retroactively. Finally, having offered evidence of a much more extensive grandfather operation than was set out in Nelson's application and affidavits, appellant contends that the Commission erred in excluding such evidence.
5
Before considering these contentions, we first note that the plain meaning of words in a commodity description is controlling in the absence of ambiguity or specialized usage in the trade. Neither of the parties believes the description here patently ambiguous,3 nor do we consider it to be such. Moreover, appellant is unwilling to say that the instant description is a term of art, while the Commission specifically asserts that it is not. Consequently, the ordinary meaning of the words used in the permit is determinative. In ascertaining that meaning, we are not given carte blanche; just as '(t)he precise delineation of an enterprise which seeks the protection of the 'grandfather' clause has been reserved for the Commission,' Noble v. United States, 1943, 319 U.S. 88, 93, 63 S.Ct. 950, 952, 87 L.Ed. 1277, subsequent construction of the grandfather permit by the Commission is controlling on the courts unless clearly erroneous. Dart Transit Co. v. Interstate Commerce Comm'n, D.C., 110 F.Supp. 876, affirmed, 1953, 345 U.S. 980, 73 S.Ct. 1138, 97 L.Ed. 1394.4
6
In construing 'stock in trade of drug stores,' the Commission found the controverted words to be a commodity description by reference to intended use; it held them equivalent to 'drug stores' stock' and analogized the latter to such descriptions as 'contractors' equipment'5 or 'packing house supplies.'6 On that basis it required that the goods transported be intended for use by a drugstore as part of its stock in trade.
7
The Commission rejected appellant's contention that the words of this permit are a description by reference to place of sale.7 In making that contention appellant equates the permit's language with 'goods such as are sold in drug stores.' It is obvious to us that such a reading enlarges the ordinary meaning of the words. As pointed out by the examiner, 63 M.C.C., at 414, the description used in the permit connotes possession, and therefore lends itself more readily to 'drug stores' stock' than it does to 'goods such as are sold in drug stores.'8 Moreover, an examination of the Commission's decisions indicates use of a definite and distinctive linguistic pattern whenever descriptions are made by reference to place of sale: if the Commission's purpose has been to authorize transportation of goods like those named in the permit, that purpose consistently has been revealed by use of the phrase 'such as,' or a close variation thereof.9 Yet there is no such phrase in the present permit. These considerations are bulwarked by the record Nelson put before the Commission in 1942, clearly showing that he was hauling Walgreen's drugstore stock, and not goods such as might be stocked for sale by Walgreen. On balance, therefore, we are compelled to think the Commission right; certainly it is not clearly wrong.
8
Appellant contends that the permit language cannot embody an intended use restriction because such restrictions were not formulated by the Commission until after issuance of Nelson's permit and cannot be retroactively applied as a limitation on the same. The Commission challenges the assertion that the intended use restriction was never applied prior to issuance of the permit. It is unnecessary for us to resolve that question, however. Assuming that the intended use test first appeared as a commodity description technique after appellant's predecessor obtained his permit, we think the Commission still free to interpret the permit as it has done. Its determination accords with the common, ordinary meaning of the words used, and in no way strains or artificializes that meaning.10 If the controverted words fairly lend themselves now to the construction made here, they always have done so. Consequently, any retroactive application of the intended use test could work no prejudice to appellant; once it is determined that the ordinary meaning of the description is neither more nor less than the Commission's interpretation, the manner in which the Commission arrived at its conclusion is not controlling.11
9
Finally, appellant contends that the Commission's interpretation limits the actual—though previously unasserted scope of grandfather operations carried on by appellant's predecessor, thus subverting the substantial parity which a grandfather permit should establish between pre-Act and post-Act operations. Alton R. Co. v. United States, 1942, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586. If this be so, the remedy lies elsewhere: in the event the grandfather permit does not correctly reflect the scope of the grandfather operation, the carrier's recourse is to petition the Commissions for reopen the grandfather proceedings for consideration of the evidence not previously brought to the Commission's attention. Such a contention is no answer to the present charge of permit violation, since the permit cannot be collaterally attacked. Callanan Road Improvement Co. v. United States, 1953, 345 U.S. 507, 73 S.Ct. 803, 97 L.Ed. 1206; Interstate Commerce Comm'n v. Consolidated Freightways, Inc., D.C., 41 F.Supp. 651. To hold otherwise would render meaningless the congressional requirement of a permit to continue grandfather operations subsequent to the Act.
10
Appellant's arguments based on noncompliance with the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. §§ 1001—1011, 5 U.S.C.A. §§ 1001—1011, have no merit.
11
Affirmed.
12
Mr. Justice DOUGLAS dissents.
1
This Act became Part II of the Interstate Commerce Act. Section 209(a), 49 Stat. 552, as amended, 52 Stat. 1238, 64 Stat. 575, 49 U.S.C. § 309(a)(1), 49 U.S.C.A. § 309(a)(1), makes it unlawful to engage in interstate contract carriage by motor vehicle without a permit from the Interstate Commerce Commission; however, the first proviso thereto provides that the Commission shall issue a permit as a matter of course upon application by a carrier for authority to operate a route over which the carrier or a predecessor in interest was in bona fide operation on July 1, 1935. That proviso is commonly called the 'grandfather clause.'
2
Since neither party attaches any significance to certain underscoring of language in the permit, we do not italicize that language.
3
Appellant does argue alternatively that if the Commission's interpretation is adopted, the description necessarily would be ambiguous. This is a considerable twisting of appellant's earlier position, consistently maintained throughout these proceedings, that the permit's phraseology exhibits no ambiguity or indefiniteness. In this regard, the Commission held, 'We agree with the contention of the parties and the examiner's conclusion that there is no such patent ambiguity in the permit as to warrant our going back of it and giving consideration to events prior to its issuance.' 63 M.C.C., at 409.
Absent patent ambiguity, it is well established that the Commission will not refer to the underlying grandfather operation. P. Saldutti & Son, Inc.—Interpretation of Permit, 63 M.C.C. 593. Even if such reference is made here, however, the Nelson application and all the documents filed with it describe an operation solely for the Walgreen Drug Company; appellant admits that all the record evidence before the Commission gives 'the impression that Nelson was hauling only for Walgreen.' That background in nowise supports appellant's position here, since it shows Nelson to have been carrying goods actually destined to become part of the stock of a drugstore, and not merely goods like those stocked by such a store. Although appellant offers evidence now of a grandfather operation more extensive than carriage merely for Walgreen, it seems obvious that the Commission's intent in issuing the present permit is not to be ascertained from evidence unknown to the Commission at the time of issuance.
4
It is true, of course, that limitations on Commission power to modify motor carrier permits, established in § 212(a) of the Act, cannot be by-passed under a guise of interpretative action. Commission interpretation of the meaning of a permit, being simply a definitive declaration of what rights existed from the very beginning under the permit, cannot be equated with modification, however, unless found to be clearly erroneous.
5
See C. & H. Transportation Co.—Interpretation of Certificate, 62 M.C.C. 586, holding that 'contractors' equipment and supplies' authorized transportation of such goods only when intended for use by a contractor; transportation of similar goods for use by a branch of the armed services was held unauthorized.
6
See Dart Transit Co.—Modification of Permit, 49 M.C.C. 607, holding that 'packing house supplies' means supplies that in fact are intended to be used in a packing house, and not supplies like those used in packing houses.
7
In contending, then, that the Commission erred in applying the intended use test to a commodity description by reference to place of sale, appellant clearly begs the question at issue.
8
Appellant argues that McAteer Contract Carrier Application, 42 M.C.C. 35, equates the phrases 'goods such as are sold in' and 'stock in trade of.' The opinion's single use of the latter phrase, however, gives no support to such a contention.
9
See, e.g., Interstate Commerce Comm'n v. Ratner, 6 CCH Fed.Carriers Cases 80,415 ('such merchandise as is dealt in by wholesale food business houses'); Anton Vidas Contract Carrier Application, 62 M.C.C. 106 ('such commodities as are sold by retail mail-order houses'); National Trucking Co. Extension Electrical Appliances, 51 M.C.C. 638 ('such commodities as are dealt in by wholesale and retail hardware stores'); Sanders Extension of Operations, 47 M.C.C. 210 ('such general merchandise as is dealt in by wholesale and retail grocery stores'); McAteer Contract Carrier Application, 42 M.C.C. 35 ('such merchandise as is dealt in by wholesale, retail, and chain grocery and food business houses'); Onondaga Freight Corp. Common Carrier Application, 28 M.C.C. 53 ('such merchandise as is dealt in by retail food stores'); Keystone Transportation Co. Contract Carrier Application, 19 M.C.C. 475 ('such merchandise as is dealt in by wholesale, retail, and chain grocery and food business houses').
10
Contrast the Commission's interpretation here with those in Bird Trucking Co.—Modification of Certificate, 61 M.C.C. 311, reversed, D.C., 159 F.Supp. 717; Johnson Truck Service v. Salvino, 61 M.C.C. 329, reversed Salvino v. United States, D.C., 119 F.Supp. 277, on which appellant relies.
11
The intended use test, as applied by the Commission here, is descriptive rather than determinative: it describes the result obtained by taking the language of the permit at face value, and in no sense is a factor in arriving at that result.
| 89
|
355 U.S. 466
78 S.Ct. 474
2 L.Ed.2d 424
UNITED STATES of America and Borg-Warner Corporation (Detroit Gear Division), Appellants,v.CITY OF DETROIT, a Municipal Corporation.
No. 26.
Argued Nov. 14, 1957.
Decided March 3, 1958.
Mr. Roger Fisher, Washington, D.C., for appellant United States of america.
Mr. Glenn M. Coulter, Detroit, Mich., for appellant Borg-Warner Corp.
Mr. Roger P. O'Connor, Detroit, Mich., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
1
The United States asks this Court to strike down as unconstitutional a tax statute of the State of Michigan as applied to a lessee of government property. In general terms this statute, Public Act 189 of 1953, provides that when tax-exempt real property is used by a private party in a business conducted for profit the private party is subject to taxation to the same extent as though he owned the property.1
2
Here the United States was the owner of an industrial plant in Detroit, Michigan. It leased a portion of that plant to the Borg-Warner Corporation at a stipulated annual rental for use in the latter's private manufacturing business. The lease provided that Borg-Warner could deduct from the agreed rental any taxes paid by it under Public Act 189 or similar state statutes enacted during the term of the lease, but the Government reserved the right to contest the validity of such taxes.
3
On January 1, 1954, a tax was assessed against Borg-Warner under Public Act 189. The tax was based on the value of the property leased and computed at the rate used for calculating real property taxes. Under protest Borg-Warner paid part of the assessment. Subsequently the United States and Borg-Warner filed this suit in a state court for refund of the amount paid. They charged that the tax was repugnant to the Constitution of the United States because it imposed a levy upon government property and discriminated against those using such property. The lower court however upheld the tax and the Michigan Supreme Court affirmed. 345 Mich. 601, 77 N.W.2d 79. It ruled that the tax was neither discriminatory nor on the property of the United States but instead was a tax on the lessee's privilege of using the property in a private business conducted for profit. We noted probable jurisdiction of an appeal by the United States and Borg-Warner from this decision. 352 U.S. 962, 77 S.Ct. 353, 1 L.Ed.2d 319.
4
This Court has held that a State cannot constitutionally levy a tax directly against the Government of the United States or its property without the consent of Congress. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Van Brocklin v. State of Tennessee, 117 U.S. 151, 6 S.Ct. 670, 29 L.Ed. 845. At the same time it is well settled that the Government's constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government. See, e.g., James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927; Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3. Of course in determining whether a tax is actually laid on the United States or its property this Court goes beyond the bare face of the taxing statute to consider all relevant circumstances.
5
The Michigan statute challenged here imposes a tax on private lessees and users of tax-exempt property who use such property in a business conducted for profit. Any taxes due under the statute are the personal obligation of the private lessee or user. The owner is not liable for their payment nor is the property itself subject to any lien if they remain unpaid. So far as the United States is concerned as the owner of the exempt property used in this case it seems clear that there was no attempt to levy against its property or treasury.
6
Nevertheless the Government argues that since the tax is measured by the value of the property used it should be treated as nothing but a contrivance to lay a tax on that property. We do not find this argument persuasive. A tax for the beneficial use of property, as distinguished from a tax on the property itself, has long been a commonplace in this country. See Henneford v. Silas Mason Co., 300 U.S. 577, 582—583, 57 S.Ct. 524, 526—527, 81 L.Ed. 814. In measuring such a use tax it seems neither irregular nor extravagant to resort to the value of the property used; indeed no more so than measuring a sales tax by the value of the property sold. Public Act 189 was apparently designed to equalize the annual tax burden carried by private businesses using exempt property with that of similar businesses using nonexempt property. Other things being the same, it seems obvious enough that use of exempt property is worth as much as use of comparable taxed property during the same interval. In our judgment it was not an impermissible subterfuge but a permissible exercise of its taxing power for Michigan to compute its tax by the value of the property used.
7
A number of decisions by this Court support this conclusion. For example in Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9, we upheld unanimously a state use tax on a contractor who was using government-owned materials although the tax was based on the full value of those materials. Similarly in Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174, the Court held valid a state tax on the privilege of storing gasoline even though that part of the tax which was challenged was measured by the number of gallons of government-owned gasoline stored with the taxpayer. While it is true that the tax here is measured by the value of government property instead of by its quantity as in Esso such technical difference has no meaningful significance in determining whether the Constitution prohibits this tax. Still other cases further confirm the proposition that it may be permissible for a State to measure a tax imposed on a valid subject of state taxation by taking into account government property which is itself tax-exempt. See, e.g., Home Insurance Co. of New York v. State of New York, 134 U.S. 594, 10 S.Ct. 593, 33 L.Ed. 1025; Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998; Educational Films Corp. of America v. Ward, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400; Pacific Co. v. Johnson, 285 U.S. 480, 489—490, 52 S.Ct. 424, 425—426, 76 L.Ed. 893.
8
In urging that the tax assessed here be struck down the appellants rely primarily on United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 914, 88 L.Ed. 1209, but we do not think that case is at all controlling. In Allegheny the Court ruled invalid a tax which the State did not contend was 'anything other than the old and widely used ad valorem general property tax' to the extent it was laid on government property in the hands of a private bailee. Reviewing all the circumstances the Court concluded that the tax was simply and forthrightly imposed on the property itself, not on the privilege of using or possessing it. In carefully reserving the question whether the bailee could be taxed for exercising such privileges, the Court stated:
9
'Whether such a right of possession and use in view of all the circumstances could be taxed by appropriate proceedings we do not decide.
10
'Actual possession and custody of Government property nearly always are in someone who is not himself the Government but acts in its behalf and for its purposes. He may be an officer, an agent, or a contractor. His personal advantages from the relationship by way of salary, profit, or beneficial personal use of the property may be taxed as we have held.' 322 U.S. at pages 184, 186, 187, 64 S.Ct. at pages 915, 916.
11
Here we have a tax which is imposed on a party using tax-exempt property for its own 'beneficial personal use' and 'advantage.'2
12
It is undoubtedly true, as the Government points out, that it will not be able to secure as high rentals if lessees are taxed for using its property. But as this Court has ruled in James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, and numerous other cases,3 the imposition of an increased financial burden on the Government does not, by itself, vitiate a state tax. King & Boozer offers a striking example. There a private party, acting under contract with the United States, purchased materials which the contract required him to transfer to the Government. At the same time the Government agreed to pay his costs plus a fixed fee so a state excise levied on his purchase was passed directly and completely to the Government. Yet despite the immediate financial burden imposed on the United States, this Court, without dissent, upheld the tax.
13
We are aware of course that the general principles laid down in Dravo, King & Boozer and subsequent cases do not resolve all the difficulties in the area of intergovernmental tax immunity, but they were adopted by this Court, with the full support of the Government, as the least complicated, the most workable and the proper standards for decision in this much litigated and often confused field and we adhere to them.4
14
It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals. Cf. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. But here the tax applies to every private party who uses exempt property in Michigan in connection with a business conducted for private gain. Under Michigan law this means persons who use property owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities.5 The class defined is not an arbitrary or invidiously discriminatory one. As suggested before the the legislature apparently was trying to equate the tax burden imposed on private enterprise using exempt property with that carried by similar business using taxed property. Those using exempt property are required to pay no greater tax than that placed on private owners or passed on by them to their business lessees. In the absence of such equalization the lessees of tax-exempt property might well be given a distinct economic preference over their neighboring competitors, as well as escaping their fair share of local tax responsibility. Cf. Henneford v. Silas Mason Co., 300 U.S. 577, 583—585, 57 S.Ct. 524, 527—528, 81 L.Ed. 814. Nor is there any showing that the tax is in fact administered to discriminate against those using federal property. To the contrary undisputed evidence introduced by appellees demonstrates that lessees of other exempt property have also been taxed.6
15
Today the United States does business with a vast number of private parties. In this Court the trend has been to reject immunizing these private parties from nondiscriminatory state taxes as a matter of constitutional law. Cf. Penn Dairies v. Milk Control Commission, 318 U.S. 261, 270, 63 S.Ct. 617, 621, 87 L.Ed. 748. Of course this is not to say that Congress, acting within the proper scope of its power, cannot confer immunity by statute where it does not exist constitutionally. Wise and flexible adjustment of intergovernmental tax immunity calls for political and economic considerations of the greatest difficulty and delicacy. Such complex problems are ones which Congress is best qualified to resolve. As the Government points out Congress has already extensively legislated in this area by permitting States to tax what would have otherwise been immune. To hold that the tax imposed here on a private business violates the Government's constitutional tax immunity would improperly impair the taxing power of the State.
16
Affirmed.
17
For concurring opinions of Mr. Justice FRANKFURTER and Mr. Justice HARLAN, see 355 U.S. 489, 505, 78 S.Ct. 486, 492.
18
Mr. Justice WHITTAKER, with whom Mr. Justice BURTON joins (dissenting).
19
I respectfully dissent. Understanding of the bases of my convictions and reasons for doing so requires a rather full treatment of the case.
20
The United States owned an industrial plant in Detroit which it had leased, for a short term, to Borg-Warner, at a fixed annual rental, for use in its private business. The lease provided that if the lessee was required to pay any taxes upon the property to the State of Michigan, under the statute quoted, infra, or otherwise, during the term of the lease, the lessee might deduct the same from the rents, but the Government reserved the right to contest the validity of any such taxes.
21
The State of Michigan had recently enacted a statute, known as Public Act 189 of 1953 (6 Mich.Stat.Ann.1957 Cum.Supp., § 7.7(5) and (6)) which, in pertinent part, says:
22
'Taxation of Lessees and Users of Tax-Exempt Real Property.
23
'Sec. 1. When any real property which for any reason is exempt from taxation is leased, loaned or otherwise made available to and used by a private individual, association or corporation in connection with a business conducted for profit, except where the use is by way of a concession in or relative to the use of a public * * * park * * * or similar property which is available to the use of the general public, shall (sic) be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property: Provided, however, that the foregoing shall not apply to federal property for which payments are made in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed * * *.
24
'Sec. 2. Taxes shall be assessed to such lessees or users of real property and collected in the same manner as taxes assessed to owners of real property, except that such taxes shall not become a lien against the property. When due, such taxes shall constitute a debt due from the lessee or user to the township, city, village, county and school district for which the taxes were assessed and shall be recoverable by direct action of assumpsit.' (Emphasis supplied.)
25
Acting under that statute, the City of Detroit levied a tax against the lessee computed on the assessed value of the Government's industrial plant and calculated in the same manner and at the same rate applicable to all real estate in Michigan. Protest was made without avail and, after administrative remedies were exhausted without success, the tax was paid, and the United States and the lessee, Borg-Warner, sued for refund in the state court, contending that the tax was repugnant to the Constitution because it constituted a tax upon property owned by the Government and discriminated against the lessee. The trial court sustained the tax, and the Supreme Court of Michigan affirmed (345 Mich. 601, 77 N.W.2d 79), holding that the tax was neither on property owned by the United States nor discriminatory against the lessee, but was, instead, a nondiscriminatory tax on the lessee's privilege of using the Government's property in private business for profit. The case comes here on appeal.
26
The Court today affirms the decision and judgment of the Michigan courts, and sustains the tax. I believe that decision is not only unsound in principle but is also opposed to the precedents and that appellants are quite right in both of their contention. To me, it is evident that this tax has been levied, in major part at least, directly (though, perhaps, indirectly in form) upon a property interest of the Government and is, therefore, constitutionally invalid under McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, and the myriad of uniformly conforming cases decided since its rendition in 1819.
27
In determining the nature of a tax we are not bound by, nor even permitted solely to look to, labels affixed by the State, but, rather, as pointed out in United States v. Allegheny County, 322 U.S. 174, 184, 64 S.Ct. 908, 914, 88 L.Ed. 1209:
28
"Where a federal right is concerned we are not bound by the characterization given to a state tax by state courts or Legislatures, or relieved by it from the duty of considering the real nature of the tax and its effect upon the federal right asserted.' Carpenter v. Shaw, 280 U.S. 363, 367, 368, 50 S.Ct. 121, (122) 123, 74 L.Ed. 478.'
29
Examination of the nature of this tax, and of its effect upon the federal rights asserted by appellants, shows that it purports to be a tax upon 'real property which * * * is exempt from taxation,' if it is 'made available to and used by a private individual * * * or corporation in connection with a business conducted for profit,' including 'federal property for which payments (have not been) made in lieu of taxes in amounts equivalent to (general ad valorem) taxes which might otherwise be lawfully assessed' (§ 1), and the tax is to be 'assessed to such lessees or users * * * in the same manner as taxes (are) assessed to owners of real property,' though the tax 'shall not become a lien against the property,' but it 'shall constitute a debt due from the lessee or user.' § 2.
30
Thus, the tax, as it applies to this case, is computed not upon the value of the lessee's short-term leasehold estate in—nor, hence, upon the value of its term right to use—the federal property, but, rather, is computed upon the entire value of the whole of the federal property, in the same manner and at the same rate and amount, 'as though the lessee or user were the owner of such property' (§ 1), but—and I think this is of particular significance—the tax is not to 'apply to federal property' if the Government waives its sovereign immunity and pays general ad valorem taxes on the property, or the equivalent. Does not this really admit that the tax, in major part at least, is directly imposed upon the Government's property interests? The fact that the statute does not create a lien 'on Government property itself, which could not be sustained in any event, hardly establishes that it is not being taxed. * * *' United States v. Allegheny County, supra, 322 U.S. at page 187, 64 S.Ct. at page 916.
31
Disregarding form and labels, and looking to substance, it is, I think, crystal clear that this is a transparent direct imposition upon the Government's property interests (as distinguished from the lessee's leasehold estate) in this real estate of the general and valorem real property tax commonly assessed on, and against the owners of, all real estate in Michigan, but under the guise of a tax upon the lessee for the privilege (as construed by the majority)—granted by the Federal Government, not the State—of using (though it will be noted, the statute does not in terms tax 'use,' but, rather, taxes 'real property', see § 1) the Government's property, and, thus, the statute seeks to accomplish by indirection that which the State is constitutionally prohibited from doing directly. Such attempted evasion of the Government's constitutional immunity from state taxation cannot legally be permitted to succeed. As said in Miller v. City of Milwaukee, 272 U.S. 713, 715, 47 S.Ct. 280, 71 L.Ed. 487: 'If the avowed purpose or self-evident operation of a (state taxing) statute is to follow the bonds of the United States and to make up for (the State's) inability to reach them directly by indirectly achieving the same result, the statute must fail even if but for its purpose or special operation it would be perfectly good.' In Educational Films Corp. of America v. Ward, 282 U.S. 379, 393, 51 S.Ct. 170, 173, 75 L.Ed. 400, after quoting the above language from the Miller case, the Court said: 'But, as the court in that case was careful to point out, in language later quoted with approval in Macallen Co. v. (Commonwealth of) Massachusetts (279 U.S. 620, 631, 49 S.Ct. 432, 435, 73 L.Ed. 874), 'A tax very well may be upheld as against any casual effect it may have upon the bonds of the United States when passed with a different intent and not aimed at them. * * *" Here the Michigan statute plainly says that the tax shall 'apply to federal property for which payments are (not) made in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed' (§ 1), and, hence, it cannot be said that this tax is 'casual (in its) effect * * * upon the (property) of the United States'; and it must be said that the tax is plainly 'aimed at (it).' Educational Films Corp. of America v. Ward, supra, 282 U.S. at page 393, 51 S.Ct. at page 173.
32
The majority rely principally upon Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814; Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174, and, as does also Mr. Justice Harlan in his separate opinion, upon Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9, but, as I read them, those cases do not at all support the Court's conclusion. In Henneford this Court merely held that a tax imposed by a State upon its citizen for his use within the State of his own property which he had purchased in another State and imported in interstate commerce was not a prohibited tax on such commerce, which had earlier ended. It did not in any way involve a tax upon government property interests. The Esso case simply upheld a state privilege tax imposed not upon any property interest of the Government but directly upon a storer of gasoline, on a gallonage basis, for his privilege of conducting that business within the State. One of its customers was the Government which had, by contract, agreed to reimburse Esso for any tax imposed upon it by the State in consequence of having stored the Government's gasoline. Thus the tax was not imposed by the State upon the Government's property interests but upon Esso which did not share the Government's immunity from state taxation, and the obligation of the Government derived not from the statute but through operation of the contract. The Curry case merely held that government cost-plus contractors who had imported into the State certain materials which they used in the performance of their contract were not entitled to share the Government's constitutional immunity from a state use tax, and said: 'If the state law lays the tax upon them rather than the (Government) with whom they enter into a cost-plus contract like the present one, then it affects the Government * * * only as the economic burden is shifted to it through operation of the contract.' 314 U.S. at page 18, 62 S.Ct. at page 49. (Emphasis supplied.) Here the tax is imposed by the Michigan statute directly upon the Government's property interests—including its right to the use of its property and it is not suffered by any voluntary assumption or 'through operation of (a) contract.'1
33
In United States v. Allegheny County, supra, this Court pointed out that 'Mesta (a lessee of government chattels) has some legal and beneficial interest in (the Government's) property. It is a bailee for mutual benefit.'2 The Court then proceeded to say:
34
'Whether such a right of possession and use in view of all the circumstances could be taxed by appropriate proceedings we do not decide.' Id., 322 U.S. at page 186, 64 S.Ct. at page 915.
35
However, the Court did proceed to decide that the Government's property interests in the chattels, distinguished from the bailee's interest therein, could not legally be subjected to any state tax. It said: '* * * the State has made no effort to segregate Mesta's interest and tax it. The full value of the property, including the whole ownership interest, as well as whatever value proper appraisal might attribute to the leasehold, was included in Mesta's assessment. * * * We think, however, that the Government's property interests are not taxable either to it or to its bailee.' Id., 322 U.S. at page 187, 64 S.Ct. at page 915. (Emphasis supplied.)
36
Here it is undeniable that (1) the Government owned this industrial plant, (2) the only element of economic value in its ownership of the plant is its right to use it. That right of use was a government property interest, and any state tax on that right of use is a tax on an instrumentality of the United States and, hence, invalid. See McCulloch v. Maryland, supra, and Allegheny, 322 U.S. at pages 186—189, 64 S.Ct. at pages 915—917.
37
Before the lease, only one estate existed in the plant, namely, the Government's ownership in fee, which included its inherent right to use, and to let the use of, that property. That estate was, and continued to be, a property interest of the Government, to the fruits of which it was and is exclusively entitled; and its right of use, so let to its lessee, in no way derived from any privilege granted—or that could be withheld—by the State, but, rather, derived solely from the United States, and, thus, was not a privilege which the State did or could grant or withhold, nor, hence, regulate or tax; but, on the contrary, it remained immune from state taxation, as pointed out in Allegheny:
38
'A State may tax personal property and might well tax it to one in whose possession it was found, but it could hardly tax one of its citizens because of (property) of the United States which (was) in his possession as * * * agent, or contractor. We hold that Government-owned property, to the full extent of the Government's interest therein, is immune from taxation, either as against the Government itself or as against one who holds it as a bailee.' Id., 322 U.S. at pages 188, 189, 64 S.Ct. at page 916. (Emphasis supplied.)
39
By the lease, the Government, in exercise of its right to use, and to let the use of, its property, carved from its fee a subservient leasehold estate and vested the same in the lessee. That leasehold estate was private local property of the lessee and, therefore, was subject to state regulation, and, hence, to ad valorem or privilege of use taxation by the State, in such measure as is not unequal, unreasonable or confiscatory—on the basis of the value of the leasehold estate being taxed or used as the measure of the tax.3
40
Here, however, the statute does not purport to segregate the value of the leasehold estate from the Government's estate in fee, subject to the lease, in this property, but, rather, computes and imposes the tax on both estates 'as though the lessee or user were the owner of such property.' § 1. It, therefore, seems quite plain that the statute imposes the tax on the Government's property interest, which is immune from state taxation, as well as upon the local property of the lessee in its leasehold estate which is not exempt from state taxation, and thus lays a forbidden burden upon instrumentalities of the United States. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579.
41
For these reasons, I would reverse the decision and judgment of the Michigan court.
1
Now compiled in 6 Mich.Stat.Ann.1950 (1957 Cum.Supp.), §§ 7.7(5) and (6). In full the Act reads:
'AN ACT to provide for the taxation of lessees and users of tax-exempt property.
'Sec. 1. When any real property which for any reason is exempt from taxation is leased, loaned or otherwise made available to and used by a private individual, association or corporation in connection with a business conducted for profit, except where the use is by way of a concession in or relative to the use of a public airport, park, market, fair ground or similar property which is available to the use of the general public (sic), shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property: Provided, however, That the foregoing shall nor apply to federal property for which payments are made in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed or property of any state-supported educational institution.
'Sec. 2. Taxes shall be assessed to such lessees or users of real property and collected in the same manner as taxes assessed to owners of real property, except that such taxes shall not become a lien against the property. When due, such taxes shall constitute a debt due from the lessee or user to the township, city, village, county and school district for which the taxes were assessed and shall be recoverable by direct action of assumpsit.'
2
The Government also places reliance on Macallen Co. v. Commonwealth of Massachusetts, 279 U.S. 620, 49 S.Ct. 432, 73 L.Ed. 874. The weight of that case as a precedent was substantially impaired by its narrow distinction in Educational Films Corp. of America v. Ward, 282 U.S. 379, 392, 51 S.Ct. 170, 173, 75 L.Ed. 400, and the reasoning of the Court in Pacific Co. v. Johnson, 285 U.S. 480, 495, 52 S.Ct. 424, 427, 76 L.Ed. 893. Later in People of State of New York ex rel. Northern Finance Corp. v. Lynch, 290 U.S. 601, 54 S.Ct. 230, 78 L.Ed. 528, a case which seems indistinguishable from Mccallen on its facts, the Court in a per curiam opinion upheld the same kind of state tax which it had struck down in Macallen.
3
See e.g., Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 485—486, 59 S.Ct. 595, 600—601, 83 L.Ed. 927; Helvering v. Gerhardt, 304 U.S. 405, 420—422, 58 S.Ct. 969, 975—976, 82 L.Ed. 1427; Helvering v. Mountain Producers Corp., 303 U.S. 376, 58 S.Ct. 623, 82 L.Ed. 907; Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384.
4
In its brief in King & Boozer the Government strongly urged the Court to abandon whatever remained of the 'economic burden' test, which at one time was used to range far afield in striking down state taxes, because that test was 'illusory and incapable of consistent application.'
5
In somewhat greater detail, Michigan statutes exempt from real property taxes all property belonging to the Federal Government, the State, political subdivisions of the State, charitable organizations, educational or scientific institutions, fraternal or secret societies (if used for charitable purposes), churches, libraries, religious societies, cemeteries, state or county agricultural societies, certain corporations making payments to the State in lieu of taxes, nonprofit trusts (if used for hospital or public health purposes), boy or girl scout organizations (up to 160 acres), certain veterans' homes and land dedicated to public use. See 6 Mich.Stat. Ann.1950, § 7.7, Comp.Laws 1948, § 211.7.
6
The Government points to the fact that Public Act 189 creates an exception to the tax on users where payments are made by the United States 'in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed' as manifesting a purpose to tax government property. But this exemption, which if anything operates in the Government's favor, avoids the possibility of a double contribution to the revenues of the State where private parties use federal property for their own commercial purposes. Moreover, it is not at all inconceivable that the Government might in one way or another, pass the economic burden of such in-lieu payments to taxpayer using its property even though he was also compelled to pay the tax imposed by Public Act 189.
1
It is immaterial to the question here that the lease authorized the lessee to deduct from the rentals any taxes it might be required to pay under this statute during the term of the lease, because the direct thrust of the tax upon the Government's right of use of its property, so let to the lessee, arises from the terms of the statute independently of such contractual assumption.
2
It seems quite certain that a 'bailee' of chattels for mutual benefit stands in no different position or relation to the Government than a 'lessee,' and in fact the Mesta Company held the chattels under a lease in that case.
3
The matter is so stated to point up what should be the obvious necessity, in levying any tax based on or measured by the value of a limited estate in property, of first identifying, and determining the nature and extent of, the estate or interest of the taxpayer therein, which, naturally, must be done before any valuation can properly be ascribed thereto, and, hence, before it can be known whether the tax is or is not equal, reasonable, and non-confiscatory, and, therefore, meets or fails to meet state tests and Fourteenth Amendment Due Process.
| 78
|
355 U.S. 570
78 S.Ct. 501
2 L.Ed.2d 496
UNITED STATES of America, Appellant,v.Charles T. HVASS.
No. 92.
Argued Jan. 27, 1958.
Decided March 3, 1958.
Mr. Ralph S. Spritzer, Washington, D.C., for appellant.
Mr. Warren B. King, Minneapolis, Minn., for appellee.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The question for decision is whether a willfully false statement of a material fact, made by an attorney under oath during the District Court's examination, under its local rule, into his fitness to practice before it, constitutes perjury within the meaning of 18 U.S.C. § 1621, 18 U.S.C.A. § 1621.1
2
Acting under 28 U.S.C. §§ 1654, 2071, 28 U.S.C.A. §§ 1654, 2071, and Rule 83 of Federal Rules of Civil Procedure, 28 U.S.C.A. authorizing federal courts to prescribe rules for the conduct of their business, the District Courts for the Northern and Southern Districts of Iowa promulgated local rules governing practice in those courts. Their Rule 3, in pertinent part, provides:
3
'All attorneys residing outside of the State of Iowa and having civil matters in the court shall associate with them a resident attorney on whom notice may be served and who shall have the authority to act for and on behalf of the client in all matters * * *. Non-resident attorneys who have so associated with them a resident attorney shall be permitted to participate in a particular case upon satisfactory showing of good moral character.
4
'Provided further that where the action is one to recover damages for personal injuries sustained in Iowa by one who at the time was a resident of Iowa * * *, the Court may on its own motion, or on motion of a member of the bar of either District, before permitting a non-resident attorney to participate in the case, require a satisfactory showing that the connection of the said attorney (with the case) was not occasioned or brought about in violation of the standards of conduct specified in Rule 8 hereof.2 The court as a part of said showing may require the plaintiff and the said attorney to appear and be examined under oath.'
5
Appellee, an attorney residing and maintaining his office in Minneapolis, Minnesota, had instituted two actions in the District Court for the Northern District of Iowa, as counsel for citizens of Iowa, seeking damages for bodily injuries which they had sustained in that State. On October 3, 1955, the court, acting under its Rule 3, entered an order scheduling a hearing to be held by the court on October 12, 1955, for the purpose of affording an opportunity to appellee to show that his connection with the two damage suits was not brought about in violation of the standards of conduct specified in its Rule 8, and directing appellee to appear at that time and to submit to an examination under oath, if he wished further to participate as counsel in those actions. Appellee appeared at the hearing and, after being sworn by the Clerk, was examined by the District Attorney on matters deemed relevant to the hearing. On November 1, 1955, the court entered an order finding that 'the applicant (had) not made satisfactory showing of the matters which must be satisfactorily shown under said Local Rule 3,' and it struck his appearance as counsel in the two damage actions from the record.
6
On March 20, 1956, a four-count indictment was returned against appellee in the same District Court. Each count charged that appellee, while under oath as a witness at the hearing of October 12, 1955, 'unlawfully, wilfully, and knowingly, and contrary to (his) oath, (stated) material matters which he did not believe to be true' (in particulars set forth in each count), 'in violation of Section 1621, Title 18 United States Code.' Appellee moved to dismiss the indictment for failure of any of the counts to state an offense against the United States. The court,3 after full hearing upon the motion, concluded 'that Rule 3, under which the defendant took his oath, is not such a law of the United States as was intended by Congress to support an indictment for perjury,' and, on that ground, dismissed the indictment. 147 F.Supp. 594, 597. The Government brought the case here by direct appeal under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. We postponed further consideration of the question of jurisdiction to the hearing on the merits, 353 U.S. 980, 77 S.Ct. 1282, 1 L.Ed.2d 1140.
7
At the threshold we are met with appellee's contention that we do not have jurisdiction of this appeal. We think the contention is unsound. 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, in pertinent part, provides that: 'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States * * * (f)rom a decision or judgment * * * dismissing any indictment * * * where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment * * * is founded.' This indictment was founded on the federal perjury statute, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621. The District Court dismissed the indictment not because of any deficiency in pleading or procedure but solely because it held that Rule 3 'is not such a law of the United States as was intended by Congress to support an indictment for perjury.' It thus dismissed the indictment upon its construction of the federal perjury statute. In these circumstances, the question of our jurisdiction is settled by United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 186, 84 L.Ed. 181:
8
'When the District Court holds that the indictment, not merely because of some deficiency in pleading but with respect to the substance of the charge, does not allege a violation of the statute upon which the indictment is founded, that is necessarily a construction of that statute.'
9
Such is the case here, and the result is that we have jurisdiction of this appeal.
10
This brings us to the merits. The scope of this appeal is very limited. No question concerning the validity of the District Court's Rule 3 is properly before us. Nor are we at liberty to consider any question other than the single one decided by the District Court, for when, as here, 'the District Court has rested its decision upon the construction of the underlying statute this Court is not at liberty to go beyond the question of the correctness of that construction and consider other objections to the indictment. The Government's appeal does not open the whole case.' United States v. Borden Co., supra, 308 U.S. at page 193, 60 S.Ct. at page 186.
11
'The essential elements of the crime of perjury as defined in 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, are (1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing.' United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92. Only the first element of perjury is involved here because the District Court's dismissal of the indictment was upon the sole ground that 'Rule 3 * * * is not such a law of the United States as was intended by Congress to support an indictment for perjury.' Therefore, the only question open here is whether the admission hearing, held under the District Court's Rule 3, and at which appellee testified under oath, was a 'case in which a law of the United States authorizes an oath to be administered,' within the meaning of that clause as used in the perjury statute. We think it was.
12
The phrase 'a law of the United States,' as used in the perjury statute, is not limited to statutes, but includes as well Rules and Regulations which have been lawfully authorized and have a clear legislative base (United States v. Smull, 236 U.S. 405, 35 S.Ct. 349, 59 L.Ed. 641; Caha v. United States, 152 U.S. 211, 14 S.Ct. 513, 38 L.Ed. 415; Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734; Lilly v. Grand Trunk R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411), and also decisional law. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128. And see Wigmore, Evidence (3d ed.), §§ 1815, 1816, 1824.4
13
28 U.S.C. § 2071, 28 U.S.C.A. § 2071 provides: 'The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.' And 28 U.S.C.A. § 1654, provides: 'In all courts of the United States the parties may plead and conduct their own cases personally or by counsel, as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.' (Emphasis supplied.) Consistently, Rule 83 of Federal Rules of Civil Procedure, in pertinent part, provides: 'Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules. * * *' These statutes and Rule 83 leave no room to doubt that the District Court was lawfully authorized to prescribe its local rules and that they have a clear legislative base. Whether or not its Rule 3 is invalid for any reason—which, as stated, is a question not before us—it was prescribed pursuant to statutory authority, and expressly provides that, under the conditions specified, the court may require the 'attorney to appear and be examined under oath.'
14
Rule 3 had at least as clear a legislative base as did the Regulations involved in Caha v. United States, supra (152 U.S. 211, 14 S.Ct. 515), and United States v. Smull, supra (236 U.S. 405, 35 S.Ct. 349). In the Caha case defendant was indicted under the federal perjury statute—then in precisely the same terms as it is now—and charged with perjury through the making of a false affidavit to officials of the Land Office of the Department of the Interior in respect of a contest, then pending in the Land Office, over the validity of a homestead entry. The defendant was convicted and on appeal contended that no statute authorized such a contest and that therefore it could not 'be said that the oath was taken in a 'case in which a law of the United States authorizes an oath to be administered." By statute (43 U.S.C.A. § 1201) Congress had authorized the Commissioner of the General Land Office, under the direction of the Secretary of the Interior, 'to enforce and carry into execution, by appropriate regulations, every part of the (laws relating to public lands).' Pursuant to that authority the Commissioner adopted rules of practice including an express provision 'for a contest before the local and officers in respect to homestead as well as preemption entries, and for the taking of testimony before such officers * * *.' This Court, in denying defendant's contention and in sustaining the conviction, said:
15
'We have, therefore, a general grant of authority to the land department to prescribe appropriate regulations for the disposition of the public land * * *. Clearly then * * * the local land officers in hearing and deciding upon a contest with respect to a homestead entry, constituted a competent tribunal, and the contest so pending before them was a case in which the laws of the United States authorized an oath to be administered.' Id., 152 U.S. 218, 14 S.Ct. 515. (Emphasis supplied.)
16
The smull case involved very similar facts. The District Court sustained a demurrer to the indictment, 'ruling that the affidavit was not within the statute defining perjury.' The Government brought the case here under the Criminal Appeals Act. This Court reversed, saying:
17
'The charge of crime must have clear legislative basis. * * * This statute (the perjury statute, in precisely the same terms as the present one) takes the place of the similar provision of § 5392 of the Revised Statutes (18 U.S.C.A. § 1621), which in turn was a substitute for a number of statutes in regard to perjury, and was phrased so as to embrace all cases of false swearing, whether in a court of justice or before administrative officers acting within their powers. * * * It cannot be doubted that a charge of perjury may be based upon (the perjury statute) where the affidavit is required either expressly by an act of Congress, or by an authorized regulation of the General Land Office, and is known by the affiant to be false in a material statement. * * * (W)hen, by a valid regulation, the Department requires that an affidavit shall be made before an officer otherwise competent, that officer is authorized to administer the oath within the meaning of (the perjury statute). The false swearing is made a crime, not by the Department, but by Congress; the statute, not the Department, fixes the penalty.'5 Id. 236 U.S. at pages 408, 409, 35 S.Ct. at pages 349, 350.
18
It follows that the admission hearing, held under the District Court's Rule 3, and at which appellee testified under oath, was a 'case in which a law of the United States authorizes an oath to be administered,' within the meaning of that clause as used in the perjury statute.
19
The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
20
Reversed.
21
Mr. Justice DOUGLAS agrees that the Court has jurisdiction of the appeal; but he dissents on the merits. In his view this judge-made rule is not 'a law of the United States' within the meaning of the perjury statute, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621.
1
That section, in pertinent part, provides: 'Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, * * * willfully and contrary to such oath states * * * any material matter which he does not believe to be true, is guilty of perjury * * *.'
2
Rule 8 is a substantial adoption of the Canons of Professional Ethics of the American Bar Association.
3
Which was then being presided over by a district judge from another district, sitting by designation.
4
The author there shows that the requirement that a witness must take an oath before giving testimony goes back to early civilizations and has a long history at common law (§ 1815), and that for centuries Anglo-American law has remained faithful to the precept that 'for all testimonial statements made in court the oath is a requisite.' § 1824.
5
These cases, as well as United States v. Morehead, 243 U.S. 607, 37 S.Ct. 458, 61 L.Ed. 926, show that the perjury statute covers ex parte proceedings or investigations as well as ordinary adversary suits and proceedings.
| 01
|
355 U.S. 563
78 S.Ct. 438
2 L.Ed.2d 491
WEYERHAEUSER STEAMSHIP CO. Petitioner,v.NACIREMA OPERATING CO., Inc.
No. 75.
Argued Jan. 6, 1958.
Decided March 3, 1958.
Mr. William Garth Symmers, New York City, for petitioner.
Mr. Leavenworth Colby, Washington, D.C., for the United States, as amicus curiae.
Mr. Patrick E. Gibbons, New York City, for respondent.
Mr. Justice CLARK, delivered the opinion of the Court.
1
The question here involves the right to trial by jury under principles of maritime liability enunciated in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. Respondent, a stevedoring company, contracted to furnish petitioner, a shipowner, with stevedoring services and a longshoreman employed by respondent was injured while unloading petitioner's vessel. When the longshoreman sued petitioner on claims of negligence and unseaworthiness, petitioner impleaded respondent, claiming a right to indemnity for any damages the longshoreman might recover. The main case, involving the longshoreman's claims, was submitted to the jury, which found for the longshoreman on the issue of negligence and for petitioner on the issue of seaworthiness. That judgment has since been satisfied and is not before us. After receiving the verdict, the judge decided that it also was dispositive of the third-party action, and directed a verdict for respondent. A divided Court of Appeals affirmed, 2 Cir., 236 F.2d 848, and we granted certiorari. 1957, 352 U.S. 1030, 77 S.Ct. 596, 1 L.Ed.2d 598. Petitioner contends, inter alia, that certain issues of fact should have been submitted to the jury. We agree with petitioner on this point.
2
Petitioner's claim for indemnity primarily rests on the contractual relationship between it and respondent. While the stevedoring contract contained no express indemnity clause,1 it obligated respondent 'to faithfully furnish such stevedoring services as may be required,' and to provide all necessary labor and supervision for 'the proper and efficient conduct of the work.' As this Court said in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra, such language constitutes 'a contractual undertaking to (perform) 'with reasonable safety," 350 U.S., at page 130, 76 S.Ct. at page 235, and to discharge 'foreseeable damages resulting to the shipowner from the contractor's improper performance.' 350 U.S., at page 129, footnote 3, 76 S.Ct. at page 235. Petitioner contends that a breach of this undertaking by respondent caused the injury to the longshoreman, and that petitioner's liability resulting from the breach was 'foreseeable.'
3
The F. E. Weyerhaeuser, the vessel upon which the accident occurred, had sailed from the West Coast with a cargo of lumber for New York and Boston, the ports where respondent was to perform the stevedoring operations. The vessel arrived in New York on January 25, 1952, and in the ensuing five days the deck load and part of the underdeck cargo was discharged. On January 30 the ship left New York, arriving in Boston the next day. Respondent's crews boarded the vessel and the unloading continued. On the fifth day of the Boston operations one Connolly, a longshoreman employed by respondent, was injured when struck on the head by a piece of wood while working in a lower hold. The parties agree that the wood must have fallen into the hold from the top of a temporary which shelter which protected the winch drivers from the elements.
4
The evidence indicated that winch shelters are customarily erected by longshoremen at the beginning of their unloading operations. They consist of a scrap lumber framework with a tarpaulin stretched across the top. Because of their flimsy construction they are considered a hazard in the winds at sea, and 'automatically' are torn down by the ship's crew when the vessel leaves port. Both the captain and the second officer of the F. E. Weyerhaeuser testified that it would be carelessness on their part to allow winch shelters to remain in place when the vessel goes to sea. We need not discuss the details which may have led the jury to find for Connolly in the main case, but implicit in the jury verdict was a finding that the structure was on the ship when it arrived in Boston.2 Respondent, through its employees stationed in New York, must have built the shelter while the ship was in New York harbor,3 and we may assume that petitioner failed to remove it upon leaving for Boston. The record is silent as to the exact circumstances under which it was made available to respondent in Boston. It does appear, however, that the shelter was used in the stevedoring operations by respondent's Boston employees, in spite of the fact that respondent as well as petitioner must have known of its journey from New York and the possible effect of such a journey on an already flimsy structure. There was evidence that the shelter was not inspected by either party until the injury to Connolly five days after the arrival in Boston.4
5
We believe that respondent's contractual obligation to perform its duties with reasonable safety related not only to the handling of cargo, as in Ryan, but also the use of equipment incidental thereto, such as the winch shelter involved here. American President Lines, Limited v. Marine Terminals Corp., 9 Cir., 234 F.2d 753, 758; United States v. Arrow Stevedoring Co., 9 Cir., 175 F.2d 329, 331. If in that regard respondent rendered a substandard performance5 which led to foreseeable liability of petitioner, the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery. The evidence bearing on these issues—petitioner's action in making the shelter on its ship available to respondent's employees in Boston although it apparently was unsafe,6 as well as respondent's continued use of the shelter for five days thereafter without inspection—was for jury consideration under appropriate instructions. These issues were not encompassed by the instructions in the maincase, where the test of petitioner's liability was based on failure to perform a nondelegable duty to Connolly. Since the liability of respondent depended on different principles, Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d 784, 792, all fact issues involved in the third-party action should have been submitted to the jury after the verdict in the main case.7 Further, the verdict for Connolly did not ipso facto preclude recovery of indemnity by petitioner, for as we have indicated, the duties owing from petitioner to Connolly were not identical with those from petitioner to respondent. While the jury found petitioner 'guilty of some act of negligence,' that ultimate finding might have been predicated, inter alia, on a failure of petitioner to remove the shelter when the ship left New York, or a failure to correct or warn respondent of a latent dangerous condition known to petitioner when respondent began the Boston unloading. Likewise, the finding might have been predicated on a failure of petitioner during the five days in Boston to inspect the shelter, detect and correct the unsafe condition. Although any of these possibilities could provide Connolly a basis of recovery, at least the latter would not, under Ryan, prevent recovery by petitioner in the third-party action. 350 U.S., at pages 134—135, 76 S.Ct. at pages 237—238. See Cornec v. Baltimore & O.R. Co., 4 Cir., 48 F.2d 497, 502; Boston Woven-Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781 (opinion of Chief Justice Holmes). It was improper, therefore, for the court to direct a verdict for respondent based on the finding for Connolly.
6
In view of the new trial to which petitioner is entitled, we believe sound judicial administration requires us to point out that in the area of contractual indemnity an application of the theories of 'active' or 'passive' as well as 'primary' or 'secondary' negligence is inappropriate. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co., supra, 350 U.S. at pages 132—133, 76 S.Ct. at pages 236—237.
7
The judgment of the Court of Appeals is reversed and the case is remanded for proceedings in conformity with this opinion. It is so ordered.
8
Judgment reversed and case remanded with directions.
1
See, generally, Weinstock, The Employer's Duty to Indemnify Shipowners for Damages Recovered by Harbor Workers, 103 U. of Pa.L.Rev. 321, 332—346 (1954).
2
The jury found for Connolly on the issue of negligence after being instructed as follows:
'Now, if you find from the evidence that the structure, that is, this shelter, was on the ship when it came into Boston Harbor and that the ship offered it to the stevedores to use and work with, and if you find that in permitting that to be there the ship was guilty of some act of negligence as I have defined it to you, then you could find a verdict for Mr. Connolly.'
3
There was undisputed evidence that the shelter could not have been assembled prior to the removal of the deck cargo in New York.
4
A witness testified that after the accident he stood on one of the winches to permit a view of the shelter top, which was approximately seven feet above the deck, and discovered a second piece of tarpaulin secured only by two loose pieces of wood similar to that which struck Connolly.
5
It should be noted thar '(t)he shipowner's action is not changed from one for a breach of contract to one for a tort simply because recovery may turn upon the standard of the performance of petitioner's stevedoring service.' Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra, 350 U.S. at page 134, 76 S.Ct. at page 237.
6
See Corbin, Contracts, §§ 571, 947, 1264; cf. Restatement, Contracts, §§ 295, 315.
7
The following explanation in the charge to the jury suggests that the trial judge intended to submit the third-party action upon return of the verdict in the main case:
'I shall ask you to go out and consider the claims of Mr. Connolly against the Weyerhaeuser Steamship Company first and then when you come back with your verdict on that I shall ask you to retire again and consider the issues in the second suit, namely Weyerhaeuser Steamship Company against the Nacirema Operating Company, and before I submit that second one to you I shall give you some instructions which apply peculiarly to that.'
| 78
|
355 U.S. 489
78 S.Ct. 458
2 L.Ed.2d 460
CITY OF DETROIT et al., Appellants,v.The MURRAY CORPORATION and the United States. CITY OF DETROIT et al., Petitioners, v. The MURRAY CORPORATION and the United States. UNITED STATES and Borg-Warner Corporation, Appellants, v. CITY OF DETROIT. UNITED STATES, Appellant, v. TOWNSHIP OF MUSKEGON et al. CONTINENTAL MOTORS CORPORATION, Etc., Appellant, v. TOWNSHIP OF MUSKEGON et al.
Nos. 18, 36, 26, 37, 38.
Supreme Court of the United States
March 3, 1958
Mr. Hobart Taylor, Jr., Detroit, Mich., for appellant-petitioner, Wayne County.
Mr. Vance G. Ingalls, Detroit, Mich., for appellant-petitioner, City of Detroit.
Mr. Victor W. Klein, Detroit, Mich., for appellee-respondent, Murray Corp. of America.
Mr. Roger Fisher, Washington, D.C., for appellee-respondent, United States of America.
Mr. Justice BLACK delivered the opinion of the Court.
1
This is the third in a series of cases from the State of Michigan decided today involving a claim of constitutional tax immunity.
2
In 1952 Murray Corporation was acting as a subcontractor under a prime contract for the manufacture of airplane parts between two other private companies and the United States. From time to time Murray received partial payments from the two prime contractors as it performed its obligations under the subcontract. By agreement, title to all parts, materials and work in process acquired by Murray in performance of the subcontract vested in the United States upon any such partial payment, even though Murray retained possession.
3
On January 1, 1952, the City of Detroit and the County of Wayne, Michigan, each assessed a tax against Murray which in part was based on the value of materials and work in process in its possession to which the United States held legal title under the title-vesting provisions of the subcontract.1 Murray paid this part of each tax under protest and then sued in a Federal District Court for a refund from the city and county. It contended that full title to the property was in the United States and that the taxes infringed the Federal Government's immunity from state taxation to the extent they were based on such property. The Government intervened on Murray's behalf. On motion for summary judgment the District Court entered judgment for Murray and the Court of Appeals for the Sixth Circuit affirmed. 234 F.2d 380. From this decision the city and county both appealed and petitioned for certiorari. We granted certiorari and postponed the question of jurisdiction on appeal to the hearing on the merits. 352 U.S. 963, 77 S.Ct. 357, 1 L.Ed.2d 320; 352 U.S. 960, 77 S.Ct. 351, 1 L.Ed.2d 319. The appeal was proper. 28 U.S.C. § 1254(2), 28 U.S.C.A. § 1254(2).
4
We believe that this case is also controlled by the principles expressed in our opinions in No. 26, United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474 and No. 37, United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, and that the taxes challenged here do not violate the Constitution.2 These taxes were not, levied directly against the United States or its property. To the contrary they were imposed on Murray, a private corporation and there was no effort to hold the United States or its property accountable. In fact Michigan expressly exempts from taxation all public property belonging to the United States, 6 Mich.Stat.Ann., 1950, § 7.7, Pub.Acts 1893, No. 206, § 7 as amended, Pub.Acts 1949, No. 55, and these taxes were assessed from the beginning 'subject to prior rights of the Federal Government.' Cf. S.R.A. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749, City of New Brunswick v. United States, 276 U.S. 547, 48 S.Ct. 371, 72 L.Ed. 693.
5
The taxes imposed on Murray were styled a personal property tax by the Michigan statutes and it relies upon this to support its contention that they were actually laid against government property. However in passing on the constitutionality of a state tax 'we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.' Lawrence v. State Tax Commission, 286 U.S. 276, 280, 52 S.Ct. 556, 557, 76 L.Ed. 1102. Consequently in determining whether these taxes violate the Government's constitutional immunity we must look through form and behind labels to substance. This is at least as true to uphold a state tax as to strike one down. Cf. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 443—445, 61 S.Ct. 246, 249—250, 85 L.Ed. 267; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053. Due regard for the State's power to tax requires no less. As applied—and of course that is the way they must be judged the taxes involved here imposed a levy on a private party possessing government property which it was using or processing in the course of its own business. It is not disputed that Michigan law authorizes the taxation of the party in possession under such circumstances. Cf. Detroit Shipbuilding Co. v. Detroit, 228 Mich. 145, 199 N.W. 645; City of Detroit v. Gray, 314 Mich. 516, 22 N.W.2d 771.
6
In their practical operation and effect the taxes in question are identical to those which we upheld in Nos. 26 and 37 on persons using exempt real property. We see no essential difference so far as constitutional tax immunity is concerned between taxing a person for using property he possesses and taxing him for possessing property he uses when in both instances he uses the property for his own private ends. Nor have we been pointed to anything else which would bar a State from taxing possession in such circumstances. Cf. Carstairs v. Cochran, 193 U.S. 10, 24 S.Ct. 318, 48 L.Ed. 596. Lawful possession of property is a valuable right when the possessor can use it for his own personal benefit.
7
It is true that the particular Michigan Taxing statutes involved here do not expressly state that the person in possession is taxed 'for the privilege of using or possessing' personal property, but to strike down a tax on the possessor because of such verbal omission would only prove a victory for empty formalisms. And empty formalisms are too shadowy a basis for invalidating state tax laws. Cf. Henneford v. Silas Mason Co., 300 U.S. 577, 582, 57 S.Ct. 524, 526, 81 L.Ed. 814. In the circumstances of this case the State could obviate such grounds for invalidity by merely adding a few words to its statutes. Yet their operation and practical effect would remain precisely the same.
8
There is no claim that the challenged taxes discriminate against persons holding government property. To the contrary the tax is a general tax which applies and has been applied throughout the State. If anything the economic burden on the United States is more remote and less certain than in other cases where this Court has upheld taxes on private parties. Of course the Government will eventually feel the financial burden of at least some of the tax but the one principle in this area which has heretofore been clearly settled is that the imposition of an increased financial burden on the Government does not by itself invalidate a state tax.
9
The respondents rely heavily on United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 915, 88 L.Ed. 1209. Petitioners on the other hand contend that the decision in Allegheny is inconsistent with the general trend of our decisions in this field, that it has already been distinguished to the point where it retains no meaningful vitality and that it is erroneous. However that may be, we do not think that case is controlling, essentially for the reasons set forth in United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474. In Allegheny the Court emphasized that the tax against Mesta Machine Company was, in its view, a general property tax laid on government property as such. The Court pointed out that the State had 'made no effort to segregate Mesta's interest and tax it.' The question was expressly reserved whether the State could tax a person possessing government property for the possession and use of such property in connection with his own profit-making activities. Here, however, state law specifically authorizes assessment against the person in possession. And the taxing authorities were careful not to attempt to tax the Government's interest in the property.
10
In all important particulars the taxes imposed here are very similar to that upheld in Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174, on the storage of gasoline for the United States. A tax on storage is not intrinsically different from a tax on possession, at least where in both instances the private party is holding the property for his own gain. The tax in Esso was measured by the quantity of government gasoline stored while the taxes here are measured by the value of government property possessed but such technical distinction is of no significance in determining whether the Constitution bars this tax and is completely unrelated to any rational basis for governmental tax immunity.
11
We find nothing in the Constitution which compels us to strike down these state taxes. There was no discrimination against the Federal Government, its property or those with whom it does business. There was no crippling obstruction of any of the Government's functions, no sinister effort to hamstring its power, not even the slightest interference with its property. Cf. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. In such circumstances the Congress is the proper agency, as we pointed out in United States v. City of Detroit, to make the difficult policy decisions necessarily involved in determining whether and to what extent private parties who do business with the Government should be given immunity from state taxes.
12
The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
13
Adjustment of the interpenetrating factors involved in the Nation-State relation of our federal system, insofar as they are amenable to adjudication, is a subtle and complicated process. It precludes easy application even of accepted legal formulas. Particularly is this true when the taxing power of the States is asserted against claims of intrusion into areas reserved to the Nation. In this domain it is asking too much for rules of certainty and simplicity in application that are hardly to be found in any live branch of the law. Even the Rule Against Perpetuities has only precarious certainty. The necessity for judicial accommodation between the intersecting interests of the States' power to tax and the concerns of the Nation in carrying on its government presents problems solutions for which cannot be sought by a formula assuring a bright, straight line of decisions. Accordingly, we have been admonished in the leading modern case dealing with these problems that they require 'the observing of close distinctions in order to maintain the essential freedom of government in performing its functions, without unduly limiting the taxing power which is equally essential to both nation and state under our dual system.' James v. Dravo Contracting Co., 302 U.S. 134, 150, 58 S.Ct. 208, 216, 82 L.Ed. 155.
14
The diversity of views expressed in these cases, even when there is concurrence in result, suggests the desirability of recalling, to use an old-fashioned phrase, 'first principles.' After all, we are dealing with problems that have, howsoever they may have appeared in particular situations, an unbroken history of nearly a century and a half. Temerarious as the claim may appear, there is a residuum of continuity in the reconcilation that the numerous cases since McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 4 L.Ed. 579, have made between the power of the States to tax and the restriction against laying a tax upon 'the government, its property or officers.' James v. Dravo Contracting Co., supra, 302 U.S. at page 149, 58 S.Ct. at page 216. The governing principles, as Chief Justice Marshall himself formulated them, bear quotation:
15
"That all subjects to which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation.'
16
"That the sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but not to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States.'
17
"That the attempt to use the power of taxation on the means employed by the government of the Union in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give.'
18
"That the States have no power by taxation, or otherwise, to retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress, to carry into execution the powers vested in the General government." Weston v. City Council of Charleston, 2 Pet. 449, 467, 7 L.Ed. 481, as quoted by Mr. Justice Bradley in Union Pac. Railroad Co. v. Peniston, 18 Wall. 5, 38—39, 21 L.Ed. 787 (dissenting opinion).
19
No less helpful in giving directions for the path of solution to our immediate problems are the comments on these principles by Mr. Justice Bradley, whose powes of penetrating analysis, particularly in this field, were in my view second to none.
20
'Whilst no one disputes the general power of taxation in the States, which is so elaborately set forth in the opinion of the majority, it must be conceded that there are limits to that power. The States cannot tax the powers, the operations, or the property of the United States, nor the means which it employs to carry its powers into execution. The government of the United States, within the scope of its powers, is supreme, and cannot be interfered with or impeded in their exercise.
21
'The case differs toto coelo from that wherein the government enters into a contract with an individual or corporation to perform services necessary for carrying on the functions of government—as for carrying the mails, or troops, or supplies, or for building ships or works for government use. In those cases the government has no further concern with the contractor than in his contract and its execution. It has no concern with his property or his faculties independent of that. How much he may be taxed by, or what duties he may be obliged to perform towards, his State is of no consequence to the government, so long as his contract and its execution are not interfered with. In that case the contract is the means employed for carrying into execution the powers of the government, and the contract alone, and not the contractor, is exempt from taxation or other interference by the State government.' Union Pac. Railroad Co. v. Peniston, supra, 18 Wall. at pages 41 42, 21 L.Ed. 787 (dissenting opinion).
22
When Mr. Chief Justice Hughes quoted the latter paragraph in support of the decision in James v. Dravo Contracting Co., supra, 302 U.S. at page 155, 58 S.Ct. at page 218, he impliedly indicated that some decisions that gave government contractors immunity from taxation for their property, profits, or purchases deviated from the traditional doctrines of implied governmental immunity, and that the decision in the Dravo case was essentially a return to orthodoxy as Mr. Justice Bradley had elucidated it. I venture to say that whatever deviations or even aberrations from true doctrine cases here and there and now happily laid to rest may disclose, there is a residuum of continuity over the long course of judicial adjustment of the States' power to tax and the limits placed upon it by the implied immunity of the National Government from the demands of the state tax collectors. No decision has ever questioned that a tax cannot be laid upon 'the government, its property or officers,' James v. Dravo Contracting Co., supra, 302 U.S. at page 149, 58 S.Ct. at page 216, or, as it was phrased in United States v. Allegheny County, 322 U.S. 174, 177, 64 S.Ct. 908, 911, 88 L.Ed. 1209, 'that possessions, institutions, and activities of the Federal Government itself in the absence of express congressional consent are not subject to any form of state taxation.' This at least has been a bright straight line running undeviatingly through the decisions of this Court. See Van Brocklin v. Tennessee, 117 U.S. 151, 6 S.Ct. 670, 29 L.Ed. 845; United States v. Alabama, 313 U.S. 274, 279, 61 S.Ct. 1011, 1012, 85 L.Ed. 1327.
23
As Mr. Chief Justice Stone stated for a unanimous court in State of Alabama v. King & Boozer, 314 U.S. 1, 9, 62 S.Ct. 43, 45, 86 L.Ed. 3, the application, and therefore the outcome, in cases like those before us of these general principles 'turns on the terms of the contract and the rights and obligations of the parties under it.' Nothing better illustrates the truth of this statement than a comparison of King & Boozer with Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546, a case whose relevance is not minimized by the loud silence the Court's present opinions accord it. Since 'intergovernmental submission to taxation is primarily a problem of finance and legislation,' 347 U.S. at page 122, 74 S.Ct. at page 411, it is immaterial that contracts by the Government have been purposefully drawn so as to vest title to the property that is the subject of the tax in the Government, and thereby withdraw it from the taxing power of the States.
24
If a legal decision were a vehicle for the expression of merely personal views, I might take satisfaction as a dissenter on the facts from the Allegheny decision that those who concurred in the result now for all practical purposes repudiate it. The principle on which the decision rested, that a tax cannot be laid on the property of the Federal Government, was not, as the opinion stated, questioned in that case. 322 U.S. at page 177, 64 S.Ct. at page 911. The division turned on a relevant construction of the Pennsylvania taxing system in respect to fixtures in their enhancement of concededly taxable realty owned by a government contractor. The Court found that the Pennsylvania scheme of taxation was in fact 'the old and widely used ad valorem general property tax.' 322 U.S. at page 184, 64 S.Ct. at page 914. As we are told by the Court in the present case, 'Reviewing all the circumstances the Court (in Allegheny) concluded that the tax was simply and forthrightly imposed on the property itself, not on the privilege of using or possessing it.' 355 U.S. 471, 78 S.Ct. 477. But this is so, a fortiori, in the circumstances of Nos. 18 and 36 now before us. Surely the detailed analysis of my brother WHITTAKER of 'the terms of the contract and the rights and obligations of the parties under it,' in relation to the taxing system of Michigan, demonstrates, if anything is demonstrable in the law, that the tax imposed has all the incidents of a general ad valorem property tax, and that it has them to a more conclusive degree than was true of the tax levied by Pennsylvania in the Allegheny case.
Allegheny. Nos. 18 & 36.
The Contract.
25
Contract to manufacture ordnance. Machinery needed to produce ordnance to be furnished by Government, or to be manufactured or purchased by contractor.
26
Title to machinery furnished by Government to remain in Government; title to machinery manufactured or purchased by contractor to vest in Government upon delivery to site of work and inspection and acceptance on behalf of Government.
27
Machinery to be leased to contractor during period of contract.
28
Machinery bolted to concrete foundations in contractor's plant.
29
Subcontract to manufacture airplane parts, subassemblies and nondurable tools (supplies).
30
Title to parts, materials, inventories, work in process, and nondurable tools (materials) to vest in Government upon making of partial payments on such materials to contractor.
31
Materials segregated and indentified as Government property, and records kept when withdrawn for use in producing supplies.
Action of Taxing Authority.
32
Revised contractor's previously determined assessment for ad valorem taxes by adding thereto the value of the machinery.
33
Assessment of contractor's personal property made including amount for materials acquired for performance of contract.
Allegheny. Nos. 18 & 36.
Authorization.
34
Statute provided, 72 P.S.Pa. s. 5020-201: "The following subjects and property shall * * * be valued and assessed, and subject to taxation * * * (a) All real estate * * *." Appeal of Mesta Mach. Co., 347 Pa. 191, 193, 32 A.2d 236, 237-238. State Supreme Court held that machinery constituted part of the mill for purposes of assessment and was properly assessed as real estate.
35
State Supreme Court found that the tax was assessed not against the Government but against the contractor.
36
Statute provided: taxes are "declared to first lien on said be a property." 322 U.S. 174, 185, 64 S.Ct. 908, 914.
37
State Supreme Court found that even if contractor defaulted in payment of tax, the rights of the Government in the machinery could not in any way be affected.
38
Statute entitled "General Property Tax Act," "AN ACT to provide for the assessment of property and the levy and collection of taxes thereon * * *. That all property, real and personal, within the jurisdiction of this state * * * shall be subject to taxation." 6 Mich.Stat.Ann., 1950, s.s. 7.1-7.2, Comp.Laws 1948, s.s. 211.1 to 211.2.
39
City Charter provided: "City Treasurer shall enforce the collection of all unpaid taxes which are assessed against the property or value other than real estate." Charter of the City of Detroit, Tit. VI, c. IV, s. 26.
40
Statute provided that taxes assessed "shall become at once a debt due * * * from the persons to whom they are assessed * * *." 6 Mich.Stat.Ann., 1950, s. 7.81, Comp.Laws 1948, s. 211.40.
41
City Charter provided that, "The owners or persons in possession of any personal property shall pay all taxes assessed thereon," that all city taxes upon personal property "shall become a debt against the owner from the time of the listing of the property for assessment * * *," and that if the taxes remain unpaid, "the City Treasurer shall forthwith levy upon * * * the personal property of any person refusing or neglecting to pay such tax * * *." Tit. VI, c. IV, s.s. 1, 27, 26.
42
Statute provided: "all personal taxes hereafter levied or assessed shall also be a first lien * * * on all personal property of such persons so assessed * * *. The personal property taxes hereafter levied or assessed by any city or village shall be a first lien * * * upon the personal property assessed * * *." 6 Mich.Stat.Ann., 1950, s. 7.81.
43
City Charter provided that all city taxes "shall become a lien on the property taxed * * *," and that "All city taxes upon personal property shall become * * * a lien thereon and so remain until paid * * *." Tit. VI, c. IV, s.s. 1, 26.
44
Assessor inscribed on tax roll: "Assessed Subject to Prior Rights of Federal Government."
45
I cannot believe that the Court would outright reject the doctrine of constitutional immunity from taxation of the Government and its property. I cannot believe that the Court is prepared frankly to jettison what has been part of our constitutional system for almost 150 years. But it does not save the principle to disregard it in practice. And it disregards it in practice to argue from the right of a State to levy an excise tax against a contractor for the enjoyment of property that gives him an economic advantage because it is otherwise immune from taxation, to the right of a State professedly and directly to lay an ad valorem property tax on what is indubitably government property.
46
A totally different problem is presented by Nos. 26, 37, and 38. These cases present the question whether enjoyment of the use of property that carries special economic advantages to the user because, for one reason or another, the property as such cannot be the subject of a tax, is included within Chief Justice Marshall's principle that 'all subjects over which the sovereign power of a state extends, are objects of taxation * * *.' Weston v. City Council of Charleston, 2 Pet. 449, 467, 7 L.Ed. 481. If a State may impose an excise tax on something that gives advantage or pleasure, such as the practice of a particular profession, why is it not also a taxable advantage that is had from being able to use property that for reasons extraneous to the user is not subject to the taxing power? Cf. Watson v. State Comptroller, 254 U.S. 122, 41 S.Ct. 43, 65 L.Ed. 170.
47
The only right that a taxpayer can assert against the state taxing power on the basis of governmental immunity is a 'derivative one,' James v. Dravo Contracting Co., 302 U.S. 134, 158, 58 S.Ct. 208, 220, 82 L.Ed. 155, supra, and if he is to resist the exercise of this power he must stand in the Government's shoes. The immunity that he asserts is the Government's immunity, not his own. In taxing the enjoyment or use of property that is itself free from taxation, the State taxes an interest of the taxpayer, not of the Federal Government, and the tax is not laid on 'the government, its property or officers.' The taxpayer is not immune from a tax because as a matter of dollars and cents it may affect the Government. To be sure, the excise in Nos. 26, 37, and 38 is measured by the value of the property, so that if the property were directly taxed the tax bill would be the same. But if the enjoyment of otherwise tax-free property is something different from the property itself for purposes of taxation, it does not lose this characteristic because the admeasurement is the same.
48
A principle with the uninterrupted historic longevity attributable to the immunity of government property from state taxation has a momentum of authority that reflects, if not a detailed exposition of considerations of policy demanded by our federal system, certainly a deep instinct that there are such considerations, and that the distinction between a tax on government property and a tax on a third person for the privilege of using such property is not an 'empty formalism.' The distinction embodies a considered judgment as to the minimum safeguard necessary for the National Government to carry on its essential functions without hindrance from the exercise of power by another sovereign within the same territory. That in a particular case there may in fact be no conflict in the exercise of the two governmental powers is not to the point. It is in avoiding the potentialities of friction and furthering the smooth operation of complicated governmental machinery that the constitutional doctrine of immunity finds its explanation and justification.
49
The danger of hindrance of the Federal Government in the use of its property, resulting in erosion of the fundamental command of the Supremacy Clause, is at its greatest when the State may, through regulation or taxation, move directly against the activities of the Government. Scarcely less is the danger when the subject of a tax, that at which the State has consciously and purposefully aimed in attaching the consequence of taxability, is the property of the Federal Government. It is not only that the likelihood of local legislation deliberately or unwittingly discriminatory against government property either by its terms or application may be enhanced. Even a nondiscriminatory tax, if it is expressly laid on government property, is more likely to result in interference with the effective use of that property, whether because of an ill-advised attempt by the tax collector to levy on the property itself or because it is sought to hold the Government or its officers to account for the tax, even if ultimately the endeavor may fail. The defense of sovereign immunity to a suit against government officers for the tax, or a suit to assert title to or recover property erroneously levied upon to satisfy a tax, may in practice be an inadequate substitute for the clear assertion of federal interest at the threshold.
50
The fact that a tax on a third party for the privilege of using government property may itself have an indirect impeding effect is no reason against a rule designed to avoid the more direct and obvious evil. Because a constitutional doctrine is not pushed to the logical extremities of its policy is no argument against maintaining it as far as it has historically extended. From the beginning a broad cloak of immunity for government property has been thought the best way to allay the danger of state encroachment on the national interest, and the character of our federal system and the relations between the Nation and the States have not in this regard so changed that the principle has become outmoded.
51
If the distinctions between the taxes involved in these cases seem nice, it is because 'nice distinctions are to be expected,' Galveston, H. & S.A.R. Co. v. State of Texas, 210 U.S. 217, 225, 28 S.Ct. 638, 639, 52 L.Ed. 1031, and they are none the worse for it. Not to make them, to lump all these cases together as though some similarities and assumed similar consequences amount to identities, is to disregard a long, unbroken course of judicial history and practicalities of government that doubtless have led, under prior decisions of this Court, to the drawing of countless contracts covering the use of government property.
52
Accordingly, I dissent from the Court's opinion in Nos. 18 and 36, and concur in the result in Nos. 26, 37, and 38.
53
Opinion of Mr. Justice HARLAN.
54
Because all but two members of the Court consider that the taxes involved in these cases all stand or fall together, I deem it advisable to state my reasons for believing that these cases require different conclusions as to the constitutionality of the taxes involved.
55
In determining the constitutionality of a state tax against a claim of federal immunity, past cases in this Court have established a distinction between 'property' and 'privilege' taxes of one kind or another. That is, broadly speaking, a State may not constitutionally tax property owned by the Federal Government, even though the property is in private hands and the tax is to be collected from a private taxpayer, United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209, but it may tax activities of private persons, even though these activities involve the use of government property and the value or amount of such property becomes the partial or exclusive basis for the measurement of the tax. Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9; Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174. Cf. Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998; Educational Films Corp. of America v. Ward, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400. Although the opinions of the Court in the present cases stop short of repudiating this established distinction, they seem to me to blur it to the point where the extent of its future application is left confused and uncertain.
56
In view of this Court's past decisions in the privilege-tax cases, I agree with the majority today that the lessee's and user's tax in Nos. 26, 37 and 38, construed by the state court to be a tax on the privilege of using tax-exempt property, is constitutional as applied. The dissenting opinion, which I do not believe can be reconciled with these past decisions, concludes that the tax imposed upon those using tax-exempt property for private profit should be regarded in substance as a tax on the property itself because the privilege tax is measured by the full value of the leased or used property, rather than merely by the value of the lessee's or user's interest.
57
In effect, it seems to me that the dissenters equate the measure of the tax with the subject of the tax. But I do not think that the formula here employed by Michigan to measure these taxes can be meaningfully distinguished from that applied in the Alabama use tax upheld in Curry v. United States, supra. There the use tax collected from a government contractor was measured by a percentage of the full value of government-owned property used by the contractor to execute its obligations. Indeed, the only distinction I can see is that the compensating use tax in Curry was imposed just once, whereas the privilege tax in Michigan is assessed yearly; but having regard to the wide latitude of a State's taxing power within the dueprocess limitations of the Fourteenth Amendment, I can hardly believe that this difference points to a contrary constitutional result. The decision in Esso Standard Oil Co. v. Evans, supra, which upheld a state tax assessed to a private taxpayer on the privilege of storing gasoline although the tax was measured in part by the amount of government gasoline stored multiplied by a fixed rate, provides further support for this conclusion. And in both of those cases, as is true here, the Government bore the full economic burden of the state taxes.
58
It should be observed that the state taxes here, as those in Curry and Esso Standard Oil Co., do not operate in a discriminatory fashion by so measuring the tax on use or activities as to impose an unequal tax burden on lessees or users of government property vis-a -vis lessees, users, or owners of other tax-exempt or nonexempt property. And since this is so, I cannot agree with the dissenting opinion that this Court's view of the state legislature's purpose in enacting the statute should affect our determination of its constitutionality. Although Michigan here sought to equalize tax burdens on users of normal and tax-exempt property, or perhaps even to by-pass Allegheny, I thing it hardly repaying to speculate on the motives behind a local tax, as long as it is otherwise constitutionally permissible. Finally, it should be noted that assessment of the privilege tax to the user of government property in Nos. 37 and 38 would present a quite different problem if the user were deemed to be an instrumentality of the United States Government, but petitioners in those cases make no such showing, and I do not understand the dissenters here to rely on such a ground.
59
In Nos. 18 and 36 the Court holds that a tax which the dissenting opinions convincingly show is nothing but a conventional ad valorem personal property tax should be regarded instead as a tax upon the possession of government property privately used. This the Court finds constitutionally indistinguishable from the tax upon the use of government property privately possessed which has been upheld as a privilege tax in Nos. 26, 37, and 38. That is to say, the Court finds that the Government's property here was simply the measure, and not the subject matter, of a tax which was in effect imposed on the privilege of possessing property used for private gain.
60
In so holding, the Court, proceeding on the premise that Detroit's characterization of this tax as a personal property tax does not bind us, Carpenter v. Shaw, 280 U.S. 363, 367—368, 50 S.Ct. 121, 122—123, 74 L.Ed. 478, relies on the circumstances that this government property was used for private gain, that the tax was collectibel under the statute from the subcontractor and not from the Government or out of its property, and that the tax was nondiscriminatory. But all of these factors were present in United States v. Allegheny County, supra, where the Court struck down a local tax also cast in the traditional language of a 'property' tax. Although the Court here purports to distinguish Allegheny, it seems to me that the authority of that case has now been reduced almost to the vanishing point, for neither the tax statute here nor that in Allegheny qualified application of the tax to property employed in private commercial activity.
61
What has happened in these two groups of cases no doubt reflects the difficulty of reconciling Allegheny with the privilege tax cases, and bears witness to the truth of Mr. Justice Jackson's statement in Allegheny that in the evolution of the law in this difficult field 'the line between the taxable and the immune has been drawn by an unsteady hand.' 322 U.S. at page 176, 64 S.Ct. at page 910. Since the economic incidence of a state tax on the Federal Government is no longer a controlling factor, James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, and since the use of federally owned property as the measure, by value or amount, of a tax on the privilege of using (Curry v. United States, supra) or storing (Esso Standard Oil Co. v. Evans, supra) such property is permissible, the distinction between 'property' and 'privilege' taxes as a yardstick for judging constitutionality when both taxes are collectible from a private taxpayer holding the property is certainly left in a high degree of artificiality. See Powell, Intergovernmental Tax Immunities, 58 Harv.L.Rev. 633, 757; cf. Society for Savings in City of Cleveland, Ohio v. Bowers, 349 U.S. 143, 148, 75 S.Ct. 607, 610, 99 L.Ed. 950. This is certainly so where the property tax applies to property used by a private party in some activity which is a proper subject of state taxation, see McCulloch v. State of Maryland, 4 Wheat. 316, 429, 4 L.Ed. 579, and where, as here, the State does not seek to accomplish what would in any event be procedurally impossible because of the doctrine of sovereign immunity from suit—enforcement of a lien asserted against government property. It is quite understandable, therefore, that the Court should wish to minimize the importance of that distinction.
62
But by holding that the ad valorem personal property taxes involved in Nos. 18 and 36 should be regarded as 'privilege' taxes, it seems to me that the Court has injected further uncertainties into a field already plagued by excessive refinements. For until today the line between property and privilege taxes, if 'drawn by an unsteady hand,' was at least visible. A State could not tax government property, even though the property was in the hands of, and the tax was collectible only from, private persons. However, it now appears that not all property taxes are indeed 'property' taxes for purposes of constitutional immunity, even though so characterized or construed by state authorities. Henceforth, apparently, we must determine whether the tax which a State has drafted as and denominated a 'property' tax could, had the State so desired, have been constitutionally imposed as a 'privilege' tax, measured by the value of the taxed property, upon some activity embracing the use of the property.
63
In my opinion, so fluid a rule incorporating these elusive additional distinctions will hardly help those who in their daily business must negotiate contracts for or with the Government. Indeed, the difficulty of its application is effectively illustrated by the divergence of opinion in these very cases, wherein five members of the Court have concluded that these particular 'property' taxes are in reality 'privilege' taxes. Rather than add further complications to an already troubled area of the law, I think the preferable course is to follow our past cases, upon which those contracting for the Government have undoubtedly relied, and to leave to Congress the task of adjusting to the needs of today the law which Allegheny and the privilege tax cases have created.
64
For these reasons, I have joined the opinion of the Court in Nos. 26, 37 and 38, and the dissenting opinion of Mr. Justice WHITTAKER in Nos. 18 and 36.
65
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER, Mr. Justice BURTON and Mr. Justice HARLAN join, dissenting.
66
I respectfully dissent. The bases of my disagreement can be made clear only by a full treatment of the case.
67
On December 20, 1950, the United States entered into a contract with Kaiser Manufacturing Company under which the latter agreed to produce and deliver to the Air Force certain airplanes, airplane parts and subassemblies, at fixed prices; and on December 12, 1950, a similar contract was made by the Government with Curtiss-Wright Corporation. As contemplated by the parties, Kaiser, on March 23, 1951, and Curtiss-Wright, on April 19, 1951, entered into subcontracts with respondent, The Murray Corporation of America, under which the latter agreed to produce and deliver to those prime contractors certain airplane parts, subassemblies and nondurable tools (hereinafter called supplies) at fixed prices, which subcontracts were approved by the contracting officer of the Air Force. The subcontracts contained 'partial payment' provisions which provided, among other things, that upon the making of any partial payments to Murray under the subcontracts 'title to all parts, materials, inventories, work in process and non-durable tools theretofore (and thereafter, upon acquisition) acquired or produced by the (sub)contractor for the performance of (the) contracts(s), and properly chargeable thereto * * * shall forthwith vest in the Government.' Such property will hereinafter be called materials. After the date of the subcontracts, and prior to January 1, 1952, the Government through the prime contractors, made 'partial payments' to Murray in the amount of $674,776.87.1 None of the supplies to
68
Opinion of Mr. Justice FRANKFURTER. be produced by respondent under the subcontracts had been completed or delivered prior to January 1, 1952.
69
On the 1952 tax assessment date of January 1, 1952, petitioners, the City of Detroit and the County of Wayne, made an assessment (valuation) of Murray's personal property in the amount of.$12,183,180, which included $2,043,670 for materials originally acquired by Murray for the performance of the subcontracts, and properly chargeable thereto. Applying their respective tax rates to that assessment, the City of Detroit imposed a tax of $67,714.96 and the County of Wayne imposed a tax of $12,572.66, more than would have been the case if the value of the materials of $2,043,670 had not been included in the 1952 assessment against Murray.
70
Murray paid those taxes under written protest,2 and after having exhausted all administrative remedies, it brought three actions against petitioners in the United States District Court for the Eastern District of Michigan for refund of that part thereof ($80,287.62 plus interest) allocable to inclusion in the assessment of the $2,043,670 upon the materials referred to.3 The United States intervened in the actions and, by stipulation, they were consolidated for trial. Murray moved for summary judgments, and the parties stipulated that no genuine issue of material fact existed in the actions. The court, after considering the motion, and the exhibits and affidavits in support of and in opposition thereto, and hearing the arguments and considering the briefs of counsel, granted the motion and rendered judgment in each of the actions in favor of Murray and against petitioners for the amount prayed, plus interest. 132 F.Supp. 899. The Court of Appeals, holding that the materials were owned by the Government, and not by Murray, on the assessment date, that the tax assessed and imposed thereon and collected by petitioners was a general ad valorem personal property tax on the Government's property, and that the Government was constitutionally immune from such taxes, affirmed the judgments of the District Court. 6 Cir., 234 F.2d 380.
71
The majority now reverses the Court of Appeals and reinstates the assessment and tax. In doing so, I believe, they are not only in serious error, but also they add words to the taxing Acts involved and the opinion openly so admits. See 78 S.Ct. 461, supra.
72
Three principal issues are presented, namely: (1) Did the Government, by the terms of the 'partial payment' provisions of the subcontracts, become 'vest(ed)' with 'title' to all elements of property and incidents of ownership in the materials referred to prior to the assessment date, or did it thereby acquire 'title' thereto only as security and, thus, become only a lienor? (2) Is this a general ad valorem tax imposed on the materials, as contended by respondents and as found by the Court of Appeals? (3) If the materials were, in fact, the property of the Government on the assessment date, and the tax constitutes a general ad valorem tax on that property, may the tax be constitutionally imposed?
I.
73
The first question of whether the Government acquired complete and absolute title to the materials prior to, and beneficially owned them on, the assessment date, as respondents contend, or had acquired 'title' thereto only as security and was therefore only a lienor, as contended by petitioners, depends upon the terms of the 'partial payment' provisions of the subcontracts and upon actual operations thereunder, for the question, in last analysis, is one of intention of the contracting parties.
74
The partial payment provisions, in pertinent part, provide:
75
'11. Partial payments.—Partial payments * * * may be made upon the following terms and conditions.
76
'(a) The contracting officer may from time to time, authorize partial payments to The Murray Corporation of America (hereinafter called 'the Contractor') upon property acquired or produced by it for the performance of this contract: Provided, that such partial payments shall not exceed 90 percent of the cost to the Contractor of the property upon which payment is made (and) in no event shall the total of unliquidated partial payments (see (c) below) * * * made under this contract, exceed 80 percent of the contract price of supplies still to be delivered.
77
'(b) Upon the making of any partial payment under this contract, title to all parts, materials, inventories, work in process and nondurable tools theretofore (and thereafter, upon acquisition) acquired or produced by the Contractor for the performance of this contract, and properly chargeable thereto * * * shall forthwith vest in the Government * * *.
78
'(c) In making payment for the supplies furnished hereunder, there shall be deducted from the contract price therefor a proportionate amount of the partial payments theretofore made to the Contractor, under the authority herein contained.
79
'(d) It is recognized that (the materials), title to which is or may hereafter become vested in the Government pursuant to this Article will from time to time be used by * * * the Contractor in connection with the performance of this contract. The Contractor, either before or after receipt of notice of termination (by the Government), may acquire or dispose of property to which title is vested in the Government under this Artice, upon terms approved by the Contracting Officer * * *. The agreed price (in case of acquisition by the contractor) or the proceeds received by the Contractor (in case of any other disposition), shall, to the extent that such price and proceeds do not exceed the unliquidated balance of partial payments hereunder, be paid or credited to the Government as the Contracting Officer shall direct; and such unliquidated balance shall be reduced accordingly. Current production scrap may be sold by the Contractor without approval of the Contracting Officer but the proceeds will be (paid or credited to the Government). * * * Upon liquidation of all partial payments hereunder or upon completion of deliveries called for by this contract, title to all property (or the proceeds thereof) which has not been delivered to and accepted by the Government under this contract or which has not been incorporated in supplies delivered to and accepted by the Government under this contract and to which title has vested in the Government under this Article shall vest in Contractor.
80
'(e) * * * The provisions of this Article shall not relieve the Contractor from risk of loss or destruction of or damage to property to which title vests in the Government under the provisions hereof.' (Emphasis supplied.)
81
It was shown, by an uncontradicted affidavit, at the hearing on the motion for summary judgments that the materials originally acquired by Murray for performance of the subcontracts, and properly chargeable thereto, were completely segregated from all other personal property in its plant and were 'clearly identified,' by 'tagging (or) labeling,' as property of the Government; that as materials were withdrawn by Murray, for use in producing the supplies, complete records of the materials so withdrawn, and the Government's costs therefor, were made and kept; and that when the supplies were completed and delivered by Murray and accepted by the Government, Murray paid the Government for the materials so consumed by crediting the contract price for the supplies with an amount equal to the Government's cost (90 percent of Murray's original cost) for the materials consumed in producing the supplies, as provided in subparagraph (c) of the partial payment provisions.
82
As noted, supra, subparagraph (b) of the partial payment provisions of the subcontracts expressly provides that upon the making of any partial payment to Murray under the subcontracts, 'title' to the materials 'shall forthwith vest in the Government.' Beginning on August 10, 1951, partial payments were made from time to time by the Government to Murray in very substantial amounts (see note 1). It cannot be doubted that the plain and simple language of subparagraph (b) was appropriate, apt and adequate to vest the title to the materials in the Government.4 Petitioners concede, and the majority assumes, that this is so. Petitioners' position is, however, that the title so vested in the Government was for security purposes, and created only a lien on the materials as security to the Government, and also that actual operations under the contracts were inconsistent with any real intention to convey actual ownership of the materials to the Government.
83
As to petitioners' 'lien' contention, we must ask ourselves: A lien as security for what? Admittedly Murray was not indebted, nor to become indebted, to the Government under the subcontracts and, hence, there was and would be no debt to secure. Nor can it be said that the vesting of title to the materials in the Government was in any way to secure repayment of the partial payments made by the Government to Murray, because those partial payments were not to be repaid to the Government, but were expressly made by the Government in payment of the purchase price for the materials. Neither can it be said that the vesting of title to the materials in the Government was for the purpose of securing performance of the contracts by Murray, as conveyance of the materials to the Government could not possibly have any such legal effect.
84
Petitioners advance several arguments in support of their claim that the terms of the subcontracts, and actual operations under them, were inconsistent with any real intention to convey actual ownership of the materials to the Government.
85
As to the terms of the subcontracts, they argue, first, that subparagraph (d) of the partial payment provisions, saying that '(c)urrent production scrap may be sold by the Contractor without approval of the Contracting Officer,' supports their contention. That argument overlooks the fact that the subparagraph continues, saying, 'but the proceeds will be (paid or credited to the Government).' Thus, the contractor is authorized merely to sell the current production scrap as agent for the Government and must account to it for the proceeds, and, hence, this procedure is in no way inconsistent with the Government's ownership of the scrap. Second, they argue that the language of subparagraph (d) saying that, (u)pon liquidation of all partial payments hereunder or upon completion of deliveries called for by this contract, title to all property (or the proceeds thereof) which has not been delivered to and accepted by the Government under this contract or which has not been incorporated in supplies delivered to and accepted by the Government under this contract and to which title has vested in the Government under this Article shall vest in the Contractor,' shows that the Government's title to the materials was not real and beneficial. (Emphasis supplied.) This argument cannot be accepted, for it, as was plainly true, the language of subparagraph (b) saying that, upon the making of partial payments by the Government to Murray, title to the materials 'shall forthwith vest in the Government' was adequate to effect a transfer by Murray to the Government, it must follow that the similar language in subparagraph (d) was adequate to effect a retransfer, upon full completion of the subcontracts, of any remnant of the materials by the Government to Murray; nor can it be denied that the Government had the right and power validly to retransfer that property under those circumstances.
86
Concerning operations under the subcontracts, petitioners argue, first, that the use of the partial payment provisions in the subcontracts was a legal device for the purpose of escaping state ad valorem personal property taxation. This argument is not only unacceptable on its merits (cf. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 116, 122, 74 S.Ct. 403, 407, 4105), but, in addition, it is contrary to the stipulation made by the parties at the hearing in the District Court.6 Second, they argue that the fact that Murray insured the materials and its admittedly owned property in one policy in its own favor is inconsistent with government ownership of the materials and indicates that Murray regarded these materials as owned by it. As noted, supra, Murray agreed, under the terms of the contracts, to be liable to the Government for loss or destruction of or damage to the materials, occurring while in its possession, 'to which title (had) vest(ed) in the Government under the provisions (of the subcontracts).' To insure that contractual liability Murray caused its insurance policy to be expanded to cover, inter alia, '* * * personal property * * * sold but not delivered or removed, or for which (it is) liable, all while located in and/or on the premises occupied by the insured.'7 Plainly, this precautionary action by Murray was in no way inconsistent with outright government ownership of the materials, but, on the contrary, it strongly indicates Murray's intention and understanding that the materials had been sold to and were owned by the Government though not delivered. Cf. United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 467, 31 S.Ct. 49, 52, 54 L.Ed. 1107.
87
In United States v. Ansonia Brass & Copper Co., supra, this Court dealt at length with like contentions. There the Government had entered into a contract for the construction and delivery of a seagoing dredge to be named the Benyuard. The contract provided that the Government was to make 10 equal partial payments to the contractor, to aggregate 80 percent of the contract price, the first to be made when the hull and propelling machinery should be 10 percent complete, the second when 20 percent complete, and so on to the last payment, which was to be made when the vessel was delivered to and accepted by the Government, when the reserved 20 percent of the contract price was to be paid; and that '(t)he parts paid for under the system of partial payments above specified (were to) become thereby the sole property of the United States.' Id., 218 U.S. at page 466, 31 S.Ct. at page 52. Before completion of the dredge the contractor became insolvent and was unable to pay bills for materials used in the vessel, and a receiver was appointed. An issue arose as to whether the provisions of the contract had conveyed ownership of the unfinished vessel to the Government, thus preventing levy thereon of materialmen's liens created under state law. The Government contended '* * * that the terms of this contract (were) such that by its expressed provisions the vessel was to become the property of the United States as fast as it was paid for.' Ibid. Upon that issue this Court said:
88
'It is undoubtedly true that the mere facts that the vessel is to be paid for in installments as the work progresses, and to be built under the superintendence of a government inspector, who had power to reject or approve the materials, will not of themselves work the transfer of the title of a vessel to be constructed, in advance of its completion. But it is equally well settled that if the contract is such as to clearly express the intention of the parties that the builders shall sell and the purchasers shall buy the ship before its completion, and at the different stages of its progress, and this purpose is expressed in the words of the contract, it is binding and effectual in law to pass the title. * * *
89
'As we construe the contract for the construction of the Benyuard, it did 'divest the builder of any title to the property in the vessel during the process of construction.' * * *
90
'We are not now dealing with the right of a State to provide for such liens while property to the chattel in process of construction remains in the builder, who may be constructing the same with a view to transferring title therein to the United States upon its acceptance under a contract with the government. We are now treating of property which the United States owns. * * * The Benyuard, as fast as constructed, became one of the instrumentalities of the government * * *.' Id., 218 U.S. at pages 466, 470, 471, 31 S.Ct. at page 52.
91
This Court thus held that the contract—containing title-vesting provisions almost identical with the ones here conveyed full ownership of the unfinished vessel—not a mere lien to the Government, and it, therefore, reversed the judgment of the court below which had allowed state-created materialmen's liens to be imposed upon the unfinished vessel. The principles of that decision appear to have been followed in every decided case in this country upon the question8 save one.9
92
I believe that these considerations require the conclusion that the District Court and the Court of Appeals were right in holding that the contracts in question conveyed full beneficial title—all elements of property and incidents of ownership—in the materials to the Government.
II.
93
Is this a general ad valorem tax imposed on the materials? The majority holds, we think erroneously, that it is not. Under the Constitution of the State of Michigan10 only two general methods of taxation by the State or its subdivisions are authorized, namely, (1) ad valorem taxes, and (2) excise or privilege taxes. C. F. Smith Co. v. Fitzgerald, 270 Mich. 659, 672, 259 N.W. 352, 357; Pingree v. Auditor General, 120 Mich. 95, 102, 109, 78 N.W. 1025, 1027, 1029—1030, 44 L.R.A. 679. The taxes here questioned were levied both by the city and county subject to the authority of the General Property Tax Act of Michigan. Act 206 of the Public Acts of Michigan, 1893, as amended (6 Mich.Stat.Ann.1950, §§ 7.1—7.243, Comp.Laws 1948, § 211.1 et seq.) ('(a)n act to provide for the assessment of property and the levy and collection of taxes thereon * * *.'). Section 211.40 of Mich.Comp.Laws 1948 (6 Mich.Stat.Ann.1950, § 7.81) provides in pertinent part: 'Property taxes; lien, priority. Sec. 40. The taxes thus assessed shall become at once a debt due to the * * * city * * * and county from the persons to whom they are assessed * * *. And all personal taxes hereafter levied or assessed shall also be a first lien * * * on all personal property of such persons so assessed * * * and so remain until paid, which said tax liens shall take precedence over all other claims, encumbrances and liens upon said personal property whatsoever * * *.' (Emphasis supplied.)
94
The pertinent parts of the Charter of the City of Detroit, under which that city acted, are set forth in the margin.11 Briefly summarized, they provide that '(a)ll real and personal property within the city, subject to taxation by the laws of Michigan, shall be assessed at its true cash value, and that all city taxes shall be due and payable on the fifteenth day of July in each year, and on that date shall become a lien on the property taxed'; that the 'owners or persons in possession' of personal property shall pay the taxes assessed thereon but in case any other person, 'by agreement or otherwise,' ought to have paid the tax the person in possession who has paid the same 'may recover the amount from the person who ought to have paid the same' in an action of assumpsit, or may deduct the amount from rents due or to become due; and that if the 'taxes which are assessed against the property' are not paid by the 26th day of August the City Treasurer 'shall forthwith levy upon and sell at public auction the personal property'; that the personal property taxes 'in addition to being alien upon the property assessed shall become a debt against the owner from the time of the listing of the property for assessment, and shall remain a debt against the owner of the property or his estate after his death, until the same are paid.' (Emphasis supplied.)
95
We fail to see how it could be more plainly stated that these taxes are ad valorem taxes on the property. One cannot profitably elaborate a truth so evident. And the Michigan courts have repeatedly so held. City of Detroit v. Phillip, 313 Mich. 211, 213, 20 N.W.2d 868, 869; Pingree v. Auditor General, supra. Cf. Crawford v. Koch, 169 Mich. 372, 379, 135 N.W. 339, 342; In re Dissolution of Ever Krisp Food Products Co., 307 Mich. 182, 196, 11 N.W.2d 852, 856. Actually the pleadings formally admit that this is so.12
96
Petitioners stridently argue that the language in § 211.40 of the Michigan Comp.Laws saying that '(t)he taxes thus assessed shall become at once a debt due to the * * * city * * * and county from the persons to whom they are assessed,' and the language in §§ 1 and 7 of Tit. VI, c. IV, of the Detroit Charter, saying that '(t)he owners or persons in possession of any personal property shall pay all taxes assessed thereon (and if he) shall pay the same (he) may recover the amount from the person who ought to have paid the same * * *,' shows that the tax is not upon the materials but is, rather, upon the 'owners or persons in possession.' This argument overlooks the fact that § 211.40 continues, saying that 'all personal taxes hereafter levied or assessed shall also be a first lien * * * on all personal property of such persons so assessed * * * and so remain until paid.' The argument also overlooks the fact that Tit. VI, c. IV, § 1 of the Detroit Charter further provides that '(a)ll city taxes shall be due and payable on the fifteenth day of July in each year, and on that date shall become a lien on the property taxed,' as does § 26; and § 27 says 'all city taxes upon personal property * * * in addition to being a lien upon the property assessed shall become a debt against the owner from the time of the listing of the property for assessment, and shall remain a debt against the owner of the property * * * until the same are paid.' See note 11. (Emphasis supplied.) Thus, though the Michigan statute makes the tax a debt of the 'owner or person in possession,' it also makes the tax 'a lien on the property taxed,' and the Detroit Charter in addition to making the tax a debt 'against the owner' makes it 'a lien upon the property assessed.' Moreover, the precise question was specifically ruled by this Court in United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, where it was said:
97
'While personal liability for the (personal property) tax may be and sometimes is imposed, the power to tax is predicated upon jurisdiction of the property, not upon jurisdiction of the person of the owner, which often is lacking without impairment of the power to tax. In both theory and practice the property is the subject of the tax and stands as security for its payment. * * * But in all of these cases13 what we have denied is immunity for the contractor's own property, profits, or purchases. We have not held either that the Government could be taxed or its contractors taxed because property of the Government was in their hands. * * * We think, however, that the Government's property interests are not taxable either to it or to its bailee. * * * A State may tax personal property and might well tax it to one in whose possession it was found, but it could hardly tax one of its citizens because of moneys of the United States which were in his possession as * * * agent, or contractor. We hold that Governmentowned property, to the full extent of the Government's interest therein, is immune from taxation, either as against the Government itself or as against one who holds it as a bailee.' Id., 322 U.S. at pages 184, 186, 187, 188—189, 64 S.Ct. at pages 914, 915, 916. (Emphasis supplied.)
98
Petitioners further argue that the Detroit assessor's action in writing on the tax roll, in this instance, the words 'assessed subject to prior rights of the Federal Government' shows that the tax is not on the Government's interest, if any, in the materials. It principally relies upon S.R.A. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851, and City of New Brunswick v. United States, 276 U.S. 547, 48 S.Ct. 371, 72 L.Ed. 693. While those cases, in an abstract sense, are relevant to the point as urged by petitioners, concretely they are inapposite14 for in each of those instances the tax was assessed directly upon property beneficially owned by third parties, while here the tax is directly assessed on property beneficially owned by the Government. Moreover, 'renunciation of any lien on Government property itself, which could not be sustained in any event, hardly establishes that it is not being taxed. * * *' United States v. Allegheny County, supra, 322 U.S. at page 187, 64 S.Ct. at page 916. Furthermore, inasmuch as the Government in this case beneficially owned the entire interest in the materials and the Detroit tax was assessed 'subject to' the Government's interest therein, it would seem to follow that the Detroit tax in question was never in fact assessed against anyone.
99
It, therefore, seems inescapable that the tax here involved was an ad valorem tax on the property of the Government.
III.
100
Since the landmark case of M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, no legal principle has been more firmly established than that property owned by the Federal Government is constitutionally immune from direct taxation by a State. I agree with the majority that this, of course, does not mean that taxes directly imposed upon third parties—such as agents, contractors or employees—who may be doing business with the Government, share the Government's immunity even though the economic burden of the tax, through higher prices and the like, may ultimately fall upon the Government15 for such 'is but a normal incident of the organization within the same territory of two independent taxing sovereignties.' State of Alabama v. King & Boozer, 314 U.S. 1, 9, 62 S.Ct. 43, 45. In that case this Court upheld a state sales tax imposed, not directly upon the Government, but, rather, directly upon a government contractor relating to materials purchased by him for use in the performance of a government contract.16 The case of Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, makes the distinction clear. In that case the government contractor was authorized to and did purchase, as agent of and directly for the United States, certain tractors which the contractor was permitted to use in the performance of his 'cost-plus-fixed-fee' contract with the Government. The purchaser was the Government and it paid the vendor for and took title to the tractors. The state law requird the vendor to collect from the vendee, and remit to the State, a sales tax on local sales. The vendor, at the request of the Government, paid the tax on these sales under protest and sued for refund. The State Supreme Court sustained the tax. On certiorari this Court reversed, holding that the sale was directly to the Government and that the tax was imposed directly upon the Government which was immune from state taxation.
101
Under the facts and circumstances here we think the case of United States v. Allegheny County, supra, is entirely controlling. There, Mesta Machine Company owned a factory in Pennsylvania suitable for the manufacture of ordnance required by the Government. The Government entered into a contract with Mesta under which the latter undertook to make and deliver guns to the Government at a fixed price. Mesta lacked some of the necessary machine tools to do the contemplated work. The contract provided that the Government would, and it did, furnish various lathes and other machines, which were 'leased' to Mesta and installed in its factory by being 'bolted on concrete foundations (and) * * * could be removed without damage to the building.' Id., 322 U.S. at page 179, 64 S.Ct. at page 912. The contract further provided that if Mesta, after using every effort short of litigation to procure exemption or refund, should be compelled to pay any state, county or municipal tax upon the government-owned machinery, the Government would reimburse Mesta for that amount. Subsequently Allegheny County revised Mesta's previously determined assessment for ad valorem taxes by adding thereto the value of the government-owned machinery and assessed an additional tax on that account. Mesta protested and exhausted administrative remedies without avail and then sued for refund. The United States intervened. The trial court held that the machinery in question 'was 'owned by the United States' and so far constitutional reason could not be included.' Id., 322 U.S. at page 180, 64 S.Ct. at page 912. The Supreme Court of Pennsylvania, 347 Pa. 191, 32 A.2d 236, reversed, and reinstated the assessment and tax. It acknowledged that the government-owned property was "beyond the pale of taxation' by a state' (ibid.), but thought that the tax was not against the United States but was assessed against Mesta, as a part of its real estate, and constituted a debt of Mesta and a lien on its real estate, but not a debt of the Government nor a line on its chattels. The case came here on appeal and this Court reversed, saying, inter alia:
102
'It is not contended that the scheme of taxation employed by Pennsylvania is anything other than the old and widely used ad valorem general property tax. * * * This form of taxation is not regarded primarily as a form of personal taxation but rather as a tax against the property as a thing. Its procedures are more nearly analogous to procedures in rem than to those in personam. While personal liability for the tax may be and sometimes is imposed, the power to tax is predicated upon jurisdiction of the property, not upon jurisdiction of the person of the owner, which often is lacking without impairment of the power to tax. In both theory and practice the property is the subject of the tax and stands as security for its payment.' Id., 322 U.S. at page 184, 64 S.Ct. at page 914.
103
'The assessors simply and forthrightly valued Mesta's land as land, and the Government's machines as machinery, and added the latter to the former. We discern little theoretical difference, and no practical difference at all, between that was done and what would be done if the machinery were taxed in form. Its full value was ascertained and added to the base to which the annual rates would apply for county, city, borough, town, township, school, and poor purposes.
104
'We hold that the substance of this procedure is to lay an ad valorem general property tax on property owned by the United States.' Id., 322 U.S. at page 185, 64 S.Ct. at page 915. (Emphasis supplied.)
105
The foregoing demonstrates, I think, that the Government owned the materials on the assessment date; that the tax was imposed on those materials; that the tax was a general ad valorem tax; and that the Government was constitutionally immune from such taxation by the State.
106
These are my reasons for dissenting, and, upon them, I would affirm the judgment of the Court of Appeals.
107
For dissenting opinions of Mr. Justice FRANKFURTER and Mr. Justice HARLAN, see 355 U.S. 489, 505, 78 S.Ct. 486, 492.
1
The relevant statutory provisions are set forth in full in 6 Mich.Stat.Ann.1950, §§ 7.1, 7.10, 7.81, Comp.Laws 1948, §§ 211.1, 211.10, 211.40, and Tit. VI, c. II, § 1, and Tit. VI, c. IV, §§ 1, 7, 26, 27, of the Charter of the City of Detroit. They provide in part that 'The owners or persons in possession of any personal property shall pay all taxes assessed thereon. * * * In case any person by agreement or otherwise ought to pay such tax, or any part thereof, the person in possession who shall pay the same may recover the amount from the person who ought to have paid the same. * * *.'
2
For purposes of this case we assume that the United States had full title to the property not just a bare security interest. But cf. S.R.A. Inc., v. Minnesota, 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851, affirming 213 Minn. 487, 7 N.W.2d 484, and 219 Minn. 493, 18 N.W.2d 442; Land O'Lakes Dairy Co. v. Wadena County, 338 U.S. 897, 70 S.Ct. 251, 94 L.Ed. 552, affirming 229 Minn. 263, 39 N.W.2d 164; Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151.
1
In the period beginning August 10 and ending December 31, 1951, partial payments were made to Murray, by the Government, under the Kaiser prime contract in the total amount of $163,940.20, and under the Curtiss-Wright contract in the total amount of $510,827.67, aggregating $674,776.87, and on the latter date requests for further partial payments in the amount of $569,211.09 were outstanding and being processed.
2
It there contended that materials of the value of $2,043,670, included in the assessment against it and its personal property, were owned by the Federal Government and were therefore constitutionally immune from state taxation, and that the additional tax assessed on account thereof of $80,287.62 was void.
3
It appears that Detroit personal property taxes are payable in two installments. The first two suits (Nos. 12108 and 12482) were brought against the City of Detroit for refund of the first and second halves, respectively, of the taxes so paid under protest. The third suit (No. 12483) was brought against the County of Wayne for refund of the taxes so paid to it under protest.
4
Petitioners, however, contend that the partial payment provisions of the subcontracts are invalid as beyond the power of the Government to make. They rely principally upon the provisions of the Armed Services Procurement Act of 1947, c. 65, 62 Stat. 21, 10 U.S.C.A. §§ 2301, 2303—2305, and particularly upon the language in § 5(a) and (b) thereof saying, in pertinent part:
'(a) The agency head may make advance payments under negotiated contracts * * * in any amount not exceeding the contract price * * * Provided, That advance payments shall be made only upon adequate security * * *. (b) The terms governing advance payments may include as security provision for, and upon inclusion of such provision there shall thereby be created, a lien in favor of the Government, paramount to all other liens, upon * * * such of the material and other property acquired for performance of the contract as the parties shall agree.' (Emphasis supplied.)
They therefore argue that the Government is not empowered to enter into contracts to make 'partial payments' for the purchase of materials as was done here. This argument fails to recognize the long-existing and well-established distinction between 'advance payments' dealt with in § 5 and 'partial payments.' At the time the Act was passed the terms 'advance payments' and 'partial payments' had long since become terms of art in government procurement laws and regulations. (See Joint Resolution No. 24, May 5, 1894, 28 Stat. 582; Act f August 22, 1911, c. 42, 37 Stat. 32; Act of October 6, 1917, c. 79, § 5, 40 Stat. 345, 383; Act of June 28, 1940, c. 440, 54 Stat. 676; Act of July 2, 1940, c. 508, 54 Stat. 712, 50 U.S.C.A.Appendix, § 1171; First War Powers Act, 1941, c. 593, 55 Stat. 838, § 201; Executive Order 9001 (December 27, 1941), 6 Fed.Reg. 6787, 50 U.S.C.A.Appendix, § 611 note; War Department Procurement Regulations (July 1, 1942), §§ 81.321, 81.331, 81.347, 81.348, 7 Fed.Reg. 6098, 6105, 6108, 6112, 6113; War Department Procurement Regulations (August 25, 1945), §§ 803.321, 803.330, 803.331, 10 Fed.Reg. 10449, 10501 10503, 10507—10508; Army Procurement Regulations (November 18, 1947) §§ 804.400—804.407, 805.405, 806.407—2(a)(b), 12 Fed.Reg. 7692—7693, 7700—7705.) The two terms are not synonymous. It has long been recognized and understood that an 'advance payment' is a loan by the Government and can be made 'only upon adequate security' as provided in § 5 of the
Armed Services Procurement Act, but 'partial payments' are payments made by the Government in purchase of materials and are authorized when ownership thereto vests in the Government. Army Procurement Regulations (November 18, 1947), §§ 804.400—7, 805.405, 805.407—2(a)(b), 12 Fed.Reg. 7692—7693, 7700, 7704—7705. The distinction is made clear in Armed Services Procurement Regulations of November 23, 1950 (32 CFR (1949 ed.) § 402.501), saying:
'Advance payments shall be deemed to be payments made by the Government to a contractor in the form of loans or advances prior to and in anticipation of complete performance under a contract. Advance payments are to be distinquished from 'partial payments' and 'progress payments' and other payments made because of performance or part performance of a contract.' (Emphasis supplied.)
The bill which became the Armed Services Procurement Act of 1947 was introduced at a time when there were existing War Department Procurement Regulations describing and making provisions for both 'advance payments' and 'partial payments.' The latter provisions required that title to all materials acquired by the contractor for performance of the contract should vest in the Government on the making of such 'partial payments.' War Department Procurement Regulations, August 25, 1945, §§ 803.330 803.331, 10 Fed.Reg. 10507—10508. Against this historical background the terms of § 5 of the Armed Services Procurement Act of 1947 cannot be construed to prohibit the making of 'partial payments' by the Government to a contractor in respect to materials procured for performance of a government contract when title to those materials, by the terms of the contract, vests in the Government. These were negotiated contracts made in pursuance of § 2, c. 65, of the Armed Services Procurement Act of 1947 (62 Stat. 21), and being such, Congress, by § 4 of that Act, has expressly granted wide discretion to the agency head in determining the type of contract which will promote the best interests of the Government. There being no prohibition against the use in government contracts of partial payment provisions made in purchase of materials, contracting officers are free to follow business practices. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 116, 74 S.Ct. 403, 407, 98 L.Ed. 546. Thus, there is no merit in petitioners' claim that the Government was not empowered to agree to the partial payment provisions in these contracts.
5
A similar contention was made in that case, and in rejecting it this Court said: '(W)e turn to examine the validity of the argument that the naming of the Government as purchaser was only colorable and left the contractor the real purchaser and the transaction subject to the Arkansas Tax. State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, is relied upon primarily. We consider this argument under the assumption, made by the Supreme Court of Arkansas, that the contract was designed to avoid the necessity in this cost-plus contract of the ultimate payment of a state tax by the United States. * * * We find that the purchaser under this contract was the United States. * * * (We do not) think that the drafting of the contract by the Navy Department to conserve Government funds, if that was the purpose, changes the character of the transaction.' 347 U.S. at pages 116, 122, 74 S.Ct. at pages 407, 410.
6
It was stipulated that in the negotiation of the subcontracts the 'parties did not consider the possible avoidance of City and County ad valorem and personal property taxes as an element in their decision as to whether or not the standard partial payment clause (referred to in procurement regulations) should be inserted in these contracts.'
7
That insurance coverage provision reads as follows: 'All real and personal property of the insured, including manuscripts, mechanical drawings, tools, dies, jigs and patterns, their own, or held by them in trust or on commission, or on consignment, or sold but not delivered or removed, or for which they are liable, all while located in and/or on the premises occupied by the insured.'
8
In re Read-York, Inc., 7 Cir., 152 F.2d 313, 316, 317; Douglas Aircraft Co. v. Byram, 57 Cal.App.2d 311, 134 P.2d 15; Craig v. Ingalls Shipbuilding Corp., 192 Miss. 254, 5 So.2d 676; State ex rel. Superior Shipbuilding Co. v. Beckley, 175 Wis. 272, 185 N.W. 199; and cf. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 116—122, 74 S.Ct. 403, 407—410; United States v. Allegheny County, 322 U.S. 174, 178, 183, 64 S.Ct. 908, 911, 913; In re American Boiler Works, 3 Cir., 220 F.2d 319, 321, and Wright Aeronautical Corp. v. Glander Corp., 51 Ohio St. 29, 84 N.E.2d 483.
9
The one exception is American Motors Corp v. City of Kenosha, 274 Wis. 315, 80 N.W.2d 363, but even that case fails to mention that court's earlier decision to the contrary in State ex rel. Superior Shipbuilding Co. v. Beckley, supra.
10
Mich.Const., Art. X, § 3.
11
Tit. VI, c. II, § 1. 'All real and personal property within the city subject to taxation by the laws of this state shall be assessed at its true cash value * * *.'
The following sections appear in Tit. VI, c. IV:
'Section 1. All city taxes shall be due and payable on the fifteenth day of July in each year, and on that date shall become a lien on the property taxed * * * (and) the owners or persons in possession of any personal property shall pay all taxes assessed thereon.'
'Sec. 7. In case any person by agreement or otherwise ought to pay such tax, or any part thereof, the person in possession who shall pay the same may recover the amount from the person who ought to have paid the same, in an action of assumpsit as for moneys paid out and expended for his benefit, or may deduct the amount from any rent due or to become due to the person who should have paid such tax.'
'Sec. 26. On and after the twenty-sixth day of August in each year * * * the City Treasurer shall enforce the collection of all unpaid taxes which are assessed against the property or value other than real estate. If such taxes shall remain unpaid the City Treasurer shall forthwith levy upon and sell at public auction the personal property of any person refusing or neglecting to pay such tax, or collect the same through the courts. * * * All city taxes upon personal property shall become on said fifteenth day of July a lien thereon and so remain until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien.
'Sec. 27. All city taxes upon personal property * * * in addition to being a lien upon the property assessed shall become a debt against the owner from the time of the listing of the property for assessment, and shall remain a debt against the owner of the property or his estate after his death, until the same are paid.' (Emphasis supplied.)
12
Paragraph 3 of the complaint in the first action alleged and it is stipulated that the complaints in the three cases were the same—that the tax was assessed as 'the ad valorem tax on the personal property of this plaintiff for the year 1952 * * *.' The answer of the city 'admits the allegations in paragraph three' and the answer of the county 'admits * * * that the assessed valuation placed upon the personal property of plaintiff (by the city and adopted by the county was) the ad valorem tax on the personal property of plaintiff for the year 1952.'
13
James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927, and State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3.
14
In S.R.A v. Minnesota, the Government had sold real estate in Minnesota to S.R.A., Inc., under an installment contract for a deed but had retained legal title only as security and was, in effect, a mortgagee. S.R.A. took possession and improved the land. Afterward the State assessed general ad valorem taxes upon the property 'subject to fee title remaining in the United States.' (327 U.S. 558, 66 S.Ct. 752) S.R.A. claimed exemption from the tax on the ground that title to the property was in the United States. This Court upheld the tax because the contract of sale had transferred to the purchaser the equity in the property upon which alone the tax was levied. City of New Brunswick v. United States is almost identical to the S.R.A. case and varies from it in no substantial respect.
15
See Trinityfarm Co. v. Grosjean, 291 U.S. 466, 54 S.Ct. 469, 78 L.Ed. 918, which sustained an excise tax imposed by a State directly upon a government contractor on account of gasoline consumed by him in the performance of government contract; James v. Dravo Contracting Co., 302 U.S. 134, 160, 58 S.Ct. 208, 221, 82 L.Ed. 155, which upheld a gross receipts tax imposed by a State directly upon a government contractor on account of materials purchased by it for its use in performing the contract; Helvering v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969, 82 L.Ed. 1427, which sustained an income tax levied directly upon a construction engineer and two assistant general managers, employees of an agency of the United States, in respect of their salaries from the United States; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927, is precisely like the Gerhardt case; Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174, which upheld a state privilege tax imposed directly by a State upon a storer of gasoline even though, by contract, the Government, which had stored its gasoline with the storer, assumed liability for all state taxes.
16
In its companion case of Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9, the Court followed the same principle in holding that government cost-plus contractors who had imported into the State certain materials which they used in the performance of their contract were not entitled to share the Government's constitutional immunity from a state use tax, and said: 'If the state law lays the tax upon them rather than the (Government) with whom they enter into a cost-plus contract like the present one, then it affects the Government * * * only as the economic burden is shifted to it through operation of the contract.' Id., 314 U.S. at page 18, 62 S.Ct. at page 49 (Emphasis supplied.) As in King & Boozer, the impact of the tax upon the Government derived from the Government's voluntary assumption, or, as said by the Court, 'through operation of the contract.'
| 78
|
355 U.S. 534
78 S.Ct. 446
2 L.Ed.2d 470
PUBLIC UTILITIES COMMISSION OF the STATE OF CALIFORNIA, Appellant,v.UNITED STATES of America.
No. 23.
Argued Jan. 7, 1958.
Decided March 3, 1958.
Rehearing Denied April 7, 1958.
See 356 U.S. 925, 78 S.Ct. 713.
Messrs. J. Thomason Phelps and Everett C. McKeage, San Francisco, Cal., for appellant.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Section 530 of the California Public Utilities Code, Cal.Stat.1955, c. 1966, provides in part:
2
'Every common carrier subject to the provisions of this part may transport, free or at reduced rates:
3
'(a) Persons for the United States, * * *.
4
'The commission may permit common carriers to transport property at reduced rates for the United States, state, county, or municipal governments, to such extent and subject to such conditions as it may consider just and reasonable. Nothing herein shall prevent any common carrier subject to the provisions of this part from transporting property for the United States, state, county, or municipal governments, at reduced rates no lower than rates which lawfully may be assessed and charged by any other such common carrier or by highway permit carriers as defined in the Highway Carriers' Act.' (Italics added.) There is a large volume of military traffic between points in California. For many years the United States has negotiated special agreements with carriers as to the rates governing the transportation of government property. Property for the armed services has usually been transported at negotiated rates substantially equal to or lower than those applicable to regular commercial shipments.
5
The United States filed this suit for declaratory relief, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, in a three-judge District Court, asking that § 530 be declared unconstitutional insofar as it prohibits carriers from transporting government property at rates other than those approved by the Commission and requesting relief by injunction.
6
The District Court rendered judgment for the United States, 141 F.Supp. 168. The case is here by appeal, 28 U.S.C. §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). We noted probable jurisdiction. 352 U.S. 924, 77 S.Ct. 221, 1 L.Ed.2d 159.
7
We are met at the outset with a contention that there is no 'actual controversy' between the United States and the Commission within the meaning of 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. If so, there is a fatal constitutional, as well as statutory, defect because of the manner in which the judicial power is defined by Art. III, § 2, cl. 1, of the Constitution. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617. The argument is that there is no allegation that the Commission had done or had threatened to do anything adverse to the United States or its agent.
8
Prior to 1955, § 530 provided that every common carrier 'may transport, free or at reduced rates: * * * property for the United States * * *.'1 In 1955, § 530 was amended to eliminate that provision and substitute the provision already noted that the Commission 'may permit' common carriers to transport property of the United States at reduced rates 'to such extent and subject to such conditions as it may consider just and reasonable.' As also noted above, this amendment further provided that no common carrier shall be prevented from transporting property of the United States 'at reduced rates no lower than rates which lawfully may be assessed and charged by any other such common carrier or by highway permit carriers * * *.'2 Prior to this amendment the Commission had authorized highway permit carriers to deviate from the prescribed minimum rates in connection with the transportation of property for the armed forces of the United States. To prevent the continuation of this exemption the Commission on August 16, 1955, canceled the deviation authorization for permit carriers as of September 7, 1955, the effective date of the amendment to § 530. On request of the Department of Defense the Commission postponed the effectiveness of that cancellation until December 5, 1955. On November 29, 1955, the Commission denied a further extension, stating:
9
'The provision of Item No. 20 of Minimum Rate Tariff No. 2 which permits carriers to deviate from the minimum rates in connection with the transportation of property for the Armed Forces of the United States constitutes an exception which was established prior to the amendment of Section 530. So long as this provision remains in effect, not only the permitted carriers but also the common carriers are without the rate regulation which clearly was contemplated under the recent legislative enactment. * * * 'The intent of the legislature should be carried out without further delay. Accordingly, the petition for further postponement will be denied. This action will in no way preclude carriers from filing applications for such rate exceptions as they may consider to be just and reasonable.'
10
As a result of this denial, common carriers could no longer transport any United States property at lower negotiated rates without Commission approval. For § 486 requires common carriers to file their rates with the Commission. Section 493 provides that no common carrier shall engage in transportation until its schedules of rates have been filed. Section 494 provides that no common carrier 'shall charge, demand, collect, or receive a different compensation for the transportation of persons or property * * * than the applicable rates * * * specified in its schedules filed * * *.' (A like provision is contained in Art. XII, § 22 of the California Constitution.) Moreover the Public Utilities Code provides penalties for violations of its provisions and orders issued thereunder. §§ 2107, 2112. These penalties are applicable not only to the carrier but to shippers as well. California Public Utilities Code, § 2112. As stated by the District Court, 'If a United States officer were to negotiate with a carrier for 'reduced rates' without permitting the defendant to determine whether it 'considered' the conditions of the contract 'just and reasonable', he could be thrown into the county jail.' 141 F.Supp. at page 186.
11
The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291, where a carrier sought relief in a federal court against a state commission in order 'to guard against the possibility,' id., 344 U.S. at page 244, 73 S.Ct. at page 240, that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete—whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval.
12
There is a large group of cases involving the doctrine of primary jurisdiction which requires the complainant first to seek relief in the administrative proceeding before a remedy will be supplied by the courts. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; United States v. Western Pacific R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126. In related situations we have insisted that an aggrieved party pursue his administrative remedy before the state agency and the state court prior to bringing his complaint to the federal court, so that the true interpretation of the state law may be known and its actual, as opposed to its theoretical, impact on the litigant authoritatively determined before the federal court undertakes to sit in judgment. See Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267.
13
These cases are inapposite. We know the statute applies to shipments of the United States. We know that it is unlawful to ship at reduced rates unless the Commission approves those rates. The question is whether the United States can be subjected to the discretionary authority of a state agency for the terms on which, by grace, it can make arrangements for services to be rendered it. That issue is a constitutional one that the Commission can hardly be expected to entertain. If, as in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796, and Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933, an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy plainly should be pursued. But where the only question is whether it is constitutional to fasten the administrative procedure onto the litigant, the administrative agency may be defied and judicial relief sought as the only effective way of protecting the asserted constitutional right. In that posture the case is kin to those that hold that 'failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance.' Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 277, 281, and cases cited; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.
14
It is argued that 28 U.S.C. § 1342, 28 U.S.C.A. § 1342, bars the grant of relief in this case. It provides that the federal courts 'shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
15
'(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution * * *.'
16
Assuming, arguendo, that the Act applies to the sovereign who made it, there is no violation of its mandate in the relief granted here. In the present case, the challenge is not to a rate 'order' but to a statute which requires the United States to submit its negotiated rates to the California Commission for approval. The United States wants to be rid of the system that subjects its procurement services to that form of state supervision.
17
We come to the merits. Congress has provided a comprehensive policy governing procurement. 10 U.S.C. (Supp. V) §§ 2301—2314, 10 U.S.C.A. §§ 2301—2314. While competitive bidding is the general policy, § 2304 provides that 'the head of an agency may negotiate such a purchase or contract, if—
18
'(2) the public exigency will not permit the delay incident to advertising;
19
'(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;3
20
'(12) the purchase or contract is for property or services whose procurement he determines should not be publicly disclosed because of their character, ingredients, or components; * * *.'
21
The regulations, promulgated to carry out these statutory provisions,4 are numerous and extensive.5 One provides that 'volume shipments' shall be referred 'at the earliest practicable time to the appropriate military traffic management office for a determination of the reasonableness of applicable current rates and, when appropriate, for negotiation of adjusted or modified rates.'6
22
The Army regulations provide that the 'least costly means of transportation will be selected which will meet military requirements and still be consistent with governing procurement regulations and transportation policies as expressed by Congress, contingent upon carrier ability to provide safe, adequate, and efficient transportation.'7 Navy regulations provide that when applicable freight rates 'appear excessive' they 'may be negotiated for more equitable rates.'8 The Air Force regulations provide for negotiations for adjustments or modifications of 'commercial carriers' rates * * * only after a determination has been made as to the unreasonableness, unjustness or otherwise apparent unlawfulness of effective rates * * *.'9
23
It seems clear that these regulations—which have the force of law, Leslie Miller, Inc., v. State of Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231; Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611—sanction the policy or negotiating rates for shipment of federal property and entrust the procurement officers with the discretion to determine when existing rates10 will be accepted and when negotiation for lower rates will be undertaken. It also seems clear that under § 530 of the California Public Utilities Code this discretion of the federal officers may be exercised and reduced rates used only if the Commission approves. The question is whether California may impose this restraint or control on federal transportation procurement.
24
We lay to one side these cases which sustain nondiscriminatory state taxes on activities of contractors and others who do business for the United States, as their impact at most is to increase the costs of the operation. See, e.g., Esso Standard Oil Co. v. Evans, 345 U.S. 495, 73 S.Ct. 800, 97 L.Ed. 1174; Smith v. Davis, 323 U.S. 111, 65 S.Ct. 157, 89 L.Ed. 107; State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3; James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155. We also need do no more than mention cases where, absent a conflicting federal regulation, a State seeks to impose safety or other requirements on a contractor who does business for the United States. See, e.g., Baltimore & Annapolis R. Co. v. Lichtenberg, 176 Md. 383, 4 A.2d 734, appeal dismissed, United States v. Baltimore & Annapolis R. Co., 308 U.S. 525, 60 S.Ct. 297, 84 L.Ed. 444; James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596. Penn Dairies v. Milk Control Comm., 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed. 748, can likewise be put to one side. There the question, much mooted, was whether the federal policy conflicted with the state policy fixing the price of milk which the United States purchased. The Court concluded that the state regulation 'imposes no prohibition on the national government or its officers.' Id., 318 U.S. at page 270, 63 S.Ct. at page 621. Here, however, the State places a prohibition on the Federal Government. Here the conflict between the federal policy of negotiated rates and the state policy of regulation of negotiated rates seems to us to be clear. The conflict is as plain as it was in State of Arizona v. State of California, 283 U.S. 423, 451, 51 S.Ct. 522, 524, 75 L.Ed. 1154, where a State sought authority over plans and specifications for a federal dam, in Leslie Miller, Inc., v. Arkansas, supra, where state standards regulating contractors conflicted with federal standards for those contractors, and in Johnson v. State of Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126, where a State sought to exact a license requirement from a federal employee driving a mail truck. The conflict seems to us to be as clear as any that the Supremacy Clause, Art. VI, cl. 2, of the Constitution was designed to resolve. As Chief Justice Marshall said in McCulloch v. Maryland, 4 Wheat. 316, 427, 4 L.Ed. 579,
25
'It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.'
26
The seriousness of the impact of California's regulation on the action of federal procurement officials is dramatically shown by this record.
27
It is the practice of the Government not only to negotiate separate rates which vary from the class or 'paper rate'11 but also to negotiate a 'freight all kinds' rate which will cover hundreds of diverse items for the supply of a division of the Army or for a vessel that are needed at one place at one particular time. There is no provision in the California Code or the regulations for the making of such shipments. The findings are that if the Code is applied here, this type of arrangement would be abolished:
28
'This would make it necessary for the shipping officers to classify the hundreds and thousands of different items used in military operations, to segregate such items in accordance with published tariffs and classifications, to rearrange the boxing and crating of such items in order to meet the classifications and requirements of commercial traffic and fill out voluminous documents. This additional process could cause delays as high as thirteen hours in the shipment of one truckload or carload. In many situations a delay of this sort would seriously hamper or disrupt the military mission for which the shipment was made.'
29
Moreover, no rates exist for much of the military traffic, which means that, unless the United States can negotiate rates for each shipment, the shipments will be delayed for Commission action unless shipped under the established rates which are higher than negotiated rates.
30
General Edmond C. R. Lasher of the United States Army, who was Assistant Chief of Transportation, testified at the trial:
31
'for us to make these arrangements at the Washington level with the various states, let us say 48 states, with 48 varieties of methods to follow, we would find ourselves in an administrative morass out of which we would never fight our way, we would never win the war.'
32
Affirmed.
33
Mr. Justice HARLAN, whom THE CHIEF JUSTICE and Mr. Justice BURTON join, dissenting.
34
I think that the Court moves with unnecessary haste in striking down this California statute which was intended to deal with rate-cutting practices of California carriers handling the heavy volume of military traffic in that State. These practices, the State tells us, have a seriously depressing influence upon revenues of carriers and might lead to a deterioration of the economic position of the California carrier industry as a whole. To guard against this possibility, the California Legislature amended § 530 of the Public Utilities Code by extending rate regulation to carriers dealing with the Federal Government. Maintenance of the proper balance between federal and state concerns in this area should lead us to proceed with caution before deciding that this regulatory statute is unconstitutional. We should not reach this conclusion before giving California an opportunity to interpret and implement this enactment so that we can fairly judge whether it does in truth trespass upon paramount federal interests. Accordingly, I dissent upon the several grounds given below.
I.
35
Although Congress can no doubt foreclose a State from regulation of transportation rates between the Government and private carriers, such a purpose must be made manifest. The excerpts from federal procurement statutes and regulations quoted in the Court's opinion provide, in my view, an inadequate foundation for the conclusion that Congress has directed procurement officers to by-pass state minimum-price or rate regulation. It is difficult to believe that so important a decision has been taken in such an obscure manner. In contrast to the situation presented by the express exemption in § 22 of the Interstate Commerce Act, 49 U.S.C. § 22, 49 U.S.C.A. § 22, of transportation for the United States from the rate provisions of that Act, no procurement statute declares inapplicable rate schedules covering intrastate transportation pursuant to state law, and there is no indication that federal procurement officers were not to operate within the framework of state economic regulation in negotiating to secure the best terms possible. The statutes and regulations relied upon by the Court as a manifestation of congressional intent to displace state economic regulation are substantially the same as those found wanting in this respect in Penn Dairies, Inc., v. Milk Control Comm. of Pennsylvania, 318 U.S. 261, at page 275, 63 S.Ct. 617, at page 623, 87 L.Ed. 748, where this Court said:
36
'An unexpressed purpose of Congress to set aside statutes of the states regulating their internal affairs is not lightly to be inferred and ought not to be implied where the legislative command, read in the light of its history, remains ambiguous. Considerations which lead us not to favor repeal of statutes by implication (citing cases) should be at least as persuasive when the question is one of the nullification of state power by Congressional legislation.'
II.
37
In the absence of an express federal policy to nullify state regulation, this Court's decisions make clear that the fact that the Government may not henceforth receive more advantageous shipping rates in California than those applicable to other intrastate shippers is not sufficient by itself to vitiate this state statute. The fact that the economic incidence of state price regulation or taxation falls upon the Government no longer alone gives rise to an implied constitutional immunity from such regulation. E.g., Penn Dairies, supra, 318 U.S. at page 269, 63 S.Ct. at page 620; State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3; James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155. In Penn Dairies, the Court upheld a Pennsylvania law setting minimum prices for milk as applied to a dealer selling milk in Pennsylvania to the United States for consumption at military camps. I can see no constitutional distinction between state regulation of the price of milk the Government must buy and of the price at which the Government must ship the milk it has bought. And surely, insofar as economic effect is concerned, nothing turns on the character of the commodity shipped, whether it be milk or a hydrogen bomb. Apart from discriminatory application of such a regulatory statute to the Government and other considerations not pertinent here, the constitutional validity of this California statute depends entirely on its noneconomic impact upon the Government—that is, upon a determination whether this statute interferes with the performance of governmental functions by military personnel or other federal employees. See Johnson v. State of Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154.
III.
38
The aspects of the California statute which the Court finds fatal to its constitutionality simply reflect anticipatory views as to how the rate regulation will work in practice. I consider this to be an insufficient basis on which to proceed to the serious business of striking down state regulation, and I believe that final judgment as to constitutionality should be deferred until we know how California intends to apply § 530 of its Public Utilities Code and to accommodate the state interest in a stable rate structure with the federal interest in unimpeded performance of military and other governmental functions. In view of the fact that the possible effect of § 530 in imposing an increased economic burden upon the Government does not in itself require invalidation of this statute, it is to my mind no answer to say that a decision upon the statute's constitutionality need not be deferred pending recourse by the Government to the state Commission and courts, because the statute is unconstitutional on its face in that it subjects government arrangements with California carriers to control by the Commission. Indeed, the very intention of the California Legislature in making special provision for the Government to negotiate with the Commission was to enable it to secure advantageous rates which would not even have been possible if the rate schedules were binding upon all shippers without the possibility of administratively granted exceptions. Cf. Penn Dairies, supra.
39
The purpose in requiring the Government to proceed through the state Commission in the first instance, the path which I think should be followed here, would not be to permit the state Commission or courts to pass upon the statute's constitutionality. That of course is the ultimate responsibility of this Court. Rather the purpose would be to determine if the statute can be so implemented as to overcome objections which the Government could present to the Commission. After such proceedings, we would not be compelled to consider the constitutional question under the uninformed view as to the actual operation of the statute which we now have. More than abstract or potential impingement upon, or the mere possibility of interference with, some federal function should be shown before we are justified in thwarting otherwise legitimate state policy.
40
Some examples of the factors stressed by the Government as indicating the obstructive effect of this statute upon military functions suffice, I think, to demonstrate that the Court has acted prematurely in passing on constitutionality at this stage: (1) The Government has contended that disproportionately high rates would be imposed on military traffic because special 'commodity' rates normally have not been established for many articles peculiar to military transportation, thus requiring recourse to higher 'class' rates. The State has countered with the suggestion that the Commission might authorize retroactive rates which would enable the Government in effect to achieve commodity rates after shipments of presently unscheduled items. (2) It is alleged that excessive delay of vital military shipments may result if army officers are required to determine in advance applicable rates for all items in a varied shipment. Again the State suggests that retroactive determination of rates after the shipment may be the solution. (3) We are told that national security may be prejudiced if the military is forced to reveal the content of particular shipments to determine applicable rates in existing schedules, in lieu of following the present practice of negotiating a general rate for an entire shipment without specifying its content. This obviously important concern is recognized by the State, which emphasizes the Commission's ability to cope with this problem, as by exempting from the usual procedures under § 530 all shipments declared to be 'security shipments' by a responsible federal authority. (4) The 'freight all kinds' rate noted by the Court as in current widespread use in military shipments is not expressly provided for by the California statute. Appellant, although frankly stating that this rate is a major vehicle for the price-cutting practices which the amended § 530 was designed to prevent, raises the possibility that a comparable method less productive of such practices might be approved by the Commission. If so, major administrative problems portrayed by the Government would evaporate. (5) The Court adverts to the possibility that state criminal statutes punishing certain parties for deviation from established rates might be applied against federal procurement officers. It will be time enough to dispose of this problem if such a prosecution should ever be brought, a possibility the State here emphatically discards.
41
I do not, of course, venture to predict whether the Commission might have been able to meet all objections of the Government by restricting the statute to purely economic regulation if it had been given the opportunity, but I do not see how we can say that such a possibility does not exist. It may be that what is now envisioned by the Government would not come to pass at all, for we should not assume that California will be less sensitive than others to the serious considerations urged by the Government with respect to shipments of vital military supplies. Moreover, it is hardly likely that the objections asserted against the application of the statute to military shipments would have the same force with respect to shipments of nonmilitary commodities by other government agencies; yet as to these too the Court annuls the statute.
42
Unless something more than the remote possibility of hindrance of government functions is enough to justify invalidation of such state statutes, I fail to see why under this decision all state tariff regulation is not automatically ineffective as against the Federal Government. I would not so extend the doctrine of implied federal immunities, especially when Congress has the undoubted power to deal directly with such matters according to its assessment of the competing state and federal interests involved. The Court has not heretofore gone to the extreme of this decision, and I find it anomalous that the very Term which witnesses a further diminution of the doctrine of implied intergovernmental tax immunities should produce this decision. See, e.g., City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458.
IV.
43
This Court should scrupulously withhold its hand from voiding state legislation until the effect on federal interests has appeared with reasonable certainty through clarifying construction and implementation of the challenged enactment by the State. Past decisions of the Court reflect the application of this general principle in a variety of situations involving state statutes or administrative action. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101; Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228—229, 77 S.Ct. 287, 292, 1 L.Ed.2d 267. Cf. Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725; Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 246—247, 73 S.Ct. 236, 241 242, 97 L.Ed. 291. In Spector Motor, the Court stated: '(A)s questions of federal constitutional power have become more and more intertwined with preliminary doubts about local law, we have insisted that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law.' 323 U.S. at page 105, 65 S.Ct. at page 154. And the language of the Court in Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. at page 471, 65 S.Ct. at page 1394, is very much in point here:
44
'The extent to which the declaratory judgment procedure may be used in the federal courts to control state action lies in the sound discretion of the Court. * * * It would be an abuse of discretion for this Court to make a pronouncement on the constitutionality of a state statute * * * when the Court is left in uncertainty, which it cannot authoritatively resolve, as to the meaning of the statute when applied to any particular state of facts. * * * In the exercise of this Court's discretionary power to grant or withhold the declaratory judgment remedy it is of controlling significance that it is in the public interest to avoid the needless determination of constitutional questions and the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes.'
45
I see no good reason for departing now from that wise policy. In my view the Government should be remitted to the California Commission and courts to test there, in the first instance, the application of this statute, and the federal courts should withhold final judgment on constitutionality until the true effect of the statute has thus become known. The Government, however, should be permitted to proceed during this period as it had before § 530 was amended, for any possibility of state interference with military or other governmental operations would thereby be avoided. I would therefore vacate the judgment below and so frame a remand as to enable the District Court to stay the operation of this statute until proceedings before the state Commission or courts have run their full course. Cf. Leiter Minerals, Inc., supra. The proper accommodation of the state and federal concerns here involved makes this in my view the appropriate disposition of this case.
1
Cal.Stat.1951, c. 764, p. 2045.
2
California Public Utilities Code § 3515 defines a 'highway permit carrier' as 'every highway carrier other than a highway common carrier or a petroleum irregular route carrier.'
3
The purpose of this subsection is 'to place the maximum responsibility for decisions as to when it is impracticable to secure competition in the hands of the agency concerned.' S.Rep. No. 571, 80th Cong., 1st Sess., p. 8. The Senate Report goes on to state:
'The experiences of the war and contracts negotiated since the war in the fields of stevedoring, ship repairs, chartering of vessels, where prices are set by law or regulation, or where there is a single source of supply, have shown clearly that the competitive-bid-advertising method is not only frequently impracticable but does not always operate to the best interests of the Government. It is, therefore, intended that this section should be construed liberally and that the review of these contracts should be confined to the validity and legality of the action taken and should not extend to reversal of bona fide determinations of impracticability where any reasonable ground for such determination exists.'
It would seem, therefore, that negotiation was contemplated where rates, fixed by a government agency, are involved. And see H.R.Rep. No. 109, 80th Cong., 1st Sess., pp. 8—9. As stated by W. John Kenney, Acting Secretary of the Navy, who submitted the draft of this bill:
'The primary purpose of the bill is to permit the War and Navy Departments to award contracts by negotiation when the national defense or sound business judgment dictates the use of negotiation rather than the rigid limitations of formal advertising, bid, and award procedures.' Hearings before House Committee on Armed Services on H.R. 1366, 80th Cong., 1st Sess., Vol. 1, p. 425.
4
10 U.S.C. § 3012(g), 10 U.S.C.A. § 3012(g) provides, 'The Secretary (of the Army) may prescribe regulations to carry out his functions, powers, and duties under this title.' For comparable provisions applicable to the Navy and Air Force see 10 U.S.C. § 6011, 10 U.S.C.A. § 6011 and 10 U.S.C. § 8012(f), 10 U.S.C.A. § 8012(f) respectively.
5
Armed Services Procurement Regulations, 32 CFR, 1957, Cum.Pocket Supp., § 1.108 et seq.,
6
Id., § 1.306—10.
7
Army Regulation 55—142, 2, dated April 19, 1956.
8
Navy Shipping Guide, Part I, Art. 1800(d)(3)(20).
9
Air Force Manual 75—1, 80501(b), dated July 10, 1956.
10
Section 22 of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 22, 49 U.S.C.A. § 22, exempts transportation for the United States from the rate provisions of that Act. The provision in the law, respecting land-grant rates, which imposes on the United States the obligation to pay 'the full applicable commercial rates,' 49 U.S.C. § 65, 49 U.S.C.A. § 65, applies only to rates fixed by the Interstate Commerce Commission and is made expressly subject to § 22 of the Interstate Commerce Act.
11
The findings of the District Court state:
'Under the theory of rate regulation in California and elsewhere, every common carrier is required to have in existence at all times a published rate to cover the shipment of every known item between every conceivable point. This rate structure is known as the class or 'paper rate.' Since the channels of commercial traffic are regular and well defined in accordance with the stability of trade, large commercial shippers seldom use the class rate but negotiate rates with the carriers known as 'commercial rates,' which are peculiarly suited and adapted to the requirements of the commerce involved. These commercial rates are usually considerably lower than the class rates. Very little commercial traffic moves at the class rate.'
| 910
|
356 U.S. 24
78 S.Ct. 562
2 L.Ed.2d 578
Charles H. MARSHALL, petitioner,v.Wilber M. BRUCKER, Secretary of the Department of the Army, and Individually.
No. 41, Misc.
Supreme Court of the United States
March 10, 1958
Charles W. Marshall, pro se.
Solicitor General Rankin, for respondent.
On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to the District Court for appropriate relief in the light of Harmon v. Brucker (Abramowitz v. Brucker) 355 U.S. 579, 78 S.Ct. 433.
2
Mr. CLARK dissents from this disposition of the case for the reasons stated in his dissenting opinion in these cases.
| 12
|
356 U.S. 21
78 S.Ct. 559
2 L.Ed.2d 578
AMERICAN MOTORS CORPORATION, a Maryland Corporation, formerly known as Nash-Kelvinator Corporation, a Maryland Corporation, and United States of America, Intervenor, appellants,v.CITY OF KENOSHA, a Municipal Corporation.
No. 343.
Supreme Court of the United States
March 10, 1958
Rehearing Denied June 9, 1958.
See 357 U.S. 912, 78 S.Ct. 1147.
Solicitor General Rankin, Assistant Attorney General Rice, Messrs. John N. Stull, A. F. Prescott and H. Eugene Heine, Jr., for the United States.
Mr. Alfred E. LaFrance, for appellant American Motors Corporation.
Messrs. Wm. J. P. Abert and Robert V. Baker, for appellee.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed.
2
Mr. Justice FRANKFURTER, Mr. Justice BURTON, Mr. Justice HARLAN, and Mr. Justice WHITTAKER dissent for the reasons set forth in their dissenting opinion in City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 486.
| 78
|
356 U.S. 1
78 S.Ct. 514
2 L.Ed.2d 545
NORTHERN PACIFIC RAILWAY COMPANY and Northwestern Improvement Company, Appellants,v.UNITED STATES of America.
No. 59.
Argued Jan. 7 and 8, 1958.
Decided March 10, 1958.
[Syllabus from pages 1-2 intentionally omitted]
Mr. M. L. Countryman, Jr., St. Paul, Minn., for appellants.
Mr. Daniel M. Friedman, Washington, D.C., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1864 and 1870 Congress granted the predecessor of the Northern Pacific Railway Company approximately forty million acres of land in several Northwestern States and Territories to facilitate its construction of a railroad line from Lake Superior to Puget Sound.1 In general terms, this grant consisted of every alternate section of land in a belt 20 miles wide on each side of the track through States and 40 miles wide through Territories. The granted lands were of various kinds; some contained great stands of timber, some iron ore or other valuable mineral deposits, some oil or natural gas, while still other sections were useful for agriculture, grazing or industrial purposes. By 1949 he Railroad had sold about 37,000,000 acres of its holdings, but had reserved mineral rights in 6,500,000 of those acres. Most of the unsold land was leased for one purpose or another. In a large number its sales contracts and most of its lease agreements the Railroad had inserted 'preferential routing' clauses which compelled the grantee or lessee to ship over its lines all commodities produced or manufactured on the land, provided that its rates (and in some instances its service) were equal to those of competing carriers.2 Since many of the goods produced on the lands subject to these 'preferential routing' provisions are shipped from one State to another the actual and potential amount of interstate commerce affected is substantial. Alternative means of transportation exist for a large portion of these shipments including the facilities of two other major railroad systems.
2
In 1949 the Government filed suit under § 4 of the Sherman Act seeking a declaration that the defendant's 'preferential routing' agreements were unlawful as unreasonable restraints of trade under § 1 of that Act.3 After various pretrial proceedings the Government moved for summary judgment contending that on the undisputed facts it was entitled, as a matter of law, to the relief demanded. The district judge made numerous findings, as set forth in substance in the preceding paragraph, based on the voluminous pleadings, stipulations, depositions and answers to interrogatories filed in the case, and then granted the Government's motion (with an exception not relevant here). 142 F.Supp. 679. He issued an order enjoining the defendant from enforcing the existing 'preferential routing' clauses or from entering into any future agreements containing them. The defendant took a direct appeal to this Court under § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29, and we noted probable jurisdiction. 352 U.S. 980, 77 S.Ct. 383, 1 L.Ed.2d 364.
3
The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conductive to the preservation of our democratic political and social institutions. But even were that premise open to question, the policy unequivocally laid down by the Act is competition. And to this end it prohibits 'Every contract, combination * * * or conspiracy, in restraint of trade or commerce among the several States.' Although this prohibition is literally all-encompassing, the courts have construed it as precluding only those contracts or combinations which 'unreasonably' restrain competition. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683.
4
However, there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable—an inquiry so often wholly fruitless when undertaken. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129; division of markets, United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, 46 L.R.A. 122, affirmed 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators' Guild of America v. Federal Trade Comm., 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.
5
For our purposes a tying arrangement may be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.4 Where such conditions are successfully exacted competition on the merits with respect to the tied product is inevitably curbed. Indeed 'tying agreements serve hardly any purpose beyond the suppression of competition.' Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 305—306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371.5 They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products. For these reasons 'tying agreements fare harshly under the laws forbidding restraints of trade.' Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 606, 73 S.Ct. 872, 879, 97 L.Ed. 1277. They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. Cf. United States v. Paramount Pictures, 334 U.S. 131, 156—159, 68 S.Ct. 915, 928—929, 92 L.Ed. 1260; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236. Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.
6
In this case we believe the district judge was clearly correct in entering summary judgment declaring the defendant's 'preferential routing' clauses unlawful restraints of trade. We wholly agree that the undisputed facts established beyond any genuine question that the defendant possessed substantial economic power by virtue of its extensive landholdings which it used as leverage to induce large numbers of purchasers and lessees to give it preference, to the exclusion of its competitors, in carrying goods or produce from the land transferred to them. Nor can there be any real doubt that a 'not insubstantial' amount of interstate commerce was and is affected by these restrictive provisions.
7
As pointed out before, the defendant was initially granted large acreages by Congress in the several Northwestern States through which its lines now run. This land was strategically located in checkerboard fashion amid private holdings and within economic distance of transportation facilities. Not only the testimony of various witnesses but common sense makes it evident that this particular land was often prized by those who purchased or leased it and was frequently essential to their business activities. In disposing of its holdings the defendant entered into contracts of sale or lease covering at least several million acres of land which included 'preferential routing' clauses.6 The very existence of this host of tying arrangements is itself compelling evidence of the defendant's great power, at least where, as here, no other explanation has been offered for the existence of these restraints. The 'preferential routing' clauses conferred no benefit on the purchasers or lessees. While they got the land they wanted by yielding their freedom to deal with competing carriers, the defendant makes no claim that it came any cheaper than if the restrictive clauses had been omitted. In fact any such price reduction in return for rail shipments would have quite plainly constituted an unlawful rebate to the shipper.7 So far as the Railroad was concerned its purpose obviously was to fence out competitors, to stifle competition. While this may have been exceedingly beneficial to its business, it is the very type of thing the Sherman Act condemns. In short, we are convinced that the essential prerequisites for treating the defendant's tying arrangements as unreasonable 'per se' were conclusively established below and that the defendant has offered to prove nothing there or here which would alter this conclusion.
8
In our view International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, which has been unqualifiedly approved by subsequent decisions, is ample authority for affirming the judgment below. In that case the defendant refused to lease its salt-dispensing machines unless the lessee also agreed to purchase all the salt it used in the machines from the defendant. It was established that the defendant had made about 900 leases under such conditions and that in the year in question it had sold about $500,000 worth of salt for use in the leased machines. On that basis we affirmed unanimously a summary judgment finding the defendant guilty of violating § 1 of the Sherman Act. The Court ruled that it was 'unreasonable, per se, to foreclose competitors from any substantial market' by tying arrangements. As we later analyzed the decision, 'it was not established that equivalent machines were unobtainable, it was not indicated what proportion of the business of supplying such machines was controlled by defendant, and it was deemed irrelevant that there was no evidence as to the actual effect of the tying clauses upon competition.' Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 305, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371.
9
The defendant attempts to evade the force of International Salt on the ground that the tying product there was patented while here it is not. But we do not believe this distinction has, or should have, any significance. In arriving at its decision in International Salt the Court placed no reliance on the fact that a patent was involved nor did it give the slightest intimation that the outcome would have been any different if that had not been the case. If anything, the Court held the challenged tying arrangements unlawful despite the fact that the tying item was patented, not because of it. 'By contracting to close this market for salt against competition, International has engaged in a restraint of trade for which its patents afford no immunity from the antitrust laws.' 332 U.S. at page 396, 68 S.Ct. at page 15. Nor have subsequent cases confined the rule of per se unreasonableness laid down in International Salt to situations involving patents. Cf. United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236; United States v Paramount Pictures, Inc., 334 U.S. 131, 156, 68 S.Ct. 915, 928, 92 L.Ed. 1260; Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277.8
10
The defendant argues that the holding in International Salt was limited by the decision in Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277. There the Court held that a unit system of advertising in two local newspapers did not violate § 1 of the Sherman Act. On the facts before it the majority found there was no tying problem at all since only one product was involved and that, in any event, the defendant did not possess sufficient economic power in the advertising market to bring its unit rule within the principle of per se unreasonableness. But the Court was extremely careful to confine its decision to the narrow record before it. Id., 345 U.S. at pages 627—628, 73 S.Ct. at page 890. And far from repudiating any of the principles set forth in International Salt it vigorously reasserted them by broadly condemning tying arrangements as wholly inconsistent with the fundamental principles of the antitrust laws. In the Court's forceful terms, 'Tying arrangements * * * flout the Sherman Act's policy that competition rule the marts of trade. * * * By conditioning his sale of one commodity on the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the 'tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the 'tied' product would convince freely choosing buyers to select it over others, anyway.' Id., 345 U.S. at page 605, 73 S.Ct. at page 878.
11
While there is some language in the Times-Picayune opinion which speaks of 'monopoly power' or 'dominance' over the tying product as a necessary precondition for application of the rule of per se unreasonableness to tying arrangements, we do not construe this general language as requiring anything more than sufficient economic power to impose an appreciable restraint on free competition in the tied product (assuming all the time, of course, that a 'not insubstantial' amount of interstate commerce is affected). To give it any other construction would be wholly out of accord with the opinion's cogent analysis of the nature and baneful effects of tying arrangements and their incompatibility with the policies underlying the Sherman Act. Times-Picayune, of course, must be viewed in context with International Salt and our other decisions concerning tying agreements. There is no warrant for treating it as a departure from those cases. Nor did it purport to be any such thing; rather it simply made an effort to restate the governing considerations in this area as set forth in the prior cases. And in so doing it makes clear, as do those cases, that the vice of tying arrangements lies in the use of economic power in one market to restrict competition on the merits in another, regardless of the source from which the power is derived and whether the power takes the form of a monopoly or not.
12
The defendant contends that its 'preferential routing' clauses are subject to so many exceptions and have been administered so leniently that they do not significantly restrain competition. It points out that these clauses permit the vendee or lessee to ship by competing carrier if its rates are lower (or in some instances if its service is better) than the defendant's.9 Of course if these restrictive provisions are merely harmless sieves with no tendency to restrain competition, as the defendant's argument seems to imply, it is hard to understand why it has expended so much effort in obtaining them in vast numbers and upholding their validity, or how they are of any benefit to anyone, even the defendant. But however that may be, the essential fact remains that these agreements are binding obligations held over the heads of vendees which deny defendant's competitors access to the fenced-off market on the same terms as the defendant. In International Salt the defendants similarly argued that their tying arrangements were inoffensive restraints because they allowed lessees to buy salt from other suppliers when they offered a lower price than International. The Court's answer there is equally apt here.
13
'(This exception) does, of course, afford a measure of protection to the lessee, but it does not avoid the stifling effect of the agreement on competition. The appellant had at all times a priority on the business at equal prices. A competitor would have to undercut appellant's price to have any hope of capturing the market, while appellant could hold that market by merely meeting competition. We do not think this concession relieves the contract of being a restraint of trade, albeit a less harsh one than would result in the absence of such a provision.' 332 U.S. at page 397, 68 S.Ct. at page 15.
14
All of this is only aggravated, of course, here in the regulated transportation industry where there is frequently no real rate competition at all and such effective competition as actually thrives takes other forms.
15
Affirmed.
16
Mr. Justice CLARK took no part in the consideration or decision of this case.
17
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
18
The Court affirms summary judgment for the Government by concluding that 'the essential prerequisites for treating the defendant's tying arrangements as unreasonable 'per se' were conclusively established below * * *.' In my view, these prerequisites were not established, and this case should be remanded to the District Court for a trial on the issue whether appellants' landholdings gave them that amount of control over the relevant market for land necessary under this Court's past decisions to make the challenged tying clauses violative per se of the Sherman Act. Further, in light of the Court's disposition of the case and the nature of the findings made below, I think that the Court's discussion of International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, is apt to produce confusion as to what proof is necessary to show per se illegality of tying clauses in future Sherman Act cases.
19
Because the Government necessarily based its complaint on § 1 of the Sherman Act, 26 State. 209, as amended, 15 U.S.C. § 1, 15 U.S.C.A. § 1, rather than on § 3 of the Clayton Act,1 it was required to show that the challenged tying clauses constituted unreasonable restraints of trade, see Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619. As a result, these tying clauses raise legal issues different from those presented by the legislatively defined tying clauses invalidated under the more pointed prohibitions of the Clayton Act. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277, has made it clear beyond dispute that both proof of dominance in the market for the tying product and a showing that an appreciable volume of business in the tied product is restrained are essential conditions to judicial condemnation of a tying clause as a per se violation of the Sherman Act.2 345 U.S. at pages 608—611, 73 S.Ct. at pages 880—881. These firm requirements derive from an awareness that the vice apt to exist in tying agreements 'is the wielding of monopolistic leverage; a seller exploits his dominant position in one market to expand his empire into the next.' 345 U.S. at page 611, 73 S.Ct. at page 882. It is not, as the Court intimates at one point in its opinion, that under the Sherman Act the tying clause is illegal per se; the per se illegality results from its use by virtue of a vendor's dominance over the tying interest to foreclose competitors from a substantial market in the tied interest.
20
My primary difficulty with the Court's affirmance of the judgment below is that the District Court made no finding that the appellants had a 'dominant position' or, as this Court now puts it, 'sufficient economic power,' in the relevant land market. Such a finding would indicate that those requiring land of the character owned by the appellants would be driven to them for it, thereby putting appellants in a position to foreclose competing carriers, through the medium of tying clauses, from shipping the produce from the lands sold or leased. The District Court seems to have conceived that no more need be shown on this score than that the appellants owned the particular tracts of land sold or leased subject to a tying clause. Thus it said (142 F.Supp. 684):
21
'Defendants argue that the first tying element, i.e., market domination over the tying product, is not established because the record does not show the proportion of N.P. (Northern Pacific) lands of various types to the total of the lands of the same types sold and leased in the area of defendants' operations.
22
This contention ignores the plain language of the cited decisions ('tying clause' cases in this Court), providing that market dominance of 'the tying commodity' is required. The tying commodity need only be the particular property or product to which forced purchase of the second commodity is tied; certainly it does not necessarily include all of the similar and competing commodities which may be in the market. * * *
23
'The tying commodity in the present case is the land presently or formerly owned by N.P. Unrestricted fee-simple title to land vests in the owner absolute domination of the market in such land. By the ownership of the lands and resulting dominance in the market therefor defendants were able to impose the traffic clauses in question on the grantees and lessees of the land.' (Italics added.)
24
In conformity with these views the ultimate findings of the District Court on the issue of 'control' were only these:
25
'37. Defendants, as sellers and as lessors, by reason of title in fee simple, have dominance in the lands now owned by them and had dominance in the lands formerly owned at the time of sale of such lands. (Italics added.)
26
'38. Defendants have used their dominance in the lands sold and leased to require purchasers and lessees to purchase and use Northern Pacific's transportation service, under the conditions stated in finding 10.' (Finding 10 relates to the terms of the tying clauses.)
27
I do not think that these findings as to appellants' ad hoc 'dominance' over the particular land sold or leased suffice to meet the showing of market control which Times-Picayune established as one of the essential prerequisites to holding tying clauses illegal per se under the Sherman Act. In effect the District Court's view by-passed that requirement and made the validity of these tying clauses depend entirely on the commercial restraint accomplished by them. The District Court should have taken evidence of the relative strength of appellants' landholdings vis-a -vis that of others in the appropriate market for land of the types now or formerly possessed by appellants,3 of the 'uniqueness' of appellants' landholdings in terms of quality or use to which they may have been put, and of the extent to which the location of the lands on or near the Northern Pacific's railroad line, or any other circumstances, put the appellants in a strategic position as against other sellers and lessors of land. Short of such an inquiry I do not see how it can be determined whether the appellants occupied such a dominant position in the relevant land market, cf. United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264, as to make these tying clauses illegal per se under the Sherman Act.
28
Explanation for the Court's failure to remand with instructions to pursue such an inquiry apparently lies in part in its statement that the 'very existence of this host of tying arrangements is itself compelling evidence of the defendant's great power' over the land market. I do not deny that there may be instances where economic coercion by a vendor may be inferred, without any direct showing of market dominance, from the mere existence of the tying arrangements themselves, as where the vendee is apt to suffer economic detriment from the tying clause because precluded from purchasing a tied product at better terms or of a better quality elsewhere. But the tying clauses here are not cast in such absolute terms. The record indicates that a large majority of appellants' lands were close to the Northern Pacific lines and thus vendees or lessees of these lands might be expected to utilize Northern Pacific as a matter of course. Further, substantially all the tying clauses, as found by the District Court, contained provisos leaving the vendee or lessee free to ship by other railroads when offered either lower rates or lower rates or superior service. In these circumstances it would appear that the inclusion of the tying clauses in contracts or leases might have been largely a matter of indifference to at least many of the purchasers or lessees of appellants' land, and hence that more is needed than the tying clauses themselves to warrant the inference that acceptance of the tying clauses resulted from coercion exercised by appellants through their position in the land market.
29
Particularly in view of the Court's affirmance of a judgment based on so inadequate a record, I have further difficulty with the opinion in its treatment of International Salt, the decision on which the Court principally relies. The Court regards that case as making irrelevant proof of market dominance in the tying interest, but it seems to me that Times-Picayune has laid to rest all doubt as to the need for clear proof on this issue. In fact that case considered that in International Salt the required element of proof was supplied by the patents themselves which 'conferred monopolistic, albeit lawful, market control' over the tying product, 345 U.S. at page 608, 73 S.Ct. at page 880, as indeed the Court in International Salt itself suggested by prefacing its holding with the statement that '(defendant's) patents confer a limited monopoly of the invention they reward.' 332 U.S. at page 395, 68 S.Ct. at page 15. Still the Court today states that the tying clauses were there struck down despite the fact that the tying product was patented. In short, insofar as the Sherman Act is concerned, it appears that International Salt simply treated a patent as the equivalent of proof of market control—a view further supported by what was said about International Salt in Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, at pages 304, 307, 69 S.Ct. 1051, at pages 1057, 1058, 93 L.Ed. 1371.
30
The reliance on International Salt with the new scope the Court now gives it is puzzling in light of the Court's express recognition that a finding of sufficient economic power over land to restrict competition in freight servives is an essential element here. The Court heightens this paradox by its effort to satisfy this requirement with the assertion that 'undisputed facts' conclusively established the existence of this power. But in so concluding, it could hardly rely on the market-dominance findings below which, as I have tried to show, rested upon the District Court's evidence misconception of Times-Picayune.
31
I do not understand the Court to excuse findings as to control by adopting the Government's argument that this case should be brought within International Salt by analogy of the ownership of land to that of a patent, so that the particular tract of land involved in each purchase or lease itself constitutes the relevant market. The record in any event is without support for such a theory. No findings were made below as to the uniqueness of any of appellants' lands either because of their location4 or because of their peculiar qualities enabling production of superior mineral, timber, or agricultural products. Without such an inquiry, I do not see how appellants' supposed dominance of the land market can be based on the theory that their lands were 'unique.'
32
Finally, the Court leaves in unsettling doubt the future effect of its statement that the use of the word 'dominance' in Times-Picayune implies no more of a showing of market dominance than 'sufficient economic power to impose an appreciable restraint on free competition in the tied product.' As an abstraction one can hardly quarrel with this piece of surgery, for I do not claim that a monopoly in the sense of § 2 of the Sherman Act, 15 U.S.C.A. § 2, must be shown over a tying product. As already indicated, I should think that a shoring of 'sufficient economic power' in cases of this kind could be based upon a variety of factors, such as significant percentage control of the relevant market, desirability of the product to the purchaser, use of tying clauses which would be likely to result in economic detriment to vendees or lessees, and such uniqueness of the tying product as to suggest comparison with a monopoly by patent. But I venture to predict that the language of the Court, taken in conjunction with its approval of the summary disposition of this case, will leave courts and lawyers in confusion as to what the proper standards now are for judging tying clauses under the Sherman Act.
33
The Court's action in affirming the judgment below sanctions what I deem to be a serious abuse of the summary judgment procedures. Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. A record barren of facts adequate to support either a finding of economic power over a relevant land market or a finding that the land involved is so unique as to constitute in itself the relevant market is remedied by this Court's reliance upon 'common sense' and judicial notice of appellants' commanding position. But these are poor substitutes for the proof to which the Government should be put. I would remand to the District Court for a trial and findings on the issue of 'dominance.'
1
13 Stat. 365, 16 Stat. 378. The details of these statutory grants are extensively set forth and discussed in United States v. Northern Pacific R. Co., 256 U.S. 51, 41 S.Ct. 439, 65 L.Ed. 825, and United States v. Northern Pacific R. Co., 311 U.S. 317, 61 S.Ct. 264, 85 L.Ed. 210.
2
The volume and nature of these restrictive provisions are set forth in more detail hereafter. See note 6, infra.
3
26 Stat. 209, as amended, 15 U.S.C. §§ 1, 4, 15 U.S.C.A. §§ 1, 4. Actually there are two defendants here, the Northern Pacific Railway Company and its wholly owned subsidiary Northwestern Improvement Company which sells, leases and manages the Railroad's lands. , for convenience and since Northwestern is completely controlled by the Railroad we shall speak of the two of them as a single 'defendant' or as the 'Railroad.'
4
Of course where the buyer is free to take either product by itself there is no tying problem even though the seller may also offer the two items as a unit at a single price.
5
As this Court has previously pointed out such nonanticompetitive purposes as these arrangements have been asserted to possess can be adequately accomplished by other means much less inimical to competition. See, e.g., International Business Machines Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.
6
The district judge found (and his findings are not challenged here) that as of 1949 there were (1) over 1,000 grazing leases covering more than 1,000,000 acres of land, (2) at least 72 contracts for the sale of timberland covering 1,244,137 acres, (3) at least 31 timber sale contracts covering 100,585 acres, (4) at least 19 oil and gas leases covering 135,000 acres, (5) at least 16 iron ore leases covering 5,261 acres, (6) 12 coal leases (acreage not specified), and (7) at least 17 other mineral leases covering 6,810 acres which contained 'preferential routing' clauses.
The grazing leases, timber sales contracts, timberland sales contracts and in some instances the mineral land leases obligated the vendee or lessee to ship its products by way of the defendant's lines unless rates of competitors were lower; the oil and gas leases, coal leases and the remainder of the mineral land leases, unless the rates were lower or the service better; the iron ore leases, unless the defendant's rates, service and facilities were equal to those of any competing line.
7
49 U.S.C. §§ 2, 6(7), 41(3), 49 U.S.C.A. §§ 2, 6(7), 41(3).
8
Of course it is common knowledge that a patent does not always confer a monopoly over a particular commodity. Often the patent is limited to a unique form or improvement of the product and the economic power resulting from the patent privileges is slight. As a matter of fact the defendant in International Salt offered to prove that competitive salt machines were readily available which were satisfactory substitutes for its machines (a fact the Government did not controvert), but the Court regarded such proof as irrelevant.
9
See note 6, supra.
1
The tying arrangements proscribed by § 3 of the Clayton Act relate only to 'goods, wares, merchandise, machinery, supplies or other commodities * * *.' 38 Stat. 731, 15 U.S.C. § 14, 15 U.S.C.A. § 14.
2
The Court there stated that the presence of either factor is sufficient for invalidation of a tying clause under the Clayton Act. 345 U.S. at pages 608—609, 73 S.Ct. at page 880.
3
The findings entered by the District Court make no reference to appellants' percentage ownership of a proper market for land, and indeed the record contains in only one instance statistics bearing on this problem. In the period between 1935 and 1942, it appears that appellants' holdings of merchantable timber in Montana, Idaho, and Washington constituted approximately 5% of the total merchantable timber in those States.
4
Affidavits before the District Court did indicate that certain landholdings of appellants, particularly grazing lands, were in a checkerboard pattern among private holdings, thereby giving appellants a strategic position with respect to these lands since the private landholders often found it necessary to acquire appellants' lands to fill gaps in existing ranges. The amount of such land does not appear, and I do not think that these affidavits justify short-circuiting an inquiry into the broad issue of market dominance.
| 78
|
356 U.S. 41
78 S.Ct. 671
2 L.Ed.2d 571
Fred FERGUSON, petitioner,v.ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.
No. 799.
Supreme Court of the United States
March 17, 1958
Jo B. Gardner, for petitioner.
James L. Homire and Frank C. Mann, for respondent.
On petition for writ of certiorari to the Supreme Court of Missouri.
PER CURIAM.
1
The petition for writ of certiorari is granted. We hold that the proofs were sufficient to submit to the jury the question whether employer negligence played a part in producing the petitioner's injury. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503; Shaw v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Deen v. Gulf, C. & S. F. R. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Thomson v. Texas & Pacific R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722; Arnold v. Panhandle & S. F. R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889; Ringhiser v. Chesapeake & O. R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1; Honeycutt v. Wabash R. Co., 355 U.S. 424, 78 S.Ct. 393. The judgment of the Supreme Court of Missouri is reversed and the case is remanded for further proceedings in conformity with this opinion.
2
Mr. Justice HARLAN concurs in the result for the reasons given in his Memorandum in Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2. For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443.
3
Mr. Justice FRANKFURTER is of the view that the writ of certiorari is improvidently granted.
4
Mr. Justice WHITTAKER dissents.
| 78
|
356 U.S. 38
78 S.Ct. 511
2 L.Ed.2d 568
HOOVER MOTOR EXPRESS CO., INC., Petitioner,v.UNITED STATES of America.
No. 95.
Argued Jan. 29 and 30, 1958.
Decided March 17, 1958.
Rehearing Denied April 14, 1958.
See 356 U.S. 934, 78 S.Ct. 770.
Mr. Judson Harwood, Nashville, Tenn., for petitioner.
Sol. Gen. J. Lee Rankin, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The sole issue here—the deductibility for tax purposes1 of fines paid by a trucker for inadvertent violations of state maximum weight laws—is identical to one of the issues decided today in Tank Truck Rentals, Inc., v. Commissioner, 356 U.S. 30, 78 S.Ct. 507.
2
Most of the overweight fines paid by petitioner during 1951 1953 inclusive, the tax years in question, were incurred in Tennessee and Kentucky, two of the nine States in which petitioner operated. During the relevant period, both Tennessee and Kentucky imposed maximum weight limitations of 42,000 pounds overall and 18,000 pounds per axle,2 considerably less than those in the other seven States. Petitioner's fines resulted largely from violations of the axle-weight limits rather than violations of the overall truck weight limits. The District Court found that such violations usually occurred because of a shifting of the freight load during transit.
3
After paying the taxes imposed, petitioner sued in the District Court for a refund, claiming that no frustration of state policy would result from allowance of the deductions because (1) the violations had not been willful, and (2) all reasonable precautions had been taken to avoid the violations. The District Court held that even if petitioner had acted innocently and had taken all reasonable precautions, allowance of the deductions would frustrate clearly defined state policy. Judgment was entered for the Commissioner, 135 F.Supp. 818, and the Court of Appeals affirmed on the same reasoning. 241 F.2d 459. We granted certiorari, 1957, 354 U.S. 920, 77 S.Ct. 1376, 1 L.Ed.2d 1435, in conjunction with the grant in Tank Truck Rentals, Inc., v. Commissioner, 356 U.S. 30, 78 S.Ct. 507, and Commissioner of Internal Revenue v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, both decided today.
4
Wholly apart from possible frustration of state policy, it does not appear that payment of the fines in question was 'necessary' to the operation of petitioner's business. This, of course, prevents any deduction. Deputy v. du Pont, 1940, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416. The violations usually resulted from a shifting of the load during transit, but there is nothing in the record to indicate that the shifting could not have been controlled merely by tying down the load or compartmentalizing the trucks. Other violations occurred because petitioner relied on the weight stated in the bill of lading when picking up goods in small communities having no weighing facilities. It would seem that this situation could have been alleviated by carrying a scale in the truck.
5
Even assuming that petitioner acted with all due care and without willful intent, it is clear that allowance of the deduction sought by petitioner would severely and directly frustrate state policy. Tank Truck Rentals, Inc., v. Commissioner, supra. As in Tank Truck, the statutes involved here do not differentiate between innocent and willful violators.
6
Affirmed.
1
'§ 23. Deductions from gross income.
'In computing net income there shall be allowed as deductions:
'(a) Expenses.
'(1) Trade or business expenses.
'(A) In general. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.' 53 Stat. 12, as amended, 56 Stat. 819, 26 U.S.C.A. § 23(a)(1)(A).
2
Ky.Rev.Stat., 1953, § 189.222; Williams' Tenn.Code, 1934 (1952 Cum.Supp. to 1943 Repl.Vol.), § 1166.33.
| 1112
|
356 U.S. 27
78 S.Ct. 512
2 L.Ed.2d 559
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Neil SULLIVAN and Grace Sullivan; James Ross and Ann Ross; Sam Mesi.
No. 119.
Argued Jan. 30, 1958.
Decided March 17, 1958.
Sol. Gen. J. Lee Rankin, Washington, D.C., for petitioner.
Mr. Eugene Bernstein, Chicago, Ill., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question is whether amounts expended to lease premises and hire employees for the conduct of alleged illegal gambling enterprises are deductible as ordinary and necessary business expenses within the meaning of § 23(a)(1)(A) of the Internal Revenue Code of 1939.1
2
The taxpayers received income from bookmaking establishments in Chicago, Ill. The Tax Court found that these enterprises were illegal under Illinois law,2 that the acts performed by the employees constituted violations of that law, and that the payment of rent for the use of the premises for the purpose of bookmaking was also illegal under that law. The Tax Court accordingly held that the amount paid for wages and for rent could not be deducted from gross income since those deductions were for expenditures made in connection with illegal acts. 15 CCH TC Mem. Dec. 23, 25 T.C. 513. The Court of Appeals reversed, 241 F.2d 46, 242 F.2d 558, on the basis of its prior decision in Commissioner of Internal Revenue v. Doyle, 7 Cir., 231 F.2d 635. The case is here on a petition for certiorari, 354 U.S. 920, 77 S.Ct. 1381, 1 L.Ed.2d 1435, for consideration in connection with the companion cases Hoover Motor Express Co. v. United States, 356 U.S. 38, 78 S.Ct. 511, and Tank Truck Rentals, Inc., v. Commissioner, 356 U.S. 30, 78 S.Ct. 507.
3
Deductions are a matter of grace and Congress can, of course, disallow them as it chooses. At times the policy to disallow expenses in connection with certain condemned activities is clear. It was made so by the Regulations in Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249. Any inference of disapproval of these expenses as deductions is absent here. The Regulations, indeed, point the other way, for they make the federal excise tax on wagers deductible as an ordinary and necessary business expense.3 This seems to us to be recognition of a gambling enterprise as a business for federal tax purposes. The policy that allows as a deduction the tax paid to conduct the business seems sufficiently hospitable to allow the normal deductions of the rent and wages necessary to operate it. We said in Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 474, 64 S.Ct. 249, 254, 88 L.Ed. 171, that the 'fact that an expenditure bears a remote relation to an illegal act' does not make it nondeductible. And see Lilly v. Commissioner, 343 U.S. 90, 72 S.Ct. 497, 96 L.Ed. 769. If we enforce as federal policy the rule espoused by the Commissioner in this case, we would come close to making this type of business taxable on the basis of its gross receipts, while all other business would be taxable on the basis of net income. If that choice is to be made, Congress should do it. The amounts paid as wages to employees and to the landlord as rent are 'ordinary and necessary expenses' in the accepted meaning of the words. That is enough to permit the deduction, unless it is clear that the allowance is a device to avoid the consequence of violations of a law, as in Hoover Motor Express Co. v. United States, supra, and Tank Truck Rentals, Inc. v. Commissioner, supra, or otherwise contravenes the federal policy expressed in a statute or regulation, as in Textile Mills Securities Corp. v. Commissioner, supra.
4
Affirmed.
1
Section 23(a)(1)(A) provides:
'In computing net income there shall be allowed as deductions:
'All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.' 53 Stat. 12, as amended 56 Stat. 819, 26 U.S.C. § 23(a)(1)(A), 26 U.S.C.A. § 23(a)(1)(A).
2
Ill.Rev.Stat.1945, c. 38, § 336.
3
Treas.Reg. 118, § 39.23(a)—1: Rev.Rul. 54—219, 1954—1 Cum.Bull. 51:
'The Federal excise tax on wagers under section 3285(d) of the Internal Revenue Code and the special tax under section 3290 of the Code paid by persons engaged in receiving wagers are deductible, for Federal income tax purposes, as ordinary and necessary business expenses under section 23(a) of the Internal Revenue Code, provided the taxpayer is engaged in the business of accepting wagers or conducting wagering pools or lotteries, or is engaged in receiving wagers for or on behalf of any person liable for the tax under section 3285(d) of the Code.'
| 1112
|
356 U.S. 30
78 S.Ct. 507
2 L.Ed.2d 562
TANK TRUCK RENTALS, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE.
No. 109.
Argued Jan. 29 and 30, 1958.
Decided March 17, 1958.
Mr. Leonard Sarner, Philadelphia, Pa., for petitioner.
Solicitor Gen. J. Lee Rankin, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
In 1951 petitioner Tank Truck Rentals paid several hundred fines imposed on it and its drivers for violations of state maximum weight laws. This case involves the deductibility of those payments as 'ordinary and necessary' business expenses under § 23(a)(1)(A) of the Internal Revenue Code of 1939.1 Prior to 1950 the Commissioner had permitted such deductions,2 but a change of policy that year3 caused petitioner's expenditures to be disallowed. The Tax Court, reasoning that allowance of the deduction would frustrate sharply defined state policy expressed in the maximum weight laws, upheld the Commissioner. 26 T.C. 427. The Court of Appeals affirmed on the same ground, 242 F.2d 14, and we granted certiorari. 1957, 354 U.S. 920, 77 S.Ct. 1378, 1 L.Ed.2d 1435. In our view, the deductions properly were disallowed.
2
Petitioner, a Pennsylvania corporation, owns a fleet of tank trucks which it leases, with drivers, to motor carriers for transportation of bulk liquids. The lessees operate the trucks throughout Pennsylvania and the surrounding States of New Jersey, Ohio, Delaware, West Virginia, and Maryland, with nearly all the shipments orginating or terminating in Pennsylvania. In 1951, the tax year in question, each of these States imposed maximum weight limits for motor vehicles operating on its highways.4 Pennsylvania restricted truckers to 45,000 pounds, however, while the other States through which petitioner operated allowed maximum weights approximating 60,000 pounds. It is uncontested that trucking operations were so hindered by this situation that neither petitioner nor other bulk liquid truckers could operate profitably and also observe the Pennsylvania law. Petitioner's equipment consisted largely of 4,500 to 5,000-gallon tanks, and the industry rate structure generally was predicated on fully loaded use of equipment of that capacity. Yet only one of the commonly carried liquids weighed little enough that a fully loaded truck could satisfy the Pennsylvania statute. Operation of partially loaded trucks, however, not only would have created safety hazards, but also would have been economically impossible for any carrier so long as the rest of the industry continued capacity loading. And the industry as a whole could not operate on a partial load basis without driving shippers to competing forms of transportation. The only other alternative, use of smaller tanks, also was commercially impracticable, not only because of initial replacement costs but even more so because of reduced revenue and increased operating expense, since the rates charged were based on the number of gallons transported per mile.
3
Confronted by this dilemma, the industry deliberately operated its trucks overweight in Pennsylvania in the hope, and at the calculated risk, of escaping the notice of the state and local police. This conduct also constituted willful violations in New Jersey, for reciprocity provisions of the New Jersey statute subjected trucks registered in Pennsylvania to Pennsylvania weight restrictions while traveling in New Jersey.5 In the remainder of the States in which petitioner operated, it suffered overweight fines for several unintentional violations, such as those caused by temperature changes in transit. During the tax year 1951, petitioner paid a total of $41,060.84 in fines and costs for 718 willful and 28 innocent violations. Deduction of that amount in petitioner's 1951 tax return was disallowed by the Commissioner.
4
It is clear that the Congress intended the income tax laws 'to tax earnings and profits less expenses and losses,' Higgins v. Smith, 1940, 308 U.S. 473, 477, 60 S.Ct. 355, 357, 84 L.Ed. 406, carrying out a broad basic policy of taxing 'net, not * * * gross, income * * *.' McDonald v. Commissioner, 1944, 323 U.S. 57, 66—67, 65 S.Ct. 96, 100, 89 L.Ed. 68. Equally well established is the rule that deductibility under § 23(a)(1)(A) is limited to expenses that are both ordinary and necessary to carrying on the taxpayer's business. Deputy v. du Pont, 1940, 308 U.S. 488, 497, 60 S.Ct. 363, 84 L.Ed. 416. A finding of 'necessity' cannot be made, however, if allowance of the deduction would frustrate sharply defined national or state policies proscribing particular types of conduct, evidenced by some governmental declaration thereof. Commissioner of Internal Revenue v. Heininger, 1943, 320 U.S. 467, 473, 64 S.Ct. 249, 253, 88 L.Ed. 171; see Lilly v. Commissioner, 1952, 343 U.S. 90, 97, 72 S.Ct. 497, 501, 96 L.Ed. 769. This rule was foreshadowed in Textile Mills Securities Corp. v. Commissioner, 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249, where the Court, finding no congressional intent to the contrary, upheld the validity of an income tax regulation reflecting an administrative distinction 'between legitimate business expenses and those arising from that family of contracts to which the law has given no sanction.' 314 U.S. at page 339, 62 S.Ct. at page 280. Significant reference was made in Heininger to the very situation now before us; the Court stated, 'Where a taxpayer has violated a federal or a state statute and incurred a fine or penalty he has not been permitted a tax deduction for its payment.' 320 U.S. at page 473, 64 S.Ct. at page 253.
5
Here we are concerned with the policy of several States 'evidenced' by penal statutes enacted to protect their highways from damage and to insure the safety of all persons using them.6 Petitioner and its drivers have violated these laws and have been sentenced to pay the fines here claimed as income tax deductions.7 It is clear that assessment of the fines was punitive action and not a mere toll for use of the highways: the fines occurred only in the exceptional instance when the overweight run was detected by the police. Petitioner's failure to comply with the state laws obviously was based on a balancing of the cost of compliance against the chance of detection. Such a course cannot be sanctioned, for judicial deference to state action requires, whenever possible, that a State not be thwarted in its policy. We will not presume that the Congress, in allowing deductions for income tax purposes, intended to encourage a business enterprise to violate the declared policy of a State. To allow the deduction sought here would but encourage continued violations of state law by increasing the odds in favor of noncompliance. This could only tend to destroy the effectiveness of the State's maximum weight laws.
6
This is not to say that the rule as to frustration of sharply defined national or state policies is to be viewed or applied in any absolute sense. 'It has never been thought * * * that the mere fact that an expenditure bears a remote relation to an illegal act makes it non-deductible.' Commissioner of Internal Revenue v. Heininger, supra, 320 U.S. at page 474, 64 S.Ct. at page 253. Although each case must turn on its own facts, Jerry Rossman Corp. v. Commissioner, 2 Cir., 175 F.2d 711, 713, the test of nondeductibility always is the severity and immediacy of the frustration resulting from allowance of the deduction. The flexibility of such a standard is necessary if we are to accommodate both the congressional intent to tax only net income, and the presumption against congressional intent to encourage violation of declared public policy.
7
Certainly the frustration of state policy is most complete and direct when the expenditure for which deduction is sought is itself prohibited by statute. See Boyle, Flagg & Seaman, Inc., v. Commissioner, 25 T.C. 43. If the expenditure is not itself an illegal act, but rather the payment of a penalty imposed by the State because of such an act, as in the present case, the frustration attendant upon deduction would be only slightly less remote, and would clearly fall within the line of disallowance. Deduction of fines and penalties uniformly has been held to frustrate state policy in severe and direct fashion by reducing the 'sting' of the penalty prescribed by the state legislature.8
8
There is no merit to petitioner's argument that the fines imposed here were not penalties at all, but merely a revenue toll. It is true that the Pennsylvania statute provides for purchase of a single-trip permit by an overweighted trucker; that is provision for forcing removal of the excess weight at the discretion of the police authorities apparently was never enforced; and that the fines were devoted by statute to road repair within the municipality or township where the trucker was apprehended. Moreover, the Pennsylvania statute was amended in 1955,9 raising the maximum weight restriction to 60,000 pounds, making mandatory the removal of the excess, and graduating the amount of the fine by the number of pounds that the truck was overweight. These considerations, however, do not change the fact that the truckers were fined by the State as a penal measure when and if they were apprehended by the police.
9
Finally, petitioner contends that deduction of the fines at least for the innocent violations will not frustrate state policy. But since the maximum weight statutes make no distinction between innocent and willful violators, state policy is as much thwarted in the one instance as in the other. Petitioner's reliance on Jerry Rossman Corp. v. Commissioner, supra, is misplaced. Deductions were allowed the taxpayer in that case for amounts inadvertently collected by him as OPA overcharges and then paid over to the Government, but the allowance was based on the fact that the Administrator, in applying the Act, had differentiated between willful and innocent violators. No such differentiation exists here, either in the application or the literal language of the state maximum weight laws.
10
Affirmed.
1
'§ 23. Deductions from gross income.
'In computing net income there shall be allowed as deductions:
'(a) Expenses.
'(1) Trade or business expenses.
'(A) In general. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.' 53 Stat. 12, as amended, 56 Stat. 819, 26 U.S.C.A. § 23(a)(1)(A).
2
(IT:P:2—WTL), 5 CCH 1950 Fed.Tax Rep. 6134.
3
1951—1 Cum.Bull. 15.
4
Delaware, Del.Laws 1947, c. 86, § 2, 21 Del.C. § 4503; Maryland, Flack's Md.Ann.Code 1939 (1947 Cum.Supp.), Art. 66 1/2, § 254, and Flack's Md.Ann.Code 1951, Art. 66 1/2, § 278; New Jersey, N.J.Rev.Stat.1937, 39:3—84, N.J.S.A.; Ohio, Page's Ohio Gen.Code Ann.1938 (Cum.Pocket Supp.1952), § 7248—1; Pennsylvania, Purdon's Pa.Stat.Ann.1953, Tit. 75, § 453; West Virginia, W.Va.Code Ann.1949, § 1546, and 1953 Cum.Supp. § 1721 (463) (17C 17—9).
5
N.J.Rev.Stat.1937 (Cum.Supp.1948—1950), 39:3—84.3, N.J.S.A.
6
Because state policy in this case was evidence by specific legislation, it is unnecessary to decide whether the requisite 'governmental declaration' might exist other than in an Act of the Legislature. See Schwartz, Business Expenses Contrary To Public Policy, 8 Tax.L.Rev. 241, 248.
7
Unlike the rest of the States, Pennsylvania imposed the fines on the driver rather than on the owner of the trucks. In each instance, however, the driver was petitioner's employee, and petitioner paid the fines as a matter of course, being bound to do so by its collective bargaining agreement with the union representing the drivers.
8
See, e.g., United States v. Jaffray, 8 Cir., 97 F.2d 488, affirmed on other grounds, sub nom. United States v. Bertelsen & Petersen Engineering Co., 1939, 306 U.S. 276, 59 S.Ct. 541, 83 L.Ed. 647; Tunnel R. Co. of St. Louis v. Commissioner, 8 Cir., 61 F.2d 166; Chicago, R.I. & P.R. Co. v. Commissioner, 7 Cir., 47 F.2d 990; Burroughs Building Material Co. v. Commissioner, 2 Cir., 4 F.2d 178; Great Northern R. Co. v. Commissioner, 8 Cir., 40 F.2d 372; Davenshire, Inc., v. Commissioner, 12 T.C. 958.
9
Purdon's Pa.Stat.Ann.1953 (1957 Cum.Ann.Pocket Part), Tit. 75, § 453.
| 1112
|
356 U.S. 86
78 S.Ct. 590
2 L.Ed.2d 630
Albert L. TROP, Petitioner,v.John Foster DULLES, as Secretary of State of the United States and United States Department of State.
No. 70.
Reargued Oct. 28, 29, 1957.
Decided March 31, 1958.
Mr. Osmond K. Fraenkel, New York City, for the petitioner.
Sol. Gen. J. Lee Rankin, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN announced the judgment of the Court and delivered an opinion, in which Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice WHITTAKER join.
1
The petitioner in this case, a nativeborn American, is declared to have lost his United States citizenship and become stateless by reason of his conviction by court-martial for wartime desertion. As in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, the issue before us is whether this forfeiture of citizenship comports with the Constitution.
2
The facts are not in dispute. In 1944 petitioner was a private in the United States Army, serving in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been confined following a previous breach of discipline. The next day petitioner and a companion were walking along a road towards Rabat, in the general direction back to Casablanca, when an Army truck approached and stopped. A witness testified that petitioner boarded the truck willingly and that no words were spoken. In Rabat petitioner was turned over to military police. Thus ended petitioner's 'desertion.' He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base. He testified that at the time he and his companion were picked up by the Army truck, 'we had decided to return to the stockade. The going was tough. We had no money to speak of, and at the time we were on foot and we were getting cold and hungry.' A general courtmartial convicted petitioner of desertion and sentenced him to three years at hard labor, forfeiture of all pay and allowances and a dishonorable discharge.
3
In 1952 petitioner applied for a passport. His application was denied on the ground that under the provisions of Section 401(g) of the Nationality Act of 1940, as amended,1 he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In 1955 petitioner commenced this action in the District Court, seeking a declaratory judgment that he is a citizen. The Government's motion for summary judgment was granted, and the Court of Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting. 239 F.2d 527. We granted certiorari. 352 U.S. 1023, 77 S.Ct. 591, 1 L.Ed.2d 596.
4
Section 401(g), the statute that decrees the forfeiture of this petitioner's citizenship, is based directly on a Civil War statute, which provided that a deserter would lose his 'rights of citizenship.'2 The meaning of this phrase was not clear.3 When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself.4 In 1944 the statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service or dishonorably discharged.5 At the same time it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities.
5
Though these amendments were added to ameliorate the harshness of the statute,6 their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. Section 401(g) as amended now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless. By deciding whether to issue and execute a dishonorable discharge and whether to allow a deserter to re-enter the armed forces, the military becomes the arbiter of citizenship. And the domain given to it by Congress is not as narrow as might be supposed. Though the crime of desertion is one of the most serious in military law, it is by no means a rare event for a soldier to be convicted of this crime. The elements of desertion are simply absence from duty plus the intention not to return.7 Into this category falls a great range of conduct, which may be prompted by a variety of motives—fear, laziness, hysteria or any emotional imbalance. The offense may occur not only in combat but also in training camps for draftees in this country.8 The Solicitor General informed the Court that during World War II, according to Army estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given dishonorable discharges by the sentencing courts-martial and that about 7,000 of these were actually separated from the service and thus rendered stateless when the reviewing authorities refused to remit their dishonorable discharges. Over this group of men, enlarged by whatever the corresponding figures may be for the Navy and Marines, the military has been given the power to grant or withhold citizenship. And the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture of citizenship.
6
Three times in the past three years we have been confronted with cases presenting important questions bearing on the proper relationship between civilian and military authority in this country.9 A statute such as Section 401(g) raises serious issues in this area, but in our view of this case it is unnecessary to deal with those problems. We conclude that the judgment in this case must be reversed for the following reasons.
I.
7
In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional status of United States citizenship. It is my conviction that citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers. The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship.
8
Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section 401(g) is not limited to cases of desertion to the enemy, and there is no such element in this case. This soldier committed a crime for which he should be and was punished, but he did not involve himself in any way with a foreign state. There was no dilution of his allegiance to this country. The fact that the desertion occurred on foreign soil is of no consequence. The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.
9
Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and well-being of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war the citizen's duties include not only the military defense of the Nation but also a full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the Nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure. On this ground alone the judgment in this case should be reversed.
II.
10
Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case, it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship—so the majority concluded—to eliminate those international problems that were thought to arise by reason of a citizen's having voted in a foreign election. The statute in this case, however, is entirely different. Section 401(g) decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like Section 401(j) of the Nationality Act, decreeing loss of citizenship for evading the draft by remaining outside the United States.10 This provision was also before the Court in Perez, but the majority declined to consider its validity. While Section 401(j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed, Section 401(g), the provision in this case, accords the accused deserter at least the safeguards of an adjudication of guilt by a court-martial.
11
The constitutional question posed by Section 401(g) would appear to be whether or not denationalization may be inflicted as a punishment, even assuming that citizenship may be divested pursuant to some governmental power. But the Government contends that this statute does not impose a penalty and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so because a committee of Cabinet members, in recommending this legislation to the Congress, said it 'technically is not a penal law.'11 How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly the issue of whether Section 401(g) is a penal law cannot be thus determined. Of course it is relevant to know the classification employed by the Cabinet Committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that Section 401(g) was based on the provisions of the 1865 Civil War statute, which the committee itself termed 'distinctly penal in character.'12 Furthermore, the 1865 statute states in terms that deprivation of the rights of citizenship is 'in addition to the other lawful penalties of the crime of desertion * * *.'13 And certainly it is relevant to know that the reason given by the Senate Committee on Immigration as to why loss of nationality under Section 401(g) can follow desertion only after conviction by court-martial was 'because the penalty is so drastic.'14 Doubtless even a clear legislative classification of a statute as 'non-penal' would not alter the fundamental nature of a plainly penal statute.15 With regard to Section 401(g) the fact is that the views of the Cabinet Committee and of the Congress itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our inquiry. Determination of whether this statute is a penal law requires careful consideration.
12
In form Section 401(g) appears to be a regulation of nationality. The statute deals initially with the status of nationality and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that 'a person shall lose his liberty by committing bank robbery,' though in form a regulation of liberty, would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance.
13
This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws,16 it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties.17 In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.18 If the statute imposes a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal.19 But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.20 The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote.21 If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.22
14
The same reasoning applies to Section 401(g). The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems, as was argued in Perez. Here the purpose is punishment, and therefore the statute is a penal law.
15
It is urged that this statute is not a penal law but a regulatory provision authorized by the war power. It cannot be denied that Congress has power to prescribe rules governing the proper performance of military obligations, of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court-martial. During World War II the threat of this punishment was explicitly communicated by the Army to soldiers in the field.23 If this statute taking away citizenship is a congressional exercise of the war power, then it cannot rationally be treated other than as a penal law, because it imposes the sanction of denationalization for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power.
16
The Government argues that the sanction of denationalization imposed by Section 401(g) is not a penalty because deportation has not been so considered by this Court. While deportation is undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country.24 For example, the statute25 authorizing deportation of an alien convicted under the 1917 Espionage Act26 was viewed, not as designed to punish him for the crime of espionage, but as an implementation of the sovereign power to exclude, from which the deporting power is derived, Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one contends that the Government has, in addition to the power to exclude all aliens, a sweeping power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens.27 In short, the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no basis for saying that in this case denationalization is not a punishment.
17
Section 401(g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment.28 Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.
18
At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.
19
The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court.29 But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688,30 and the principle it represents can be traced back to the Magna Carta.31 The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. The Court recognized in that case that the words of the Amendment are not precise,32 and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
20
We believe, as did Chief Judge Clark in the court below,33 that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation.34 In short, the expatriate has lost the right to have rights.
21
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies.35 It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.36
22
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance.37 Even statutes of this sort are generally applicable primarily to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.38 In this country the Eighth Amendment forbids that to be done.
23
In concluding as we do that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes but neither can they sanction as being merely unwise that which the Constitution forbids.
24
We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.
25
The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we do not, the words of the Constitution become little more than good advice.
26
When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case.
27
The judgment of the Court of Appeals for the Second Circuit is reversed and the cause is remanded to the District Court for appropriate proceedings.
28
Reversed and remanded.
29
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, concurring.
30
While I concur in the opinion of The Chief Justice there is one additional thing that needs to be said.
31
Even if citizenship could be involuntarily divested, I do not believe that the power to denationalize may be placed in the hands of military authorities. If desertion or other misconduct is to be a basis for forfeiting citizenship, guilt should be determined in a civilian court of justice where all the protections of the Bill of Rights guard the fairness of the outcome. Such forfeiture should not rest on the findings of a military tribunal. Military courts may try soldiers and punish them for military offenses, but they should not have the last word on the soldier's right to citizenship. The statute held invalid here not only makes the military's finding of desertion final but gives military authorities discretion to choose which soldiers convicted of desertion shall be allowed to keep their citizenship and which ones shall thereafter be stateless. Nothing in the Constitution or its history lends the slightest support for such military control over the right to be an American citizen.
32
Mr. Justice BRENNAN, concurring.
33
In Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, also decided today, I agreed with the Court that there was no constitutional infirmity in § 401(e), which expatriates the citizen who votes in a foreign political election. I reach a different conclusion in this case, however, because I believe that § 401(g), which expatriates the wartime deserter who is dishonorably discharged after conviction by court-martial, lies beyond Congress' power to enact. It is, concededly, paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war. The loss of citizenship may have as ominous significance for the individual in the one case as in the other. Why then does not the Constitution prevent the expatriation of the voter as well as the deserter?
34
Here, as in Perez v. Brownell, we must inquire whether there exists a relevant connection between the particular legislative enactment and the power granted to Congress by the Constitution. The Court there held that such a relevant connection exists between the power to maintain relations with other sovereign nations and the power the expatriate the American who votes in a foreign election. (1) Within the power granted to Congress to regulate the conduct of foreign affairs lies the power to deal with evils which might obstruct or embarrass our diplomatic interests. Among these evils, Congress might believe, is that of voting by American citizens in political elections of other nations.1 Whatever the realities of the situation, many foreign nations may well view political activity on the part of Americans, even if lawful, as either expressions of official American positions or else as improper meddling in affairs not their own. In either event the reaction is liable to be detrimental to the interests of the United States. (2) Finding that this was an evil which Congress was empowered to prevent, the Court concluded that expatriation was a means reasonably calculated to achieve this end. Expatriation, it should be noted, has the advantage of acting automatically, for the very act of casting the ballot is the act of denationalization, which could have the effect of cutting off American responsibility for the consequences. If a foreign government objects, our answer should be conclusive—the voter is no longer one of ours. Harsh as the consequences may be to the individual concerned, Congress has ordained the loss of citizenship simultaneously with the act of voting because Congress might reasonably believe that in these circumstances there is no acceptable alternative to expatriation as a means of avoiding possible embarrassments to our relations with foreign nations.2 And where Congress has determined that considerations of the highest national importance indicate a course of action for which an adequate substitute might rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose. Cf. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194.
35
In contrast to § 401(e), the section with which we are now concerned, § 401(g), draws upon the power of Congress to raise and maintain military forces to wage war. No pretense can here be made that expatriation of the deserter in any way relates to the conduct of foreign affairs, for this statute is not limited in its effects to those who desert in a foreign country or who flee to another land. Nor is this statute limited in its application to the deserter whose conduct imports 'elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship.' Perez v. Brownell, supra, 356 U.S. 61, 78 S.Ct. at page 577. The history of this provision, indeed, shows that the essential congressional purpose was a response to the needs of the military in maintaining discipline in the armed forces, especially during wartime. There can be no serious question that included in Congress' power to maintain armies is the power to deal with the problem of desertion, an act plainly destructive, not only of the military establishment as such, but, more importantly, of the Nation's ability to wage war effectively. But granting that Congress is authorized to deal with the evil of desertion, we must yet inquire whether expatriation is a means reasonably calculated to achieve this legitimate end and thereby designed to further the ultimate congressional objective—the successful waging of war.
36
Expatriation of the deserter originated in the Act of 1865, 13 Stat. 490, when wholesale desertion and draft-law violations seriously threatened the effectiveness of the Union armies.3 The 1865 Act expressly provided that expatriation was to be 'in addition to the other lawful penalties of the crime of desertion * * *.' This was emphasized in the leading case under the 1865 Act, Huber v. Reily, 53 Pa. 112, decided by the Pennsylvania Supreme Court little more than a year after passage of the Act. The court said that 'Its avowed purpose is to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties.' Id., at pages 114—115.
37
But, although it imposed expatriation entirely as an added punishment for crime, the 1865 Act did not expressly make conviction by court-martial a prerequisite to that punishment, as was the case with the conventional penalties. The Pennsylvania Supreme Court felt that Huber was right in contending that this was a serious constitutional objection: '(T)he act proposes to inflict pains and penalties upon offenders before and without a trial and conviction by due process of law, and * * * it is therefore prohibited by the Bill of Rights.' 53 Pa. at page 115. The court, however, construed the statute so as to avoid these constitutional difficulties, holding that loss of citizenship, like other penalties for desertion, followed only upon conviction by court-martial.
38
This view of the 1865 Act was approved by this Court in Kurtz v. Moffitt, 115 U.S. 487, 501, 6 S.Ct. 148, 153, 29 L.Ed. 458, and, as noted there, the same view 'has been uniformly held by the civil courts as well as by the military authorities.' See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. 148; Gotcheus v. Matheson, 58 Barb., N.Y., 152; 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001.4 Of particular significance, moreover, is the fact that the Congress has confirmed the correctness of the view that it purposed expatriation of the deserter solely as additional punishment. The present § 401(g) merely incorporates the 1865 provision in the codification which became the 1940 Nationality Act.5 But now there is expressly stated what was omitted from the 1865 Act, namely, that the deserter shall be expatriated 'if and when he is convicted thereof by court martial * * *.' 54 Stat. 1169, as amended, 8 U.S.C. § 1481(a)(8), 8 U.S.C.A. § 1481(a)(8).6
39
It is difficult, indeed, to see how expatriation of the deserter helps wage war except as it performs that function when imposed as punishment. It is obvious that expatriation cannot in any wise avoid the harm apprehended by Congress. After the act of desertion, only punishment can follow, for the harm has been done. The deserter, moreover, does not cease to be an American citizen at the moment he deserts. Indeed, even conviction does not necessarily effect his expatriation, for dishonorable discharge is the condition precedent to loss of citizenship. Therefore, if expatriation is made a consequence of desertion, it must stand together with death and imprisonment—as a form of punishment.
40
To characterize expatriation as punishment is, of course, but the beginning of critical inquiry. As punishment it may be extremely harsh, but the crime of desertion may be grave indeed. However, the harshness of the punishment may be an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power. In its material forms no one can today judge the precise consequences of expatriation, for happily American law has had little experience with this status, and it cannot be said hypothetically to what extent the severity of the status may be increased consistently with the demands of due process. But it can be supposed that the consequences of greatest weight, in terms of ultimate impact on the petitioner, are unknown and unknowable.7 Indeed, in truth, he may live out his life with but minor inconvenience. He may perhaps live, work, marry, raise a family, and generally experience a satisfactorily happy life. Nevertheless it cannot be denied that the impact of expatriation—especially where statelessness is the upshot—may be severe. Expatriation, in this respect, constitutes an especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment.
41
In view of the manifest severity of this sanction, I feel that we should look closely at its probable effect to determine whether Congress' imposition of expatriation as a penal device is justified in reason. Clearly the severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment.
42
The novelty of expatriation as punishment does not alone demonstrate its inefficiency. In recent years we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society's own best protection. Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution. What then is the relationship of the punishment of expatriation to these ends of the penal law? It is perfectly obvious that it constitutes the very antithesis of rehabilitation, for instead of guiding the offender back into the useful paths of society it excommunicates him and makes him, literally, an outcast. I can think of no more certain way in which to make a man in whom, perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a career of unlawful activity than to place on him the stigma of the derelict, uncertain of many of his basic rights. Similarly, it must be questioned whether expatriation can really achieve the other effects sought by society in punitive devices. Certainly it will not insulate society from the deserter, for unless coupled with banishment the sanction leaves the offender at large. And as a deterrent device this sanction would appear of little effect, for the offender, if not deterred by thought of the specific penalties of long imprisonment or even death, is not very likely to be swayed from his course by the prospect of expatriation.8 However insidious and demoralizing may be the actual experience of statelessness, its contemplation in advance seems unlikely to invoke serious misgiving, for none of us yet knows its ramifications.
43
In the light of these considerations, it is understandable that the Government has not passed its case on the basis of expatriation of the deserter as punishment for his crime. Rather, the Government argues that the necessary nexus to the granted power is to be found in the idea that legislative withdrawal of citizenship is justified in this case because Trop's desertion constituted a refusal to perform one of the highest duties of American citizenship—the bearing of arms in a time of desperate national peril. It cannot be denied that there is implicit in this a certain rough justice. He who refuses to act as an American should no longer be an American—what could be fairer? But I cannot see that this is anything other than forcing retribution from the offender—naked vengeance. But many acts of desertion certainly fall far short of a 'refusal to perform this ultimate duty of American citizenship.' Desertion is defined as 'absence without leave accompanied by the intention not return.' Army Manual for Courts-Martial (1928) 142. The offense may be quite technical, as where an officer, 'having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom * * *.' Article of War 28 (1920), 41 Stat. 792, now 10 U.S.C.A. § 885. Desertion is also committed where a soldier, without having received a regular discharge, re-enlists in the same or another service. The youngster, for example, restive at his assignment to a supply depot, who runs off to the front to be in the fight, subjects himself to the possibility of this sanction. Yet the statute imposes the penalty coextensive with the substantive crime. Since many acts of desertion thus certainly fall far short of a 'refusal to perform this ultimate duty of American citizenship,' it stretches the imagination excessively to establish a rational relation of mere retribution to the ends purported to be served by expatriation of the deserter. I simply cannot accept a judgment that Congress is free to adopt any measure at all to demonstrate its displeasure and exact its penalty from the offender against its laws.
44
It seems to me that nothing is solved by the uncritical reference to service in the armed forces as the 'ultimate duty of American citizenship.' Indeed, it is very difficult to imagine, on this theory of power, why Congress cannot impose expatriation as punishment for any crime at all—for tax evasion, for bank robbery, for narcotics offenses. As citizens we are also called upon to pay our taxes and to obey the laws, and these duties appear to me to be fully as related to the nature of our citizenship as our military obligations. But Congress' asserted power to expatriate the deserter bears to the war powers precisely the same relation as its power to expatriate the tax evader would bear to the taxing power.
45
I therefore must conclude that § 401(g) is beyond the power of Congress to enact. Admittedly Congress' belief that expatriation of the deserter might further the war effort may find some—though necessarily slender—support in reason. But here, any substantial achievement, by this device, of Congress' legitimate purposes under the war power seems fairly remote. It is at the same time abundantly clear that these ends could more fully be achieved by alternative methods not open to these objections. In the light of these factors, and conceding all that I possibly can in favor of the enactment, I can only conclude that the requisite rational relation between this statute and the war power does not appear—for in this relation the statute is not 'really calculated to effect any of the objects entrusted to the government * * *,' M'Culloch v. Maryland, 4 Wheat. 316, 423, 4 L.Ed. 579—and therefore that § 401(g) falls beyond the domain of Congress.
46
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON, Mr. Justice CLARK, and Mr. Justice HARLAN join, dissenting.
47
Petitioner was born in Ohio in 1924. While in the Army serving in French Morocco in 1944, he was tried by a general court-martial and found guilty of having twice escaped from confinement, of having been absent without leave, and of having deserted and remained in desertion for one day. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for three years. He subsequently returned to the United States. In 1952 he applied for a passport; this application was denied by the State Department on the ground that petitioner had lost his citizenship as a result of his conviction of and dishonorable discharge for desertion from the Army in time of war. The Department relied upon § 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168, as amended by the Act of January 20, 1944, 58 Stat. 4, which provided, in pertinent part,1 that
48
'A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by:
49
'(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom * * *.'
50
In 1955 petitioner brought suit in a United States District Court for a judgment declaring him to be a national of the United States. The Government's motion for summary judgment was granted and petitioner's denied. The Court of Appeals for the Second Circuit affirmed, one judge dissenting. 239 F.2d 527.
51
At the threshold the petitioner suggests constructions of the statute that would avoid consideration of constitutional issues. If such a construction is precluded, petitioner contends that Congress is without power to attach loss of citizenship as a consequence of conviction for desertion. He also argues that such an exercise of power would violate the Due Process Clause of the Fifth Amendment to the Constitution and the prohibition against cruel and unusual punishments in the Eighth Amendment.
52
The subsection of § 401 of the Nationality Act of 1940, as amended, making loss of nationality result from a conviction for desertion in wartime is a direct descendant of a provision enacted during the Civil War. One section of 'An Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out of the National Forces, and for other Purposes,' 13 Stat. 487, 490, approved on March 3, 1865, provided that 'in addition to the other lawful penalties of the crime of desertion from the military or naval service,' all persons who desert such service 'shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens * * *.' Except as limited in 1912 to desertion in time of war, 37 Stat. 356, the provision remained in effect until absorbed into the Nationality Act of 1940. 54 Stat. 1137, 1169, 1172. Shortly after its enactment the 1865 provision received an important interpretation in Huber v. Reily, 1866, 53 Pa. 112. There, the Supreme Court of Pennsylvania, in an opinion by Mr. Justice Strong, later of this Court, held that the disabilities of the 1865 Act could attach only after the individual had been convicted of desertion by a court-martial. The requirement was drawn from the Due Process Clause of the Fifth Amendment to the Constitution. 53 Pa. at pages 116—118. This interpretation was followed by other courts, e.g., State v. Symonds, 57 Me. 148, and was referred to approvingly by this Court in 1885 in Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458, without discussion of its rationale.
53
When the nationality laws of the United States were revised and codified as the Nationality Act of 1940, 54 Stat. 1137, there was added to the list of acts that result in loss of American nationality, 'Deserting the military or naval service of the United States in time of war, provided he (the deserter) is convicted thereof by a court martial.' § 401(g), 54 Stat. 1169. During the consideration of the Act, there was substantially no debate on this provision. It seems clear, however, from the report of the Cabinet Committee that had recommended its adoption that nothing more was intended in its enactment than to incorporate the 1865 provision into the 1940 codification, at the same time making it clear that nationality, and not the ambiguous 'rights of citizenship,'2 was to be lost and that the provision applied to all nationals. Codification of the Nationality Laws of the United States, H.R.Comm.Print, Pt. 1, 76th Cong., 1st Sess. 68.
54
In 1944, at the request of the War Department, Congress amended § 401(g) of the 1940 Act into the form in which it was when applied to the petitioner; this amendment required that a dismissal or dishonorable discharge result from the conviction for desertion before expatriation should follow and provided that restoration of a deserter to active duty during wartime should have the effect of restoring his citizenship. 58 Stat. 4. It is abundantly clear from the debate and reports that the sole purpose of this change was to permit persons convicted of desertion to regain their citizenship and continue serving in the armed forces, H.R.Rep. No. 302, 78th Cong., 1st Sess. 1; S.Rep. No. 382, 78th Cong., 1st Sess. 1; 89 Cong.Rec. 10135. Because it was thought unreasonable to require persons who were still in the service to fight and, perhaps, die for the country when they were no longer citizens, the requirement of dismissal or dishonorable discharge prior to denationalization was included in the amendment. See S.Rep. No. 382, supra, at 3; 89 Cong.Rec. 3241.
55
Petitioner advances two possible constructions of § 401(g) that would exclude him from its operation and avoid constitutional determinations. It is suggested that the provision applies only to desertion to the enemy and that the sentence of a dishonorable discharge, without the imposition of which a conviction for desertion does not have an expatriating effect, must have resulted from a conviction solely for desertion. There is no support for the first of these constructions in a fair reading of § 401(g) or in its congressional history. Rigorously as we are admonished to avoid consideration of constitutional issues if statutory disposition is available, it would do violence to what this statute compellingly conveys to draw from it a meaning other than what it spontaneously reveals.
56
Section 401(g) imposes expatriation on an individual for desertion 'provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces * * *.' Petitioner's argument is that the dishonorable discharge must be solely 'the result of such conviction' and that § 401(g) is therefore not applicable to him, convicted as he was of escape from confinement and absence without leave in addition to desertion. Since the invariable practice in military trials is and has been that related offenses are tried together with but a single sentence to cover all convictions, see Jackson v. Taylor, 353 U.S. 569, 574, 77 S.Ct. 1027, 1030, the effect of the suggested construction would be to force a break with the historic process of military law for which Congress has not in the remotest way given warrant. The obvious purpose of the 1944 amendment, requiring dishonorable discharge as a condition precedent to expatriation, was to correct the situation in which an individual who had been convicted of desertion, and who had thus lost his citizenship, was kept on duty to fight and sometimes die 'for his country which disowns him.' Letter from Secretary of War to Chairman, Senate Military Affairs Committee, S.Rep. No. 382, 78th Cong., 1st Sess. 3. There is not a hint in the congressional history that the requirement of discharge was intended to make expatriation depend on the seriousness of the desertion, as measured by the sentence imposed. If we are to give effect to the purpose of Congress in making a conviction for wartime desertion result in loss of citizenship, we must hold that the dishonorable discharge, in order for expatriation to follow, need only be 'the result of' conviction for one or more offenses among which one must be wartime desertion.
57
Since none of petitioner's nonconstitutional grounds for reversal can be sustained, his claim of unconstitutionality must be faced. What is always basic when the power of Congress to enact legislation is challenged is the appropriate approach to judicial review of congressional legislation. All power is, in Madison's phrase, 'of an encroaching nature.' Federalist, No. 48 (Earle ed. 1937), at 321. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. When the power of Congress to pass a statute is challenged, the function of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judgment on the action of a co-ordinate branch of the Government while keeping unto itself—as it must under our constitutional system—the final determination of its own power to act. No wonder such a function is deemed 'the gravest and most delicate duty that this Court is called on to perform.' Holmes, J., in Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (separate opinion). This is not a lip-serving platitude.
58
Rigorous observance of the difference between limits of power and wise exercise of power—between questions of authority and questions of prudence—requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.
59
One of the principal purposes in establishing the Constitution was to 'provide for the common defence.' To that end the States granted to Congress the several powers of Article I, Section 8, clauses 11 to 14 and 18, compendiously described as the 'war power.' Although these specific grants of power do not specifically enumerate every factor relevant to the power to conduct war, there is no limitation upon it (other than what the Due Process Clause commands). The scope of the war power has been defined by Chief Justice Hughes in Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 '(T)he war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effect to preserve the nation.' See also Chief Justice Stone's opinion in Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774.
60
Probably the most important governmental action contemplated by the war power is the building up and maintenance of an armed force for the common defense. Just as Congress may be convinced of the necessity for conscription for the effective conduct of war, Selective Draft Law Cases (Arver v. U.S.), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, Congress may justifiably be of the view that stern measures—what to some may seem overly stern—are needed in order that control may be had over evasions are committed to the Nation's defense, of military duty when the armed forces and that the deleterious effects of those evasions may be kept to the minimum. Clearly Congress may deal severely with the problem of desertion from the armed forces in wartime; it is equally clear from the face of the legislation and from the circumstances in which it was passed—that Congress was calling upon its war powers when it made such desertion an act of expatriation. Cf. Winthrop, Military Law and Precedents (2 ed., Reprint 1920), 647.
61
Possession by an American citizen of the rights and privileges that constitute citizenship imposes correlative obligations, of which the most indispensable may well be 'to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense,' Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643. Harsh as this may sound, it is no more so than the actualities to which it responds. Can it be said that there is no rational nexus between refusal to perform this ultimate duty of American citizenship and legislative withdrawal of that citizenship? Congress may well have thought that making loss of citizenship a consequence of wartime desertion would affect the ability of the military authorities to control the forces with which they were expected to fight and win a major world conflict. It is not for us to deny that Congress might reasonably have believed the morale and fighting efficiency of our troops would be impaired if our soldiers knew that their fellows who had abandoned them in their time of greatest need were to remain in the communion of our citizens.
62
Petitioner urges that imposing loss of citizenship as a 'punishment' for wartime desertion is a violation of both the Due Process Clause of the Fifth Amendment and the Eighth Amendment. His objections are that there is no notice of expatriation as a consequence of desertion in the provision defining that offense, that loss of citizenship as a 'punishment' is unconstitutionally disproportionate to the offense of desertion and that loss of citizenship constitutes 'cruel and unusual punishment.'
63
The provision of the Articles of War under which petitioner was convicted for desertion, Art. 58, Articles of War, 41 Stat. 787, 800, does not mention the fact that one convicted of that offense in wartime should suffer the loss of his citizenship. It may be that stating all of the consequences of conduct in the statutory provision making it an offense is a desideratum in the administration of criminal justice; that can scarcely be said—nor does petitioner contend that it ever has been said—to be a constitutional requirement. It is not for us to require Congress to list in one statutory section not only the ordinary penal consequences of engaging in activities therein prohibited but also the collateral disabilities that follow, by operation of law, from a conviction thereof duly resulting from a proceeding conducted in accordance with all of the relevant constitutional safeguards.3
64
Of course an individual should be apprised of the consequences of his actions. The Articles of War put petitioner on notice that desertion was an offense and that, when committed in wartime, it was punishable by death. Art. 58, supra. Expatriation automatically followed by command of the Nationality Act of 1940, a duly promulgated Act of Congress. The War Department appears to have made every effort to inform individual soldiers of the gravity of the consequences of desertion; its Circular No. 273 of 1942 pointed out that convictions for desertion were punishable by death and would result in 'forfeiture of the rights of citizenship,' and it instructed unit commanders to 'explain carefully to all personnel of their commands (certain Articles of War, including Art. 58) * * * and emphasize the serious consequences which may result from their violation.' Compilation of War Department General Orders, Bulletins, and Circulars (Government Printing Office 1943) 343. That Congress must define in the rubric of the substantive crime all the consequences of conduct it has made a grave offense and that it cannot provide for a collateral consequence, stern as it may be, by explicit pronouncement in another place on the statute books is claim that hardly rises to the dignity of a constitutional requirement.
65
Petitioner contends that loss of citizenship is an unconstitutionally disproportionate 'punishment' for desertion and that it constitutes 'cruel and unusual punishments' within the scope of the Eighth Amendment. Loss of citizenship entails undoubtedly severe—and in particular situations even tragic consequences. Divestment of citizenship by the Government has been characterized, in the context of denaturalization, as 'more serious than a taking of one's property, or the imposition of a fine or other penalty.' Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796. However, like denaturalization, see Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 389, 93 L.Ed. 266, expatriation under the Nationality Act of 1940 is not 'punishment' in any valid constitutional sense. Cf. Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905. Simply because denationalization was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it does not follows that denationalization is a 'punishment,' any more than it can be said that loss of civil rights as a result of conviction for a felony, see Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43 Am.Pol.Sci.Rev. 1228, 1233, is a 'punishment' for any legally significant purposes. The process of denationalization, as devised by the expert Cabinet Committee on which Congress quite properly and responsibly relied4 and as established by Congress in the legislation before the Court,5 was related to the authority of Congress, pursuant to its constitutional powers, to regulate conduct free from restrictions that pertain to legislation in the field technically described as criminal justice. Since there are legislative ends within the scope of Congress' war power that are wholly consistent with a 'non-penal' purpose to regulate the military forces, and since there is nothing on the face of this legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant for this Court's labeling the disability imposed by § 401(g) as a 'punishment.'
66
Even assuming, arguendo, that § 401(g) can be said to impose 'punishment,' to insist that denationalization is 'cruel and unusual' punishment is to stretch that concept beyond the breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. Art. 58, supra; § 6, Art. 1, Articles of War of 1776, 5 J. Cont. Cong. (Ford ed. 1906) 792. Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death? The seriousness of abandoning one's country when it is in the grip of mortal conflict precludes denial to Congress of the power to terminate citizenship here, unless that power is to be denied to Congress under any circumstance.
67
Many civilized nations impose loss of citizenship for indulgence in designated prohibited activities. See, generally, Laws Concerning Nationality, U.N.Doc. No. ST/LEG/SER.B/4 (1954). Although these provisions are often, but not always, applicable only to naturalized citizens, they are more nearly comparable to our expatriation law than to our denaturalization law.6 Some countries have made wartime desertion result in loss of citizenship—native-born or naturalized. E.g., § 1(6), Phillipine Commonwealth Act No. 63 of Oct. 21, 1936, as amended by Republic Act No. 106 of June 2, 1947, U.N.Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730. In this country, desertion has been punishable by loss of at least the 'rights of citizenship'7 since 1865. The Court today reaffirms its decision (Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287) sustaining the power of Congress to denationalize citizens who had no desire or intention to give up their citizenship. If loss of citizenship may constitutionally be made the consequence of such conduct as marrying a foreigner, and thus certainly not 'cruel and unusual,' it seems more than incongruous that such loss should be thought 'cruel and unusual' when it is the consequence of conduct that is also a crime. In short, denationalization, when attached to the offense of wartime desertion, cannot justifiably be deemed so at variance with enlightened concepts of 'humane justice,' see Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793, as to be beyond the power of Congress, because constituting a 'cruel and unusual' punishment within the meaning of the Eighth Amendment.
68
Nor has Congress fallen afoul of that prohibition because a person's post-denationalization status has elements of unpredictability. Presumably a denationalized person becomes an alien vis-a -vis the United States. The very substantial rights and privileges that the alien in this country enjoys under the federal and state constitutions puts him in a very different condition from that of an outlaw in fifteenth-century England. He need not be in constant fear lest some dire and unforeseen fate be imposed on him by arbitrary governmental action—certainly not 'while this Court sits' (Holmes, J., dissenting in Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 453, 72 L.Ed. 857). The multitudinous decisions of this Court protective of the rights of aliens bear weighty testimony. And the assumption that brutal treatment is the inevitable lot of denationalized persons found in other countries is a slender basis on which to strike down an Act of Congress otherwise amply sustainable.
69
It misguides popular understanding of the judicial function and of the limited power of this Court in our democracy to suggest that by not invalidating an Act of Congress we would endanger the necessary subordination of the military to civil authority. This case, no doubt, derives from the consequence of a court-martial. But we are sitting in judgment not on the military but on Congress. The military merely carried out a responsibility with which they were charged by Congress. Should the armed forces have ceased discharging wartime deserters because Congress attached the consequence it did to their performance of that responsibility? This legislation is the result of an exercise by Congress of the legislative power vested in it by the Constitution and of an exercise by the President of his constitutional power in approving a bill and thereby making it 'a law.' To sustain it is to respect the actions of the two branches of our Government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of legislation. The awesome power of this Court to invalidate such legislation, because in practice it is bounded only by our own prudence in discerning the limits of the Court's constitutional function, must be exercised with the utmost restraint. Mr. Justice Holmes, one of the profoundest thinkers who ever sat on this Court, expressed the conviction that 'I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.' Holmes, Speeches, 102. He did not, of course, deny that the power existed to strike down congressional legislation, nor did he shrink from its exercise. But the whole of his work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the art of government, it stood as the sole bulwark against unwisdom or excesses of the moment.
1
54 Stat. 1168, 1169, as amended, 58 Stat. 4, 8 U.S.C. § 1481(a)(8), 8 U.S.C.A. § 1481(a)(8):
'A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
'(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom * * *.'
2
Act of March 3, 1865, 13 Stat. 487, 490.
3
See Roche, The Loss of American Nationality—The Development of Statutory Expatriation, 99 U. of Pa.L.Rev. 25, 60 62. Administratively the phrase 'rights of citizenship' was apparently taken to mean 'citizenship.' See Foreign Relations 1873, H.R.Exec.Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, p. 1187 (view of Secretary of State Fish); H.R.Doc. No. 326, 59th Cong., 2d Sess. 159 (State Department Board); Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. 132—133 (testimony of Richard Flournoy, State Department representative).
4
Hearings, at 133.
But it is not entirely clear, however, that the Congress fully appreciated the fact that Section 401(g) rendered a convicted deserter stateless. In this regard, the following colloquy, which occurred during hearings in 1943 before the House Committee on Immigration and Naturalization between Congressmen Allen and Kearney, members of the Committee, and Edward J. Shaughnessy, then Deputy Commissioner of Immigration, is illuminating:
'Mr. Allen. If he is convicted (of desertion) by court martial in time of war, he loses his citizenship?
'Mr. Shaughnessy. That is correct.
'Mr. Allen. In other words, that is the same thing as in our civil courts. When one is convicted of a felony and is sent to the penitentiary, one loses his citizenship.
'Mr. Shaughnessy. He loses his rights of citizenship.
'Mr. Kearney. There is a difference between losing citizenship and losing civil rights.
'Mr. Shaughnessy. He loses his civil rights, not his citizenship. Here he loses his citizenship.
'Mr. Allen. He loses his rights derived from citizenship.
'Mr. Shaughnessy. Yes; it almost amounts to the same thing. It is a technical difference.
'Mr. Allen. He is still an American citizen, but he has no rights.
'Mr. Shaughnessy. No rights of citizenship.'
Hearings before the House Committee on Immigration and Naturalization on H.R. 2207, 78th Cong., 1st Sess. 2—3.
See also id., at 7: 'Mr. Elmer. Is it not true that this loss of citizenship for desertion is a State matter and that the Government has nothing to do with it?'
5
Act of January 20, 1944, 58 Stat. 4.
6
See S.Rep. No. 382, 78th Cong., 1st Sess. 1, 3; H.R.Rep. No. 302, 78th Cong., 1st Sess. 1; 89 Cong.Rec. 3241, 10135.
7
Articles of War 58, 41 Stat. 800; Article 85, Uniform Code of Military Justice, 10 U.S.C.(Supp. V) § 885, 10 U.S.C.A. § 885; Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 637.
8
The Solicitor General stated in his argument that § 401(g) would apply to desertion from such camps.
9
United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433.
10
54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. § 1481(a)(10), 8 U.S.C.A. § 1481(a)(10):
'A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
'(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.'
11
Codification of the Nationality Laws of the United States, H.R.Comm.Print, Pt. 1, 76th Cong., 1st Sess. 68.
12
Ibid.
13
Act of March 3, 1865, 13 Stat. 487.
14
S.Rep. No. 2150, 76th Cong., 3d Sess. 3.
15
United States v. Constantine, 296 U.S. 287, 294, 56 S.Ct. 223, 226, 80 L.Ed. 233; United States v. La Franca, 282 U.S. 568, 572, 51 S.Ct. 278, 280, 75 L.Ed. 551.
16
U.S.Const., Art. I, § 9, cl. 3, § 10, cl. 1.
17
United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648.
18
Of course, the severity of the disability imposed as well as all the circumstances surrounding the legislative enactment is relevant to this decision. See, generally, Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand.L.Rev. 603, 608 610; 64 Yale L.J. 712, 722—724.
19
E.g., United States v. Lovett, supra; Pierce v. Carskadon, 16 Wall. 234, 21 L.Ed. 276; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356.
20
E.g., Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47.
21
See Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43 Am.Pol.Sci.Rev. 1228.
22
Cf. Davis v. Beason, supra; Murphy v. Ramsey, supra.
23
See War Department Circular No. 273, 1942, Compilation of War Department General Orders, Bulletins and Circulars (Government Printing Office 1943) 343.
24
Mahler v. Eby, supra; Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978; Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905.
25
Act of May 10, 1920, 41 Stat. 593, now 8 U.S.C.A. § 1251(a)(17).
26
Act of June 15, 1917, 40 Stat. 217.
27
See, e.g., Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.
28
U.S.Const., Amend. VIII: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'
29
See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422; Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793; Howard v. Fleming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121; O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345.
30
1 Wm. & Mary, 2d Sess. (1689), c. 2.
31
See 34 Minn.L.Rev. 134; 4 Vand.L.Rev. 680
32
Whether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word 'unusual.' But cf. In re Kemmler, supra, 136 U.S. at page 443, 10 S.Ct. at page 932; United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430, 41 S.Ct. 352, 360, 65 L.Ed. 704 (Brandeis, J., dissenting). If the word 'unusual' is to have any meaning apart from the word 'cruel,' however, the meaning should be the ordinary one, signifying something different from that which is generally done. Denationalization as a punishment certainly meets this test. It was never explicitly santioned by this Government until 1940 and never tested against the Constitution until this day.
33
'Plaintiff-appellant has cited to us and obviously relied on the masterful analysis of expatriation legislation set forth in the Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1189 1199. I agree with the author's documented conclusions therein that punitive expatriation of persons with no other nationality constitutes cruel and unusual punishment and is invalid as such. Since I doubt if I can add to the persuasive arguments there made, I shall merely incorporate by reference. In my faith, the American concept of man's dignity does not comport with making even those we would punish completely 'stateless'—fair game for the despoiler at home and the oppressor abroad, if indeed there is any place which will tolerate them at all.' 239 F.2d 527, 530.
34
See discussion in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568.
35
See Study on Statelessness, U.N.Doc. No. E/1112; Seckler-Hudson, Statelessness: With Special Reference to the United States; Borchard, Diplomatic Protection of Citizens Abroad, §§ 262, 334.
36
The suggestion that judicial relief will be available to alleviate the potential rigors of statelessness assumes too much. Undermining such assumption is the still fresh memory of Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, where an alien, resident in this country for 25 years, returned from a visit abroad to find himself barred from this country and from all others to which he turned. Summary imprisonment on Ellis Island was his fate, without any judicial examination of the grounds of his confinement. This Court denied relief, and the intolerable situation was remedied after four years' imprisonment only through executive action as a matter of grace. See N.Y. Times, Aug. 12, 1954, p. 10, col. 4.
37
See Laws Concerning Nationality, U.N.Doc. No. ST/LEG/SER.B/4 (1954).
38
Id., at 379 and 461. Cf. Nationality Law of August 22, 1907, Art. 17(2) (Haiti), id., at 208.
1
Some indication of the problem is to be seen in the joint resolutions introduced in both houses of Congress to exempt the two or three thousand Americans who allegedly lost their citizenship by voting in certain Italian elections. See S.J.Res. 47 and H.J.Res. 30, 239, 375, 81st Cong., 1st Sess. All proposed 'to suspend the operation of section 401(e) of the Nationality Act of 1940 in certain cases.' See also H.R. 6400, 81st Cong., 1st Sess.
2
Perez v. Brownell did not raise questions under the First Amendment, which of course would have the effect in appropriate cases of limiting congressional power otherwise possessed.
3
A good description of the extent of the problem raised by desertions from the Union armies, and of the extreme measures taken to combat the problem, will be found in Pullen, The Twentieth Maine: A Volunteer Regiment of the Civil War (1957).
4
The opinion in Huber v. Reily, which was written by Mr. Justice Strong, later a member of this Court, suggested, if it did not hold, that the statutes and considerations of due process required that expatriation, to be accomplished, should be specifically included by the court-martial as part of the sentence. See 53 Pa. at pages 119—120. The court-martial, under military law, adjudges both guilt and the extent of initial sentence. Jackson v. Taylor, 353 U.S. 569, 574—575, 77 S.Ct. 1027, 1030—1031, 1 L.Ed.2d 1045; and see Article of War 58 (1920), 41 Stat. 800, now 10 U.S.C.A. § 885. However, it has not been the practice specifically to include expatriation as part of the sentence. 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001.
5
The provision was limited in 1912 to desertion in time of war, 37 Stat. 356, but otherwise was not revised until carried into the Nationality Act of 1940, 54 Stat. 1169. It was, however, first codified as part of the laws concerning citizenship as § 1998 of the 1874 Revised Statutes.
6
The reason for the addition of the proviso is stated in a report, Codification of the Nationality Laws of the United States, N.R.Comm.Print, Pt. 1, 76th Cong., 1st Sess., prepared at the request of the President by the Secretary of State, the Attorney General, and the Secretary of Labor, proposing a revision and codification of the nationality laws: 'The provisions of sections 1996 and 1998 of the Revised Statutes are distinctly penal in character. They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial. (Huber v. Reily, 1866, 53 Pa. 112; Krutz v. Moffitt, 1885, 115 U.S. 487 (6 S.Ct. 148, 29 L.Ed. 458)).' Id., at 68.
'The reference later in the report that § 401 'technically is not a penal law' is to the section as a whole and not to subdivision (g).
7
Adjudication of hypothetical and contingent consequences is beyond the function of this Court and the incidents of expatriation are altogether indefinite. Nonetheless, this very uncertainty of the consequences makes expatriation as punishment severe.
It is also unnecessary to consider whether the consequences would be different for the citizen expatriated under another section than § 401(g).
8
A deterrent effect is certainly conjectural when we are told that during World War II as many as 21,000 soldiers were convicted of desertion and sentenced to be dishonorably discharged. From the fact that the reviewing authorities ultimately remitted the dishonorable discharges in about two-thirds of these cases it is possible to infer that the military itself had no firm belief in the deterrent effects of expatriation.
1
The substance of this provision now appears in § 349(a)(8) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 268, 8 U.S.C. § 1481(a) (8), 8 U.S.C.A. § 1481(a)(8).
2
The precise meaning of this phrase has never been clear, see Roche, The Loss of American Nationality—The Development of Statutory Expatriation, 99 U. of Pa.L.Rev. 25, 61—62. It appears, however, that the State Department regarded it to mean loss of citizenship, see, e.g., Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. 38.
3
It should be noted that a person cannot be deprived of his citizenship merely on the basis of an administrative finding that he deserted in wartime or even with finality on the sole basis of his having been dishonorably discharged as a result of a conviction for wartime desertion. Section 503 of the Nationality Act of 1940 provides:
'If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. * * *' 54 Stat. 1137, 1171, now § 360 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 273, 8 U.S.C. § 1503, 8 U.S.C.A. § 1503. In such a proceeding it is open to a person who, like petitioner, is alleged to have been expatriated under § 401(g) of the 1940 Act to show, for example, that the court-martial was without jurisdiction (including observance of the requirements of due process) or that the individual, by his restoration to active duty after conviction and discharge, regained his citizenship under the terms of the proviso in § 401(g), supra.
4
The report of that Committee stated that the provision in question 'technically is not a penal law.' Codification of the Nationality Laws of the United States, supra, at 68. In their letter to the President covering the report, the Committee stated that none of the loss of nationality provisions was 'designed to be punitive * * *.' Id., at VII.
5
There is no basis for finding that the Congress that enacted this provision regarded it otherwise than as part of the clearly nonpenal scheme of 'acts of expatriation' represented by § 401 of the Nationality Act of 1940, supra.
6
In the United States, denaturalization is based exclusively on the theory that the individual obtained his citizenship by fraud, see Luria v. United States, 231 U.S. 9, 24, 34 S.Ct. 10, 13, 58 L.Ed. 101; the laws of many countries making naturalized citizens subject to expatriation for grounds not applicable to natural-born citizens do not relate those grounds to the actual naturalization process. E.g., British Nationality Act, 1948, 11 & 12 Geo. VI, c. 56, § 20(3).
7
See note 2, supra.
| 12
|
356 U.S. 129
78 S.Ct. 612
2 L.Ed.2d 659
MITSUGI NISHIKAWA, Petitioner,v.John Foster DULLES, Secretary of State.
No. 19.
Reargued Oct. 28, 1957.
Decided March 31, 1958.
Mr. A. L. Wirin, Los Angeles, Cal., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In this, the third of the denationalization cases decided today, issues concerning Section 401(c) of the Nationality Act of 1940 are presented. That statute provides:
2
'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
3
'(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state * * *.'1
4
We need not in this case consider the constitutionality of Section 401(c). This case thus differs from Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, where questions of the constitutionality of Sections 401(e) and 401(g) were determined. The issues with which we are concerned here relate solely to problems of burden of proof.
5
Petitioner brought this action in a District Court praying for a judgment declaring him to be a citizen of the United States. The controversy arose from petitioner's application to a United States Consulate in Japan for an American passport. Instead of the passport, he received more than a year later a Certificate of the Loss of the Nationality of the United States. Petitioner alone testified at the trial, the Government introducing no testimony. What follows is a summary of his testimony.
6
Petitioner was born in Artesia, California, in 1916. By reason of that fact, he was a citizen of the United States, and because of the citizenship of his parents, he was also considered by Japan to be a citizen of that country. Petitioner was educated in the schools of this country and lived here until 1939. In August of that year, having been graduated from the University of California with a degree in engineering, he went to Japan, intending to stay between two and five years, visiting and studying. He knew that his father had registered him in the family register in Japan. In November of 1939 petitioner's father, who was paying his way, died in this country and petitioner, lacking funds, went to work for an aircraft manufacturing company in Japan for the equivalent of $15 a month. He was unable to accumulate any savings. Pursuant to the Military Service Law of Japan, petitioner was required about June 1940 to take a physical examination, and on March 1, 1941, he was inducted into the Japanese Army. The Military Service Law provided for imprisonment for evasion. Between the time of his physical examination and his induction, petitioner did not protest his induction or attempt to renounce his Japanese nationality, to return to the United States or to secure the aid of United States consular officials. He testified that he was told by a friend who worked at the American Embassy that the American Consulate could not aid a dual national; the Government has not contended that this was not so. He further testified that he had heard rumors about the brutality of the Japanese secret police which made him afraid to make any protest.
7
Petitioner testified that he did not know when he went to Japan that he was likely to be drafted. He said he was not aware at that time of any threat of war between the United States and Japan. He had left the United States just prior to the outbreak of war in Europe and two years and four months before Pearl Harbor. He testified that he was unable to read the Japanese language and lived too far out in the country to subscribe to an English-language newspaper, and therefore did not read any newspapers while in Japan.
8
Petitioner served as a maintenance man or mechanic in an Air Force regiment in China, Indo-China, the Philippines and Manchuria. He testified that when war between the United States and Japan began, he expressed the opinion to a group of noncommissioned officers that there was no chance of Japan's winning the war. That night he was given a thorough beating; he was beaten almost every day for a month, and afterwards he was beaten 'a couple days a month.' He won the nickname 'America.'
9
After hearing this testimony, the district judge announced from the bench that 'the court simply does not believe the testimony of the witness. That is all. I simply do not believe his testimony.' He went on to express his opinion that petitioner 'went over because as a Japanese citizen under the laws of Japan it was necessary for him to serve his hitch in the army. * * * He went over and he waited until they reached him on the draft, and when they did he was drafted.' Formally, the court found as a fact on the basis of petitioner's testimony alone, which did not include an admission to that effect, that his 'entry and service in the Japanese Armed Forces was his free and voluntary act.' Therefore he was held to have lost his nationality under Section 401(c) and judgment was rendered for respondent. The Court of Appeals for the Ninth Circuit affirmed that judgment.2 We granted certiorari. 352 U.S. 907, 77 S.Ct. 148, 1 L.Ed.2d 116.
10
Whatever divergence of view there may be as to what conduct may, consistent with the Constitution, be said to result in loss of nationality, cf. Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, it is settled that no conduct results in expatriation unless the conduct is engaged in voluntarily. Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146.3 The Government does not contend otherwise. Likewise, the parties are agreed that when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806, we held that the rule as to burden of proof in denaturalization cases4 applied to expatriation cases under Section 401(j) of the Nationality Act of 1940. We now conclude that the same rule should govern cases under all the subsections of Section 401.
11
The parties disagree as to whether the Government must also prove that the expatriating act was voluntarily performed or whether the citizenship claimant bears the burden of proving that his act was involuntary.5 Petitioner contends that voluntariness is an element of the expatriating act, and as such must be proved by the Government. The Government, on the other hand, relies upon the ordinary rule that duress is a matter of affirmative defense and contends that the party claiming that he acted involuntarily must overcome a presumption of voluntariness.
12
Because the consequences of denationalization are so drastic petitioner's contention as to burden of proof of voluntariness should be sustained. This Court has said that in a denaturalization case, 'instituted * * * for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen.' Schneiderman v. United States, 320 U.S. 118, 122 63 S.Ct. 1333, 1335, 87 L.Ed. 1796.6 The same principle applies to expatriation cases, and it calls for placing upon the Government the burden of persuading the trier of fact by clear, convincing and unequivocal evidence that the act showing renunciation of citizenship was voluntarily performed. While one finds in the legislative history of Section 401, and particularly Section 401(c), recognition of the concept of voluntariness,7 there is no discussion of the problem of the burden of proof. What is clear is that the House Committee which considered the bill rejected a proposal to enact a conclusive presumption of voluntariness in the case of dual nationals entering or serving in the military forces of the nation of their second nationality.8 It is altogether consonant with this history to place upon the Government the burden of proving voluntariness. The Court has said that 'Rights of citizenship are not to be destroyed by an ambiguity.' Perkins v. Elg, 307 U.S. 325, 337, 59 S.Ct. 884, 891, 83 L.Ed. 1320. The reference was to an ambiguity in a treaty, but the principle there stated demands also that evidentiary ambiguities are not to be resolved against the citizen.
13
Finally, the Government contends that even if it has the burden of proving voluntariness by clear, convincing and unequivocal evidence, that burden has been met in this case. What view the District Court took of the burden of proof does not clearly appear. The Court of Appeals seemed at one point to accept the evidence in the District Court as sufficient even on the view of the burden of proof as above stated.9 That conclusion is not supportable. Of course, the citizenship claimant is subject to the rule dictated by common experience that one ordinarily acts voluntarily. Unless voluntariness is put in issue, the Government makes its case simply by proving the objective expatriating act. But here petitioner showed that he was conscripted in a totalitarian country to whose conscription law, with its penal sanctions, he was subject. This adequately injected the issue of voluntariness and required the Government to sustain its burden of proving voluntary conduct by clear, convincing and unequivocal evidence.10 The Government has not sustained that burden on this record. The fact that petitioner made no protest and did not seek aid of American officials—efforts that, for all that appears, would have been in vain—does not satisfy the requisite standard of proof. Nor can the district judge's disbelief of petitioner's story of his motives and fears fill the evidentiary gap in the Government's case. The Government's only affirmative evidence was that petitioner went to Japan at a time when he was subject to conscription.
14
On this record the Government has not established the voluntary conduct that is the essential ingredient of expatriation. The fact that this petitioner, after being conscripted, was ordered into active service in wartime on the side of a former enemy of this country must not be permitted to divert our attention from the necessity of maintaining a strict standard of proof in all expatriation cases. When the Government contends that the basic right of citizenship has been lost, it assumes an onerous burden of proof. Regardless of what conduct is alleged to result in expatriation, whenever the issue of voluntariness is put in issue, the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence.
15
The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings consistent with this opinion.
16
Reversed and remanded.
17
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins.
18
While I concur in the opinion of the Court I add the following to state what I conceive to be the controlling constitutional principles in this and other expatriation cases.
19
The Fourteenth Amendment declares that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' Nishikawa was born in this country while subject to its jurisdiction; therefore American citizenship is his constitutional birthright. See United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. What the Constitution has conferred neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away. Although Congress can enact laws punishing those who shirk their duties as citizens or those who jeopardize our relations with foreign countries it cannot involuntarily expatriate any citizen. As the CHIEF JUSTICE and Mr. Justice DOUGLAS explain in their dissenting opinions in Perez v. Brownell, 356 U.S. 62, 79, 78 S.Ct. 578, 586, this results not only from the provisions of the Fourteenth Amendment but from the manner in which the Government of the United States was formed, the fundamental political principles which underlie its existence, and its continuing relationship to the citizenry who erected and maintain it. Cf. Osborn v. Bank of the United States, 9 Wheat. 738, 827, 6 L.Ed. 204. In my view the notion that citizenship can be snatched away whenever such deprivation bears some 'rational nexus' to the implementation of a power granted Congress by the Constitution is a dangerous and frightening proposition. By this standard a citizen could be transformed into a stateless outcast for evading his taxes, for fraud upon the Government, for counterfeiting its currency, for violating its voting laws and on and on ad infinitum.
20
Of course a citizen has the right to abandon or renounce his citizenship and Congress can enact measures to regulate and affirm such abjuration. But whether citizenship has been voluntarily relinquished is a question to be determined on the facts of each case after a judicial trial in full conformity with the Bill of Rights. Although Congress may provide rules of evidence for such trials, it cannot declare that such equivocal acts as service in a foreign army, participation in a foreign election or desertion from our armed forces, establish a conclusive presumption of intention to throw off American nationality. Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. Of course such conduct may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.
21
To the extent that Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, and Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, applied principles contrary to those expressed in this opinion I believe they are inconsistent with the Constitution and cannot be regarded as binding authority.
22
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, concurring in the result.
23
This case involves a native-born citizen of Japanese parentage who has been declared to have lost his citizenship by virtue of § 401(c) of the Nationality Act of 1940, 54 Stat. 1137, 1169, for having served in the Japanese armed forces while subject to the law of Japan making failure to serve a crime. That is the case before the Court. The defined issue raised by this case is the only issue, in my judgment, that the Court should decide.
24
Petitioner asserts that his service in the Japanese forces was performed under duress. His claim of duress is based on the fact that he was inducted into the Japanese armed forces pursuant to the compulsory conscription law of that country,1 and that rumors of harsh punishment of draft evaders by the secret police and the ruthlessness of the government in power made him afraid to take any action to avoid service. The evidence to rebut this testimony, elicited on cross-examination, was that he had failed to take certain actions to avoid service; the only affirmative act urged in support of the voluntariness of his entry into service is that he went to Japan when he was of draft-eligible age2 and remained there until inducted.
25
It is common ground that conduct will result in expatriation only if voluntarily performed. See Mackenzie v. Hare, 239 U.S. 299, 311—312, 36 S.Ct. 106, 108, 60 L.Ed. 297; cf. Acheson v. Kiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674; Acheson v. Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed. 674. Accordingly, where a person who has been declared expatriated contests that declaration on grounds of duress, the evidence in support of this claim must be sympathetically scrutinized. This is so both because of the extreme gravity of being denationalized and because of the subtle, psychologic factors that bear on duress.
26
The issue that is ultimately decisive in a litigation is one thing, the mode for determining it quite another. The fact that conduct, in order to result in loss of citizenship, must be voluntary behavior does not inherently define the appropriate manner of its proof. The Government properly has a very heavy burden in expatriation cases: it must establish that the citizen committed an 'act of expatriation'—i.e., engaged in conduct of which the consequence is loss of citizenship—by clear, convincing and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806, adopting the standard of Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, and Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525. This is incumbent on the Government although the evidence in cases such as these may well be difficult to obtain. Much more difficult would it be for the Government to establish the citizen's state of mind as it bears on his will, purpose and choice of action—in short, 'voluntariness.' According to the ordinarily controlling principles of evidence, this would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what is state of mind was. See Selma, Rome & Dalton R. Co. v. United States, 139 U.S. 560, 567—568, 11 S.Ct. 638, 640, 35 L.Ed. 266. Moreover, any other evidence of his state of mind, outside of his own mental disclosures, will often be found only abroad, where the Government may have no facilities for conducting the necessary investigation. The Court should hesitate long before imposing on the Government, by a generalized, uncritical formula, a burden so heavy that the will of Congress becomes incapable of sensible, rational, fair enforcement.
27
Where an individual engages in conduct by command of a penal statute of another country to whose laws he is subject, the gravest doubt is cast on the applicability of the normal assumption—even in a prosecution for murder (see Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302)—that what a person does, he does of his own free will. When a consequence as drastic as denationalization may be the effect of such conduct, it is not inappropriate that the Government should be charged with proving that the citizen's conduct was a response, not to the command of the statute, but to his own direction. The ready provability of the critical fact—existence of an applicable law, particularly a criminal law, commanding the act in question provides protection against shifting this burden to the Government on the basis of a frivolous assertion of the defense of duress. Accordingly, the Government should, under the circumstances of this case, have the burden of proving by clear, convincing and unequivocal evidence that the citizen voluntarily performed an act causing expatriation.
28
Since the courts below were not guided by this formulation, the judgment should not be allowed to stand. However, the Government should not be denied a further opportunity to bring forward the necessary proof if it is able to do so. Whether, in other classes of cases in which the defense of duress is asserted, the Government should have the burden of proving its absence is a question the Court need not—and, therefore, should not—reach. For that reason, I concur in the result announced but cannot join the opinion of the Court.
29
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
30
The central question in this case is simply whether Nishikawa's service in the Japanese Army can be said to be 'voluntary' when the record contains virtually nothing more in the way of proof than that he went to Japan from this country in 1939 and was inducted into the army pursuant to a conscription law of Japan without any protest on his part.
31
Beyond establishing that he was drafted without protest, Nishikawa's testimony should be disregarded, for the District Court expressly stated that it disbelieved his explanations as to why he had not sought the aid of American authorities in Japan or otherwise attempted to protest or prevent his induction, and the Court of Appeals has affirmed. Particularly when credibility is in issue we should not set ourselves against the factual determinations of the trial court, which had the great advantage of hearing and observing Nishikawa on the witness stand.
32
The Courts of Appeals have divided on the question whether proof of conscription, in the absence of anything more on either side, precludes a finding that service in a foreign army was voluntary. The Second and Third Circuits have held that it does. Augello v. Dulles, 220 F.2d 344; Lehmann v. Acheson, 206 F.2d 592; Perri v. Dulles, 206 F.2d 586. The District of Columbia Circuit has ruled that '(d)ress cannot be inferred from the mere fact of conscription.' Acheson v. Maenza, 92 U.S.App.D.C. 85, 90, 202 F.2d 453, 458; Alata v. Dulles, 95 U.S.App.D.C. 182, 221, F.2d 52; but see Bruni v. Dulles, 98 U.S.App.D.C. 358, 235 F.2d 855.1
33
Moved by the consideration that a contrary rule would lead to the 'drastic' consequence of denationalization, the Court holds that (1) the fact that Nishikawa was conscripted into the Japanese Army precluded the District Court from finding that his service was voluntary, in the absence of the Government's showing something more than that he failed to take any steps to prevent or protest his induction; and (2) the Government has the burden of proving voluntariness in all denationalization cases once the issue of duress has been 'injected' into the case. I too am not insensitive to the high value of American citizenship, but find myself compelled to dissent because in my opinion the majority's position can be squared neither with congressional intent nor with proper and well-established rules governing the burden of proof on the issue of duress.
I.
34
To permit conscription without more to establish duress unjustifiably limits, if it does not largely nullify, the mandate of § 401(c). By exempting from the reach of the statute all those serving in foreign armies as to whom no more has been shown than their conscription, the Court is attributing to Congress the intention to permit many Americans who served in such armies to do so with impunity. There is no solid basis for such a restrictive interpretation. By the time the Nationality Act of 1940 was passed, conscription and not voluntary enlistment had become the usual method of raising armies throughout the world, and it can hardly be doubted that Congress was aware of this fact. In view of this background it is farfetched to assume that Congress intended the result reached by the Court, a result plainly inconsistent with the even-handed administration of § 401(c). Moreover, the very terms of the section, which refer to both 'entering' and 'serving in' foreign armed forces, are at odds with such an intention.
II.
35
Although the Court recognizes the general rule that consciously performed acts are presumed voluntary, see 3 Wigmore, Evidence (3d ed.), § 860; Fed.Rules Civ.Proc., rule 8(c), 28 U.S.C.A., it in fact alters this rule in all denationalization cases by placing the burden of proving voluntariness on the Government, thus relieving citizen-claimants in such cases from the duty of proving that their presumably voluntary acts were actually involuntary.2
36
One of the prime reasons for imposing the burden of proof on the party claiming involuntariness is that the evidence normally lies in his possession. This reason is strikingly applicable to cases of the kind before us, for evidence that an individual involuntarily served in a foreign army is peculiarly within his grasp, and rarely accessible to the Government. Nishikawa's case amply illustrates the proposition. In the eight months that passed between his notice to report for a physical examination and his actual induction Nishikawa could have taken a variety of steps designed to prevent his conscription, any of which would have been persuasive evidence of the involuntary character of his service. For example, he could have sought to return to the United States, to renounce his Japanese nationality, to advise Japanese officials that he was an American citizen, to enlist the assistance of American Consular officials in Japan, or to employ the aid of friends or relatives in the United States.3 Nishikawa admits that he did none of these things. But if he claimed that he had, is it not apparent that he and not the Government is the logical party to bring forward the pertinent evidence? In such circumstances it seems to me the better course to require Nishikawa to prove his allegation of duress rather than to impose on the Government the well-nigh impossible task of producing evidence to refute such a claim.
37
For both of the reasons set forth above I think that the finding of the District Court that Nishikawa served in the Japanese Army without duress should not be disturbed.
38
In considering § 401(c), we ought not to lose sight of the fact that it deals solely with dual nationals, remitting them to the citizenship of the country which they served in time of war. Unlike the majority, I do not believe that this consequence is incommensurate with petitioner's conduct. It seems to me that there is a large measure of justice in relegating Nishikawa solely to his Japanese citizenship, for it is with the armed forces of Japan that he served for more than four years during the heart of the late World War. Nishikawa's service included participation in military action against the United States in the Philippines. There is no suggestion that at any time during this period he ever performed any act indicating disloyalty to Japan or loyalty to the United States.
39
The Court remands the case presumably to give the Government the opportunity to show that Nishikawa's service with the Japanese Army was voluntary. Surely this is but an empty gesture. The Government can hardly be expected to adduce proof as to occurrences taking place in Japan more than 17 years ago which are now shrouded in obscurity beyond serious hope of detection.
40
Nishikawa's constitutional contention that Congress lacked power to enact § 401(c) is, in my view, foreclosed by Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568.
41
I would affirm the judgment of the Court of Appeals.
1
54 Stat. 1168, 1169. The present provision, Immigration and Nationality Act of 1952, § 349(a)(3), 66 Stat. 267, 268, 8 U.S.C. § 1481(a)(3), 8 U.S.C.A. § 1481(a)(3), eliminates the necessity that the expatriate have or acquire the nationality of the foreign state.
2
9 Cir., 235 F.2d 135.
3
See also, e.g., Acheson v. Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed. 674; Acheson v. Kiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674; Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; 41 Op.Atty.Gen., No. 16.
4
Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.
5
Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Acheson v. Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed. 674, and Acheson v. Kiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674, are not dispositive of the issue. The holding in Gonzales went to the Government's burden of proof in general without specific regard to voluntariness. Murata and Okimura came here on appeal from a District Court's holding that various subsections of § 401 were unconstitutional. 99 F.Supp. 587, and 591. We remanded for specific findings as to the circumstances attending the alleged acts of expatriation and the reasonable inferences to be drawn therefrom.
In Bruni v. Dulles, 98 U.S.App.D.C. 358, 235 F.2d 855, the Court of Appeals for the District of Columbia Circuit considered Gonzales as requiring the Government to prove voluntariness by clear, convincing and unequivocal evidence. Lehmann v. Acheson, 3 Cir., 206 F.2d 592, can also be read as placing that burden on the Government. It is clear, at least, that the Third Circuit, Lehmann v. Acheson, supra; Perri v. Dulles, 206 F.2d 586, as well as the Second Circuit, Augello v. Dulles, 220 F.2d 344, regards conscription as creating a presumption of involuntariness which the Government must rebut. The Court of Appeals for the District of Columbia Circuit took a contrary view prior to Bruni v. Dulles, supra. Alata v. Dulles, 95 U.S.App.D.C. 182, 221 F.2d 52; Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453.
6
See also United States v. Minker, 350 U.S. 179, 197, 76 S.Ct. 281, 291, 100 L.Ed. 185 (concurring opinion): 'When we deal with citizenship we tread on sensitive ground.'
7
See Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess. 150, 201.
8
The proposal was advanced by the State Department spokesman, Mr. Flournoy, who said:
'If a man is a citizen of the United States and Japan, both countries, as he would be in all of these cases we have been discussing, and he is living in Japan, and he reaches the military age, and they call him for service, it should not make any difference from our point of view whether he makes a protest or not. It is his duty to serve. He is in that country, and he is a citizen of that country, and if we accept his plea of duress in these cases it practically nullifies the whole thing, so we should put a proviso in reading somewhat as follows: That if an American national also has the nationality of a foreign country and is residing therein at a time when he reaches the age for liability of military service his entry into the armed forces thereof shall be presumed to be voluntary. In other words, a plea of duress would not make any difference. He is a citizen of that country, and he is presumed to know that when the time comes he will have to serve.' Id., at 150.
Spokesmen for the Labor and Justice Departments objected, stating that dual nationals should have the opportunity to be heard on the question of duress. Id., at 150—156; 169—170; 200 203. At the time of the hearings § 401(c) was not limited to dual nationals. The Senate Committee inserted the limitation. See 86 Cong.Rec. 12817.
The Court of Appeals for the First Circuit has correctly concluded that little significance attaches to the failure of the House Committee to accept a suggestion that the word 'voluntarily' be inserted in subsections (b) through (g) of § 401. Hearings, supra, at 397—398. 'It seems to us that the failure of the committee to accept this amendment is of little significance in view of the legislative history * * * indicating that such amendment was unnecessary and superfluous.' Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860, 864, note 4.
9
235 F.2d at page 140. But see id., at page 141.
10
Petitioner's evidence of conscription also dispelled the presumption created by § 402 of the Nationality Act of 1940, 54 Stat. 1169, 8 U.S.C.A. § 1482, that a national who remains six months or more within the country of which either he or his parents have been nationals, has expatriated himself under § 401(c) or (d). Even if valid, 'Section 402 does not enlarge § 401(c) or (d),' Kawakita v. United States, 343 U.S. 717, 730, 72 S.Ct. 950, 959, 96 L.Ed. 1249, and, like the analogous provision of § 2 of the Act of March 2, 1907, 34 Stat. 1228, it creates 'a presumption easy to preclude, and easy to overcome.' United States v. Gay, 264 U.S. 353, 358, 44 S.Ct. 388, 389, 68 L.Ed. 728. The ambiguous terms of § 402 have since been superseded by § 349(b) of the Immigration and Nationality Act of 1952, 66 Stat. 268, 8 U.S.C. § 1481(b), 8 U.S.C.A. § 1481(b), which establishes a conclusive presumption of voluntariness on the part of a dual national who performs an expatriating act if he had resided in the state of his second nationality an aggregate of ten years or more immediately prior thereto. Of course, the new statutory presumption is not in issue in this case and there is no need to consider its validity.
1
According to a stipulation of the parties in the record, the Military Service Law of Japan provided punishment of up to three years of penal servitude for persons evading military service.
2
There does not seem to be any explicit basis in the record for the trial court's finding (Finding of Fact No. III) that petitioner made the trip to Japan 'knowing at that time that he was likely to be called for military service in the Japanese Armed Forces.'
1
See also Hamamoto v. Acheson, D.C., 98 F.Supp. 904. Compare Acheson v. Hiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674; Acheson v. Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed. 674, and the dissenting opinion in Mandoli v. Acheson, 344 U.S. 133, 139, 73 S.Ct. 135, 138, 97 L.Ed. 146. As we read Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806, cited in the majority opinion, that case related simply to the standard, and not to the burden, of proof in denationalization cases.
2
The Court not only reaches a conclusion inconsistent with the usual rules governing burden of proof, but does so in the face of § 402 of the Nationality Act, which provides in part:
'A national of the United States who was born in the United States * * * shall be presumed to have expatriated himself under subsection (c) or (d) of section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state * * * and such presumption shall exist until overcome whether or not the individual has returned to the United States.' 54 Stat. 1137, 1169.
Nishikawa was in Japan for 10 months before he even received notice to report for physical examination in the draft. He was inducted over 18 months after his arrival in Japan. This Court held in Kawakita v. United States, 343 U.S. 717, 730, 72 S.Ct. 950, 959, 96 L.Ed. 1249: 'Section 402 does not enlarge § 401(c) or (d); it creates a rebuttable presumption of expatriation; and when it is shown that the citizen did not act which brought him under § 401(c) or (d), the presumption is overcome.'
3
It is of course quite irrelevant that any steps taken by Nishikawa to forestall his induction may have been in vain. Whether successful or not, they would certainly have reflected his unwillingness to serve in the Army of Japan.
| 12
|
356 U.S. 165
78 S.Ct. 632
2 L.Ed.2d 672
Gilbert GREEN and Henry Winston, Petitioners,v.UNITED STATES of America.
No. 100.
Argued Oct. 21, 1957.
Decided March 31, 1958.
[Syllabus from pages 165-166 intentionally omitted]
Mr. John J. Abt, New York City, for petitioners.
Mr. Ralph S. Spritzer, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioners are two of eleven defendants who were convicted in the Southern District of New York in 1949 of conspiring to teach and advocate the violent overthrow of the Government in violation of the Smith Act, 54 Stat. 670, 671, 18 U.S.C. §§ 371, 2385, 18 U.S.C.A. §§ 371, 2385. Their convictions, each carrying a $10,000 fine and five years' imprisonment, were affirmed by this Court on June 4, 1951, in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. After their convictions, petitioners had been enlarged on bail, and following the affirmance, the United States Attorney served counsel for the petitioners on June 28, 1951, with copies of a proposed order on mandate requiring petitioners to surrender to the United States Marshal on July 2 for the execution of their sentences, and with a notice that such order would be presented to the District Court for signature on the indicated day of surrender. Petitioners were thereupon informed by their counsel that their presence in court would be required on July 2. Both, however, disappeared from their homes, failed to appear in court when the surrender order was signed on July 2, and remained fugitives for more than four and a half years. Ultimately both voluntarily surrendered to the United States Marshal in New York, Green on February 27, 1956, and Winston on March 5, 1956.
2
Shortly thereafter, the United States instituted criminal contempt proceedings against the petitioners in the District Court for willful disobedience of the surrender order in violation of 18 U.S.C. § 401, 18 U.S.C.A. § 401 (see 78 S.Ct. at page 635, infra). Pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., these proceedings were tried to the court without a jury.1 Following a hearing, the court found petitioners guilty of the contempts charged and sentenced each to three years' imprisonment to commence after service of the five-year sentences imposed in the conspiracy case. See 140 F.Supp. 117 (opinion as to Green). The Court of Appeals affirmed, 2 Cir., 241 F.2d 631, and we granted certiorari because the case presented important issues relating to the scope of the power of federal district courts to convict and sentence for criminal contempts. 353 U.S. 972, 77 S.Ct. 1057, 1 L.Ed.2d 1135.
3
The petitioners urge four grounds for reversal, namely: (1) the criminal contempt power of federal courts does not extend to surrender orders; (2) even if such power exists, the evidence was insufficient to support the judgments of contempt; (3) a prison sentence for criminal contempt cannot, as a matter of law, exceed one year; and (4) in any event the three-year sentences imposed were so excessive as to constitute an abuse of discretion on the part of the District Court. For the reasons given hereafter we think that none of these contentions can be sustained, and that the judgment of the Court of Appeals must be upheld.
4
* The contempt judgments rest on 18 U.S.C. § 401, 18 U.S.C.A. § 401, which in pertinent part provides that a federal court:
5
'* * * shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
6
'(3) Disobedience or resistance to its lawful * * * order * * *.' Since the order here issued was beyond dispute 'lawful,' § 401 plainly empowered the District Court to punish petitioners for disobeying it unless, as petitioners claim, this order is outside the scope of subdivision (3). This claim rests on the argument that the statute, viewed in its historical context, does not embrace an order requiring the surrender of a bailed defendant.
7
An evaluation of this argument requires an analysis of the course of development of federal statutes relating to criminal contempts. The first statute bearing on the contempt powers of federal courts was enacted as § 17 of the Judiciary Act of 1789, 1 Stat. 73, 83. It stated that federal courts 'shall have power to * * * punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same * * *.' The generality of this language suggests that § 17 was intended to do no more than expressly attribute to the federal judiciary those powers to punish for contempt possessed by English courts at common law. Indeed, this Court has itself stated that under § 17 the definition of contempts and the procedure for their trial were 'left to be determined according to such established rules and principles of the common law as were applicable to our situation.' Ex parte Savin, 131 U.S. 267, 275 276, 9 S.Ct. 699, 701, 33 L.Ed. 150.2 At English common law disobedience of a writ under the King's seal was early treated as a contempt, 4 Blackstone Commentaries 284, 285; Beale, Contempt of Court, 21 Harv.L.Rev. 161, 164—167; Fox, The Summary Process to Punish Contempt, 25 L.Q.Rev. 238, 249, and over the centuries English courts came to use the King's seal as a matter of course as a means of making effective their own process. Beale, at 167. It follows that under the Judiciary Act of 1789 the contempt powers of the federal courts comprehended the power to punish violations of their own orders.3
8
So much the petitioners recognize. They point out, however, that, at early English law, courts dealt with absconding defendants not by way of contempt, but under the ancient doctrine of outlawry, a practice whereby the defendant was summoned by proclamation to five successive county courts and, for failure to appear, was declared forfeited of all his goods and chattels. 4 Blackstone Commentaries 283, 319. In view of this distinct method at English common law of punishing refusal to respond to this summons, which was the equivalent of the present surrender order, petitioners argue that § 17 of the Judiciary Act of 1789, incorporating English practice, did not reach to a surrender order, and that the unique status of such an order subsisted under all statutory successors to § 17, including § 401(3) of the existing contempt statute.
9
We find these arguments unconvincing. The reasons for the early English practice of proceeding against absconding defendants by way of outlawry rather than by contempt are obscure. It may have been that outlawry was resorted to because absconding was regarded so seriously as to require the drastic penalties of outlawry rather than fine or imprisonment. But whatever the reasons may have been, the fact that English courts adhered to the practice of dealing with such cases by outlawry should not obscure the general principle that they had power to treat willful disobedience of their orders as contempts of court. It is significant that, so far as we know, the severe remedy of outlawry, which fell into early disuse in the state courts, was never known to the federal law. See United States v. Hall, 2 Cir., 198 F.2d 726, 727—728. Its unavailability to federal courts, and the absence of any other sanctions for the disobedience of surrender orders, are in themselves factors which point away from the conclusion that the kind of power traditionally used to assure respect for a court's process should be found wanting in this one instance.
10
The subsequent development of the federal contempt power lends no support to the petitioners' position, for the significance of the Act of 1831, 4 Stat. 487, 488, lies quite in the opposite direction. Sentiment for passage of that Act arose out of the impeachment proceedings instituted against Judge James H. Peck because of his conviction and punishment for criminal contempt of a lawyer who had published an article critical of a decision of the judge then on appeal. Although it is true that the Act marks the first congressional step to curtail the contempt powers of the federal courts, the important thing to note is that the area of curtailment related not to punishment for disobedience of court orders but to punishment for conduct of the kind that had provoked Judge Peck's controversial action. As to such conduct, the 1831 Act confined the summary power of punishment to '* * * misbehaviour of any person * * * in the presence of the * * * courts, or so near thereto as to obstruct the administration of justice * * *.' The cases in this Court which have curbed the exercise of the contempt power by federal courts have concerned this clause, as found in statutory successors to the Act of 1831 including subdivision (1) of present 18 U.S.C. § 401, 18 U.S.C.A. § 401, or a further clause in the Act and its successors dealing with misbehavior of court 'officers,' now found in subdivision (2) of § 401.4
11
In contrast to the judicial restrictions imposed on the contempt power exercisable under the clauses now found in subdivisions (1) and (2) of § 401, we find no case suggesting that subdivision (3) of § 401, before us here, is open to any but its obvious meaning. This clause also finds its statutory source in the Act of 1831, which first made explicit the authority of federal courts to punish for conduct of the kind involved in this case by providing that the contempt power should extend to '* * * disobedience or resistance * * * to any lawful writ, process, order, rule, decree, or command * * *' of a federal court. Particularly in the basence of any showing that the old practice of outlawry was ever brought to the attention to Congress, there is no warrant for engrafting upon this unambiguous clause a dubious exception to the English contempt power stemming from this practice. Although the 1831 Act no doubt incorporated many of the concepts of the English common law, its legislative history indicates that Congress sought to define independently the contempt powers of federal courts rather than to have the Act simply reflect all the oddities of early English practice. The House Committee which reported the bill had been directed 'to inquire into the expediency of defining by statute all offences which may be punished as contempts of * * *' federal courts. 7 Cong.Deb., 21st Cong., 2d Sess. (Gale's & Seaton's Reg.), pp. 560 561. (Italics added.) See Frankfurter and Landis, Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1024—1028.
12
Entirely apart from the historical argument, there are no reasons of policy suggesting a need for limitation of the contempt power in this situation. As the present cases evidence, the issuance of a bench warrant and the forfeiture of bail following flight have generally proved inadequate to dissuade defendants from defying court orders. See Willoughby (1929), Principles of Judicial Administration, 561—566. At the time these contempts were committed bail-jumping itself was not a criminal offense, and considerations in past decisions limiting the scope of the contempt power where the conduct deemed to constitute a contempt was also punishable as a substantive crime are not here relevant. Cf. Ex parte Hudgings, 249 U.S. 378, 382, 39 S.Ct. 337, 339, 63 L.Ed. 656. There is small justification for permitting a defendant the assurance that his only risk in disobeying a surrender order is the forfeiture of a known sum of money, particularly when such forfeiture may result in injury only to a bail surety.
13
It may be true, as petitioners state, that this case and those of the other absconding Dennis defendants, United States v. Thompson, 2 Cir., 214 F.2d 545; United States v. Hall, 2 Cir., 198 F.2d 726, provide the first instances where a federal court has exercised the contempt power for disobedience of a surrender order. But the power to punish for willful disobedience of a court order, once found to exist, cannot be said to have atrophied by disuse in this particular instance. Indeed, when Congress in 1954 made bail-jumping a crime in 18 U.S.C. § 3146, 18 U.S.C.A. § 3146, it expressly preserved the contempt power in this very situation. We find support in neither history nor policy to carve out so singular an exception from the clear meaning of § 401(3).
II.
14
Petitioners contend that the evidence was insufficient to support their contempt convictions, in that it failed to establish beyond a reasonable doubt their knowledge of the existence of the surrender order. The Court of Appeals did not address itself to this contention, considering the issue foreclosed by its prior decisions in the Thompson and Hall cases, supra, where the evidence as to those other two Dennis defendants who were convicted of similar criminal contempts was identical with that involved here, except as to the circumstances of their ultimate apprehension.
15
In this Court, petitioners interpret the District Court's opinion to rest the contempt convictions on alternative theories: (a) that the petitioners had actual knowledge of the issuance of the July 2 surrender order, or (b) that they at least had notice of its prospective issuance and hence were chargeable with knowledge that it was in fact issued. But we find no such dual aspect to the District Court's decision, which rested solely on findings that, beyond a reasonable doubt, Green 'knowingly disobeyed' the surrender order and Winston absented himself 'with knowledge' of the order. Since we are satisfied that the record supports these findings, we need not consider whether mere notice of the prospective issuance of the order, cf. Pettibone v. United States, 148 U.S. 197, 206—207, 13 S.Ct. 542, 546, 37 L.Ed. 419, would be sufficient to sustain these convictions on the theory that petitioners were chargeable as a matter of law with notice that it was later issued.
16
The evidence for the Government, there being none offered by the defense, related to three time intervals: (1) the period up to June 28, 1951; (2) the four-day interval between June 28, when the proposed surrender order was served on counsel with the notice of settlement, and July 2, when the surrender order was signed; and (3) the period ending with the surrender of the petitioners February 27, 1956, in the case of Green, and March 5, 1956, in the case of Winston.
17
1. The judgments of conviction upon the conspiracy indictment under the Smith Act were entered, and the petitioners were sentenced, on October 21, 1949. On November 2, 1949, the Court of Appeals admitted the petitioners to bail pending appeal upon separate recognizances, signed by each petitioner on November 3, by which each undertook, among other things, to
18
'surrender himself in execution of the judgment and sentence appealed from upon such day as the District Court of the United States for the Southern District of New York may direct, if the judgment and sentence appealed from shall be affirmed * * *.' (Italics added.)
19
Following the Court of Appeals' affirmance of the conspiracy convictions on August 1, 1950, United States v. Dennis, 2 Cir., 183 F.2d 201, Mr. Justice Jackson, as Circuit Justice, continued petitioners' bail on September 25, 1950, pending review of the convictions by this Court. Williamson v. United States, 2 Cir., 184 F.2d 280. This Court, as noted above, affirmed the conspiracy convictions on June 4, 1951, and on June 22, 1951, Mr. Justice Jackson denied a stay of the Court's mandate.
20
2. On Thursday, June 28, 1951, one of the counsel in the Dennis case accepted service on behalf of all the defendants, including petitioners, of a proposed order on mandate requiring the defendants to 'personally surrender to the United States Marshal for the Southern District of New York * * * on the 2nd day of July, 1951, at 11:05' a.m., together with a notice stating that the proposed order would be presented to the District Court 'for settlement and signature' at 10 a.m. on that day.5 It appears from the testimony of this same counsel and another Dennis counsel that on the following day, Friday, June 29, an unsuccessful request was made to the United States Attorney and the District Court to postpone the defendants' surrender until after the July 4 holiday; that on the same day these lawyers told the petitioners and the other Dennis defendants that they must be in court on Monday, July 2; and that petitioners assured counsel of their appearance on that day.6 On July 2 all of the Dennis defendants surrendered, except the two petitioners, and Hall and Thompson. The surrender order was signed, bench warrants were issued for the arrest of these four, and the proceedings were adjourned to the following day, July 3.
21
3. On July 3 the names of the petitioners were called again in open court, and after interrogating counsel as to their disappearance (see note 6, supra), the court declared their bail forfeited. The petitioners remained in hiding until their eventual surrender, some four and a half years later. Prior to their respective surrenders in February and March, 1956, Green and Winston issued press releases announcing their intention to surrender and 'enter prison.'7 When he turned up on the steps of the courthouse, Green also responded to certain questions put by reporters and stated, among other things, that he intended 'to go to the United States Marshal's office,' this being a requirement found only in the surrender order itself. Winston made a similar statement in his press release.
22
In summary, one day after counsel was served on June 28 with the proposed order calling for petitioners' surrender on July 2, together with the notice stating that the order would also be presented for the court's signature on that day, petitioners were unequivocally notified by counsel that their presence in court was required on July 2. From these undisputed facts, coupled with petitioners' disappearance, it was certainly permissible for the District Court to infer that petitioners knew of the proposed surrender order, of the failure of counsel's efforts on June 29 to postpone the surrender date, and of the court's intention to sign the order on July 2. We need not decide whether these facts alone would sustain the finding that petitioners knew of the issuance of the surrender order on July 2 as planned, for unquestionably as background they furnished significant support for the District Court's ultimate finding that petitioners' statements to the press at the time of their eventual surrender in 1956 (see note 7, supra) indicated their knowledge of the issuance of the order, a finding strengthened by the fact that the recognizance admitting the petitioners to bail obligated petitioners to surrender for service of sentence only when so directed by the District Court.
23
No doubt some of this evidence lent itself to conflicting inferences, but those favorable to the petitioners were, in our view, not of such strength as to compel the trier of the facts to reject alternative unfavorable inferences. Our duty as an appellate court is to assess the evidence as a whole under the rigorous standards governing criminal trials, rather than to test by those standards each item of evidence relied on by the District Court. 9 Wigmore, Evidence (3d ed. 1940), § 2497; 1 Wharton, Criminal Evidence (12th ed. 1955), § 16. So viewing the entire record, we think the District Court was justified in finding that the evidence established, beyond a reasonable doubt, petitioners' knowing violations of the surrender order.
III.
24
We deal here with petitioners' claim that the District Court was without power to sentence them to imprisonment for more than one year.
25
Section 17 of the Judiciary Act of 1789 confirmed the power of federal courts '* * * to punish by fine or imprisonment, at the discretion of said courts * * *' certain contempts. The Act of 1831 simply referred to the power to 'inflict summary punishments,' and present § 401 contains substantially the above language of the Act of 1789. Petitioners contend that despite the provision for 'discretion,' the power to punish under § 401 is limited to one year by certain sections of the Clayton Act of 1914, 38 Stat. 730, 738—740, 15 U.S.C.A. § 12 et seq. In any event, we are urged to read such a limitation into § 401 in order to avoid constitutional difficulties which, it is said, would otherwise confront us.
26
We turn first to the argument based on the Clayton Act. Sections 21 and 22 of that Act provided that certain rights not traditionally accorded persons charged with contempt, notably the right to trial by jury, should be granted in certain classes of criminal contempts, and that persons tried under these procedures were not subject to a fine of more than $1,000 or imprisonment for longer than six months.8 Section 24 of the Act made these provisions inapplicable to other categories of contempts, including the contempt for which the petitioners here have been convicted,9 and provided that such excluded categories of contempts were to be punished 'in conformity to the usages at law and in equity now prevailing.' (Italics added.) In the re-codification of 1948 the foregoing provisions of the Clayton Act were substantially re-enacted in § 40210 of the present contempt statute, and the above-quoted clause now reads: 'in conformity to the prevailing usages at law.'
27
Petitioners' argument is that the purpose and effect of the 'usages * * * now prevailing' language of § 24 of the Clayton Act was to freeze into federal contempt law the sentencing practices of federal courts, which up to that time appear never to have imposed a contempt sentence of more than one year.11 These practices, suggest petitioners, reflect the unarticulated belief of federal courts that criminal contempts are not infamous crimes and hence not subject to punishment by imprisonment for over one year;12 this belief is said to derive from the constitutional considerations to which we shortly turn. In view of this suggested effect of § 24, petitioners would have us read the 'discretion' vested in federal courts by § 401 as referring exclusively to the choice between sentencing to fine or imprisonment, or in any event as subject to the unexpressed limitation of one year's imprisonment.
28
Particularly in the context of the rest of the Clayton Act of 1914 we cannot read the 'usages * * * now prevailing' clause of § 24 as incorporating into the statute the sentencing practices up to that date. In § 22 the statute specifically restricts to six months the maximum term of imprisonment which may be imposed for commission of any of the contempts described in § 21. Had Congress also intended to restrict the term of imprisonment for contempts excluded from the operation of the Act by § 24, it is difficult to understand why it did not make explicit its intention, as it did in § 22, rather than so subtly express its purpose by proceeding in the devious manner attributed to it by the petitioners. Further, there is no evidence that the past sentencing practices of the courts were ever brought to the attention of Congress. That the federal courts themselves have not considered their sentencing power to be restricted by § 24 of the Clayton Act or by § 402 of the present contempt statute is indicated by the fact that in at least nine cases subsequent to 1914, contempt convictions carrying sentences of more than one year have been affirmed by four different Courts of Appeals and on one occasion by this Court.13
29
Such of the legislative history as is germane here argues against the petitioners and strengthens our conclusions that the 'usages * * * now prevailing' clause of § 24 of the Clayton Act did no more than emphasize that contempts other than those specified in § 21 were to be tried under familiar contempt procedures, that is, among other things, by the court rather than a jury. The House Report accompanying the bill which was substantially enacted as §§ 21, 22 and 24 of the Clayton Act referred to the provisions later forming these sections as dealing '* * * entirely with questions of Federal procedure relating to injunctions and contempts committed without the presence of the court.' H.R.Rep.No. 627, 63d Cong., 2d Sess. 21. There is no evidence of a broader purpose to enact so substantial a rule of substantive law encompassing all criminal contempts.
30
We are nevertheless urged to read into § 401 a one-year limitation on the sentencing power in order to avoid constitutional issues which the petitioners deem present in the absence of such a restriction. But in view of what we have shown, the section's provision that a federal court may punish 'at its discretion' the enumerated classes of contempts cannot reasonably be read to allow a court merely the choice between fines and imprisonment. We think the Court of Appeals correctly said: 'The phrase 'at its discretion,' does not mean that the court must choose between fine and imprisonment; the word 'or,' itself provides as much and the words, if so construed, would have been redundant. The term of imprisonment is to be as much in the court's discretion as the fine.' 241 F.2d at page 634.
31
We therefore turn to petitioners' constitutional arguments. The claim is that proceedings for criminal contempts, if contempts are subject to prison terms of more than one year, must be based on grand jury indictments under the clause of the Fifth Amendment providing: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.' (Italics added.) Since an 'infamous crime' within the meaning of the Amendment is one punishable by imprisonment in a penitentiary, Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909, and since imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year, 18 U.S.C. § 4083, 18 U.S.C.A. § 4083, petitioners assert that criminal contempts if subject to such punishment are infamous crimes under the Amendment.
32
But this assertion cannot be considered in isolation from the general status of contempts under the Constitution, whether subject to 'infamous' punishment or not. The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right.14 Although appearing to recognize this, petitioners nevertheless point out that punishment for criminal contempts cannot in any practical sense be distinguished from punishment for substantive crimes, see Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115, and that contempt proceedings have traditionally been surrounded with many of the protections available in a criminal trial.15 But this Court has never suggested that such protections included the right to grand jury indictment. Cf. Ex parte Savin, 131 U.S. 267, 278, 9 S.Ct. 699, 702, 33 L.Ed. 150; Gompers v. United States, supra, 233 U.S. at page 612, 34 S.Ct. at page 696. And of course the summary procedures followed by English courts prior to adoption of the Constitution in dealing with many contempts of court did not embrace the use of either grand or petit jury. See 4 Blackstone Commentaries 283—287. It would indeed be anomalous to conclude that contempts subject to sentences of imprisonment for over one year are 'infamous crimes' under the Fifth Amendment although they are neither 'crimes' nor 'criminal prosecutions' for the purpose of jury trial within the meaning of Art. III, § 2,16 and the Sixth Amendment.17
33
We are told however that the decision of this Court denying the right to jury trial in criminal contempt proceedings are based upon an 'historical error' reflecting a misunderstanding as to the scope of the power of English courts at the early common law to try summarily for contempts, and that this error should not here to extended to a denial of the right to grand jury. But the more recent historical research into English contempt practices predating the adoption of our Constitution reveals no such clear error and indicates if anything that the precise nature of those practices is shrouded in much obscurity. And whatever the breadth of the historical error said by contemporary scholarship to have been committed by English courts of the late Seventeenth and Eighteenth Centuries in their interpretation of English precedents involving the trials of contempts of court, it at least seems clear that English practice by the early Eighteenth Century comprehended the use of summary powers of conviction by courts to punish for a variety of contempts committed within and outside court.18 Such indeed is the statement of English law of 356 U.S. 184, 78 S.Ct. 643, who explicitly recognized use of a summary power by English courts to deal with disobedience of court process. It is noteworthy that the Judiciary Act of 1789, first attempting a definition of the contempt power, was enacted by a Congress with a Judiciary Committee including members of the recent Constitutional Convention, who no doubt shared the prevailing views in the American Colonies of English law as expressed in Blackstone. See Ex parte Burr, 4 Fed.Cas. pages 791, 797, No. 2,186. Against this historical background, this Court has never deviated from the view that the constitutional guarantee of trial by jury for 'crimes' and 'criminal prosecutions' was not intended to reach to criminal contempts. And indeed beginning with the Judiciary Act of 1789, Congress has consistently preserved the summary nature of the contempt power in the Act of 1831 and its statutory successors, departing from this traditional notion only in specific instances where it has provided for jury trial for certain categories of contempt.19
34
We do not write upon a clean slate. The principle that criminal contempts of court are not required to be tried by a jury under Article III or the Sixth Amendment is firmly rooted in our traditions. Indeed, the petitioners themselves have not contended that they were entitled to a jury trial. By the same token it is clear that criminal contempts, although subject, as we have held, to sentences of imprisonment exceeding one year, need not be prosecuted by indictment under the Fifth Amendment. In various respects, such as the absence of a statutory limitation of the amount of a fine or the length of a prison sentence which may be imposed for their commission, criminal contempts have always differed from the usual statutory crime under federal law. As to trial by jury and indictment by grand jury, they possess a unique character under the Constitution.20
IV.
35
Petitioners contend that the three-year sentences imposed upon them constituted an abuse of discretion on the part of the District Court.
36
We take this occasion to reiterate our view that in the areas where Congress has not seen fit to impose limitations on the sentencing power for contempts the district courts have a special duty to exercise such an extraordinary power with the utmost sense of responsibility and circumspection. The 'discretion' to punish vested in the District Courts by § 401 is not an unbridled discretion. Appellate courts have here a special responsibility for determining that the power is not abused, to be exercised if necessary by revising themselves the sentences imposed. This Court has in past cases taken pains to emphasize its concern with the use to which the sentencing power has occasionally been put, both by remanding for reconsideration of contempt sentences in light of factors it deemed important, see Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415, and by itself modifying such sentences. See United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. The answer to those who see in the contempt power a potential instrument of oppression lies in assurance of its careful use and supervision, not in imposition of artificial limitations on the power.
37
It is in this light that we have considered the claim that the sentences here were so excessive as to amount to an abuse of discretion. We are led to reject the claim under the facts of this case for three reasons. First, the contempt here was by any standards a most egregious one. Petitioners had been accorded a fair trial on the conspiracy charges against them and had been granted bail pending review of their convictions by the Court of Appeals and this Court. Nevertheless they absconded, and over four and a half years of hiding culminated not in a belated recognition of the authority of the court, but in petitioners' reassertion of justification for disobeying the surrender order. Second, comparing these sentences with those imposed on the other fugitives in the Dennis case, the sentences here are shorter by a year than that upheld in the Thompson case, and no longer than that inflicted in the Hall case. It is true that Hall and Thompson were apprehended, but the record shows that the District Court took into account the fact that the surrender of these petitioners was voluntary; there is the further factor that the period during which petitioners remained fugitives was longer than that in either the Hall or Thompson case. Third, the sentences were well within the maximum fiveyear imprisonment for bail-jumping provided now by 18 U.S.C. § 3146, 18 U.S.C.A. § 3146, a statute in which Congress saw fit expressly to preserve the contempt power without enacting any limitation on contempt sentences.
38
In these circumstances we cannot say that the sentences imposed were beyond the bounds of the reasonable exercise of the District Court's discretion.
39
Affirmed.
40
Mr. Justice FRANKFURTER, concurring.
41
In joining the Court's opinion I deem it appropriate to add a few observations. Law is a social organism, and evolution operates in the sociological domain no less than in the biological. The vitality and therefore validity of law is not arrested by the circumstances of its origin. What Magna Carta has become is very different indeed from the immediate objects of the barons at Runnymede. The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions. Moreover, the most authoritative student of the history of contempt of court has impressively shown that 'from the reign of Edward I it was established that the Court had power to punish summarily contempt committed * * * in the actual view of the Court.' Fox, History of Contempt of Court, 49—52.
42
Whatever the conflicting views of scholars in construing more or less dubious manuscripts of the Fourteenth Century, what is indisputable is that from the foundation of the United States the constitutionality of the power to punish for contempt without the intervention of a jury has not been doubted. The First Judiciary Act conferred such a power on the federal courts in the very act of their establishment, 1 Stat. 73, 83, and of the Judiciary Committee of eight that reported the bill to the Senate, five members including the chairman, Senator, later to be Chief Justice, Ellsworth, had been delegates to the Constitutional Convention.1 In the First Congress itself no less than nineteen members, including Madison who contemporaneously introduced the Bill of Rights, had been delegates to the Convention. And when an abuse under this power manifested itself, and led Congress to define more explicitly the summary power vested in the courts, it did not remotely deny the existence of the power but merely defined the conditions for its exercise more clearly, in an Act 'declaratory of the law concerning contempts of court.' Act of Mar. 2, 1831, 4 Stat. 487. Although the judge who had misued the power was impeached, and Congress defined the power more clearly, neither the proponents of the reform nor Congress in its corrective legislation suggested that the established law be changed by making the jury part of the procedure for the punishment of criminal contempt. This is more significant in that such a proposal had only recently been put before Congress as part of the draft penal code of Edward Livingston of Louisiana.
43
Nor has the constitutionality of the power been doubted by this Court throughout its existence. In at least two score cases in this Court, not to mention the vast mass of decisions in the lower federal courts, the power to punish summarily has been accepted without question.2 It is relevant to call the roll of the Justices, not including those now sitting, who thus sustained the exercise of this power:
Washington Gray Pitney
Marshall Blatchford McReynolds
Johnson L. Q. C. Lamar Brandeis
Livingston Fuller Clarke
Todd Brewer Taft
Story Brown Sutherland
Duval Shiras Butler
Clifford H. E. Jackson Sanford
Swayne White Stone
Miller Peckham Roberts
Davis McKenna Cardozo
Field Holmes Reed
Strong Day Murphy
44
Bradley Moody R. H. Jackson
Hunt Lurton Rutledge
Waite Hughes Vinson
Harlan Van Devanter Minton3
Matthews J. R. Lamar
45
To be sure, it is never too late for this Court to correct a misconception in an occasional decision, even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied. To say that everybody on the Court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing. Decision-making is not a mechanical process, but neither is this Court an originating lawmaker. The admonition of Mr. Justice Brandeis that we are not a third branch of the Legislature should never be disregarded. Congress has seen fit from time to time to qualify the power of summary punishment for contempt that it gave the federal courts in 1789 by requiring in explicitly defined situations that a jury be associated with the court in determining whether there has been a contempt. See, e.g., 18 U.S.C. § 3691, 18 U.S.C.A. § 3691; Civil Rights Act of 1957, 71 Stat. 634, 638, 42 U.S.C. § 1995, 42 U.S.C.A. § 1995. It is for Congress to extend this participation of the jury, whenever it sees fit to do so, to other instances of the exercise of the power to punish for contempt. It is not for this Court to fashion a wholly novel constitutional doctrine that would require such participation whatever Congress may think on the matter, and in the teeth of an unbroken legislative and judicial history from the foundation of the Nation.4
46
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
47
The power of a judge to inflict punishment for criminal contempt by means of a summary proceeding stands as an anomaly in the law.1 In my judgment the time has come for a fundamental and searching reconsideration of the validity of this power which has aptly been characterized by a State Supreme Court as, 'perhaps, nearest akin to despotic power of any power existing under our form of government.'2 Even though this extraordinary authority first slipped into the law as a very limited and insignificant thing, it has relentlessly swollen, at the hands of not unwilling judges, until it has become a drastic and pervasive mode of administering criminal justice usurping our regular constitutional methods of trying those charged with offenses against society. Therefore to me this case involves basic questions of the highest importance far transcending its particular facts. But the specific facts do provide a striking example of how the great procedural safeguards erected by the Bill of Rights are now easily evaded by the ever-ready and boundless expedients of a judicial decree and a summary contempt proceeding.
48
I would reject those precedents which have held that the federal courts can punish an alleged violation outside the courtroom of their decrees by means of a summary trial, at least as long as they can punish by severe prison sentences or fines as they now can and do.3 I would hold that the defendants here were entitled to be tried by a jury after indictment by a grand jury and in full accordance with all the procedural safeguards required by the Constitution for 'all criminal prosecutions.' I am convinced that the previous cases to the contrary are wrong—wholly wrong for reasons which I shall set out in this opinion.
49
Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inflexible rule. Courts are not omniscient. Like every other human agency, they too can profit from trial and error, from experience and reflection. As others have demonstrated, the principle commonly referred to as stare decisis has never been thought to extend so far as to prevent the courts from correcting their own errors. Accordingly, this Court has time and time again from the very beginning reconsidered the merits of its earlier decisions even though they claimed great longevity and repeated reaffirmation. See, e.g., Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172.4 Indeed, the Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and where compelling reasons present themselves to refuse to follow erroneous precedents; otherwise its mistakes in interpreting the Constitution are extremely difficult to alleviate and needlessly so. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405, 52 S.Ct. 443, 446, 76 L.Ed. 815 (Brandeis, J., dissenting); Douglas, Stare Decisis, 49 Col.L.Rev. 735.
50
If ever a group of cases called for reappraisal it seems to me that those approving summary trial of charges of criminal contempt are the ones. The early precedents which laid the ground-work for this line of authorities were decided before the actual history of the procedures used to punish contempt was brought to light, at a time when '(w)holly unfounded assumptions about 'immemorial usage' acquired a factitious authority and were made the basis of legal decisions.'5 These cases erroneously assumed that courts had always possessed the power to punish all contempts summarily and that it inhered in their very being without supporting their suppositions by authority or reason. Later cases merely cite the earlier ones in a progressive cumulation while uncritically repeating their assumptions about 'immemorial usage' and 'inherent necessity.'6
51
No justified expectations would be destroyed by the course I propose. There has been no heavy investment in reliance on the earlier cases; they do not remotely lay down rules to guide men in their commercial or property affairs. Instead they concern the manner in which persons are to be tried by the Government for their alleged crimes. Certainly in this area there is no excuse for the perpetuation of past errors, particularly errors of great continuing importance with ominous potentialities. Apparently even the majority recognizes the need for some kind of reform by engrafting the requirement that punishment for contempt must be 'reasonable'—that irrepressible, vague and delusive standard which at times threatens to engulf the entire law, including the Constitution itself, in a sea of judicial discretion.7 But this trifling amelioration does not strike at the heart of the problem and can easily come to nothing, as the majority's very approval of the grossly disproportionate sentences imposed on these defendants portends.
52
Before going any further, perhaps it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court's directive, is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees. See United States v. United Mine Workers of America, 330 U.S. 258, 330—332, 67 S.Ct. 677, 713—714, 91 L.Ed. 884 (dissenting and concurring opinion). Instead, at stake here is the validity of a criminal conviction for disobedience of a court order punished by a long, fixed term of imprisonment. In my judgment the distinction between conditional confinement of compel future performance and unconditional imprisonment designed to punish past transgressions is crucial, analytically as well as historically, in determining the permissible mode of trial under the Constitution.
53
Summary trial of criminal contempt, as now practiced, allows a single functionary of the state, a judge, to lay down the law, to prosecute those who he believes have violated his command (as interpreted by him), to sit in 'judgment' on his own charges, and then within the broadest kind of bounds to punish as he sees fit. It seems inconsistent with the most rudimentary principles of our system of criminal justice, a system carefully developed and preserved throughout the centuries to prevent oppressive enforcement of oppressive laws, to concentrate this much power in the hands of any officer of the state. No official, regardless of his position or the purity and nobleness of his character, should be granted such autocratic omnipotence. Indeed if any other officer were presumptuous enough to claim such power I cannot believe the courts would tolerate it for an instant under the Constitution. Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal. Frank recognition of these common human characteristics, as well as others which need not be mentioned, undoubtedly led to the determination of those who formed our Constitution to fragment power, especially the power to define and enforce the criminal law, among different departments and institutions of government in the hope that each would tend to operate as a check on the activities of the others and a shield against their excesses thereby securing the people's liberty.
54
When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused.8 He truly becomes the judge of his own cause. The defendant charged with criminal contempt is thus denied what I had always thought to be an indispensable element of due process of law—an objective, scrupulously impartial tribunal to determine whether he is guilty or innocent of the charges filed against him. In the words of this Court: 'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. * * * Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.' In re Murchison, 349 U.S. 133, 136—137, 75 S.Ct. 623, 625, 99 L.Ed. 942. Cf. Chambers v. State of Florida, 309 U.S. 227, 236—237, 60 S.Ct. 472, 476—477, 84 L.Ed. 716; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
55
The vices of a summary trial are only aggravated by the fact that the judge's power to punish criminal contempt is exercised without effective external restraint. First, the substantive scope of the offense of contempt is inordinately sweeping and vague; it has been defined, for example, as 'any conduct that tends to bring the authority and administration of the law into disrespect or disregard.'9 It would be no overstatement therefore to say that the offense with the most illdefined and elastic contours in our law is now punished by the harshest procedures known to that law. Secondly, a defendant's principal assurance that he will be fairly tried and punished is the largely impotent review of a cold record by an appellate court, another body of judges. Once in a great while a particular appellate tribunal basically hostile to summary proceedings will closely police contempt trials but such supervision is only isoalted and fleeting. All too often the reviewing courts stand aside readily with the formal declaration that 'the trial judge has not abused his discretion.' But even at its rare best appellate review cannot begin to take the place of trial in the first instance by an impartial jury subject to review on the spot by an uncommitted trial judge. Finally, as the law now stands there are no limits on the punishment a judge can impose on a defendant whom he finds guilty of contempt except for whatever remote restrictions exist in the Eighth Amendment's prohibition against cruel and unusual punishments or in the nebulous requirements of 'reasonableness' now promulgated by the majority.
56
In my view the power of courts to punish criminal contempt by summary trial, as now exercised, is precisely the kind of arbitrary and dangerous power which our forefathers both here and abroad fought so long, so bitterly, to stamp out. And the paradox of it all is that the courts were established and are maintained to provide impartial tribunals of strictly disinterested arbiters to resolve charges of wrongdoing between citizen and citizen or citizen and state.
57
The Constitution and Bill of Rights declare in sweeping unequivocal terms that 'The Trial of all Crimes * * * shall be by Jury,' that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,' and that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.' As it may now be punished criminal contempt is manifestly a crime by every relevant test of reason or history. It was always a crime at common law punishable as such in the regular course of the criminal law.10 It possesses all of the earmarks commonly attributed to a crime. A mandate of the Government has allegedly been violated for which severe punishment, including long prison sentences, may be exacted—punishment aimed at chastising the violator for his disobedience.11 As Mr. Justice Holmes irrefutably observed for the Court in Gompers v. United States, 233 U.S. 604, at pages 610—611, 34 S.Ct. 693, at page 695, 58 L.Ed. 1115: 'These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure * * * and that at least in England, it seems that they still may be and preferably are tried in that way.'12
58
This very case forcefully illustrates the point. After surrendering the defendants were charged with fleeing from justice, convicted, and given lengthy prison sentences designed to punish them for their flight. Identical flight has now been made a statutory crime by the Congress with severe penalties.13 How can it possibly be any more of a crime to be convicted of disobeying a statute and sent to jail for three years than to be found guilty of violating a judicial decree forbidding precisely the same conduct and imprisoned for the same term?
59
The claim has frequently been advanced that courts have exercised the power to try all criminal contempts summarily since time immemorial and that this mode of trial was so well established and so favorably regarded at the time the Constitution was adopted that it was carried forward intact, by implication, despite the express provisions of the Bill of Rights requiring completely different and fairer kind of trial for 'all crimes.' The myth of immemorial usage has been exploded by recent scholarship as a mere fiction. Instead it seems clear that until at least the late Seventeenth or early Eighteenth Century the English courts, with the sole exception of the extraordinary and ill-famed Court of Star Chamber whose arbitrary procedures and gross excesses brought forth many of the safe-guards included in our Constitution, neither had nor claimed power to punish contempts committed out of court by summary process. Fox, The History of Contempt of Court; Frankfurter and Landis, Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1042—1052; Beale, Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161. Prior to this period such contempts were tried in the normal and regular course of the criminal law, including trial by jury.14 After the Star Chamber was abolished in 1641 the summary contempt procedures utilized by that odious instrument of tyranny slowly began to seep into the common-law courts where they were embraced by judges not averse to enhancing their own power. Still for decades the instances where such irregular procedures were actually applied remained few and far between and limited to certain special situations.
60
Then in 1765 Justice Wilmot declared in an opinion prepared for delivery in the Court of King's Bench (but never actually handed down) that courts had exercised the power to try all contempts summarily since their creation in the forgotten past. Although this bald assertion has been wholly discredited by the painstaking research of the eminent authorities referred to above, and even though Wilmot's opinion was not published until some years after our Constitution had been adopted, nor cited as authority by any court until 1821, his views have nevertheless exerted a baleful influence on the law of contempt both in this country and in England. By the middle of the last century the English courts had come to accept fully his thesis that they inherently possessed power to punish all contempts summarily, in or out of court. Yet even then contempts were often punished by the regular criminal procedures so that this Court could report as late as 1913 that they were still preferably tried in that manner. Gompers v. United States, 233 U.S. 604, 611, 34 S.Ct. 693, 695.15
61
The Government, relying solely on certain obscure passages in some early law review articles by Fox, contends that while the common-law courts may not have traditionally possessed power to punish all criminal contempts without a regular trial they had always exercised such authority with respect to disobedience of their decrees. I do not believe that the studies of Fox or of other students of the history of contempt support any such claim. As I understand him, Fox reaches precisely the opposite conclusion. In his authoritative treatise, expressly written to elaborate and further substantiate the opinions formed in his earlier law review comments, he states clearly at the outset:
62
'The first of (this series of earlier articles), entitled The King v. Almon, was written to show that in former times the offence of contempt committed out of court was tried by a jury in the ordinary course of law and not summarily by the Court as at present (1927). The later articles also bear upon the history of the procedure in matters of contempt. Further inquiry confirmed the opinion originally formed with regard to the trial of contempt and brought to light a considerable amount of additional evidence which, with the earlier matter, is embodied in the following chapters * * *.'16
63
Then in summarizing he asserts that strangers to court proceedings were never punished except by the ordinary processes of the criminal law for contempts committed out of the court's presence until some time after the dissolution of the Star Chamber; he immediately follows with the judgment that parties were governed by the same general rules that applied to strangers.17 Of course he recognizes the antiquity of the jurisdiction of courts to enforce their orders by conditional confinement, but such coercion, as pointed out before, is obviously something quite different from the infliction of purely punitive penalties for criminal contempt when compliance is no longer possible.
64
Professors Frankfurter and Landis in their fine article likewise unequivocally declare:
65
'* * * the Clayton Act (providing for jury trial of certain charges of criminal contempt) does nothing new. It is as old as the best traditions of the common law. * * *
66
'Down to the early part of the eighteenth century cases of contempt even in and about the common-law courts when not committed by persons officially connected with the court were dealt with by the ordinary course of law, i.e., tried by jury, except when the offender confessed or when the offense was committed 'in the actual view of the court.' * * * '(U)ntil 1720 there is no instance in the common-law precedents of punishment otherwise than after trial in the ordinary course and not by summary process.'18
67
And Professor Beale in his discussion of the matter concludes:
68
'As early as the time of Richard III it was said that the chancellor of England compels a party against whom an order is issued by imprisonment; and a little later it was said in the chancery that 'a cecree does not bind the right, but only binds the person to obedience, so that if the party will not obey, then the chancellor may commit him to prison till he obey, and that is all the chancellor can do.' This imprisonment was by no means a punishment, but was merely to secure obedience to the writ of the king. Down to within a century (Beale was writing in 1908) it was very doubtful if the chancellor could under any circumstances inflict punishment for disobedience of a decree. * * * In any case the contempt of a defendant who had violated a decree in chancery could be purged by doing the act commanded and paying costs; * * *.
69
'Where the court inflicts a definite term of imprisonment by way of punishment for the violation of its orders, the case does not differ, it would seem, from the case of criminal contempt out of court, and regular process and trial by jury should be required.'19
70
In brief the available historical material as reported and analyzed by the recognized authorities in this field squarely refutes the Government's insistence that disobedience of a court order has always been an exception punishable by summary process. Insofar as this particular case is concerned, the Government frankly concedes that it cannot point to a single instance in the entire course of Anglo-American legal history prior to this prosecution and two related contemporary cases where a defendant has been punished for criminal contempt by summary trial after fleeing from court-ordered imprisonment.20
71
Those who claim that the delegates who ratified the Constitution and its contemporaneous Amendments intended to exempt the crime of contempt from the procedural safeguards expressly established by those great charters for the trial of 'all crimes' carry a heavy burden indeed. There is nothing in the Constitution or any of its Amendments which even remotely suggests such an exception. And as the Government points out in its brief, it does not appear that there was a word of discussion in the Constitutional Convention or in any of the state ratifying conventions recognizing or affirming the jurisdiction of courts to punish this crime by summary process, a power which in all particulas is so inherently alien to the method of punishing other public offenses provided by the Constitution.
72
In the beginning the contempt power with its essentially arbitrary procedures was a petty, insignificant part of our law involving the use of trivial penalties to preserve order in the courtroom and maintain the authority of the courts.21 But since the adoption of the Constitution it has undergone an incredible transformation and growth, slowly at first and then with increasing acceleration, until it has become a powerful and pervasive device for enforcement of the criminal law. It is no longer the same comparatively innocuous power that it was. Its summary procedures have been pressed into service for such far-flung purposes as to prevent 'unlawful' labor practices, to enforce the prohibition laws, to secure civil liberties and now, for the first time in our history, to punish a convict for fleeing from imprisonment.22 In brief it has become a common device for by-passing the constitutionally prescribed safeguards of the regular criminal law in punishing public wrongs. But still worse, its subversive potential to that end appears to be virtually unlimited. All the while the sentences imposed on those found guilty of contempt have steadily mounted, until now they are even imprisoned for years.
73
I cannot help but believe that this arbitrary power to punish by summary process, as now used, is utterly irreconcilable with first principles underlying our Constitution and the system of government it created—principles which were uppermost in the minds of the generation that adopted the Constitution. Above all that generation deeply feared and bitterly abhorred the existence of arbitrary, unchecked power in the hands of any government official, particularly when it came to punishing alleged offenses against the state. A great concern for protecting individual liberty from even the possibility of irresponsible official action was one of the momentous forces which led to the Bill of Rights. And the Fifth, Sixth, Seventh and Eighth Amendments were directly and purposefully designed to confine the power of courts and judges, especially with regard to the procedures used for the trial of crimes.
74
As manifested by the Declaration of Independence, the denial of trial by jury and its subversion by various contrivances was one of the principal complaints against the English Crown. Trial by a jury of laymen and no less was regarded as the birthright of free men.23 Witness the fierce opposition of the colonials to the courts of admiralty in which judges instead of citizen juries were authorized to try those charged with violating certain laws.24 The same zealous determination to protect jury trial dominated the state conventions which ratified the Constitution and eventually led to the solemn reaffirmation of that mode of trial in the Bill of Rights—not only for all criminal prosecutions but for all civil causes involving $20 or more. See 2 Story, Commentaries on the Constitution (5th ed. 1891), §§ 1763—1768. I find it difficult to understand how it can be maintained that the same people who manifested such great concern for trial by jury as to explicitly embed it in the Constitution for every $20 civil suit could have intended that this cherished method of trial should not be available to those threatened with long imprisonment for the crime of contempt. I am confident that if there had been any inkling that the federal courts established under the Constitution could impose heavy penalties, as they now do, for violation of their sweeping and far-ranging mandates without giving the accused a fair trial by his fellow citizens it would have provoked a storm of protest, to put it mildly. Would any friend of the Constitution have been foolhardy enough to take the floor of the ratifying convention in Virginia or any of a half dozen other States and even suggest such a possibility?25
75
As this Court has often observed, 'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning,' United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 222, 75 L.Ed. 640; '* * * constitutions, although framed by conventions, are yet created by the votes of the entire body of electors in a State, the most of whom are little disposed, even if they were able, to engage in such refinements. The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption,' Lake County v. Rollins, 130 U.S. 662, 671, 9 S.Ct. 651, 652, 32 L.Ed. 1060. Cf. Mr. Justice Holmes in Eisner v. Macomber, 252 U.S. 189, 219—220, 40 S.Ct. 189, 197, 64 L.Ed. 521 (dissenting opinion). It is wholly beyond my comprehension how the generality of laymen, or for that matter even thoughtful lawyers, either at the end of the Eighteenth Century or today, could possibly see an appreciable difference between the crime of contempt, at least as it has now evolved, and other major crimes, or why they would wish to draw any distinction between the two so far as basic constitutional rights were concerned.
76
It is true that Blackstone in his Commentaries incorporated Wilmot's erroneous fancy that at common law the courts had immemorially punished all criminal contempts without regular trial. Much ado is made over this by the proponents of summary proceedings. Yet at the very same time Blackstone openly classified and uniformly referred to contempt as a 'crime' throughout his treatise, as in fact it had traditionally been regarded and punished at common law.26 Similarly, other legal treatises available in this country during the period when the Constitution was established plainly treated contempt as a 'crime.'27 It seems to me that if any guide to the meaning of the Constitution can be fashioned from the circulation of the Commentaries and these other legal authorities through the former colonies (primarily among lawyers and judges) it is at least as compatible with the view that the Constitution requires a jury trial for criminal contempts as with the contrary notion.
77
But far more significant, our Constitution and Bill of Rights were manifestly not designed to perpetuate, to preserve inviolate, every arbitrary and oppressive governmental practice then tolerated, or thought to be, in England. Cf. Bridges v. State of California, 314 U.S. 252, 263—268, 62 S.Ct. 190, 194—196, 86 L.Ed. 192. Those who formed the Constitution struck out anew free of previous shackles in an effort to obtain a better order of government more congenial to human liberty and welfare. It cannot be seriously claimed that they intended to adopt the common law wholesale. They accepted those portions of it which were adapted to this country and conformed to the ideals of its citizens and rejected the remainder. In truth there was widespread hostility to the common law in general and profound opposition to its adoption into our jurisprudence from the commencement of the Revolutionary War until long after the Constitution was ratified. As summarized by one historian:
78
'The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812.'28
79
Although the bench and bar, particularly those who were adherents to the principles of the Federalist Party, often favored carrying forward the common law to the fullest possible extent popular sentiment was overwhelmingly against them.29
80
Apologists for summary trial of the crime of contempt also endeavor to justify it as a 'necessity' if judicial orders are to be observed and the needful authority of the courts maintained. 'Necessity' is often used in this context as convenient or desirable. But since we are dealing with an asserted power which derogates from and is fundamentally inconsistent with our ordinary, constitutionally prescried methods of proceeding in criminal cases, 'necessity,' if it can justify at all, must at least refer to a situation where the extraordinary power to punish by summary process is clearly indispensable to the enforcement of court decrees and the orderly administration of justice. Or as this Court has repeatedly phrased it, the courts in punishing contempts should be rigorously restricted to the 'least possible power adequate to the end proposed.' See, e.g., In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30.
81
Stark necessity is an impressive and often compelling thing, but unfortunately it has all too often been claimed loosely and without warrant in the law, as elsewhere, to justify that which in truth is unjustifiable. As one of our great lawyers, Edward Livingston, observed in proposing the complete abolition of summary trial of criminal contempts:
82
'Not one of the oppressive prerogatives of which the crown has been successively stripped, in England, but was in its day, defended on the plea of necessity. Not one of the attempts to destroy them, but was deemed a hazardous innovation.'30
83
When examined in closer detail the argument from 'necessity' appears to rest on the assumption that the regular criminal processes, including trial by petit jury and indictment by grand jury, will not result in conviction and punishment of a fair share of those guilty of violating court orders, are unduly slow and cumbersome, and by intervening between the court and punishment for those who disobey its mandate somehow detract from its dignity and prestige. Obviously this argument reflects substantial disrespect for the institution of trial by jury, although this method of trial is—and has been for centuries—an integral and highly esteemed part of our system of criminal justice enshrined in the Constitution itself. Nothing concrete is ever offered to support the innuendo that juries will not convict the same proportion of those guilty of contempt as would judges. Such evidence as is available plus my own experience convinces me that by and large juries are fully as responsible in meting out justice in criminal cases as are the judiciary.31 At the same time, and immeasurable more important, trial before a jury and in full compliance with all of the other protections of the Bill of Rights is much less likely to result in a miscarriage of justice than summary trial by the same judge who issued the order allegedly violated.
84
Although some are prone to overlook it, an accused's right to trial by a jury of his fellow citizens when charged with a serious criminal offense is unquestionably one of his most valuable and well-established safeguards in this country.32 In the words of Chief Justice Cooley: 'The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice.' People v. Garbutt, 17 Mich. 9, 27. Trial by an impartial jury of independent laymen raises another imposing barrier to oppression by government officers. As one of the more perceptive students of our experiment in freedom keenly observed, 'The institution of the jury . . . places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government.' 1 De Tocqueville, Democracy in America (Reeve trans., 1948 ed.), 282. The jury injects a democratic element into the law. This element is vital to the effective administration of criminal justice, not only in safeguarding the rights of the accused, but in encouraging popular acceptance of the laws and the necessary general acquiescence in their application. It can hardly be denied that trial by jury removes a great burden from the shoulders of the judiciary. Martyrdom does not come easily to a man who has been found guilty as charged by twelve of his neighbors and fellow citizens.
85
It is undoubtedly true that a judge can dispose of charges of criminal contempt faster and cheaper than a jury. But such trifling economies as may result have not generally been thought sufficient reason for abandoning our great constitutional safeguards aimed at protecting freedom and other basic human rights of incalculable value. Cheap, easy convictions were not the primary concern of those who adopted the Constitution and the Bill of Rights. Every procedural safeguard they established purposely made it more difficult for the Government to convict those it accused of crimes. On their scale of values justice occupied at least as high a position as economy. But even setting this dominant consideration to one side, what compelling necessity is there for special dispatch in punishing criminal contempts, especially those occurring beyond the courtroom? When the desired action or inaction can no longer be compelled by coercive measures and all that remains is the punishment of past sins there is adequate time to give defendants the full benefit of the ordinary criminal procedures. As a matter of fact any slight delay involved might well discourage a court from resorting to hasty, unnecessary measures to chastise suspected disobedience. I believe that Mr. Justice Holmes, speaking for himself and Mr. Justice Brandeis, took his stand on invulnerable ground when he declared that where 'there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 425—426, 38 S.Ct. 560, 566, 62 L.Ed. 1186 (dissenting opinion).33
86
For almost a half century the Clayton Act has provided for trial by jury in all cases of criminal contempt where the alleged contempt is also a violation of a federal criminal statute.34 And since 1931 the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., has granted the same right where a charge of criminal contempt is based on the alleged violation of an injunction issued in a labor dispute.35 of calamity and destruction of the of clamity and destruction of the judicial system which preceded, accompanied and briefly followed these reforms, there is no indication whatever that trial by jury has impaired the effectiveness or authority of the courts in these important areas of the law. Furthermore it appears that in at least five States one accused of the crime of contempt is entitled, at least to some degree to demand jury trial where the alleged contempt occurred beyond the courtroom.36 Again, I am unable to find any evidence, or even an assertion, that judicial orders have been stripped of their efficacy or courts deprived of their requisite dignity by the intervention of the jury in those States. So far as can be discerned the wheels of justice have not ground to a halt or even noticeably slowed. After all the English courts apparently got on with their business for six or seven centuries without any general power to try charges of criminal contempt summarily.
87
I am confident that in the long run due respect for the courts and their mandates would be much more likely if they faithfully observed the procedures laid down by our nationally acclaimed charter of liberty, the Bill of Rights.37 Respect and obedience in this country are not engendered—and rightly not—by arbitrary and autocratic procedures. In the end such methods only yield real contempt for the courts and the law. The classic example of this is the use and abuse of the injunction and summary contempt power in the labor field. The federal courts have still not recovered from the scars inflicted by their intervention in that area where Congress finally stepped in and preserved the right of jury trial to all those charged with the crime of contempt.
88
In the last analysis there is no justification in history, in necessity, or most important in the Constitution for trying those charged with violating a court's decree in a manner wholly different from those accused of disobeying any other mandate of the state. It is significant that neither the Court nor the Government makes any serious effort to justify such differentiation exept that it has been sanctioned by prior decisions. Under the Constitution courts are merely one of the coordinate agencies which hold and exercise governmental power. Their decrees are simply another form of sovereign directive aimed at guiding the citizen's activity. I can perceive nothing which places these decrees on any higher or different plane than the laws of Congress or the regulations of the Executive insofar as punishment for their violation is concerned. There is no valid reason why they should be singled out for an extraordinary and essentially arbitrary mode of enforcement. Unfortunately judges and lawyers have told each other the contrary so often that they have come to accept it as the gospel truth. In my judgment trial by the same procedures, constitutional and otherwise, which are extended to criminal defendants in all other instances is also wholly sufficient for the crime of contempt.
89
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE joins, dissenting.
90
I dissent because I do not believe that the evidence was sufficient to establish beyond a reasonable doubt the petitioners' guilt of the criminal contempt charged.
91
Petitioners were among 11 leaders of the Communist Party who were convicted of violation of the Smith Act, now 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, on October 14, 1949. Both were sentenced to a fine of $10,000 and to five years' imprisonment, and were enlarged on bail pending appeal. The Court of Appeals affirmed the convictions on August 1, 1950, and this Court in turn affirmed on June 4, 1951. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. On June 28, 1951, prior to formal receipt of the Suprme Court judgment, the District Court drew up a proposed Order on Mandate making the judgment of this Court that of the District Court. The last paragraph 'Further ordered, adjudged and decreed that the defendants personally surrender to the United States Marshal * * * on the 2nd day of July, 1951 * * *.' This proposed order was served on the attorneys for the 11 and they promised to bring their clients into court the following Monday, July 2, to begin serving their sentences. On Friday, June 29, the attorneys met with all the defendants and 'advised that they all should be present (in court on Monday) and * * * (were) assured they would be.' But by Monday four had absconded. Since seven were present, however, the Order on Mandate was signed, and the seven were taken off to serve their prison terms. The court canceled the bail of the missing four on July 3 and issued a bench warrant for their arrest. Two of the four, Hall and Thompson, were apprehended in 1951 and 1953 respectively and were convicted of criminal contempt. United States v. Hall, 2 Cir., 198 F.2d 726; United States v. Thompson, 2 Cir., 214 F.2d 545. The petitioners surrendered voluntarily in 1956 and were likewise convicted of criminal contempt. The contempt charged in each instance was a violation of 18 U.S.C. § 401(3), 18 U.S.C.A. § 401(3), by disobedience of the provision of the Order on Mandate, issued on the morning of July 2, 1951, requiring the surrender of all the Dennis defendants to the United States Marshal at 11:05 a.m. on that day. Significantly, at the time the judge signed the order he lined out the hour of surrender, appearing as 10:30 in the proposed order, and substituted 11:05, the time at which the order was actually signed. See the opinion of Judge Biggs in United States v. Hall, supra, 198 F.2d at page 732.
92
The most that can be said is that the evidence might have been sufficient to support conviction of the petitioners for bail jumping if that had been an offense at the time they fled. But bail jumping did not become a separate crime until three years after the petitioners' flight, when this void in the law highlighted by the petitioners' conduct—led the Department of Justice to secure the enactment of 18 U.S.C. § 3146, 18 U.S.C.A. § 3146. See H.R.Rep. No. 2104, 83d Cong., 2d Sess. But, in any event, bail jumping is not the offense charged, and, although it is certainly a most serious obstruction of the administration of justice, it is not in itself a criminal contempt.
93
The Court relates the criminal contempt charged to bail jumping by its use of § 3146 as support for the sentences imposed upon the petitioners. But bail jumping under § 3146 is proved merely by evidence that the accused willfully failed to surrender within 30 days after incurring a forfeiture of his bail. Much more, however, than evidence sustaining a conviction for bail jumping is necessary to sustain convictions for the contempts here charged of violating 18 U.S.C. § 401(3), 18 U.S.C.A. § 401(3), by willful and knowing disobedience of a single provision of the Order on Mandate of July 2, 1951. The indispensable element of that offense, to be proved beyond a reasonable doubt, Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797, is that the petitioners, who were not served with the order, in some other way obtained actual knowledge of its existence and command. Kelton v. United States, 3 Cir., 294 F. 491; In re Kwelman, D.C., 31 F.Supp. 23; see Wilson v. State of North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865.
94
Assessment of the sufficiency of the evidence bearing on the petitioners' knowledge requires that the precise time at which the order came into existence be kept clearly in mind. The Court of Appeals below fell into palpable error in reading the specifications to charge 'disobedience of the order of June 28.' 241 F.2d 631, 632. The order was not signed or entered until court convened after 10 o'clock on the morning of July 2. What happended on June 28 was tht the attorneys of the Dennis defendants were served with copies of a proposed order to be entered on July 2. But the attorneys' knowledge cannot be imputed to their clients. In re Kwelman, supra. The petitioners had absconded by July 2, and the record is completely silent as to their whereabouts from June 29 until they surrendered almost five years later. Concededly, direct evidence of knowledge by the petitioners of the order of July 2 is wholly lacking and the case for conviction rests entirely upon circumstantial evidence.
95
The proof upon which reliance is placed consists of evidence (1) that the petitioners knew on June 29, 1951, that the order was to be entered on July 2, and (2) that the petitioners made certain statements to the press at the time of their surrender almost five years later.
96
First. Manifestly, foreknowledge that an order might come into existence does not prove knowledge that it did come into existence. Even if the petitioners knew on June 29 that the order was likely to be signed on July 2, the most that can be said is that after July 2 the petitioners knew that the order was to have been entered. This, of course, is not the same as knowledge that the order had been entered, and it is the latter knowledge which the Government must prove beyond a reasonable doubt. Knowledge that the order had been entered, of course, could only be acquired by the petitioners after the order had come into existence on the morning of July 2; and that knowledge can hardly be inferred from the events which occurred prior to the moment the order was entered. See the opinion of Judge Biggs in United States v. Hall, 2 Cir., 198 F.2d 726, 733—735.
97
The Government's lack of confidence in the proofs to show actual knowledge is implicit in its effort to sustain the convictions on a theory of constructive knowledge derived from the events of June 28 and from the evidence that on June 29 the petitioners and the other Dennis defendants were told by the attorneys that they must be in court on July 2. The short answer to this contention is that the petitioners are not charged with disobedience of an order of which they had constructive knowledge but with disobedience of an order of which they had actual knowledge, and conviction can be had on the precise charge, or not at all. In any event, the sole authority relied upon by the Government is a dictum in Pettibone v. United States, 148 U.S. 197, 206—207, 13 S.Ct. 542, 546, 37 L.Ed. 419, to the effect that persons may be chargeable with knowledge of an order from notice that an application will be made for the order. But whatever its utility in civil cases, theories of constructive knowledge have no place in the criminal law. Not only is this forcefully demonstrated in Judge Biggs' opinion in United States v. Hall, supra, but the Pettibone dictum has not been followed in criminal contempt cases. Kelton v. United States, supra; In re Kwelman, supra.
98
Second. Since the evidence of knowledge that an order was to be entered is not sufficient to prove knowledge that the order was entered, what of the evidence of what was said by the petitioners at the time of their surrender? The Court refers to the petitioners' press releases in which they stated they would surrender to 'enter prison,' and to Green's further reference that he intended to 'go to the United States Marshal's Office.' But, of course, surrender could only have been to enter prison. Their statements prove no more than what the petitioners and everyone else knew had to happen when this Court affirmed their Smith Act convictions in 1951. And it can hardly be doubted that, after the many months these petitioners spend at their trial in the Foley Square Courthouse, both the location and function of the Marshal's Office was well known to them. That the Court must resort to these statements to find probative weight in the evidence demonstrates the inherent insufficiency of the proofs to show actual knowledge.
99
Nor do there appear other circumstances from which knowledge may be inferred. The Court's opinion gives the impression that the surrender order was an order in familiar and customary use, well known to the sophisticated in the criminal law. I doubt that even widely experienced criminal lawyers encounter this provision very often. The provision was not the occasion for the entry of the order of July 2. The purpose of that order, as its caption 'Order on Mandate' shows, was to enter an order in the District Court to give effect to the Mandate of this Court affirming the convictions of the Dennis defendants. But for the necessity of entering an order for that purpose there may well have been no surrender order. No statute or rule of court, even a local rule of the District Court, can be pointed to as requiring inclusion of the surrender provision. The bondsman who stands to lose the posted bail, not a surrender order, is usually counted on to produce the defendant. Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H.R. 8658, 83d Cong., 2d Sess. 14—19. This is not to say, of course, that the provision was in any way improper or illegal or served no useful purpose. Nevertheless its novelty is indicated when the Court must look to a provision of the bail bond as the only discoverable source of authority for the provision.
100
I can well understand why the Government should have desired to proceed against these petitioners for their serious obstruction of the administration of justice. In the absence of a statutory provision aimed directly at this conduct, the Government resorted to this attempt to punish that obstruction as a criminal contempt. However, regardless of the view taken on the underlying constitutional issue involved, the odiousness of the offense cannot be a reason for relaxing the normal standards of proof required to sustain a conviction under § 401(3). Believing that the proofs in this case fall short of that standard, I must dissent.
101
Mr. Justice DOUGLAS, though agreeing with the dissent of Mr. Justice BLACK, also agrees with Mr. Justice BRENNAN that the evidence will not sustain this conviction, whatever may be the view on the underlying constitutional issue.
1
This Rule provides that criminal contempts other than those committed in the actual presence of the court and seen or heard by the court shall be prosecuted on notice. Notice may be given, as in the present case, by an order to show cause. The Rule states that a defendant is entitled to trial by jury if an Act of Congress so provides. See note 19, infra.
2
The debates conducted in 1830—1831 by leading counsel of that period during the impeachment proceedings against Judge James H. Peck, see 356 U.S. 171, 78 S.Ct. at page 636, infra, contained discussions of the Act of 1789, and the limitations to be imposed upon it, which were cast largely in terms of the English common law preceding its enactment. See Stansbury, Report of the Trial of James H. Peck (1833).
3
During the debates in 1830—1831 referred to in note 2, supra, several of the managers who argued that Judge Peck had exceeded the historical boundaries of the contempt power by the conduct which had provoked the impeachment proceedings (see 356 U.S. 171, 78 S.Ct. at page 636, infra) appear to have assumed that courts were historically justified in employing the contempt power to deal with disobedience to court process. See Stansbury, supra, note 2, at 313, 395—396, 436, 444.
4
See, e.g., In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, and Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, all concerning the predecessor statutes to present § 401(1), which relates to misbehavior in court or so near thereto as to obstruct the administration of justice, and Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474, arising under § 401(2), which deals with misbehavior of court officers in their official transactions.
5
This order can hardly be interpreted otherwise than as imposing on the Dennis defendants from the time that the order became effective on July 2 a continuing obligation to surrender promptly upon becoming aware of its effectiveness. The printed record before us indicates that the proposed order given counsel on June 28 read precisely in the form quoted in the text above, but the original copy of the order reveals that the time for surrender was first written as '10:30' a.m., and at some later time prior to the time the order was signed was changed to read '11.05.' Petitioners make no issue of this discrepancy, and we attach no significance to it.
6
The events of June 29, 1951, were testified to in court on July 3, 1951, by petitioners' counsel, Messrs. Sacher and Isserman. By stipulation, a transcript of this testimony was introduced into evidence during the contempt proceedings in the District Court, and excerpts from the testimony follow:
The Court: 'Now, you did make a statement last week that you will have the four defendants (Green, Winston, Hall and Thompson) in court, as I recall, on Monday (July 2).
'Mr. Sacher: I said that all of them would be here.
'The Court: And as you know, four of them were not here on Monday. Of course, you may be bound by some obligation of attorney and client, but are you able to give the Court any information as to their present whereabouts?
'Mr. Sacher: Your Honor, I should consider myself not bound by any obligation to withhold any information that I might have, and I give your Honor my assurance that I have no knowledge, I have no basis of knowledge as to their present whereabouts or where they might have gone.
'The Court: Where did you last see these four defendants?
'Mr. Sacher: * * * I am not certain about Thompson, but I am fairly certain that I saw the three I mentioned sometime on Friday (June 29) at 35 East Twelfth Street.
'The Court: Did you tell them at that time that their presence was required in court yesterday morning?
'Mr. Sacher: Definitely. As a matter of fact I advised that because I think I saw them among other defendants after I had been here on Friday, your Honor, and had made these motions (appearently referring to counsel's efforts to postpone the surrender date until after July 4), and therefore I advised that they all should be present and I was assured they would be.
'The Court: Mr. Isserman, do you know where any of these defendants are?
'Mr. Isserman: I might say to the Court that I would not rest on privilege in this situation at all. I have no knowledge of the present whereabouts of any of these defendants. * * * I remember, Green being my client, I remember distinctly that I saw him on that day (June 29) and received from him the assurance that he would be here Monday morning (July 2).'
7
Excerpts from Green's press release:
'On Monday, February 27th at 12 noon I shall cease being a fugitive from injustice and instead become its prisoner. At that time, I shall appear at Foley Square. * * * The course I chose five years ago was not dictated by personal considerations. In many ways it was harsher than that of imprisonment * * *. (I)t seemed incumbent upon me to resist that trend (i.e. to 'an American brand of fascism') with every ounce of strength I possessed. Some could do so by going to jail; others by not. * * * I enter prison with head high and conscience clear.' (Italics added.)
Excerpts from Winston's press release:
'Reiterating my innocence, and protesting the flagrant miscarriage of justice in my case, I now enter prison * * *. I shall appear this coming Monday, March 5th 12:30 p.m., at the U.S. Marshal's Office in Foley Square.' (Italics added.)
8
The substance of §§ 21 and 22 was that one charged with the commission of acts constituting willful disobedience to a lawful court order could demand a trial by jury if (§ 21) '* * * the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed * * *.' Section 22 provided that the jury trial '* * * shall conform, as near as may be, to the practice in criminal cases prosecuted by indictment or upon information.'
9
This section excluded from the Act, inter alia, contempts committed by disobedience to any court order entered in any suit or action '* * * brought or prosecuted in the name of, or on behalf of, the United States * * *.'
10
At the present time, 18 U.S.C. § 402, 18 U.S.C.A. § 402, contains the definitional provision formerly in § 21 of the Clayton Act and expressly refers to 18 U.S.C. § 3691, 18 U.S.C.A. § 3691, which provides that contempts falling within this definition are subject to trial by jury.
11
Petitioners have shown us no federal decision which intimates any constitutional or common-law restriction on the power of federal courts to sentence for over one year. As stated by the Court of Appeals in the present case, 241 F.2d at page 634, '* * * there is not in the books a syllable of recognition of any such supposed limitation.' Under English law contempt sentences were not subject to any statutory limit. See Fox, Eccentricities of the Law of Contempt of Court, 36 L.Q.Rev. 394, 398.
12
See 356 U.S. 182, 78 S.Ct. at page 642, infra.
13
Hill v. United States ex rel. Weiner, 300 U.S. 105, 57 S.Ct. 347, 81 L.Ed. 537; United States v. Brown, 2 Cir., 247 F.2d 332; Lopiparo v. United States, 8 Cir., 216 F.2d 87; United States v. Thompson, 2 Cir., 214 F.2d 545; United States v. Hall, 2 Cir., 198 F.2d 726; United States ex rel. Brown v. Lederer, 7 Cir., 140 F.2d 136; Warring v. Huff, 74 App.D.C. 302, 122 F.2d 641; Conley v. United States, 8 Cir., 59 F.2d 929; Creekmore v. United States, 8 Cir., 237 F. 743, L.R.A.1917C, 845.
14
The following are the major opinions of this Court which have discussed the relationship between criminal contempts and jury trial and have concluded or assumed that criminal contempts are not subject to jury trial under Art. III, § 2, or the Sixth Amendment: Ex parte Savin, 131 U.S. 267, 278, 9 S.Ct. 699, 702, 33 L.Ed. 150; Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 36—39, 10 S.Ct. 424, 426—427, 33 L.Ed. 801; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 489, 14 S.Ct. 1125, 1137, 38 L.Ed. 1047; In re Debs, 158 U.S. 564, 594—596, 15 S.Ct. 900, 910—911, 39 L.Ed. 1092; Bessette v. W. B. Conkey Co., 194 U.S. 324, 336—337, 24 S.Ct. 665, 670, 48 L.Ed. 997; Gompers v. United States, 233 U.S. 604, 610—611, 34 S.Ct. 693, 695, 58 L.Ed. 1115; Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656; Michaelson v. United States, 266 U.S. 42, 67, 45 S.Ct. 18, 20, 69 L.Ed. 162; United States v. United Mine Workers, 330 U.S. 258, 298, 67 S.Ct. 677, 698, 91 L.Ed. 884. Although the statements contained in these cases, with few exceptions, are broadly phrased and do not refer to particular categories of criminal contempts, several of the cases involved review of contempt convictions arising out of disobedience to court orders. See in particular In re Debs, Gompers v. United States, and United States v. United Mine Workers.
For more general statements of the nature of the contempt power and its indispensability to federal courts, see United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259; Ex parte Robinson, 19 Wall. 505, 510, 22 L.Ed. 205; Ex parte Terry, 128 U.S. 289, 302 304, 9 S.Ct. 77, 78—79, 32 L.Ed. 405; Bessette v. W. B. Conkey Co., supra, 194 U.S. at page 326, 24 S.Ct. at page 666; Myers v. United States, 264 U.S. 95, 103, 44 S.Ct. 272, 273, 68 L.Ed. 577; Michaelson v. United States, supra, 266 U.S. at pages 65—66, 45 S.Ct. at pages 19—20.
15
See, e.g., Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (compulsory process and assistance of counsel); Gompers v. United States, 233 U.S. 604, 611—612, 34 S.Ct. 693, 695—696, 58 L.Ed. 1115 (benefit of a statute of limitations generally governing crimes); Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (proof of guilt beyond a reasonable doubt and freedom from compulsion to testify).
16
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.'
17
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.'
18
Petitioners derive their argument as to historical error from the writings of Sir John Charles Fox. However, Fox's major effort was to show that a statement in an unpublished opinion by Wilmot, J., in The King v. Almon (1765), to the effect that summary punishment for contempts committed out of court stood upon 'immemorial usage,' was based on an erroneous interpretation of earlier law as applied to the case before him, namely, contempt by libel on the
court by a stranger to court proceedings. See Fox, The King v. Almon (Parts I and II), 24 L.Q.Rev. 184, 266; Fox, The History of Contempt of Court (1927), 5—43. That contempts committed in the view of the court were at an early date dealt with summarily is not disputed by Fox. The History of Contempt of Court, supra, at 50. Insofar as Fox discusses contempts out of court by disobedience to court orders, it is not clear whether the author contends that such contempts were tried at early English law under summary procedures only for civil coercive purposes, or for criminal, punitive purposes as well. Cf. The King v. Almon, supra, at 188, 277—278; and Fox, The Summary Process to Punish Contempt (Parts I and II), 25 L.Q.Rev. 238, 354, with The King v. Almon, at 195, 276; The Summary Process to Punish Contempt, at 249; and The History of Contempt of Court, supra, at 108—110. See also Beale, Contempt of Court, 21 Harv.L.Rev. 161, 164, 169—171. Fox concludes that by the mid-Seventeenth or early Eighteenth Century, a variety of contempts committed outside of court were subject to punishment by the exercise of a court's summary jurisdiction. The Summary Process to Punish Contempts, supra, at 252, 366, 370—371. It appears that under present English law disobedience to court process is but one of the many categories of contempts of court which are dealt with summarily. 8 Halsbury, Laws of England (3d ed. 1954), 3—4, 25—26; 1 Russell, Crime (10th ed. 1950), 329—330.
19
See 18 U.S.C. § 402, 18 U.S.C.A. § 402, supra, note 10; 18 U.S.C. § 3692, 18 U.S.C.A. § 3692 (jury trial for contempts based on violation of injunctions in cases involving labor disputes); § 151, 71 Stat. 638, 42 U.S.C. § 1995, 42 U.S.C.A. § 1995 (right to jury trial under provisions of the Civil Rights Act of 1957 in limited circumstances in cases of criminal contempts).
20
This holding makes unnecessary consideration of petitioners' argument based on Rule 7 of the Federal Rules of Criminal Procedure, which falls with their constitutional argument. Rule 7 refers to criminal offenses, that is 'crimes' in the constitutional sense. Criminal contempts are governed by Rule 42.
1
Oliver Ellsworth, Chairman, William Paterson, Caleb Strong, Richard Bassett, William Few. 1 Annals of Cong. 17.
2
Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391; In re Chiles, 22 Wall. 157, 22 L.Ed. 819; Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150; In re Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; In re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207; In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Nelson v. United States, 201 U.S. 92, 26 S.Ct. 358, 50 L.Ed. 673; United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; Id., 214 U.S. 386, 29 S.Ct. 637, 53 L.Ed. 1041; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186; Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979; Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293; Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; Sinclair v. United States, 279 U.S. 749, 49 S.Ct. 471, 73 L.Ed. 938; Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375; Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95.
In the following cases the Court, although refusing to sustain contempt convictions for other reasons, took for granted trial by the court without a jury: Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205; In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500; Wilson v. State of North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865; In re Watts, 190 U.S. 1, 23 S.Ct. 718, 47 L.Ed. 933; Baglin v. Cusenier Co., 221 U.S. 580, 31 S.Ct. 669, 55 L.Ed. 863; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797; Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118; Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474.
The materials on the basis of which this unbroken course of adjudication is proposed to be reversed have in fact been known in this country for almost half a century and were available to the Justices who participated in many of these decisions. The first of the studies of criminal contempt by Sir John Charles Fox, The King v. Almon, 24 Law Q.Rev. 184, appeared in 1908, and tthe results of the search of Solly-Flood were published as early as 1886. The Story of Prince Henry of Monmouth and Chief-Justice Gascoign, 3 Transactions of the Royal Historical Society (N.S.) 47. Mr. Justice Holmes, writing for the Court in Gompers v. United States, 1914, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115, noted the work of Solly-Flood. He observed that: 'It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N.S. p. 147 (1885), and that, as least in England, it seems that they still may be and preferably are tried in that way.' 233 U.S. at pages 610—611, 34 S.Ct. at page 695.
3
Beginning with Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205, and In re Chiles, 22 Wall. 157, 22 L.Ed. 819, this list includes every Justice who sat on the Court since 1874, with the exception of Mr. Justice Woods (1881-1887), and Mr. Justice Byrnes (1941-1942).
4
'We do not write on a blank sheet. The Court has its jurisprudence, the helpful repository of the deliberate and expressed convictions of generations of sincere minds addressing themselves to exposition and decision, not with the freedom of casual critics or even of studious commentators, but under the pressure and within the limits of a definite official responsibility.' Chief Justice Hughes speaking on the occasion of the 150th anniversary of the Court. 309 U.S. XIV, 60 S.Ct. LIII.
1
The term 'summary proceeding' (or 'summary trial') is used in its ordinary sense to refer to a 'form of trial in which the ancient established course of legal proceedings is disregarded, especially in the matter of trial by jury, and, in the case of the heavier crimes, presentment by a grand jury.' 3 Bouv.Law Dict., Rawle's Third Revision, p. 3182. Of course as the law now stands contempts committed in the presence of the judge may be punished without any hearing or trial at all, summary or otherwise. For a flagrant example see Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717.
2
State ex rel. Ashbaugh v. Circuit Court, 97 Wis. 1, 8, 72 N.W. 193, 194—195, 38 L.R.A. 554.
3
The precedents are adequately collected in note 14 of the Court's opinion.
Much of what is said in this opinion is equally applicable to contempts committed in the presence of the court. My opposition to summary punishment for those contempts was fully set forth in my dissent in Sacher v. United States, 343 U.S. 1, 14, 72 S.Ct. 451, 457, 96 L.Ed. 717.
4
'I * * * am quite willing that it be regarded hereafter as the law of this court, that its opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.' Chief Justice Taney, Passenger Cases (Smith v. Turner), 7 How. 283, 470, 12 L.Ed. 702 (dissenting opinion).
5
Frankfurter and Landis, Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1011.
It also seems significant that the initial decisions by this Court actually upholding the power of the federal courts to punish contempts by summary process were not made until as late as the final decades of the last century, almost a full century after the adoption of the Constitution. Since that time the power has been vigorously challenged on a number of occasions. See, e.g., Toledo Newspaper Co. v. United States, 247 U.S. 402, 425, 38 S.Ct. 560, 566, 62 L.Ed. 1186 (dissenting opinion); Sacher v. United States, 343 U.S. 1, 14, 72 S.Ct. 451, 457, 96 L.Ed. 717 (dissenting opinion). Within the past few years there has been a tendency on the part of this Court to restrict the substantive scope of the contempt power to narrower bounds than had been formerly thought to exist. See, e.g., Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30; Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474. Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. In substantial part this is attributable to a deeply felt antipathy toward the arbitrary procedures now used to punish contempts.
6
Perhaps the classic example is the much criticized decision in In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. For some of the milder comment see Lewis, A Protest Against Administering Criminal Law by Injunction—The Debs Case, 42 Am.L.Reg. 879; Lewis, Strikes and Courts of Equity, 46 Am.L.Reg. 1; Dunbar, Government by Injunction, 13 L.Q.Rev. 347; Gregory, Government by Injunction, 11 Harv.L.Rev. 487.
7
E.g., see Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568.
8
A series of recent cases in this Court alone indicates that the personal emotions or opinions of judges often become deeply involved in the punishment of an alleged contempt. See, e.g., Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569; Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95.
9
Oswald, Contempt of Court (3d ed. 1911), 6.
10
See 356 U.S. 202—213, 78 S.Ct. at pages 653 to 658, infra.
11
In accordance with established usage 18 U.S.C. § 1, 18 U.S.C.A. § 1, defines a felony as any 'offense punishable by death or imprisonment for a term exceeding one year.' By this standard the offense of contempt is not only a crime, but a felony—a crime of the gravest and most serious kind.
Of course if the maximum punishment for criminal contempt were sufficiently limited that offense might no longer fall within the category of 'crimes'; instead it might then be regarded, in the light of our previous decisions, as a 'petty' or 'minor' offense for which the defendant would not necessarily be entitled to trial by jury. See District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223.
12
City of New Orleans v. The Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354 ('Contempt of court is a specific criminal offence.'). And see Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 66—67, 45 S.Ct. 18, 20, 69 L.Ed. 162; Pendergast v. United States, 317 U.S. 412, 417—418, 63 S.Ct. 268, 270, 87 L.Ed. 368.
'Since a charge of criminal contempt is essentially an accusation of crime, all the constitutional safeguards available to an accused in a criminal trial should be extended to prosecutions for such contempt.' Frankfurter and Greene, The Labor Injunction, 226.
13
18 U.S.C. § 3146, 18 U.S.C.A. § 3146.
14
One scholar has argued that even contempts in the face of the courts were tried by jury after indictment by grand jury until the reign of Elizabeth I. Solly-Flood, Prince Henry of Monmouth and Chief Justice Gascoign, 3 Transactions of the Royal Historical Society (N.S.) 47. Although agreeing that contempts in facie were often tried by a jury up to and beyond this period, Fox takes the view that such contempts, were also punishable by summary procedures from the early common law.
15
In passing it is interesting to note that even Wilmot felt obliged to bolster his position by pointing to the fact that a defendant, under a notion then prevalent, could exonerate himself from a charge of contempt by fully denying the charges under oath. In this event he could only be prosecuted for false swearing in which case he was entitled, as Wilmot elaborately observes, to trial by jury. See Curtis and Curtis, The Story of a Notion in the Law of Criminal Contempt, 41 Harv.L.Rev. 51.
16
Fox, The History of Contempt of Court, VII.
17
Id., at 116—117. See also, id., at 3—4, 13, 54—55, 71—72, 89.
18
Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1042, 1046.
19
Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161, 169—170, 174.
20
See United States v. Thompson, 2 Cir., 214 F.2d 545; United States v. Hall, 2 Cir., 198 F.2d 726.
21
Although records of the colonial era are extremely fragmentary and inaccessible apparently such contempts as existed were not the subject of major punishment in that period. From the scattered reported cases it appears that alleged offenders were let off after an apology, a reprimand or a small fine or other relatively slight punishment. I have found no instance where anyone was unconditionally imprisoned for even a term of months, let alone years, during that ear when extremely harsh penalties were otherwise commonplace.
22
The following are merely random samples of important and far-reaching federal regulatory Acts now in effect under which a violation of any provision of the Act is not only a statutory crime punishable as such but also may be enjoined at the Government's request and punished as a criminal contempt by summary process if the injunction is disobeyed. Securities Exchange Act, 48 Stat. 900, 15 U.S.C. § 78u, 15 U.S.C.A. § 78u; Natural Gas Act, 52 Stat. 832, 15 U.S.C. § 717s, 15 U.S.C.A. § 717s; Fair Labor Standards Act, 52 Stat. 1069, 29 U.S.C. § 217, 29 U.S.C.A. § 217; Atomic Energy Act, 68 Stat. 959, 42 U.S.C. (Supp. IV) § 2280, 42 U.S.C.A. § 2280; Federal Communications Act, 48 Stat. 1092, 47 U.S.C. § 401, 47 U.S.C.A. § 401; Defense Production Act of 1950, 64 Stat. 817, 50 U.S.C.App. § 2156, 50 U.S.C.A. Appendix, § 2156.
23
As early as 1765 delegates from nine colonies meeting in New York declared in a Declaration of Rights that trial by jury was the 'inherent and invaluable right' of every colonial. 43 Harvard Classics 147, 148.
24
In 1775 Jefferson protested: '(Parliament has) extended the jurisdiction of the courts of admiralty beyond their ancient limits thereby depriving us of the inestimable right of trial by jury in cases affecting both life and property and subjecting both to the decision arbitrary decision (sic) of a single and dependent judge.' 2 Journals of the Continental Congress (Ford ed.) 132.
25
Although Section 17 of the Judiciary Act of 1789, 1 Stat. 73, 83, authorized the federal courts to punish contempts 'in any cause or hearing before the same,' it did not, as this Court has pointed out, define what were contempts or prescribe the method of punishing them. Ex parte Savin, 131 U.S. 267, 275, 9 S.Ct. 699, 701, 33 L.Ed. 150. Section 17, which contains a number of other provisions, appears to have been a comparatively insignificant provision of the judicial code enacted by the Congress without material discussion in the midst of 34 other sections, many of which were both extremely important and highly controversial.
26
See, e.g., 4 Blackstone's Commentaries 1—6, 119—126, 280 287. Also pertinent here is Blackstone's oft-quoted laudation of trial by jury 'as the glory of the English law. . . . (I)t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.' 3 id., at 379.
27
See, e.g., 1 Hawkins, Pleas of the Crown (6th ed. 1787), 87.
28
Baldwin, The American Judiciary, 14.
'After the Revolution the public was extremely hostile to England and to all that was English and it was impossible for the common law to escape the odium of its English origin.' Pound, The Spirit of the Common Law, 116. And See Warren, History of the American Bar, 224—228.
29
In 1804 the Chief Justice and two Associate Justices of the Pennsylvania Supreme Court were actually impeached for sentencing a person to jail for contempt. In part the impeachment rested on the feeling that punishment of contempt by summary process was an arbitrary practice of the common law unsuited to this country. While the Justices were narrowly acquitted this apparently only aggravated popular antagonism toward the contempt power. See 3 McMaster, History of the People of the United States (1938 ed.), 153—162.
30
1 Works of Edward Livingston 264.
31
See, e.g., Sunderland, Trial by Jury, 11 Univ. of Cin.L.Rev. 119, 120; Hartshorne, Jury Verdicts: A Study of Their Characteristics and Trends, 35 A.B.A.J. 113.
32
See Ex parte Milligan, 4 Wall. 2, 122—123, 18 L.Ed. 281; Thompson v. State of Utah, 170 U.S. 343, 349—350, 18 S.Ct. 620, 622, 42 L.Ed. 1061; Dimick v. Schiedt, 293 U.S. 474, 485—486, 55 S.Ct. 296, 300—301, 79 L.Ed. 603; United States ex rel. Toth v. Quarles, 350 U.S. 11, 16, 18—19, 76 S.Ct. 1, 4, 5—6, 100 L.Ed. 8; The Federalist, No. 83 (Hamilton); 2 Story, Commentaries on the Constitution of the United States, 544; 2 Wilson's Works (Andrews ed. 1896) 222.
33
Again this case aptly demonstrates the point. Here the defendants surrendered several years after they had been ordered to appear and serve their sentences. There was no reason for urgent action to punish them for their absence, there was ample time to impanel a jury and prosecute them in the regular manner. As a matter of fact almost a month and a half did elapse between their surrender and trial.
Alleged contempts committed beyond the court's presence where the judge has no personal knowledge of the material facts are especially suited for trial by jury. A hearing must be held, witnesses must be called, and evidence taken in any event. Cf. Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. And often, as in this case, crucial facts are in close dispute.
I might add, at this point, that MR. JUSTICE BRENNAN has forcefully demonstrated, in my judgment, that the evidence in this case was wholly insufficient to prove a crucial element of the offense charged—namely, notice of the surrender order.
34
38 Stat. 738—739, as amended, 18 U.S.C. §§ 402, 3691, 18 U.S.C.A. §§ 402, 3691.
35
47 Stat. 72, 18 U.S.C. § 3692, 18 U.S.C.A. § 3692.
36
Arizona, Rev.Stat.Ann.1956, § 12—863; Georgia, Code Ann.1935, § 24—105; Kentucky, Rev.Stat.Ann.1955, § 432.260; Oklahoma, Stat.Ann. Tit. 21, § 567; Pennsylvania, Purdon's Stat.Ann. Tit. 17, § 2047.
37
See Brown, Whence Come These Sinews? 12 Wyo.L.J. 22.
| 01
|
356 U.S. 148
78 S.Ct. 622
2 L.Ed.2d 589
Stefena BROWN, Petitioner,v.UNITED STATES of America.
No. 43.
Reargued Oct. 22, 1957.
Decided March 31, 1958.
Rehearing Denied April 28, 1958.
See 356 U.S. 948, 78 S.Ct. 776.
Mr. George W. Crockett, Jr., Detroit, Mich., for petitioner.
Mr. Ralph S. Spritzer, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a proceeding of summary disposition, under Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,1 of a finding of criminal contempt committed in the actual presence of the court, the power to punish which is given by 18 U.S.C. § 401, 18 U.S.C.A. § 401.2 The proceeding grew out of a suit for denaturalization brought against petitioner pursuant to § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. (Supp. IV) § 1451(a), 8 U.S.C.A. § 1451(a). The complaint in the denaturalization suit charged that petitioner had fraudulently procured citizenship in 1946 by falsely swearing that she was attached to the principles of the Constitution, and that she was not and had not been for ten years preceding opposed to organized government or a member of or affiliated with the Communist Party or any organization teaching opposition to organized government, whereas in fact petitioner had been, from 1933 to 1937, a member of the Communist Party and the Young Communist League, both organizations advocating the overthrow of the Government of the United States by force and violence.
2
At the trial in the denaturalization proceeding, petitioner was called as an adverse witness by the Government under Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Petitioner admitted that she had once been a member of the Young Communist League, but denied that she had belonged to the Communist Party in the period before 1946. She refused to answer questions about activities and associations that were unlimited in time or directed to the period after 1946 on the ground that her answers might tend to incriminate her, and the District Court sustained the claim of privilege. At the close of the Government's examination, petitioner's counsel stated that, 'I won't cross-examine the witness at this point. I will put her on on direct.'3
3
Thereafter petitioner took the stand as a witness in her own behalf. She comprehensively reaffirmed the truth of the statements made at the time of her naturalization, and, although she admitted membership in the Young Communist League from about 1930, claimed that she had resigned in 1935 and had not engaged in any Communist activities from 1935 until her naturalization in 1946. Not content to rest there, petitioner went on to testify that she had never taught or advocated the overthrow of the existing government or belonged to any organization that did so advocate, that she believed in fighting for this country and would take up arms in its defense in event of hostilities with Soviet Russia, and that she was attached to the principles of the Constitution and the good order and happiness of the United States.4 This testimony was directed to petitioner's present disposition towards the United States, and was not limited to the period before 1946.
4
On cross-examination the Government immediately put to petitioner the question, 'Are you now or have you ever been a member of the Communist Party of the United States?' It also asked numerous other questions relating to Communist activities since 1946 that petitioner had successfully refused to answer when first examined. Petitioner again refused to answer, claiming the privilege against self-incrimination. The District Court ruled that by taking the stand in her own defense petitioner had abandoned the privilege, and directed her to answer. However, petitioner persisted in her refusal to answer any questions directed towards establishing that she had been a Communist since 1946. For this she was cast in contempt of court and sentenced to imprisonment for six months. The judgment of conviction was affirmed by the Court of Appeals. 234 F.2d 140. Deeming the record to raise important questions regarding the scope of the privilege against self-incrimination and the power of a federal court to make summary disposition of a charge of criminal contempt, we brought the case here. 352 U.S. 908, 77 S.Ct. 152, 1 L.Ed.2d 116. Argument was had in the 1956 Term and the case set down for reargument in the present Term. 354 U.S. 907, 77 S.Ct. 1292.
5
The conduct for which petitioner was found guilty of contempt was her sustained disobedience of the court's direction to answer pertinent questions on cross-examination after her claim of the privilege against self-incrimination had been overruled. On the first argument in this Court, petitioner stood on the validity of her claim of privilege as the essential ground for reversal here of the judgment of the Court of Appeals. It was taken for granted by petitioner no less than by the Government that for a party insistently to block relevant inquiry on cross-examination subjects him to punishment for contempt in the exercise of the power vested in the federal courts throughout our history. Act of Sept. 24, 1789, s 17, 1 Stat. 83; Act of Mar. 2, 1831, 4 Stat. 487—488; R.S. § 725; Judicial Code, 1911, § 268, 36 Stat. 1163; 18 U.S.C. § 401, 18 U.S.C.A. § 401.
6
On reargument, both sides, responsive to a suggestion from the bench, discussed the relevance of Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, to the present situation. That case, followed in In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30, held that for perjury alone a witness may not be summarily punished for contempt. The essence of the holding in those cases was that perjury is a specifically defined offense, subject to prosecution under all the safeguards of the Fifth and Sixth Amendments, and that the truth or falsity of a witness' testimony ought not be left to a judge's unaided determination in the midst of trial. Perjury is one thing; testimonial recalcitrance another. He who offers himself as a witness is not freed from the duty to testify. The court (except insofar as it is constitutionally limited), not a voluntary witness, defines the testimonial duty. See Judge Learned Hand in United States v. Appel, D.C., 211 F. 495.
7
Such has been the unquestioned law in the federal judicial system time out of mind. It has been acted upon in the lower courts and this Court. Whatever differences the potentially drastic power of courts to punish for contempt may have evoked, a doubt has never been uttered that stubborn disobedience of the duty to answer relevant inquiries in a judicial proceeding brings into force the power of the federal courts to punish for contempt. Trial courts no doubt must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice. It is no less important for this Court to use self-restraint in the exercise of its ultimate power to find that a trial court has gone beyond the area in which it can properly punish for contempt. We are not justified in sliding from mere disagreement with the way in which a trial court has dealt with a particular matter, such as petitioner's conduct in the present case, into a condemnation of the court's action as an abuse of discretion.
8
We thus reach the constitutional issue.
9
Petitioner contends that by taking the stand and testifying in her own behalf she did not forego the right to invoke on cross-examination the privilege against self-incrimination regarding matters made relevant by her direct examination. She relies on decisions holding that witnesses in civil proceedings and before congressional committees do not waive the privilege by denials and partial disclosures, but only by testimony that itself incriminates. More particularly, petitioner's reliance is on Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158. In that litigation a witness called before special commissioners in bankruptcy proceedings filed schedules of his assets and liabilities and made certain disclosures in respect to his financial condition, but refused to answer numerous questions on the ground that to do so might incriminate him. This Court held that the witness' refusal did not constitute contempt; that since the evidence furnished 'did not amount to an admission of guilt or furnish clear proof of crime * * *,' the privilege had not been abandoned and the witness was entitled to 'stop short' when further testimony 'might tend to incriminate him.' 254 U.S. at page 72, 41 S.Ct. at page 26; 262 U.S. at page 358, 43 S.Ct. at page 563. The testimony of petitioner in the present case admittedly did not amount to 'an admission of guilt or furnish clear proof of crime,' but was, on the contrary, a denial of any activities that might provide a basis for prosecution.
10
Our problem is illumined by the situation of a defendant in a criminal case. If he takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. '(H)e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.' Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 949, 44 L.Ed. 1078; and see Reagan v. United States, 157 U.S. 301, 304—305, 15 S.Ct. 610, 611, 39 L.Ed. 709. The reasoning of these cases applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf. It is reasoning that controls the result in the case before us.
11
A witness who is compelled to testify, as in the Arndstein type of case, has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate. It would indeed be irrelevant for him to do so. If he is to have the benefit of the privilege at all, and not be confronted with the argument that he has waived a right even before he could have invoked it, he must be able to raise a bar at the point in his testimony when his immunity becomes operative. A witness thus permitted to withdraw from the cross-fire of interrogation before the reliability of his testimony has been fully tested may on occasion have succeeded in putting before the trier of fact a one-sided account of the matters in dispute. This is an argumentative curtailment of the normal right of cross-examination out of regard for the fair claims of the constitutional protection against compulsory self-incrimination.
12
On the other hand, when a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell. '(T)here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.' Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503. The interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.5 Petitioner, as a party to the suit, was a voluntary witness. She could not take the stand to testify in her own behalf and also claim the right to be free from cross-examination on matters raised by her own testimony on direct examination.
13
Petitioner claims that the District Court found that she had waived the privilege merely by taking the stand, whereas the Court of Appeals affirmed her conviction on the ground that she had taken the stand and testified as she did. Petitioner argues from this distinction that her conviction has been affirmed on a charge not made in the District Court. She also suggests that the reason given by the District Court for finding a waiver misled her as to the actual legal question involved, and that but for the assertions of the court she might have withdrawn her opposition to the cross-examination and answered the questions put by the Government.
14
The record does not fairly support the statement that the District Court found a waiver simply in the act of taking the stand. After petitioner had testified on direct examination, the court ruled that 'the defendant having taken the stand in her own defense, has waived the right to invoke the Fifth Amendment * * *.' In view of the circumstances surrounding this ruling and the testimony that preceded it, it is reasonably clear that the court meant to convey by 'having taken the stand in her own defense' what she said on the stand, not merely that she physically took the stand. As the District Court expressly stated in its opinion finding petitioner in contempt, it had cautioned her that 'she had waived the right to claim any privileges under the Fifth Amendment, by reason of having testified as a witness in her own behalf.' The reason for abandonment of the privilege, as thus expressed by the court, is wholly consistent with the reason given by the Court of Appeals in affirming the conviction, and with our ground for upholding the judgment of the Court of Appeals. Nice questions in interpreting the record to ascertain whether a trial court has discharged its duty of appropriately framing the legal issues in a litigation, or at least not misframing them to the detrimental reliance of one of the parties, are not here presented. Taken in context, the ruling of the District Court conveyed a correct statement of the law, and adequately informed petitioner that by her direct testimony she had opened herself to cross-examination on the matters relevantly raised by that testimony. The judgment is affirmed.
15
Affirmed.
16
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
17
This is another decision by this Court eroding the constitutional privilege against self-incrimination. See, e.g., Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.
18
The questions which petitioner refused to answer undoubtedly called for responses which might have tended to incriminate her. Nevertheless, the Court holds that she can be imprisoned for contempt on the ground that a defendant in a civil action who voluntarily takes the stand to testify waives his privilege against self-incrimination to the extent of relevant cross-examination. Thus in substance the majority has extended the rule heretofore applied in criminal prosecutions to civil proceedings. I think this further encroachment on the privilege is unwarranted. I would reverse the petitioner's conviction on the basis of the general rule stated in Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158, that a witness in a civil case does not forfeit the right to claim his privilege unless he makes disclosures which amount to 'an actual admission of guilt or incriminating facts.' 262 U.S. at page 359, 43 S.Ct. at page 563.* Petitioner concededly made no such disclosures.
19
In my judgment the rule of waiver now applied in criminal cases, although long accepted, is itself debatable and should not be carried over to any new area absent the most compelling justification. By likening the position of a defendant who voluntarily takes the stand in a civil case to that of an accused testifying on his own behalf in a criminal prosecution the majority unfortunately fails to give due consideration to material differences between the two situations. For example failure of a criminal defendant to take the stand may not be made the subject of adverse comment by prosecutor or judge, nor may it lawfully support an inference of guilt. 18 U.S.C. § 3481, 18 U.S.C.A. § 3481; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650. On the other hand the failure of a party in a civil action to testify may be freely commented on by his adversary and the trier of fact may draw such inferences from the abstention as he sees fit on the issues in the case. Bilokumsky v. Tod, 263 U.S. 149, 153—154, 44 S.Ct. 54, 55—56, 68 L.Ed. 221. Thus to apply the criminal rule of waiver to a civil proceeding may place a defendant in a substantial dilemma. If he testifies voluntarily he can be compelled to give incriminating evidence against himself; but, unlike a defendant in a criminal case, if he remains off the stand his silence can be used against him as 'evidence of the most persuasive character.' Bilokumsky v. Tod, supra, 263 U.S. at page 154, 44 S.Ct. at page 56.
20
The Court brushes aside this dilemma by assuming that a civil defendant can control the scope of his waiver when he voluntarily takes the stand because he 'determines the area of disclosure and therefore of inquiry.' I do not believe this assumption is correct. While it is true that a party can determine the area of his own disclosures on direct examination, the scope of permissible cross-examination is not restricted to the matters raised on direct but may include other and quite different matters if they will aid the court or jury to appraise the credibility of the witness and the probative value of his testimony. Such questions, which may range over a broad area and refer to matters collateral to the main issues, cannot be foreclosed by the witness and often cannot even be anticipated by him. See, e.g., Radio Cab, Inc., v. Houser, 76 U.S.App.D.C. 35, 128 F.2d 604; Atkinson v. Atchison, Topeka & Santa Fe R. Co., 10 Cir., 197 F.2d 244. See also Powers v. United States, 223 U.S. 303, 314—316, 32 S.Ct. 281, 283—284, 56 L.Ed. 448.
21
Furthermore a party to a civil action, unlike the defendant in a criminal case, may be compelled by his adversary to take the stand and thus forced into a situation (as illustrated by this case) where he must claim the privilege or incriminate himself. By claiming his privilege he may well prejudice his case for reasons wholly unrelated to its merits. In order to mitigate this damage he may feel great compulsion, either on cross-examination by his own counsel or by taking the stand later on his own behalf, to dispel some of the impression created by the claim of privilege. But this he cannot do under the Court's holding without thereby forfeiting his constitutional privilege.
22
The reason offered by the Court for compelling a civil defendant to incriminate himself or be imprisoned for contempt is that to do otherwise would be to accept testimony untested by cross-examination and thus extend 'a positive invitation to mutilate the truth a party offers to tell.' If punishment for contempt were the only method of protecting the other party and the trier from a one-sided, distorted version of the truth the substantial encroachment made by the majority on the privilege against self-incrimination might be somewhat more tolerable. But it is not. For example, as an obvious alternative, such one-sided testimony might be struck in full or part, if the occasion warranted, with appropriate directions by the judge for the jury to disregard it as unreliable. And in some instances where the prejudice to the opposing party was extreme and irremediable the court might even enter judgment in his favor. See Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 349—354, 29 S.Ct. 370, 379 381, 53 L.Ed. 530. Compare National Union of Marine Cooks v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46. By such means the trial judge could protect the right of the opposing party to a fair trial. At the same time the witness would not be treated as having waived his privilege so that he could be punished by fine or imprisonment for refusing to incriminate himself.
23
Since I believe that petitioner's conviction should be reversed for the reasons stated above, I find it unnecessary to discuss whether she was entitled to a trial with all the safeguards of the Bill of Rights before she could be punished for the crime of contempt. My views in that respect are set forth in some detail in my dissenting opinions in Sacher v. United States, 343 U.S. 1, 14, 72 S.Ct. 451, 457, 96 L.Ed. 717, and Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648.
24
Mr. Justice BRENNAN, dissenting.
25
I would reverse this judgment. The District Courts do not have the untrammeled discretion to punish every contemptuous act as a criminal contempt. That is the basic teaching of such decisions as Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, and In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30. It will not be gainsaid that danger of abuse of this extraordinary power inheres in the absence of the safeguards usually surrounding criminal prosecutions, notably trial by jury and any but self-imposed judicial restraints upon the extent of punishment. That danger of abuse has required this Court closely to scrutinize these cases to guard against exceeding the bounds of discretion in the use of the power. We do so in the exercise of our general supervisory authority over the administration of criminal justice in the federal courts, McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819, but primarily because of the 'importance of assuring alert self-restraint in the exercise by district judges of the summary power.' Offutt v. United States, 348 U.S. 11, 13, 75 S.Ct. 11, 13, 99 L.Ed. 11.
26
With that principle in mind, I cannot conclude that it was proper to convict petitioner of criminal contempt. Her contempt consisted in refusing to answer questions put to her on cross-examination because she believed that the Fifth Amendment afforded her a privilege to make such refusals. The majority concedes that the reason given to the petitioner by the trial judge to prove her waiver was an incorrect one but concludes that 'Taken in context * * * (it) conveyed a correct statement of the law * * *.' The fact remains that the trial judge's ruling on waiver was incorrect. He advised Mrs. Brown that she had waived her privilege by the simple act of taking the stand. But the rule that the privilege is waived by taking the stand developed in criminal cases as an historical corollary of the fact that the accused could not even be called or sworn as a witness. 8 Wigmore, Evidence (3d ed. 1940), § 2268. It has no application in civil cases. In civil cases the most that can be said is that a party witness subjects himself to cross-examination as to all matters testified to on direct.
27
The trial judge made his final ruling on the question of waiver on the morning of February 18, 1955. He repeated his statement that Mrs. Brown had waived her privilege by taking the stand.* The petitioner, believing that her conduct was privileged, continued to refuse to answer. No further evidence was offered after the petitioner's refusal to answer the questions put to her on cross-examination by the Government. On that same afternoon the trial judge delivered his opinion finding 'by clear, unequivocal and convincing evidence, that the defendant did procure her citizenship illegally and fraudulently.' He then proceeded to hold the petitioner in contempt for her refusal to answer. It is true that at this time he advised the petitioner that she had waived her privilege by the testimony which she had given but it was of little help coming at the same time as the sentence.
28
In these circumstances, I can hardly believe that petitioner was guilty of such contempt of the authority of the court as to merit six months' imprisonment. The most that can be said of her conduct was that her lawyer could not predict that 'taken in context' the appellate courts would sustain the trial judge's technically incorrect ruling on waiver.
29
This Court has recognized that the criminal-contempt power should be limited in its exercise to 'the least possible power adequate to the end proposed,' In re Michael, supra, 326 U.S. at page 227, 66 S.Ct. at page 79. The 'end proposed,' it should be clear, is not to impose vengeance for an insult to the court whose decree has been flouted, but to aid the fair and orderly administration of justice by deterring noncompliance with the court's lawful order. But I think that in contempts, as in other areas of the law, penal sanctions should be used sparingly and only where coercive devices less harsh in their effect would be unavailing. In other words, there is a duty on the part of the district judges not to exercise the criminal-contempt power without first having considered the feasibility of the alternatives at hand. Mr. Justice BLACK persuasively demonstrates in his dissenting opinion that the trial judge here might reasonably have resorted to several corrective devices to avoid both prejudice to the Government's case and unnecessary delay in the conduct of the trial. Cf. Rubenstein v. Kleven, D.C., 150 F.Supp. 47; Fed.Rules Civ.Proc. 37(b). In addition, it appears that ordinary exercise of the civil-contempt power, cf. Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95, not even considered so far as this record shows, might have succeeded in achieving all the ends of justice without requiring resort to the far more drastic criminal sanction.
30
The Court does not ground the affirmance upon any finding that Mrs. Brown's conduct was actually disrespectful of the trial judge or that she obstinately flouted his authority. Indeed, her resort to her Fifth Amendment rights manifestly had substantial merit, for the majority does not say that the Amendment's protection against being required to give incriminating answers did not apply to the questions, but only that she waived the protection of the Amendment in the circumstances.
31
The situation, it seems to me, cried out for 'alert self-restraint' by way of consideration of the other available correctives, before the judge took the particularly harsh step of sending Mrs. Brown to jail for six months. The trial judge gave no thought to the use of the other sanctions and, in my view, his exclusive reliance upon the criminal contempt power was arbitrary in the circumstances. I would therefore set aside the conviction.
1
'A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The orer of contempt shall recite the facts and shall be signed by the judge and entered of record.'
2
'A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
'(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
'(2) Misbehavior of any of its officers in their official transactions;
'(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.'
3
Counsel for petitioner in this Court did not represent her in the trial court.
4
'Q. Are you willing to take up arms in defense of this country, in the event of any hostility between the United States and Russia? A. Yes.
'Q. Regardless of whatever the reason may be for any hostility
between the government of the United States and the Government of Russia? A. That is correct.
'Q. In Question 28 you were asked: 'Are you a believer in anarchy, or the unlawful damage, injury or destruction of property, or of sabotage'? And you answered 'No.'
'Was that a true answer to that question? A. That was a true answer.
'Q. You say it was not only a true answer at the time you filed the petition, July 16, 1946, and is that the true answer today? A. It is true. It was a perfectly true answer to that question. I never believed in overthrowing anything. I believe in fighting for this country. I like this country. I never told anybody I didn't.
'Q. Did you ever teach or advocate anarchy or overthrow of the existing government in this country? A. Teach?
'Q. Did you ever teach the idea that we ought to overthrow the government of the United States? A. No, I never did.
'Q. Did you ever advocate that? A. No.
'Q. Did you ever say that we should? A. No, I never did.
'Q. To your knowledge, did you ever belong to any organization that taught or advocated anarchy or the overthrow of the existing government of this country? A. No. As much as I know, I didn't belong, to destroy the country. I believe in helping the country, and helping the people. That was my life of living, not destroying the things that the people put up.
'Q. Are you attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States? A. That, I am.
'Q. What do you understand by that? What do you understand by those words 'attached to the principles of the Constitution'? A. The way I understand this, when my country needs me, I fight for it and do what is right among the people.'
5
Striking the witness' testimony, or relying on the trier of fact to take into account the obvious unfairness of allowing the witness to escape cross-examination, must often in practice be poor substitutes for a positive showing under searching cross-examination that the testimony is in fact false.
*
As I construe the holding in Arndstein v. McCarthy, it is based on the simple ground that once a witness has incriminated himself subsequent inquiries concerning the same offense cannot harm him any further and the reason for the privilege disappears. But cf. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.
*
'The Court. The Court holds that the defendant having taken the stand in her own defense, has waived the right to invoke the Fifth Amendment, and I will permit the witness to answer the question.
'The Court. The Court has just ruled that you having taken the stand in this case in your own defense, by so doing you have waived the right to invoke the Fifth Amendment. And I have just informed your counsel, and you, that you must answer the question. Now, if you do not answer the question, the Court will hold you in contempt of court.'
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356 U.S. 44
78 S.Ct. 568
2 L.Ed.2d 603
Clemente Martinez PEREZ, Petitioner,v.Herbert BROWNELL, Jr., Attorney General of the United States of America.
No. 44.
Reargued Oct. 28, 1957.
Decided March 31, 1958.
Mr. Charles A. Horsky, Washington, D.C., for the petitioner.
Sol. Gen. J. Lee Rankin, Washington, D.C., for the respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner, a national of the United States by birth, has been declared to have lost his American citizenship by operation of the Nationality Act of 1940, 54 Stat. 1137, as amended by the Act of September 27, 1944, 58 Stat. 746. Section 401 of that Act1 provided that
2
'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
3
'(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory; or '(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.'
4
He seeks a reversal of the judgment against him on the ground that these provisions were beyond the power of Congress to enact.
5
Petitioner was born in Texas in 1909. He resided in the United States until 1919 or 1920, when he moved with his parents to Mexico, where he lived, apparently without interruption, until 1943. In 1928 he was informed that he had been born in Texas. At the outbreak of World War II, petitioner knew of the duty of male United States citizens to register for the draft, but he failed to do so. In 1943 he applied for admission to the United States as an alien railroad laborer, stating that he was a native-born citizen of Mexico, and was granted permission to enter on a temporary basis. He returned to Mexico in 1944 and shortly thereafter applied for and was granted permission, again as a native-born Mexican citizen, to enter the United States temporarily to continue his employment as a railroad laborer. Later in 1944 he returned to Mexico once more. In 1947 petitioner applied for admission to the United States at El Paso, Texas, as a citizen of the United States. At a Board of Special Inquiry hearing (and in his subsequent appeals to the Assistant Commissioner and the Board of Immigration Appeals), he admitted having remained outside of the United States to avoid military service and having voted in political elections in Mexico. He was ordered excluded on the ground that he had expatriated himself; this order was affirmed on appeal. In 1952 petitioner, claiming to be a native-born citizen of Mexico was permitted to enter the United States as an alien agricultural laborer. He surrendered in 1953 to immigration authorities in San Francisco as an alien unlawfully in the United States but claimed the right to remain by virtue of his American citizenship. After a hearing before a Special Inquiry Officer, he was ordered deported as an alien not in possession of a valid immigration visa; this order was affirmed on appeal to the Board of Immigration Appeals.
6
Petitioner brought suit in 1954 in a United States District Court for a judgment declaring him to be a national of the United States.2 The court, sitting without a jury, found (in addition to the undisputed facts set forth above) that petitioner had remained outside of the United States from November 1944 to July 1947 for the purpose of avoiding service in the armed forces of the United States and that he had voted in a 'political election' in Mexico in 1946. The court, concluding that he had thereby expatriated himself, denied the relief sought by the petitioner. The United States Court of Appeals for the Ninth Circuit affirmed. 235 F.2d 364. We granted certiorari because of the constitutional questions raised by the petitioner. 352 U.S. 908, 77 S.Ct. 153, 1 L.Ed.2d 117.
7
Statutory expatriation, as a response to problems of international relations, was first introduced just a half century ago. Long before that, however, serious friction between the United States and other nations had stirred consideration of modes of dealing with the difficulties that arose out of the conflicting claims to the allegiance of foreign-born persons naturalized in the United States, particularly when they returned to the country of their origin.
8
As a starting point for grappling with this tangle of problems, Congress in 1868 formally announced the traditional policy of this country that it is the 'natural and inherent right of all people' to divest themselves of their allegiance to any state, 15 Stat. 223, R.S. § 1999.* Although the impulse for this legislation had been the refusal by other nations, notably Great Britain, to recognize a right in naturalized Americans who had been their subjects to shed that former allegiance, the Act of 1868 was held by the Attorney General to apply to divestment by native-born and naturalized Americans of their United States citizenship. 14 Op.Atty.Gen. 295, 296. In addition, while the debate on the Act of 1868 was proceeding, negotiations were completed on the first of a series of treaties for the adjustment of some of the disagreements that were constantly arising between the United States and other nations concerning citizenship. These instruments typically provided that each of the signatory nations would regard as a citizen of the other such of its own citizens as became naturalized by the other. E.g., Treaty with the North German Confederation, Feb. 22, 1868, 2 Treaties, Conventions, International Acts, etc. (comp. Malloy, 1910), p. 1298, 15 Stat. 615. This series of treaties initiated this country's policy of automatic divestment of citizenship for specified conduct affecting our foreign relations.
9
On the basis, presumably, of the Act of 1868 and such treaties as were in force, it was the practice of the Department of State during the last third of the nineteenth century to make rulings as to forfeiture of United States citizenship by individuals who performed various acts abroad. See Borchard, Diplomatic Protection of Citizens Abroad, §§ 319, 324. Naturalized citizens who returned to the country of their origin were held to have abandoned their citizenship by such actions as accepting public office there or assuming political duties. See Davis to Weile, Apr. 18, 1870, 3 Moore, Digest of International Law, 737; Davis to Taft, Jan. 18, 1883, 3 id., at 739. Native-born citizens of the United States (as well as naturalized citizens outside of the country of their origin) were generally deemed to have lost their American citizenship only if they acquired foreign citizenship. See Bayard to Suzzara-Verdi, Jan. 27, 1887, 3 id., at 714; see also Comitis v. Parkerson, C.C., 56 F. 556, 559, 22 L.R.A. 148.
10
No one seems to have questioned the necessity of having the State Department, in its conduct of the foreign relations of the Nation, pass on the validity of claims to American citizenship and to such of its incidents as the right to diplomatic protection. However, it was recognized in the Executive Branch that the Department had no specific legislative authority for nullifying citizenship, and several of the Presidents urged Congress to define the acts by which citizens should be held to have expatriated themselves. E.g., Message of President Grant to Congress, Dec. 7, 1874, 7 Messages and Papers of the Presidents (Richardson ed. 1899) 284, 291—292. Finally in 1906, during the consideration of the bill that became the Naturalization Act of 1906, a Senate resolution and a recommendation of the House Committee on Foreign Affairs called for an examination of the problems relating to American citizenship, expatriation and protection abroad. In response to these suggestions the Secretary of State appointed the Citizenship Board of 1906, composed of the Solicitor of the State Department, the Minister to the Netherlands and the Chief of the Passport Bureau. The board conducted a study and late in 1906 made an extensive report with recommendations for legislation.
11
Among the recommendations of the board were that expatriation of a citizen 'be assumed' when, in time of peace, he became naturalized in a foreign state, engaged in the service of a foreign state where such service involved the taking of an oath of allegiance to that state, or domiciled in a foreign state for five years with no intention to return. Citizenship of the United States, Expatriation, and Protection Abroad, H.R.Doc.No. 326, 59th Cong., 2d Sess. 23. It also recommended that an American woman who married a foreigner be regarded as losing her American citizenship during coverture. Id., at 29. As to the first two recommended acts of expatriation, the report stated that 'no man should be permitted deliberately to place himself in a position where his services may be claimed by more than one government and his allegiance be due to more than one.' Id., at 23. As to the third, the board stated that more and more Americans were going abroad to live 'and the question of their protection causes increasing embarrassment to this Government in its relations with foreign powers.' Id., at 25.
12
Within a month of the submission of this report a bill was introduced in the House by Representative Perkins of New York based on the board's recommendations. Perkins' bill provided that a citizen would be 'deemed to have expatriated himself' when, in peacetime, he became naturalized in a foreign country or took an oath of allegiance to a foreign state; it was presumed that a naturalized citizen who resided for five years in a foreign state had ceased to be an American citizen, and an American woman who married a foreigner would take the nationality of her husband. 41 Cong.Rec. 1463—1464. Perkins stated that the bill was designed to discourage people from evading responsibilities both to other countries and to the United States and 'to save our Government (from) becoming involved in any trouble or question with foreign countries where there is no just reason.' Id., at 1464. What little debate there was on the bill centered around the foreign domicile provision; no constitutional issue was canvassed. The bill passed the House, and, after substantially no debate and the adoption of a committee amendment adding a presumption of termination of citizenship for a naturalized citizen who resided for two years in the country of his origin, 41 Cong.Rec. 4116, the Senate passed it and it became the Expatriation Act of 1907. 34 Stat. 1228*.
13
The question of the power of Congress to enact legislation depriving individuals of their American citizenship was first raised in the courts by Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. The plaintiff in that action, Mrs. Mackenzie, was a native-born citizen and resident of the United States. In 1909 she married a subject of Great Britain and continued to reside with him in the United States. When, in 1913, she applied to the defendants, members of a board of elections in California, to be registered as a voter, her application was refused on the ground that by reason of her marriage she had ceased to be a citizen of the United States. Her petition for a writ of mandamus was denied in the state courts of California, and she sued out a writ of error here, claiming that if the Act of 1907 was intended to apply to her it was beyond the power of Congress. The Court, through Mr. Justice McKenna, after finding that merging the identity of husband and wife, as Congress had done in this instance, had a 'purpose and, it may be, necessity, in international policy,' continued:
14
'As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers. * * * We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retan it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. * * * It is the conception of the legislation under review that such an act may bring the government into embarrassments and, it may be, into controversies. * * *' 239 U.S. at pages 311—312, 36 S.Ct. at page 108.
15
The Court observed that voluntary marriage of an American woman with a foreigner may have the same consequences, and 'involve national complications of like kind,' as voluntary expatrication in the traditional sense. It concluded: 'This is no arbitrary exercise of government.' 239 U.S. at page 312, 36 S.Ct. at page 108. See also Ex parte Griffin, D.C., 237 F. 445; Ex parte Ng Fung Sing, D.C., 6 F.2d 670.
16
By the early 1930's, the American law on nationality, including naturalization and denationalization, was expressed in a large number of provisions scattered throughout the statute books. Some of the specific laws enacted at different times seemed inconsistent with others, some problems of growing importance had emerged that Congress had left unheeded. At the request of the House Committee on Immigration and Naturalization, see 86 Cong.Rec. 11943, President Franklin D. Roosevelt established a Committee composed of the Secretary of State, the Attorney General and the Secretary of Labor to review the nationality laws of the United States, to recommend revisions and to codify the nationality laws into one comprehensive statute for submission to Congress; he expressed particular concern about 'existing discriminations' in the law. Exec. Order No. 6115, Apr. 25, 1933. The necessary research for such a study was entrusted to specialists representing the three departments. Five years were spent by these officials in the study and formulation of a draft code. In their letter submitting the draft code to the President after it had been reviewed within the Executive Brnach, the Cabinet Committee noted the special importance of the provisions concerning loss of nationality and asserted that none of these provisions was 'designed to be punitive or to interfere with freedom of action'; they were intended to deprive of citizenship those persons who had shown that 'their real attachment is to the foreign country and not to the United States.' Codification of the Nationality Laws of the United States, H.R.Comm.Print, Pt. 1, 76th Cong., 1st Sess. v—vii.
17
The draft code of the Executive Branch was an omnibus bill in five chapters. The chapter relating to 'Loss of Nationality' provided that any citizen should 'lose his nationality' by becoming naturalized in a foreign country; taking an oath of allegiance to a foreign state; entering or serving in the armed forces of a foreign state; being employed by a foreign government in a post for which only nationals of that country are eligible; voting in a foreign political election or plebiscite; using a passport of a foreign state as a national thereof; formally renouncing American citizenship before a consular officer abroad; deserting the armed forces of the United States in wartime (upon conviction by court martial); if a naturalized citizen, residing in the state of his former nationality or birth for two years if he thereby acquires the nationality of that state; or, if a naturalized citizen, residing in the state of his former nationality or birth for three years. Id., at 66—76.
18
In support of the recommendation of voting in a foreign political election as an act of expatriation, the Committee reported:
19
'Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance there to which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the nationality of the foreign state. In any event it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and at the same time retain his American nationality. The two facts would seem to be inconsistent with each other.' Id., at 67.
20
As to the reference to plebiscites in the draft language, the report states: 'If this provision had been in effect when the Saar Plebiscite was held, Americans voting in it would have been expatriated.' Ibid. It seems clear that the most immediate impulse for the entire voting provision was the participation by many naturalized Americans in the plebiscite to determine sovereignty over the Saar in January 1935. H.R.Rep.No.216, 74th Cong., 1st Sess. 1. Representative Dickstein of New York, Chairman of the House Committee on Immigration and Naturalization, who had called the plebiscite an 'international dispute' in which naturalized American citizens could not properly participate, N.Y. Times, Jan. 4, 1935, p. 12, col. 3, had introduced a bill in the House in 1935 similar in language to the voting provisions in the draft code, 79 Cong.Rec. 2050, but, although it was favorably reported, the House did not pass it.
21
In June 1938 the President submitted the Cabinet Committee's draft code and the supporting report to Congress. In due course, Chairman Dickstein introduced the code as H.R.6127, and it was referred to his committee. In early 1940 extensive hearings were held before both a subcommittee and the full committee at which the interested Executive Branch agencies and others testified. With respect to the voting provision, Chairman Dickstein spoke of the Americans who had voted in the Saar plebiscite and said, 'If they are American citizens they had no right to vote, to interfere with foreign matters or political subdivision.' Hearings before the House Committee on Immigration and Naturalization on H.R.6127, 76th Cong., 1st Sess. 287. Mr. Flournoy, Assistant Legal Adviser of the State Department, said that the provision would be 'particularly applicable' to persons of dual nationality, id., at 132; however, a suggestion that the provision be made applicable only to dual nationals, id., at 398, was not adopted.
22
Upon the conclusion of the hearings in June 1940 a new bill was drawn up and introduced as H.R.9980. The only changes from the Executive Branch draft with respect to the acts of expatriation were the deletion of using a foreign passport and the addition of residence by a naturalized citizen for five years in any foreign country as acts that would result in loss of nationality. 86 Cong.Rec. 11960—11961. The House debated the bill for a day in September 1940. In briefly summarizing the loss of nationality provisions of the bill, Chairman Dickstein said that 'this bill would put an end to dual citizenship and relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purpose.' Id., at 11944. Representative Rees of Kansas, who had served as chairman of the subcommittee that studied the draft code, said that clarifying legislation was needed, among other reasons, 'because of the duty of the Government to protect citizens abroad.' Id., at 11947. The bill passed the House that same day. Id., at 11965.
23
In the Senate also, after a favorable report from the Committee on Immigration, the bill was debated very briefly. Committee amendments were adopted making the provision on foreign military service applicable only to dual nationals, making treason an act of expatriation and providing a procedure by which persons administratively declared to have expatriated themselves might obtain judicial determinations of citizenship. The bill as amended was passed. Id., at 12817—12818. The House agreed to these and all other amendments on which the Senate insisted, id., at 13250, and, on October 14, the Nationality Act of 1940 became law. 54 Stat. 1137.
24
The loss of nationality provisions of the Act constituted but a small portion of a long omnibus nationality statute. It is not surprising, then, that they received as little attention as they did in debate and hearings and that nothing specific was said about the constitutional basis for their enactment. The bill as a whole was regarded primarily as a codification—and only secondarily as a revision—of statutes that had been in force for many years, some of them, such as the naturalization provisions, having their beginnings in legislation 150 years old. It is clear that, as is so often the case in matters affecting the conduct of foreign relations, Congress was guided by and relied very heavily upon the advice of the Executive Branch, and particularly the State Department. See e.g., 86 Cong.Rec. 11943—11944. In effect, Congress treated the Cabinet Committee as it normally does its own committees charged with studying a problem and formulating legislation. These considerations emphasize the importance, in the inquiry into congressional power in this field, of keeping in mind the historical background of the challenged legislation, for history will disclose the purpose fairly attributable to Congress in enacting the statute.
25
The first step in our inquiry must be to answer the question: what is the source of power on which Congress must be assumed to have drawn? Although there is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the law-making organ of the Nation. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255; Mackenzie v. Hare, 239 U.S. 299, 311—312, 36 S.Ct. 106, 108, 60 L.Ed. 297. The States that joined together to form a single Nation and to create, through the Constitution, a Federal Government to conduct the affairs of that Nation must be held to have granted that Government the powers indispensable to its functioning effectively in the company of sovereign nations. The Government must be able not only to deal affirmatively with foreign nations, as it does through the maintenance of diplomatic relations with them and the protection of American citizens sojourning within their territories. It must also be able to reduce to a minimum the frictions that are unavoidable in a world of sovereigns sensitive in matters touching their dignity and interests.
26
The inference is fairly to be drawn from the congressional history of the Nationality Act of 1940, read in light of the historical background of expatriation in this country, that, in making voting in foreign elections (among other behavior) an act of expatriation, Congress was seeking to effectuate its power to regulate foreign affairs. The legislators, counseled by those on whom they rightly relied for advice, were concerned about actions by citizens in foreign countries that create problems of protection and are inconsistent with American allegiance. Moreover, we cannot ignore the fact that embarrassments in the conduct of foreign relations were of primary concern in the consideration of the Act of 1907, of which the loss of nationality provisions of the 1940 Act are a codification and expansion.
27
Broad as the power in the National Government to regulate foreign affairs must necessarily be, it is not without limitation. The restrictions confining Congress in the exercise of any of the powers expressly delegated to it in the Constitution apply with equal vigor when that body seeks to regulate our relations with other nations. Since Congress may not act arbitrarily, a rational nexus must exist between the content of a specific power in Congress and the action of Congress in carrying that power into execution. More simply stated, the means—in this case, withdrawal of citizenship—must be reasonably related to the end—here, regulation of foreign affairs. The inquiry—and, in the case before us, the sole inquiry—into which this Court must enter is whether or not Congress may have concluded not unreasonably that there is a relevant connection between this fundamental source of power and the ultimate legislative action.3
28
Our starting point is to ascertain whether the power of Congress to deal with foreign relations may reasonably be deemed to include a power to deal generally with the active participation, by way of voting, of American citizens in foreign political elections. Experience amply attests that in this day of extensive international travel, rapid communication and widespread use of propaganda, the activities of the citizens of one nation when in another country can easily cause serious embarrassments to the government of their own country as well as to their fellow citizens. We cannot deny to Congress the reasonable belief that these difficulties might well become acute, to the point of jeopardizing the successful conduct of international relations, when a citizen of one country chooses to participate in the political or governmental affairs of another country. The citizen may by his action unwittingly promote or encourage a course of conduct contrary to the interests of his own government; moreover, the people or government of the foreign country may regard his action to be the action of his government, or at least as a reflection if not an expression of its policy. Cf. Preuss, International Responsibility for Hostile Propaganda Against Foreign States, 28 Am.J. Int'l L. 649, 650.
29
It follows that such activity is regulable by Congress under its power to deal with foreign affairs. And it must be regulable on more than an ad hoc basis. The subtle influences and repercussions with which the Government must deal make it reasonable for the generalized, although clearly limited, category of 'political election' to be used in defining the area of regulation. That description carries with it the scope and meaning of its context and purpose; classes of elections—nonpolitical in the colloquial sense—as to which participation by Americans could not possibly have any effect on the relations of the United States with another country are excluded by any rational construction of the phrase. The classification that Congress has adopted cannot be said to be inappropriate to the difficulties to be dealt with. Specific applications are of course open to judicial challenge, as are other general categories in the law, by a 'gradual process of judicial inclusion and exclusion.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616.4
30
The question must finally be faced whether, given the power to attach some sort of consequence to voting in a foreign political election, Congress, acting under the Necessary and Proper Clause, Art. I, § 8, cl. 18, could attach loss of nationality to it. Is the means, withdrawal of citizenship, reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of our foreign relations attributable to voting by American citizens in foreign political elections? The importance and extreme delicacy of the matters here sought to be regulated demand that Congress be permitted ample scope in selecting appropriate modes for accomplishing its purpose. The critical connection between this conduct and loss of citizenship is the fact that it is the possession of American citizenship by a person committing the act that makes the act potentially embarrassing to the American Government and pregnant with the possibility of embroiling this country in disputes with other nations. The termination of citizenship terminates the problem. Moreover, the fact is not without significance that Congress has interpreted this conduct, not irrationally, as importing not only something less than complete and unswerving allegiance to the United States but also elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship.
31
Of course, Congress can attach loss of citizenship only as a consequence of conduct engaged in voluntarily. See Mackenzie v. Hare, 239 U.S. 299, 311—312, 36 S.Ct. 106, 108, 60 L.Ed. 297. But it would be a mockery of this Court's decisions to suggest that a person, in order to lose his citizenship, must intend or desire to do so. The Court only a few years ago said of the person held to have lost her citizenship in Mackenzie v. Hare, supra: 'The woman had not intended to give up her American citizenship.' Savorgnan v. United States, 338 U.S. 491, 501, 70 S.Ct. 292, 298, 94 L.Ed. 287. And the latter case sustained the denationalization of Mrs. Savorgnan although it was not disputed that she 'had no intention of endangering her American citizenship or of renouncing her allegiance to the United States.' 338 U.S., at page 495, 70 S.Ct. at page 294.5 What both women did do voluntarily was to engage in conduct to which Acts of Congress attached the consequence of denationalization irrespective of—and, in those cases, absolutely contrary to—the intentions and desires of the individuals. Those two cases mean nothing—indeed, they are deceptive—if their essential significance is not rejection of the notion that the power of Congress to terminate citizenship depends upon the citizen's assent. It is a distortion of those cases to explain them away on a theory that a citizen's assent to denationalization may be inferred from his having engaged in conduct that amounts to an 'abandonment of citizenship' or a 'transfer of allegiance.' Certainly an Act of Congress cannot be invalidated by resting decisive precedents on a gross fiction—a fiction baseless in law and contradicted by the facts of the cases.
32
It cannot be said, then, that Congress acted without warrant when, pursuant to its power to regulate the relations of the United States with foreign countries, it provided that anyone who votes in a foreign election of significance politically in the life of another country shall lose his American citizenship. To deny the power of Congress to enact the legislation challenged here would be to disregard the constitutional allocation of governmental functions that it is this Court's solemn duty to guard.
33
Because of our view concerning the power of Congress with respect to § 401(e) of the Nationality Act of 1940, we find it unnecessary to consider—indeed, it would be improper for us to adjudicate—the constitutionality of § 401(j), and we expressly decline to rule on that important question at this time.
34
Judgment affirmed.
35
Mr. Chief Justice WARREN, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
36
The Congress of the United States has decreed that a citizen of the United States shall lose his citizenship by performing certain designated acts.1 The petitioner in this case, a native-born American,2 is declared to have lost his citizenship by voting in a foreign election.3 Whether this forfeiture of citizenship exceeds the bounds of the Constitution is the issue before us. The problem is fundamental and must be resolved upon fundamental considerations.
37
Generally, when congressional action is challenged, constitutional authority is found in the express and implied powers with which the National Government has been invested or in those inherent powers that are necessary attributes of a sovereign state. The sweep of those powers is surely broad. In appropriate circumstances, they are adequate to take away life itself. The initial question here is whether citizenship is subject to the exercise of these general powers of government.
38
What is this government, whose power is here being asserted? And what is the source of that power? The answers are the foundation of our Republic. To secure the inalienable rights of the individual, 'Governments are instituted among Men, deriving their just powers from the consent of the governed.' I do not believe the passage of time has lessened the truth of this proposition. It is basic to our form of government. This Government was born of its citizens, it maintains itself in a continuing relationship with them, and, in my judgment, it is without power to sever the relationship that gives rise to its existence. I cannot believe that a government conceived in the spirit of ours was established with power to take from the people their most basic right.
39
Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf.4 His very existence is at the sufferance of the state within whose borders he happens to be. In this country the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens,5 and like the alien he might even be subject to deportation and thereby deprived of the right to assert any rights.6 This government was not established with power to decree this fate.
40
The people who created this government endowed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.
41
The basic constitutional provision crystallizing the right of citizenship is the first sentence of section one of the Fourteenth Amendment. It is there provided that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' United States citizenship is thus the constitutional birth-right of every person born in this country. This Court has declared that Congress is without power to alter this effect of birth in the United States, United States v. Wong Kim Ark, 169 U.S. 649, 703, 18 S.Ct. 456, 477, 42 L.Ed. 890. The Constitution also provides that citizenship can be bestowed under a 'uniform Rule of Naturalization,'7 but there is no corresponding provision authorizing divestment. Of course, naturalization unlawfully procured can be set aside.8 But apart from this circumstance, the status of the naturalized citizen is secure. As this Court stated in Osborn v. Bank of United States, 9 Wheat. 738, 827, 6 L.Ed. 204:
42
'(The naturalized citizen) becomes a member of the society possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.' (Emphasis added.)
43
Under our form of government, as established by the Constitution, the citizenship of the lawfully naturalized and the native-born cannot be taken from them.
44
There is no question that citizenship may be voluntarily relinquished. The right of voluntary expatriation was recognized by Congress in 1868.9 Congress declared that 'the right of expatriation is a natural and inherent right of all people * * *.'10 Although the primary purpose of this declaration was the protection of our naturalized citizens from the claims of their countries of origin, the language was properly regarded as establishing the reciprocal right of American citizens to abjure their allegiance.11 In the early days of this Nation the right of expatriation had been a matter of controversy. The common-law doctrine of perpetual allegiance was evident in the opinions of this Court.12 And, although impressment of naturalized American seamen of British birth was a cause of the War of 1812, the executive officials of this Government were not unwavering in their support of the right of expatriation.13 Prior to 1868 all efforts to obtain congressional enactments concerning expatriation failed.14 The doctrine of perpetual allegiance, however, was so ill-suited to the growing nation whose doors were open to immigrants from abroad that it could not last. Nine years before Congress acted Attorney General Black stated the American position in a notable opinion:15
45
'Here, in the United States, the thought of giving it (the right of expatriation) up cannot be entertained for a moment. Upon that principle this country was populated. We owe to it our existence as a nation.
46
Ever since our independence we have upheld and maintained it by every form of words and acts. We have constantly promised full and complete protection to all persons who should come here and seek it by renouncing their natural allegiance and transferring their fealty to us. We stand pledged to it in the face of the whole world.'
47
It has long been recognized that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country.16 While the essential qualities of the citizen-state relationship under our Constitution preclude the exercise of governmental power to divest United States citizenship, the establishment of that relationship did not impair the principle that conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship. Nearly all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship.17 Nor is this the only act by which the citizen may show a voluntary abandonment of his citizenship. Any action by which he manifests allegiance to a foreign state may be so inconsistent with the retention of citizenship as to result in loss of that status.18 In recognizing the consequence of such action, the Government is not taking away United States citizenship to implement its general regulatory powers, for, as previously indicated, in my judgment citizenship is immune from divestment under these powers. Rather, the Government is simply giving formal recognition to the inevitable consequence of the citizen's own voluntary surrender of his citizenship.
48
Twice before, this Court has recognized that certain voluntary conduct results in an impairment of the status of citizenship. In Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, an American citizen had renounced her citizenship and acquired that of a foreign state. This Court affirmed her loss of citizenship, recognizing that 'From the beginning, one of the most obvious and effective forms of expatriation has been that of naturalization under the laws of another nation.' 338 U.S. at page 498, 70 S.Ct. at page 296. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, involved an American woman who had married a British national. That decision sustained an Act of Congress which provided that her citizenship was suspended for the duration of her marriage. Since it is sometimes asserted that this case is authority for the broad proposition that Congress can take away United States citizenship, it is necessary to examine precisely what the case involved.
49
The statute which the Court there sustained did not divest Mrs. Mackenzie of her citizenship.19 It provided that 'any American woman who marries a foreigner shall take the nationality of her husband.'20 'At the termination of the marital relation,' the statute continues, 'she may resume her American citizenship * * *.' (Emphasis added.) Her citizenship was not taken away; it was held in abeyance.
50
This view of the statute is borne out by its history. The 1907 Act was passed after the Department of State had responded to requests from both houses of Congress for a comprehensive study of our own and foreign nationality laws, together with recommendations for new legislation.21 One of those recommendations, substantially incorporated in the 1907 Act, was as follows:22
51
'That an American woman who marries a foreigner shall take during coverture the nationality of her husband; but upon termination of the marital relation by death or absolute divorce she may revert to her American citizenship by registering within one year as an American citizen at the most convenient American consulate or by returning to reside in the United States if she is abroad; or if she is in the United States by continuing to reside therein.' (Emphasis added.)
52
This principle of 'reversion of citizenship' was a familiar one in our own law,23 and the law of foreign states.24 The statute was merely declarative of the law as it was then understood.25 Although the opinion in Mackenzie v. Hare contains some reference to termination of citizenship, the reasoning is consistent with the terms of the statute that was upheld. Thus, the Court speaks of Mrs. Mackenzie's having entered a 'condition,' 239 U.S. at page 312, 36 S.Ct. at page 108, not as having surrendered her citizenship. 'Therefore,' the Court concludes, 'as long as the relation lasts, it is made tantamount to expatriation.' Ibid. (Emphasis added.)
53
A decision sustaining a statute that relies upon the unity of interest in the marital community—a common-law fiction now largely a relic of the past—may itself be outdated.26 However that may be, the foregoing demonstrates that Mackenzie v. Hare should not be understood to sanction a power to divest citizenship. Rather this case, like Savorgnan, simply acknowledges that United States citizenship can be abandoned, temporarily or permanently, by conduct showing a voluntary transfer of allegiance to another country.
54
The background of the congressional enactment pertinent to this case indicates that Congress was proceeding generally in accordane with this approach. After the initial congressional designation in 1907 of certain actions that were deemed to be an abandonment of citizenship, it became apparent that further clarification of the problem was necessary. In 1933 President Roosevelt, acting at the request of the House Committee on Immigration and Naturalization,27 established a Committee of Cabinet members to prepare a codification and revision of the nationality laws.28 The Committee, composed of the Secretary of State, the Attorney General and the Secretary of Labor, spent five years preparing the codification that became the Nationality Act of 1940 and submitted their draft in 1938. It is evident that this Committee did not believe citizenship could be divested under the Government's general regulatory powers. Rather, it adopted the position that the citizen abandons his status by compromising his allegiance. In its letter submitting the proposed codification to the President, the Committee described the loss-of-nationality provisions in these words:29
55
'They are merely intended to deprive persons of American nationality when such persons, by their own acts, or inaction, show that their real attachment is to the foreign country and not to the United States.' (Emphasis added.) Furthermore, when the draft code was first discussed by the House Committee on Immigration and Naturalization—the only legislative group that subjected the codification to detailed examination,30 it was at once recognized that the status of citizenship was protected from congressional control by the Fourteenth Amendment. In considering the situation of a native-born child of alien parentage, Congressmen Poage and Rees, members of the Committee, and Richard Flournoy, the State Department representative, engaged in the following colloquy:31
56
'Mr. Poage. Isn't that based on the constitutional provision that all persons born in the United States are citizens thereof?
57
'Mr. Flournoy. Yes.
58
'Mr. Poage. In other words, it is not a matter we have any control over.
59
'Mr. Flournoy. No; and no one wants to change that.
60
'Mr. Poage. No one wants to change that, of course.
61
'Mr. Flournoy. We have control over citizens born abroad, and we also have control over the question of expatriation. We can provide for expatriation. No one proposes to change the constitutional provisions.
62
'Mr. Rees. We cannot change the citizenship of a man who went abroad, who was born in the United States.
63
'Mr. Flournoy. You can make certain acts of his result in a loss of citizenship.
64
'Mr. Rees. Surely, that way.' It is thus clear that the purpose governing the formulation of most of the loss-of-nationality provisions of the codification was the specification of acts that would of themselves show a voluntary abandonment of citizenship. Congress did not assume it was empowered to use denationalization as a weapon to aid in the exercise of its general powers. Nor should we.
65
Section 401(e) of the 1940 Act added a new category of conduct that would result in loss of citizenship:
66
'Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory * * *.'
67
The conduct described was specifically represented by Mr. Flournoy to the House Committee as indicative of 'a choice of the foreign nationality,' just like 'using a passport of a foreign state as a national thereof.'32
68
The precise issue posed by Section 401(e) is whether the conduct it describes invariably involves a dilution of undividued allegiance sufficient to show a voluntary abandonment of citizenship. Doubtless under some circumstances a vote in a foreign election would have this effect. For example, abandonment of citizenship might result if the person desiring to vote had to become a foreign national or represent himself to be one.33 Conduct of this sort is apparently what Mr. Flournoy had in mind when he discussed with the committee the situation of an American-born youth who had acquired Canadian citizenship through the naturalization of his parents. Mr. Flournoy suggested that the young man might manifest an election of nationality by taking advantage of his Canadian citizenship and voting 'as a Canadian.'34 And even the situation that bothered Committee Chairman Dickstein—Americans voting in the Saar plebiscite—might under some circumstances disclose conduct tantamount to dividing allegiance. Congressman Dickstein expressed his concern as follows:35
69
'I know we have had a lot of Nazis, so-called American citizens, go to Europe who have voted in the Saar for the annexation of territory to Germany, and Germany says that they have the right to participate and to vote, and yet they are American citizens.'
70
There might well be circumstances where an American shown to have voted at the behest of a foreign government to advance its territorial interests would compromise his native allegiance.
71
The fatal defect in the statute before us is that its application is not limited to those situations that may rationally be said to constitute an abandonment of citizenship. In specifying that any act of voting in a foreign political election results in loss of citizenship, Congress has employed a classification so broad that it encompasses conduct that fails to show a voluntary abandonment of American citizenship.36 'The connection between the fact proved and that presumed is not sufficient.' Manley v. State of Georgia, 279 U.S. 1, 7, 49 S.Ct. 215, 217, 73 L.Ed. 575; see also Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Bailey v. State of Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191. The reach of this statute is best indicated by a decision of a former attorney general, holding that an American citizen lost her citizenship under Section 401(e) by voting in an election in a Canadian town on the issue of whether beer and wine should be sold.37 Voting in a foreign election may be a most equivocal act, giving rise to no implication that allegiance has been compromised. Nothing could demonstrate this better than the political history of this country. It was not until 1928 that a presidential election was held in this country in which no alien was eligible to vote.38 Earlier in our history at least 22 States had extended the franchise to aliens. It cannot be seriously contended that this Nation understood the vote of each alien who previously took advantage of this privilege to be an act of allegiance to this country, jeopardizing the alien's native citizenship. How then can we attach such significance to any vote of a United States citizen in a foreign election? It is also significant that of 84 nations whose nationality laws have been compiled by the United Nations, only this country specifically designates foreign voting as an expatriating act.39
72
My conclusions are as follows. The Government is without power to take citizenship away from a native-born or lawfully naturalized American. The Fourteenth Amendment recognizes that this priceless right is immune from the exercise of governmental powers. If the Government determines that certain conduct by United States citizens should be prohibited because of anticipated injurious consequences to the conduct of foreign affairs or to some other legitimate governmental interest, it may within the limits of the Constitution proscribe such activity and assess appropriate punishment. But every exercise of governmental power must find its source in the Constitution. The power to denationalize is not within the letter or the spirit of the powers with which our Government was endowed. The citizen may elect to renounce his citizenship, and under some circumstances he may be found to have abandoned his status by voluntarily performing acts that compromise his undivided allegiance to his country. The mere act of voting in a foreign election, however, without regard to the circumstances attending the participation, is not sufficient to show a voluntary abandonment of citizenship. The record in this case does not disclose any of the circumstances under which this petitioner voted. We know only the bare fact that he cast a ballot. The basic right of American citizenship has been too dearly won to be so lightly lost.
73
I fully recognize that only the most compelling considerations should lead to the invalidation of congressional action, and where legislative judgments are involved, this Court should not intervene. But the Court also has its duties, none of which demands more diligent performance than that of protecting the fundamental rights of individuals. That duty is imperative when the citizenship of an American is at stake—that status, which alone, assures him the full enjoyment of the precious rights conferred by our Constitution. As I see my duty in this case, I must dissent.
74
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
75
While I join the opinion of The Chief Justice, I wish to add a word. The philosophy of the opinion that sustains this statute is foreign to our constitutional system. It gives supremacy to the Legislature in a way that is incompatible with the scheme of our written Constitution. A decision such as this could be expected in England where there is no written constitution, and where the House of Commons has the final say. But with all deference, this philosophy has no place here. By proclaiming it we forsake much of our constitutional heritage and move closer to the British scheme. That may be better than ours or it may be worse. Certainly it is not ours.
76
We deal here with the right of citizenship created by the Constitution. Section 1, cl. 1, of the Fourteenth Amendment states 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' As stated by the Court in the historic decision United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 477, 42 L.Ed. 890, 'Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution.'
77
What the Constitution grants the Constitution can take away. But there is not a word in that document that covers expatriation. The numerous legislative powers granted by Art. I, § 8, do not mention it. I do not know of any legislative power large enough and powerful enough to modify or wipe out rights granted or created by § 1, cl. 1, of the Fourteenth Amendment.
78
Our decisions have never held that expatriation can be imposed. To the contrary, they have assumed that expatriation was a voluntary relinquishment of loyalty to one country and attachment to another. Justice Paterson spoke of expatriation in Talbot v. Jansen, 3 Dall. 133, 153, 1 L.Ed. 540, as 'a departure with intention to leave this country, and settle in another.' The loss of citizenship in this country without its acquisition in another country was to him the creation of 'a citizen of the world'—a concept that is 'a creature of the imagination, and far too refined for any republic of ancient or modern times.' Ibid.
79
So far as I can find, we have, prior to this day, never sustained the loss of a native-born American citizenship unless another citizenship was voluntarily acquired. That was true both in Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, and Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. We should look to their facts, not to loose statements unnecessary for the decisions. In the Mackenzie case it was the marriage of a native-born woman to an alien that caused the loss of one nationality and the acquisition of another. In the Savorgnan case the native-born American citizen became naturalized in Italy. In this case Perez did vote in a foreign election of some kind. But as The Chief Justice has clearly shown, § 401(e) of the Nationality Act of 1940 'is not limited to those situations that may rationally be said to constitute an abandonment of citizenship.' 78 S.Ct. 585.
80
Our landmark decision on expatriation is Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, where Chief Justice Hughes wrote for the Court. The emphasis of that opinion is that 'Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.' Id., 307 U.S. at page 334, 59 S.Ct. at page 889.
81
Today's decision breaks with that tradition. It allows Congress to brand an ambiguous act as a 'voluntary renunciation' of citizenship when there is no requirement and no finding that the citizen transferred his loyalty from this country to another. This power is found in the power of Congress to regulate foreign affairs. But if voting abroad is so pregnant with danger that Congress can penalize it by withdrawing the voter's American citizenship, all citizens should be filled with alarm. Some of the most heated political discussions in our history have concerned foreign policy. I had always assumed that the First Amendment, written in terms absolute, protected those utterances, no matter how extreme, no matter how unpopular they might be. Yet if the power to regulate foreign affairs can be used to deprive a person of his citizenship because he voted abroad, why may not it be used to deprive him of his citizenship because his views on foreign policy are unorthodox or because he disputed the position of the Secretary of State or denounced a Resolution of the Congress or the action of the Chief Executive in the field of foreign affairs? It should be remembered that many of our most heated controversies involved assertion of First Amendment rights respecting foreign policy. The hated Alien and Sedition Laws grew out of that field.1 More recently the rise of fascism and communism has had profound repercussions here. Could one who advocated recognition of Soviet Russia in the 1920's be deprived of his citizenship? Could that fate befall one who was a Bundist2 in the late 1930's or early 1940's and extolled Hitler? Could it happen in the 1950's to one who pleaded for recognition of Red China or who proclaimed against the Eisenhower Doctrine in the Middle East? No doubt George F. Kennan 'embarrassed' our foreign relations when he recently spoke over the British radio.3 Does the Constitution permit Congress to cancel his citizenship? Could an American who violated his passport restrictions and visited Red China be deprived of his citizenship? Or suppose he trades with those under a ban. To many people any of those acts would seem much more heinous than the fairly innocent act of voting abroad. If casting a ballot abroad is sufficient to deprive an American of his citizenship, why could not like penalties be imposed on the citizen who expresses disagreement with his Nation's foreign policy in any of the ways enumerated?
82
The fact that First Amendment rights may be involved in some cases and not in others seems irrelevant. For the grant of citizenship by the Fourteenth Amendment is clear and explicit and should withstand any invasion of the legislative power.
83
What the Court does is to make it possible for any one of the many legislative powers to be used to wipe out or modify specific rights granted by the Constitution, provided the action taken is moderate and does not do violence to the sensibilities of a majority of this Court. The examples where this concept of Due Process has been used to sustain state action4 as well as federal action,5 which modifies or dilutes specific constitutional guarantees, are numerous. It is used today drastically to revise the express command of the first Clause of § 1 of the Fourteenth Amendment. A right granted by the Constitution—whether it be the right to counsel or the right to citizenship—may be waived by the citizen.6 But the waiver must be first a voluntary act and second an act consistent with a surrender of the right granted. When Perez voted he acted voluntarily. But, as shown, § 401(e) does not require that his act have a sufficient relationship to the relinquishment of citizenship—nor a sufficient quality of adhering to a foreign power. Nor did his voting abroad have that quality.
84
The decision we render today exalts the Due Process Clause of the Fifth Amendment above all others. Of course any power exercised by the Congress must be asserted in conformity with the requirements of Due Process. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. But the requirement of Due Process is a limitation on powers granted, not the means whereby rights granted by the Constitution may be wiped out or watered down. The Fourteenth Amendment grants citizenship to the native-born, as explained in United States v. Wong Kim Ark, supra. That right may be waived or surrendered by the citizen. But I see no constitutional method by which it can be taken from him. Citizenship, like freedom of speech, press, and religion, occupies a preferred position in our written Constitution, because it is a grant absolute in terms. The power of Congress to withhold it, modify it, or cancel it does not exist. One who is native-born may be a good citizen or a poor one. Whether his actions be criminal or charitable, he remains a citizen for better of for worse, except and unless he voluntarily relinquishes that status. While Congress can prescribe conditions for voluntary expatriation, Congress cannot turn white to black and make any act an act of expatriation. For then the right granted by the Fourteenth Amendment becomes subject to regulation by the legislative branch. But that right has no such infirmity. It is deeply rooted in history, as United States v. Wong Kim Ark, supra, shows. And the Fourteenth Amendment put it above and beyond legislative control.
85
That may have been an unwise choice. But we made it when we adopted the Fourteenth Amendment and provided that the native-born is an American citizen. Once he acquires that right there is no power in any branch of our Government to take it from him.
86
Memorandum of Mr. Justice WHITTAKER.
87
Though I agree with the major premise of the majority's opinion—that Congress may expatriate a citizen for an act which it may reasonably find to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs—I cannot agree with the result reached, for it seems plain to me that § 401(e) is too broadly written to be sustained upon that ground. That section, so far as here pertinent, expatriates an American citizen simply for 'voting in a political election in a foreign state.' Voting in a political election in a particular foreign state may be open to aliens under the law of that state, as it was in presidential elections in the United States until 1928 as the dissenting opinion of The Chief Justice observes. Where that is so—and this record fails to show that petitioner's act of voting in a political election in Mexico in 1946 was not entirely lawful under the law of that state such legalized voting by an American citizen cannot reasonably be said to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs, nor, I believe, can such an act—entirely legal under the law of the foreign state—be reasonably said to constitute an abandonment or any division or dilution of allegiance to the United States. Since these are my convictions, I dissent from the majority's opinion and join in so much of the dissenting opinion of The Chief Justice as expresses the view that the act of a citizen of the United States in voting in a foreign political election which is legally open to aliens under the law of that state cannot reasonably be said to constitute abandonment or any division or dilution of allegiance to the United States.
88
This leaves open the question presented respecting the constitutionality of § 401(j), but inasmuch as the majority have found it unnecessary to adjudicate the constitutionality of that section in this case, it would be wholly fruitless for me now to reach a conclusion on that question, and I neither express nor imply any views upon it. Limiting myself to the issue decided by the majority, I dissent.
1
Incorporated into § 349 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 267—268, 8 U.S.C. § 1481, 8 U.S.C.A. § 1481.
2
Petitioner proceeded under § 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171, now, 8 U.S.C.A. § 1503, which authorizes an individual to bring suit for a declaration of nationality in a United States District Court against the head of any government agency that denies him a right or privilege of United States nationality on the ground that he is not a United States national. The judicial hearing in such an action is a trial de novo in which the individual need make only a prima facie case establishing his citizenship by birth or naturalization. See Pandolfo v. Acheson, 2 Cir., 202 F.2d 38, 40—41. The Government must prove the act of expatriation on which the denial was based by "clear, unequivocal, and convincing' evidence which does not leave 'the issue in doubt'.' Gonzales V. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; see Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796.
*
Now 8 U.S.C.A. § 1483.
*
Now 8 U.S.C.A. §§ 1481(a), 1482, 1484(a).
3
The provision of the Fourteenth Amendment that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States * * *' sets forth the two principal modes (but by no means the only ones) for acquiring citizenship. Thus, in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 460, 42 L.Ed. 890 (Chief Justice Fuller and Mr. Justice Harlan dissenting), it was held that a person of Chinese parentage born in this country was among 'all persons born in the United States' and therefore a citizen to whom the Chinese Exclusion Acts did not apply. But there is nothing in the terms, the context, the history or the manifest purpose of the Fourteenth Amendment to warrant drawing from it a restriction upon he power otherwise possessed by Congress to withdraw citizenship. The limit of the operation of that provision was clearly enunciated in Perkins v. Elg, 307 U.S. 325, 329, 59 S.Ct. 884, 887, 83 L.Ed. 1320: 'As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles.'
4
Petitioner in the case before us did not object to the characterization of the election in which he voted as a 'political election.' It may be noted that, in oral argument, counsel for the petitioner expressed his understanding that the election involved was the election for Mexico's president.
5
The District Court in Savorgnan stated: 'I am satisfied from the proofs submitted that at the time plaintiff signed Exhibits 1 and 2 (application for Italian citizenship and oath of allegiance to Italian Government) she had no present or fixed intention in her mind to expatriate herself.' 73 F.Supp. 109, 111.
1
Section 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168—1169, as amended, 8 U.S.C. § 1481, 8 U.S.C.A. § 1481.
The fact that the statute speaks in terms of loss of nationality does not mean that it is not petitioner's citizenship that is being forfeited. He is a national by reason of his being a citizen, § 101(b), Nationality Act of 1940, 54 Stat. 1137, 8 U.S.C. § 1101(a)(22), 8 U.S.C.A. § 1101(a)(22). Hence he loses his citizenship when he loses his status as a national of the United States. In the context of this opinion, the terms nationality and citizenship can be used interchangeably. Cf. Rabang v. Boyd, 353 U.S. 427, 77 S.Ct. 985, 1 L.Ed.2d 956.
2
Petitioner was born in El Paso, Texas, in 1909, a fact of which he was apprised in 1928. His Mexican-born parents took him to Mexico when he was 10 or 11 years old. In 1932 petitioner married a Mexican national; they have seven children. In 1943 and 1944 petitioner sought and received permission to enter this country for brief periods as a wartime railroad laborer. In 1952 petitioner again entered this country as a temporary farm laborer. After he had been ordered deported as an alien illegally in the United States, he brought this action for a declaratory judgment of citizenship, relying upon his birth in this country.
3
Section 401(e) of the Nationality Act of 1940, 54 Stat. 1169, 8 U.S.C. § 1481(5), 8 U.S.C.A. § 1481(5).
The courts below concluded that petitioner had lost his citizenship for the additional reason specified in § 401(j) of the Nationality Act, which was added in 1944, 58 Stat. 746, 8 U.S.C. § 1481(10), 8 U.S.C.A. § 1481(10): 'Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.'
The majority expressly declines to rule on the constitutional questions raised by § 401(j). My views on a statute of this sort are set forth in my opinion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, involving similar problems raised by § 401(g) of the Nationality Act, 54 Stat. 1169, as amended, 8 U.S.C. § 1481(8), 8 U.S.C.A. § 1481(8).
4
See Borchard, Diplomatic Protection of Citizens Abroad (1916), § 8; 1 Oppenheim, International Law (7th ed., Lauterpacht, 1948), §§ 291—294; Holborn. The Legal Status of Political Refugees, 1920—1938, 32 Am.J.Int'l L. 680 (1938); Preuss, International Law and Deprivation of Nationality, 23 Geo.L.J. 250 (1934); Study On Statelessness, U.N.Doc. No. E/1112 (1949); 64 Yale L.J. 1164 (1955).
5
See Konvitz, The Alien and the Asiatic in American Law (1946); Comment, 20 U. of Chi.L.Rev. 547 (1953). Cf. Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Oyama v. State of California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249.
6
Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905.
Even if Congress can divest United States citizenship, it does not necessarily follow that an American-born expatriate can be deported. He would be covered by the statutory definition of 'alien,' 8 U.S.C. § 1101(a)(3), 8 U.S.C.A. § 1101(a)(3), but he would not necessarily have come 'from a foreign port or place' and hence may not have effected the 'entry,' 8 U.S.C. § 1101(a)(13), 8 U.S.C.A. § 1101(a)(13), specified in the deportation provisions, 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. More fundamentally, since the deporting power has been held to be derived from the power to exclude, Fong Yue Ting v. United States, supra, it may well be that this power does not extend to persons born in this country. As to them, deportation would perhaps find its justification only as a punishment, indistinguishable from banishment. See dissenting opinions in United States v. Ju Toy, 198 U.S. 253, 264, 25 S.Ct. 644, 647, 49 L.Ed. 1040; Fong Yue Ting v. United States, supra, 149 U.S. at page 744, 13 S.Ct. at page 1034.
Since this action for a declaratory judgment does not involve the validity of the deportation order against petitioner, it is unnecessary, as the Government points out, to resolve the question of whether this petitioner may be deported.
7
U.S.Const., Art. I, § 8, cl. 4.
8
See, e.g., Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.
9
Act of July 27, 1868, 15 Stat. 223.
10
Ibid.
11
See Savorgnan v. United States, 338 U.S. 491, 498 and note 11, 70 S.Ct. 292, 296, 94 L.Ed. 287; Foreign Relations, 1873, H.R.Exec.Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, 1186 1187, 1204, 1210, 1213, 1216, 1222 (views of President Grant's Cabinet members); 14 Op.Atty.Gen. 295; Tsiang, The Question of Expatriation in America Prior to 1907, 97—98, 108—109.
12
See Shanks v. Dupont, 3 Pet. 242, 7 L.Ed. 666; Inglis v. Trustees of Sailor's Snug Harbour, 3 Pet. 99, 7 L.Ed. 617.
13
3 Moore, Digest of International Law, §§ 434—437; Tsiang, 45—55, 71—86, 110—112.
14
Tsiang, 55—61.
15
9 Op.Atty.Gen. 356, 359.
16
See, e.g., Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; Bauer v. Clark, 7 Cir., 161 F.2d 397, certiorari denied 332 U.S. 839, 68 S.Ct. 210, 92 L.Ed. 411. Cf. Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453.
17
See Laws Concerning Nationality, U.N.Doc. No. ST/LEG/SER.B/4 (1954).
18
See, generally, Laws Concerning Nationality, op. cit. supra, note 17.
19
Act of March 2, 1907, 34 Stat. 1228—1229. The full text is as follows:
'Sec. 3. That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.'
20
This clause merely expressed the well-understood principle that a wife's nationality 'merged' with that of her husband's. Cockburn, Nationality, 24; 3 Moore, Digest of International Law, 450—451, 453; 3 Hackworth, Digest of International Law, 246—247. This was a consequence of the common-law fiction of a unity of interest in the marital community. During coverture the privileges and obligations of a woman's citizenship gave way to the dominance of her husband's. Prior to the Act of March 2, 1907, the Department of State declined to issue passports to American-born women who were married to aliens. 3 Moore, 454; 3 Hackworth, 247. The Attorney General ruled that a woman in such circumstances was not subject to an income tax imposed on all citizens of the United States residing abroad. 13 Op.Atty.Gen. 128. Several courts held that during the duration of a marriage consummated prior to the Act between an Americanborn woman and an alien, a court may entertain a petition for her naturalization. In re Wohlgemuth, D.C., 35 F.2d 1007; In re Krausmann, D.C., 28 F.2d 1004; In re Page, D.C., 12 F.2d 135. Cf. Pequignot v. City of Detroit, C.C., 16 F. 211.
21
S.Res. 30, 59th Cong., 1st Sess.; H.R.Rep. No. 4784, 59th Cong., 1st Sess.
22
H.R.Doc. No. 326, 59th Cong., 2d Sess. 29. The Department's covering letter makes abundantly clear that marriage was not to result in 'expatriation.' Id., at 3.
23
Consult, generally, 3 Moore, § 410(2) ('Reversion of Nationality'); Van Dyne, Naturalization, 242—255. Numerous cases contain references to a woman's 'reverting' to United States citizenship after the termination of her marriage to an alien. E.g., Petition of Zogbaum, D.C., 32 F.2d 911, 913; Petition of Drysdale, D.C., 20 F.2d 957, 958; In re Fitzroy, D.C., 4 F.2d 541, 542. The Department of State adopted the same interpretation. In 1890 Secretary Blaine declared the view of the Department that: 'The marriage of an American woman to a foreigner does not completely divest her of her original nationality. Her American citizenship is held for most purposes to be in abeyance during coverture, but to be susceptible of revival by her return to the jurisdiction and allegiance of the United States.' (Emphasis added.) Foreign Rel.U.S.1890, 301.
In 1906 Secretary Root stated:
'Under the practice of the Department of State a widow or a woman who has obtained an absolute divorce, being an American citizen and who has married an alien, must return to the United States, or must have her residence here in order to have her American citizenship revert on becoming femme sole.' Foreign Rel.U.S.1906, Pt. 2, 1365.
24
Consult, generally, 3 Moore, 458—462. H.R.Doc. No. 326, 59th Cong., 2d Sess. 269—538, a report by the Department of State which Congress requested prior to its Act of March 2, 1907, contains a digest of the nationality laws of forty-four countries. Twenty-five of those provided in widely varying terms that upon marriage a woman's citizenship should follow that of her husband. Of these twenty-five, all but two made special provision for the woman to recover her citizenship upon termination of the marriage by compliance with certain formalities demonstrative of the proper intent, and in every instance wholly different from the ordinary naturalization procedures.
25
In re Wohlgemuth, D.C., 35 F.2d 1007; In re Krausmann, D.C., 28 F.2d 1004; Petition of Drysdale, D.C., 20 F.2d 957; In re Page, D.C., 12 F.2d 135.
In fact, Congressman Perkins, supporting the bill on the floor of the House, explained its effect in these words:
'The courts have decided that a woman takes the citizenship of her husband, only the decisions of the courts provide no means by which she may retake the citizenship of her own country on the expiration of the marital relation. This bill contains nothing new in that respect, except a provision that when the marital relation is terminated the woman may then retake her former citizenship.' 41 Cong.Rec. 1465.
Cases discussing the pre-1907 law generally held that a woman did not lose her citizenship by marriage to an alien, although she might bring about that result by other acts (such as residing abroad after the death of her husband) demonstrating an intent to relinquish that citizenship. E.g., Shanks v. Dupont, 3 Pet. 242, 7 L.Ed. 666; In re Wright, D.C., 19 F.Supp. 224; Petition of Zogbaum, D.C., 32 F.2d 911; In re Lynch, D.C., 31 F.2d 762; Petition of Drysdale, D.C., 20 F.2d 957; In re Fitzroy, D.C., 4 F.2d 541; Wallenburg v. Missouri Pacific R. Co., C.C., 159 F. 217; Ruckgaber v. Moore, C.C., 104 F. 947; Comitis v. Parkerson, C.C., 56 F. 556, 22 L.R.A. 148. This was also the view of the Department of State. 3 Moore, 449—450; 3 Hackworth, 247—248.
26
The marriage provisions of the 1907 legislation were substantially repealed by the 1922 Cable Act, 42 Stat. 1021, and the last remnants of the effect of marriage on loss of citizenship were eliminated in 1931. 46 Stat. 1511. See Roche, The Loss of American Nationality, 99 U. of Pa.L.Rev. 25, 47—49.
27
See 86 Cong.Rec. 11943.
28
Exec.Order No. 6115, April 25, 1933.
29
Codification of the Nationality Laws of the United States, H.R.Comm.Print, Pt. 1, 76th Cong., 1st Sess. VII.
30
The bill was considered by the House Committee on Immigration and Naturalization and its subcommittee. Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. The Senate did not hold hearings on the bill.
31
Hearings, at 38—38.
32
Id., at 132. The passport provision was apparently deleted by the subcommittee, for it does not appear in the version of the bill that was printed when hearings resumed before the full committee on May 2, 1940. Id., at 207.
33
Cf. In the Matter of P_ _, 1 I. & N.Dec. 267 (this particular election in Canada was open only to British subjects).
34
Hearings, at 98.
35
Id., at 286—287.
36
The broad sweep of the statute was specifically called to the attention of the committee by Mr. Henry F. Butler. Hearings, at 286—287. Mr. Butler also submitted a brief, suggesting that the coverage of the statute be limited to those voting 'in a manner in which only nationals of such foreign state or territory are eligible to vote or participate.' Id., at 387.
37
In the Matter of F_ _, 2 I. & N. Dec. 427.
38
Aylsworth, The Passing of Alien Suffrage, 25 Am.Pol.Sci.Rev. 114.
39
Laws Concerning Nationality, U.N.Doc. No. ST/LEG/SER.B/4 (1954). The statutes of Andorra (191 sq. mi.; 5,231 pop.) provide for loss of nationality for a citizen who 'exercises political rights in another country,' id., at 10, and this very likely includes voting.
Of course, it should be noted that two nations, Romania and Russia, have statutes providing that upon decree of the government citizenship can be withdrawn, apparently for any reason. Id., at 396, 463.
1
Miller, Crisis in Freedom (1951), 167—168, states the Federalist case for those laws:
'As in the case of the Alien Act, the Federal lists justified the Sedition Law by citing the power of Congress to provide for the common defense and general welfare, and the inherent right of every government to act in self-preservation. It was passed at a time of national emergency when, as a member of Congress said, 'some gentlemen say we are at war, and when all believe we must have war.' 'Threatened by faction, and actually at hostility with a foreign and perfidious foe abroad,' the Sedition Act was held to be 'necessary for the safety, perhaps the existence of the Government.' Congress could not permit subversive newspapers to 'paralyze the public arm, and weaken the efforts of Government for the defense of the country.' The wiles of France and its adherents were as dangerous as its armies: 'Do not the Jacobin fiends of France use falsehood and all the arms of hell,' asked William Cobbett, 'and do they not run like half famished wolves to accomplish the destruction of this country?' If Congress had failed to take every precautionary measure against such danger, the blood of the Republic would have been upon its hands.'
2
Cf. Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745.
3
See Kennan, Russia, The Atom and the West (1957).
4
See Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903; Bute v. People of State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448.
5
United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
6
E.g., Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268.
| 12
|
356 U.S. 252
78 S.Ct. 687
2 L.Ed.2d 737
Leonard L. GRIMES, Petitioner,v.RAYMOND CONCRETE PILE COMPANY et al.
No. 456.
Argued March 10, 1958.
Decided April 7, 1958.
Mr. Harry Kisloff, Boston, Mass., for the petitioner.
Mr. Frank L. Kozol, Boston, Mass., for the respondent.
PER CURIAM.
1
The petitioner brought this suit in the District Court for the District of Massachusetts. He sought damages under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, for injuries suffered while being transferred at sea in a 'Navy life ring' from a tug to a Texas tower which the respondents, his employers, were constructing under a contract with the Government on Georges Bank, 110 miles east of Cape Cod. The District Court directed a verdict for the respondents at the close of the petitioner's case. The trial judge indicated his view that the evidence created a fact question on the issue as to whether the petitioner was a crew member, but held that the petitioner's exclusive remedy was under the Defense Bases Act, 42 U.S.C. §§ 1651—1654, 42 U.S.C.A. §§ 1651—1654, which incorporates the remedies of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901—950, 33 U.S.C.A. §§ 901—950. The Court of Appeals for the First Circuit held that the Defense Bases Act did not provide the exclusive remedy for a member of a crew in light of § 1654 of the Act providing 'This chapter shall not apply in respect to the injury * * * of * * * (3) a master or member of a crew of any vessel.' However, the Court of Appeals affirmed the District Court's judgment, one judge dissenting, upon the ground that the evidence was not sufficient to create a fact question as to whether the petitioner was a crew member. 245 F.2d 437. We granted certiorari, 355 U.S. 867, 78 S.Ct. 123, 2 L.Ed.2d 73.
2
We hold, in agreement with the Court of Appeals, that 42 U.S.C. § 1654, 42 U.S.C.A. § 1654, saves the remedy under the Jones Act created for a member of a crew of any vessel. We hold further, however, in disagreement with the Court of Appeals, that the petitioner's evidence presented an evidentiary basis for a jury's finding whether or not the petitioner was a member of a crew of any vessel. Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404; Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732.
3
The judgment is reversed and the case remanded to the District Court for further proceedings not inconsistent with this opinion.
4
Reversed.
5
Mr. Justice FRANKFURTER is of opinion that, since the course of argument demonstrated that the case turns entirely on evaluation of evidence in a particular set of circumstances, the writ of certiorari was improvidently granted and should be dismissed.
6
Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.
7
Even stretching the Court's past opinions in this field to their utmost, e.g., Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404, I cannot agree with today's decision. The Court of Appeals is said to have erred in holding the evidence insufficient to warrant a jury finding that petitioner was a 'member of a crew of any vessel,' and thus entitled to avail himself of the remedies for seamen provided by the Jones Act. (245 F.2d 440.) See Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045. In view of the fact that it has long been settled that a 'member of a crew' is one who is 'naturally and primarily on board (a vessel) to aid in * * * navigation,' South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 260, 60 S.Ct. 544, 548, 84 L.Ed. 732, a statement of the facts in this case should suffice to show why I disagree with the Court.
8
Respondent had contracted to install for the United States Government at a site 110 miles seaward of Cape Cod a 'Texas Tower' a triangular metal platform superimposed some 60 feet above the surface of the sea on supports permanently affixed to the floor of the ocean by three caissons, and utilized to operate a radar warning station. Petitioner, a member of the Pile Drivers Union, had been employed by respondent as a pile driver on the protect. For several weeks, petitioner assisted in the completion of the tower in the Bethlehem East Boston Yards. When the tower was towed to sea, petitioner with about 25 other workmen lived on the tower and kept it in condition by operating air compressors, generators, and pumps to expedite installation at the permanent site, as well as by performing certain functions to keep it in safe tow. After the tower was anchored at its permanent site and while the temporary pilings were being driven down, petitioner performed only pile-driving.
9
Six days after the tower had been placed in its permanent position, petitioner and several other workmen were sent to a nearby barge, which was without crew and used solely to transport construction materials, to prepare for transfer of such materials to the tower. They reached the barge by way of a tug, worked there for about six hours, and then started on their return to the tower. While on the Navy life ring which was used to effect his transfer from tug to tower, petitioner was injured when the life ring collided with the pilothouse on the tug.
10
On these facts I am unable to see how a jury could permissibly find petitioner to be a 'member of a crew of any vessel' under any sensible meaning of that phrase. Presumably the Court does not consider as a vessel this man-made island, the Texas Tower, which was securely fixed to the ocean bed before petitioner was injured. I find equally untenable the other possible basis for the Court's action—that petitioner's sporadic work for a few hours on the barge, a minor incident to his continuing employment as a pile driver on the tower, could be found to transform him at the time of the accident into a seaman and a member of the crew of the barge. If the 'standing' requirements of the Jones Act are still to be regarded as having any real content, I can find no room for debate that this individual is not a seaman, unless a 'seaman' is to mean nothing more than a person injured while working at sea. We should give effect to the law as Congress has written it.
11
It should be remembered that Congress has not left this petitioner remediless, but has provided him with redress under the Defense Bases Act, 42 U.S.C. § 1651, 42 U.S.C.A. § 1651.* Indeed, petitioner has already followed that path and collected compensation for his injuries.
*
I agree with the Court that the Defense Bases Act does not foreclose seamen from having recourse to the Jones Act.
| 78
|
356 U.S. 227
78 S.Ct. 674
2 L.Ed.2d 721
UNITED STATES of America, Petitioner,v.F. & M. SCHAEFER BREWING CO.
No. 79.
Argued Jan. 6, 1958.
Decided April 7, 1958.
Mr. Leonard B. Sand, Washington, D.C., for petitioner.
Mr. Thomas C. Burke, New York City, for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
This case presents questions concerning the timeliness of an appeal by the Government from a summary judgment of a District Court to the Court of Appeals in an action for the recovery of money only. The basic question presented is which of two series of judicial and ministerial acts—one on April 14 and the other on May 24, 1955—constituted the 'judgment' and 'entry of the judgment.' If it was the former, the appeal was out of time, but if the latter, it was not.
2
The overt facts are clear and undisputed. Respondent sued the Government for $7,189.57, alleged to have been illegally assessed and collected from it as federal stamp taxes, and for interest thereon from the date of payment. After issue was joined, respondent moved for summary judgment. The district judge, after hearing the motion, filed an opinion on April 14, 1955 (130 F.Supp. 322, 324), in which, after finding that respondent had paid stamp taxes to the Government in the amout of $7,012.50 and interest in the amount of $177.07, but making no finding of the date or dates of payment, he referred to an earlier decision of the same legal question by his colleague, Judge Leibell, in United States v. National Sugar Refining Co., D.C., 113 F.Supp. 157, and concluded, saying: 'I am in agreement with Judge Leibell's analysis and, accordingly, the plaintiff's motion is granted.' Thereupon, the clerk made the following notation in the civil docket: 'April 14, 1955. Rayfiel, J. Decision rendered on motion for summary judgment. Motion granted. See opinion on file.'
3
Thereafter, on May 24, 1955, counsel for respondent presented to the judge, and the latter signed and filed, a formal document captioned 'Judgment,' which referred to the motion and the hearing of it and to the 'opinion' of April 14, and then,
4
'Ordered, adjudged and decreed that the plaintiff, The F. & M. Schaefer Brewing Co., recover of the defendant, United States of America, the sum of $7189.57 and interest thereon from February 19, 1954 in the amount of $542.80, together with costs as taxed by the Clerk of the Court in the sum of $37, aggregating the sum of $7769.37, and that plaintiff have judgment against defendant therefor.'
5
On the same day the clerk stamped the document 'Judgment Rendered: Dated: May 24th, 1955,' and made the following notation in the civil docket:
6
'May 24, 1955. Rayfiel, J. Judgment filed and docketed against defendant in the sum of $7,189.57 with interest of $542.80 together with costs $37 amounting in all to $7,769.37. Bill of Costs attached to judgment.' On July 21, 1955, the Government filed its notice of appeal from the order 'entered in this action on May 25th, 1955 * * *.' Thereafter, respondent moved to dismiss the appeal upon the ground that the opinion of April 14 constituted the 'judgment,' that the clerk's entry of that date constituted 'entry of the judgment,' and that the appeal was not taken within 60 days from the 'entry of the judgment,' as required by Rule 73(a).1 The Court of Appeals, holding that the opinion of April 14 was a 'decisive and complete act of adjudication,' and that the notation made by the clerk in the civil docket on that date constituted 'entry of the judgment' within the meaning of Rule 58 and adequately disclosed the 'substance' of the judgment as required by Rule 79(a), sustained the motion and dismissed the appeal as untimely. 236 F.2d 889, 891. Because of an asserted conflict among the circuits2 and the public importance of the proper interpretation and uniform application of the provisions of the Federal Rules governing the time within which appeals may be taken from judgments of District Courts in actions for money only tried without a jury, we granted certiorari. 353 U.S. 907, 77 S.Ct. 667, 1 L.Ed.2d 662.
7
Stated summarily, the Government contends (1) that practical considerations require that a final judgment be contained in a separate document so labeled; (2) that the district judge's opinion did not contain any of the elements of a final judgment for money nor manifest an intention that it was to be his final act in the case; (3) that it was only the formal judgment of May 24 which awarded any sum of money to respondent and which invoked the provisions of Rule 58, saying 'When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction'; (4) that where, as here, a formal judgment is signed and filed by the judge it is prima facie his final decision, and, inasmuch as nothing in his opinion indicated any contrary intention, the formal 'judgment' constituted his final decision; and (5) that the notation made by the clerk in the civil docket on April 14 did not indicate an award of any sum of money to respondent and, therefore, did not 'show * * * the substance of (a money) judgment of the court,' as required by Rule 79(a) and, hence, did not constitute 'the entry of (a) judgment' for money, within the meaning of Rule 58, nor start the running of the time to appeal under Rule 73(a).
8
Resolution of these contentions depends principally upon the proper construction and application of the pertinent provisions of Rules 58 and 79(a). Rule 58, in pertinent part, provides:
9
'When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction * * *. The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; and the judgment is not effective before such entry.' (Emphasis supplied.)
10
So much of Rule 79(a) as is pertinent here provides:
11
'All * * * judgments shall be noted * * * in the civil docket * * *. These notations shall be brief but shall show * * * the substance of each * * * judgment of the court * * *.' (Emphasis supplied.)
12
At the outset the Government contends that practical considerations—namely, certainty as to what judicial pronouncements are intended to be final judgments in order to avoid both premature and untimely appeals, to render certain the date of judgment liens, and to enable the procurement of writs of execution, transcripts and certified copies of judgments—require that a judgment be contained in a separate document so labeled, and urges us so to hold. Whatever may be the practical needs in these respects, the answer is that no present statute or rule so requires, as the Government concedes, and the decisional law seems settled that '(n)o form of words * * * is necessary to evince (the) rendition (of a judgment).' United States v. Hark, 320 U.S. 531, 534, 64 S.Ct. 359, 361, 88 L.Ed. 290. See also In re Forstner Chain Corporation, 1 Cir., 177 F.2d 572, 576.
13
While an opinion may embody a final decision, the question whether it does so depends upon whether the judge has or has not clearly declared his intention in this respect in his opinion. Therefore, when, as here, the action is for money only—whether for a liquidated or an unliquidated amount, as Rule 58 makes no such distinction—it is necessary to determine whether the language of the opinion embodies the essential elements of a judgment for money and clearly evidences the judge's intention that it shall be his final act in the case. If it does so, it constitutes his final judgment and, under Rule 58, it 'directs that a party recover (a sum of) money,' and, 'upon receipt by (the clerk) of the (opinion),' requires him to 'enter judgment forthwith' against the party found liable for the amount awarded, which is to be done by making a brief 'notation of (the) judgment in the civil docket (showing the substance of the judgment of the court) as provided by Rule 79(a).' When all of these elements clearly appear final judgment has been both pronounced and entered, and the time to appeal starts to run under the provisions of Rule 73(a). And, as correctly held by the Court of Appeals, the later filing and entry of a more formal judgment could not constitute a second final judgment in the case nor extend the time to appeal. 236 F.2d at page 892.
14
But, on the other hand, if the opinion leaves doubtful whether the judge intended it to be his final act in the case—and, in an action for money, failure to determine either expressly or by reference the amount to be awarded is strong evidence of such lack of intention—one cannot say that it 'directs that a party recover (a sum of) money,' as required by Rule 58 before the clerk 'shall enter judgment forthwith'; nor can one say that the clerk's 'notation * * * in the civil docket'—if it sets forth no more substance than is contained or directed in the opinion, and being only a ministerial act (In re Forstner Chain Corporation, supra, 177 F.2d at page 576) it may do no more—' show(s) * * * the substance of (a) judgment' of the court, as required by Rule 79(a), and 'constitutes the entry of the judgment' against a party for a sum of money under Rule 58.
15
While, as stated, there is no statute or rule that specifies the essential elements of a final judgment, and this Court has held that '(n)o form of words and no peculiar formal act is necessary to evince (the) rendition (of a judgment)' (United States v. Hark, supra, 320 U.S. at page 534, 64 S.Ct. at page 361), yet it is obvious that a final judgment for money must, at least, determine, or specify the means for determining, the amount (United States v. Cooke, 9 Cir., 215 F.2d 528, 530); and an opinion, in such a case, which does not either expressly or by reference determine the amount of money awarded reveals doubt, at the very least, whether the opinion was a 'complete act of adjudication'—to borrow a phrase from the Court of Appeals—or was intended by the judge to be his final act in the case.
16
But respondent argues, as the Court of Appeals held, that the opinion stated the amount of money illegally collected from respondent and, therefore, adequately determined the amount awarded, and that inasmuch as the clerk's entry incorporated the opinion by reference, it, too, adequately stated the amount of the judgment. This contention might well be accepted were it not for the fact that the action also sought recovery of interest on the amount paid by respondent from the date of payment to the date of judgment, and for the fact that the opinion does not state the date or dates of payment and, hence, did not state facts necessary to compute the amount of interest to be included in the judgment. Cf. United States v. Cooke, supra, 215 F.2d at page 530. In an effort to counter the effect of these omissions, respondent states that a search of the record, which it urges we should make, would show that the Government's answer admitted the date of payment, and thus would furnish the information necessary to compute the amount of interest to be included in the judgment. It relies upon a statement in the Forstner case, supra, saying 'Whether such a judgment has been rendered depends primarily upon the intention of the court, as gathered from the record as a whole * * *.' 177 F.2d at page 576. (Emphasis supplied.) This argument cannot be accepted under the facts here for the reason that Rule 79(a) expressly requires that the clerk's entry 'shall show * * * the substance of (the) judgment of the court * * *.' Surely the amount of a judgment for money is a vital part of its substance. To hold that one must search the whole record to determine the amount, or the facts necessary to compute the amount, of a final judgment for money would be to ignore the quoted provision of Rule 79(a).
17
In these circumstances, the rule declared by this Court in the Hark case—though a criminal case and, therefore, not governed by the Federal Rules of Civil Procedure, which as we have shown afford no aid in determining judicial intent—is exactly apposite and controlling.
18
'Where, as here, a formal judgment is signed by the judge, this is prima facie the decision or judgment rather than a statement in an opinion or a docket entry. * * * The judge was conscious, as we are, that he was without power to extend the time for appeal. He entered a formal order of record. We are unwilling to assume that he deemed this an empty form or that he acted from a purpose indirectly to extend the appeal time, which he could not do overtly. In the absence of anything of record to lead to a contrary conclusion, we take the formal order of March 31 as in fact and in law the pronouncement of the court's judgment and as fixing the date from which the time for appeal ran.' United States v. Hark, 320 U.S. at pages 534—535, 64 S.Ct. at page 361. See also United States v. Higginson, 1 Cir., 238 F.2d 439, 443.
19
The actions of all concerned—of the judge in not stating in his opinion the amount, or means for determining the amount, of the judgment; of the clerk in not stating the amount of the judgment in his notation on the civil docket; of counsel for the Government in not appealing from the 'opinion'; of counsel for respondent in preparing and presenting to the judge a formal 'judgment' on May 24; and, finally, of the judge himself in signing and filing the formal 'judgment' on the latter date clearly show that none of them understood the opinion to be the judge's final act or to constitute his final judgment in the case. Therefore, as in Hark, we must take the court's formal judgment of May 24 and the clerk's entry thereof on that date as in fact and in law the pronouncement and entry of the judgment and as fixing the date from which the time for appeal ran.
20
Reversed.
21
Mr. Justice HARLAN, dissenting.
22
The effort which has gone into this case has at least ended happily from the point of view of preserving the integrity of those provisions of the Federal Rules of Civil Procedure bearing on the timeliness of appeals. The Court's opinion, and the dissent of Mr. Justice Frankfurter which I have joined, are at one on the basic issue, namely, that entry of a formal judgment is not necessary to start the time for appeal running, and also agree that the determinative question in any given case is whether the District Court intended its decision on the merits to be a final disposition of the matter. After an en banc Court of Appeals had decided that the District Court in this instance did intend to make a final disposition of the case, I should have thought this Court would have considered it the better course to affirm the judgment below, with an appropriate suggestion to district judges, to leave no room for argument about their intentions respecting finality, rather than to reverse the Court of Appeals on what was essentially an issue of fact.
23
Even so, the Court's action perhaps has a silver lining, for I daresay it will stimulate district judges to be more at pains in the future, cf. Matteson v. United States, 2 Cir., 240 F.2d 517, 518, to give in their opinions in these 'money' cases an affirmative indication of intention regarding the finality or nonfinality of their decisions. If such is the effect of this decision, it will be a healthy thing, for surely such a commonplace affair as the time for appeal should not be permitted to breed litigation.
24
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
25
This case presents the question whether an appeal by the Government to the Court of Appeals from a summary judgment rendered against it was taken within the sixty-day period established by Rule 73(a) of the Federal Rules of Civil Procedure. Ultimately decision turns on the need felt for nation-wide uniformity in the detailed application of rules of procedure within the federal judicial system, as against regard for local conditions and experience in the different circuits in construing rules phrased in broad and functional terms. Though not so formulated by the Court, this is the underlying question for decision, for I cannot believe we brought here for review a discrete instance, a particular, nonrecurring set of circumstances, or that we wish to encourage petitions for certiorari to review, from time to time, other individual sets of circumstances. The issues on the basis of which the Government sought review in this case were said to be of importance because they affected 'all litigants in the federal courts.'
26
Respondent taxpayer sued to recover $7,189.57 in stamp taxes, an amount specifically set forth in its complaint, alleged to have been illegally assessed and collected from it, and moved for summary judgment. On April 14, 1955, the District Court filed a 'Memorandum Decision' directed to the motion for summary judgment. In its opinion the court, relying on Judge Leibell's decision in United States v. National Sugar Refining Co., D.C., 113 F.Supp. 157, found that the tax, in the amount of $7,189.57, had been illegally collected, and concluded by stating that, 'I am in agreement with Judge Leibell's analysis and, accordingly, the plaintiff's motion is granted.' 130 F.Supp. 322, 324. On the same day the clerk made the following entry in the civil docket: 'Rayfiel, J. Decision rendered on motion for summary judgment. Motion granted. See opinion on file.'
27
Over a month later, on May 24, 1955, the court signed a paper, submitted to it by respondent, entitled 'Judgment.' This document recited that, respondent having moved for summary judgment, and the motion having been granted on April 14, 1955, and the court's opinion having been filed, 'It is ordered, adjudged and decreed that the plaintiff, The F. & M. Schaefer Brewing Co., recover of the defendant, United States of America, the sum of $7,189.57 and interest thereon from February 19, 1954 in the amount of $542.80, together with costs as taxed by the Clerk of the Court in the sum of $37, aggregating the sum of $7,769.37, and that plaintiff have judgment against defendant therefor.' On that day the clerk made the following entry in the docket: 'Rayfiel, J. Judgment filed and docketed against defendant in the sum of $7189.57 with interest of $542.80 together with costs $37 amounting in all to $7769.37. Bill of Costs attached to judgment.'
28
The Government filed its notice of appeal on July 21, 1955, ninety-eight days after the decision granting the motion for summary judgment, and fifty-eight days after the entry of the formal judgment of May 24. The Court of Appeals for the Second Circuit, six judges sitting en banc, unanimously dismissed the appeal on the ground that the notice of appeal had not been filed within sixty days from the entry of judgment as required by Rule 73(a) of the Federal Rules of Civil Procedure. The court found that judgment had been entered on April 14, 1955, when the motion for summary judgment was granted, and not on May 24, 1955 when the formal 'Judgment' was docketed.
Rule 73(a) provides:
29
'When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from unless a shorter time is provided by law, except that in any action in which the United States or an officer or agency thereof is a party the time as to all parties shall be 60 days from such entry * * *.'
Rule 54(a) defines a 'judgment' as:
30
'a decree and any order from which an appeal lies.'
31
Rule 58, entitled 'Entry of Judgment,' provides that:
32
'Unless the court otherwise directs and subject to the provisions of Rule 54(b), judgment upon the verdict of a jury shall be entered forthwith by the clerk; but the court shall direct the appropriate judgment to be entered upon a special verdict or upon a general verdict accompanied by answers to interrogatories returned by a jury pursuant to Rule 49. When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry of judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk. The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; and the judgment is not effective before such entry. The entry of the judgment shall not be delayed for the taxing of costs.' (Emphasis supplied.)
33
Rule 79(a) describes the civil docket mentioned in Rule 58, and goes on to declare that:
34
'All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted chronologically in the civil docket * * *. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court * * *.'
35
Thus, before the time for appeal begins to run under Rule 73(a), a judgment as contemplated in Rule 58 must have been rendered by the court and, in compliance with Rule 79(a), entered by the clerk in the civil docket. The judgment must have been both properly rendered and properly entered, and the entry of judgment is the decisive procedural moment. In the present case the question is whether the memorandum decision of April 14, 1955, was a 'judgment' within the meaning of the Rules, and if it was, whether the clerk's docket notation of that date showed the 'substance' of the judgment.
36
The Rules nowhere define with mechanical exactitude the meaning of the term 'judgment.' Rule 54(a), however, in stating that a judgment includes 'a decree and any order from which an appeal lies,' emphasizes that a judgment is not confined to judicial actions so described, but includes any act of the court that performs the function of a judgment in bringing litigation to its final determination. Rule 58 is pertinent to what that function is and in describing when a judgment shall be entered indirectly illumines what a judgment is within the contemplation of the Rules. Thus, when a jury returns a general verdict and there have been no interrogatories, judgment on the verdict shall be entered forthwith by the clerk, without further direction from the court. When the case is tried to the court and the relief awarded is complex, the court must approve the form of the judgment and direct that it be entered by the clerk. However, when the court directs that a party recover money only, and that is the situation in the present case, or that all relief be denied, the clerk is to enter judgment forthwith upon receipt of the direction.
37
One thing is clear from a close reading of these Rules in the light of the general purpose 'to secure the just, speedy, and inexpensive determination of every action.' Fed.Rules Civ.Proc., 1. Simplicity and speed, when consonant with effective protection of the interests of the parties, are touchstones for the interpretation of all the Rules, especially those strategically placed to advance the litigation to its final conclusion. Thus, as regards the judgment contemplated by Rule 73(a), no formal document stamped 'judgment' is required, and the direction that a party recover money or that all relief be denied may be included in an informal memorandum, given at the end of a written opinion, or even delivered orally from the bench. Of the many decisions in the Courts of Appeals on this question, none has suggested that a judgment must be expressed in a formal, autonomous document, as is required by the cumbersome, wasteful practice in some States. Such a requirement would contradict the liberal policy of the Federal Rules. We have recognized, even in a criminal case not governed by these Rules, that 'No form of words and no peculiar formal act is necessary to evince (the rendition of a judgment) or to mature the right of appeal.' United States v. Hark, 320 U.S. 531, 534, 64 S.Ct. 359, 361, 88 L.Ed. 290. The fact that by Rule 58 the court is expressly required to approve the form of the judgment when the relief granted is more complex than money or costs is surely convincing that when only money or costs are awarded there is no such requirement.
38
The 1946 amendment to Rule 58 underscored the purpose not to require from the court a particular formal act or an explicit direction that judgment be entered. The Rule had provided that: 'When the court directs the entry of a judgment that a party recover only money or costs or that there be no recovery, the clerk shall enter judgment forthwith upon receipt by him of the direction * * *.' 308 U.S. 737. It was amended to read: 'When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction * * *.' 329 U.S. 863. According to the Notes of the Advisory Committee, 'The substitution of the more inclusive phrase 'all relief be denied' for the words 'there be no recovery', makes it clear that the clerk shall enter the judgment forthwith in the situations specified without awaiting the filing of a formal judgment approved by the court.' 28 U.S.C., p. 4343, 28 U.S.C.A. rule 58 note. (Emphasis supplied.) Moreover, the elimination of the words 'the entry of a judgment' made it clear that it is the direction to recover that is the essential act, and not a direction explicitly to enter judgment or a direction framed in any particular manner.
39
Of course the court may, in the exercise of its control over the shape of the judgment and the time of its rendition, indicate that no judgment will be rendered until a formal document is drawn up, approved, and signed. The Rules themselves recognized that in many cases, according to the relief awarded, the careful formulation of a separate judgment may be indispensable to the proper disposition of the litigation. Moreover, a formal document evidencing the judgment may in some circumstances be necessary for execution, for registration under state law, or for divers purposes unrelated to the taking of an appeal. In the present case, for example, the Government states that, under Treasury Department procedures, respondent could not have secured payment of the judgment without submitting a certified copy stating the precise amount of the judgment plus interest and costs. But these requirements, admitting their relevance to the particular purposes for which they are designed, do not justify eroding an important federal procedural policy in favor of speed and simplicity in taking appeals by demanding that because the definitive adjudication of a claim must be in a particular form for a particular purpose it must be so for all.
40
What is required under Rule 73(a) is action by the court that clearly indicates that the issues presented by the litigation have been adjudicated, and that the decision is wholly completed and not dependent on further action by the court. Furthermore, since the parties must be in a position to make an intelligent choice whether or not to appeal, the court must inform them not only that it has decided the case, but what it has decided. In assessing the court's action to determine whether these requirements have been met and a judgment has been rendered within the meaning of Rule 73(a), an appellate court naturally looks to the import of the trial court's action as it must reasonably have appeared to the parties. Certainty that the court has in fact rendered an appealable judgment is of course a vital consideration, so that meritorious appeals may not be lost through inadvertence. Surely such certainty can be attained by directing trial judges to explicitness in decision and expression without insisting on archaic formalities that pointlessly delay the course of the litigation. As Chief Judge Clark has indicated in an opinion following the decision in the present case, appellate rules should not be 'adjusted to accommodate carelessness, at cost of * * * serious losses in effective court procedure * * *.' Matteson v. United States, 2 Cir., 240 F.2d 517, 519.
41
It is readily apparent that these criteria set only very broad limits on the interpretation of judicial action and that considerable scope is left for variation according to local custom and practice, properly so in a country as diversified and vast as ours. In this regard the judgment in United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290, supra, a criminal case involving an appeal direct to this Court under the Criminal Appeals Act, now 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, is not significantly different from a judgment under the Federal Rules of Civil Procedure. There the District Court rendered an opinion granting the defendants' motion to quash the indictment, and some weeks later signed a formal order to the same effect. This Court concluded that the formal order rather than the earlier opinion was the judgment of the court within the meaning of the statute, and that the appeal from it was timely. This conclusion was reached, however, only after finding that the customary practice in the District Court for the District of Massachusetts, from which the appeal had come, was to issue a formal order quashing an indictment and to regard it as the judgment. The Court expressly refused, because of the diversity of practice in the lower courts, to lay down a 'hard and fast rule' that when a formal judgment is filed it must necessarily be regarded as the judgment for purposes of appeal. In saying that a formal judgment is prima facie the judgment of the court, we made it clear that this presumption could be overcome by a showing of local practice to the contrary.
42
In Commissioner of Internal Revenue v. Estate of Bedford, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611, a case involving the timeliness of a petition for certiorari for review in this Court of a judgment of a Court of Appeals, we found that by common understanding and long-continued practice in the Court of Appeals, the formal order of mandate rather than the opinion was regarded as the judgment of the court. The Court respected this practice because, as we said, 'Whether the announcement of an opinion and its entry in the docket amounts to a judgment for purposes of appeal or whether that must await some later formal act, ought not to be decided on nice-spun argumentation in disregard of the judicial habits of the court whose judgment is called into question, of the bar practising before it, of the clerk who embodies its procedural traditions, as well as in conflict with the assumption of the reviewing court.' 325 U.S. at pages 287—288, 65 S.Ct. at page 1159. Procedural requirements within the federal judicial system are not to be fitted to a Procrustean bed. To the extent that the Federal Rules clearly contemplate a certain manner of doing things, of course such explicitness must be respected. But when the Rules do not so require, and the subject is one intimately associated with local practice and custom and adequately dealt with on that basis, loyalty to the Rules precludes imposition of uniformity merely for its own sake.
43
In the Second Circuit a decision of a District Court, when it is a complete, clear, and final adjudication, is deemed the judgment of the court, even though a later, formal judgment is signed and filed at the instance of one of the parties. We have the word of a unanimous Court of Appeals for this. Moreover, we have the decisions of that court over a number of years consistently enforcing, without dissent, the practice to which it adheres in the present case. So active a litigant as the Government could hardly have been unaware that such was in fact the governing practice in the application of Rule 73(a). The rule when first squarely stated in United States v. Wissahickon Tool Works, Inc., 2 Cir., 200 F.2d 936, 938, reflected a position taken in a line of earlier authorities,1 and it has since been repeated with increasing emphasis and clarity.2 That Court has continually admonished the District Courts to be clear and explicit in their adjudications so that certainty will not be sacrificed and litigants confused, but no less has it been concerned, because of the volume of litigation in the courts of that harried circuit and the widespread criticism of the law's delays, to formulate and enforce procedures that by their speed and simplicity will best expedite cases to a final determination.
44
If the decision of a District Court is, standing alone, a clear and final adjudication of the case, and at the time rendered sufficient to give notice of the running of the time for appeal, the Court of Appeals has refused to reassess its significance in the light of a later formal judgment. To give weight to the filing of the formal judgment in this situation, that court has found, would increase rather than diminish uncertainty and confusion, since the legal effect of the first decision would vary depending on the chance, often within the control of the parties as much as the court, that more formal action is taken later. The temptation would be too great to present a formal judgment for the court's approval simply to cast doubt on the finality of the earlier action, and thus improperly to extend the time for appeal. Although in other circuits a contrary position appears to have been taken and weight is given to the later filing of a formal judgment, e.g., United States v. Higginson, 1 Cir., 238 F.2d 439, 441—443, it cannot be said that the view adopted by the Second Circuit is without reason or inappropriate to the needs and practicalities of litigation in that circuit.3 In view of the varying problems in different circuits, we should, in this matter, leave to a Court of Appeals a considerable measure of freedom to interpret and form the practice in the District Courts in the light of its experience with the procedural relations between itself and those courts.
45
If the general rule of practice and interpretation in the Second Circuit is not in conflict with the Federal Rules of Civil Procedure, it is also not unreasonable as applied in the present case. The opinion of the District Court clearly informed the parties that respondent's motion for summary judgment was granted, and nothing in the language of the court remotely suggested that any formal judgment or further action by the court was contemplated or necessary for finality of adjudication. The amount of the judgment was the amount, plus interest and costs, of the tax illegally assessed and collected, and this amount was recited in the opinion as an agreed fact. Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs and since the date of the payment of the tax was not in dispute, the interest due was a simple, mathematically ascertainable item, and the failure to state it explicitly in the opinion neither qualified nor delayed the definitive aspect of the judgment.
46
The Court itself recognizes that a 'judgment' for the purposes of appeal is no more than an action by the court that finally and completely adjudicates the issues presented by the litigation, and that ultimately the question is one of ascertaining the intention of the District Court in a given case. Nevertheless, the Court reverses the unanimous determination of the Court of Appeals on this question, and it appears to rest this unusual action on the slender reed that the opinion of the District Court failed to show on its face the amount of the interest. In judging whether the District Court intended to make a final disposition of the case, the Court of Appeals surely was correct in concluding that this trivial circumstance was more than outweighed by the other circumstances of the case.
47
There may be cases in which the trial court's decision is inconclusive and ambiguous as to whether further action is contemplated, or it may be impossible to determine the practical effect of the judgment without complicated computations or information not available at the time the court renders its decision. But the present case is not one of these. The different considerations such cases present do not justify us in striking down a reasonable procedural rule relevantly applied. Nor is it material that in this case it was respondent itself that submitted for the court's approval the formal judgment of May 24th. When the motion for summary judgment was granted on April 14th and a final judgment rendered according to the established practice in the Second Circuit, the time for appeal commenced to run automatically by force of Rule 73(a). The fact that the court or either of the parties later proceeded on the assumption that further action was necessary or desirable to obtain a judgment, or for whatever reason, could in no way enlarge the time within which to invoke the jurisdiction of the appellate court. Such action could not prevent either respondent or the Court of Appeals from insisting on the finality of the District Court's first decision.
48
What has been said in regard to the rendering of judgment applies equally to the entry of judgment on the civil docket. Rule 79(a) requires that the notation on the docket be brief but show the 'substance' of the judgment rendered. 'Substance' in this context is not a term of Aristotelian metaphysics; it has no meaning apart from the realities of custom and practice and adequacy of notice to those whose conduct is governed by the docket entries and the information they reasonably convey. Such a practical reading of the Rule does not, contrary to the Government's contention, render nugatory the requirement that the substance of the judgment be shown, but properly interprets that requirement in terms of the purpose for which it was designed.
49
The docket entry in the present case recited that the motion for summary judgment had been granted, and referred to the court's opinion on file. The opinion in turn told of the amount of the judgment. Surely we cannot say, on a question so related to local custom and understanding, that the Court of Appeals erred in finding this sufficient notice to the parties that the case had been decided and how it had been decided. The docket entry standing alone would doubtless convey little to a stranger to the litigation. To those familiar with the case, however, and attentive to the question of appeal, it comprehensively conveyed the vital information necessary to protect their interests. The use of the word 'judgment,' or the recital of the amount of the judgment in the docket as well as in the opinion would have done no more, and a flat rule that such recitals must be included would convert Rule 79(a) from a common-sense direction to maintain a docket useful to the court, the clerk, and interested parties, into a demand for pointless technicalities that ultimately might well seriously inconvenience them. If the amount of the judgment must necessarily appear in the docket, so also, it can be argued, must the terms of an injunction, the substance of that judgment; but by such inclusions the usefulness of the docket as an index and brief history of the proceedings would be substantially impaired if not defeated.
50
It must be remembered that the problem before us concerns not the niceties of abstract logic or legal symmetry, but the practicalities of litigation and judicial administration in the federal courts of New York, Connecticut, and Vermont, comprising the Second Circuit. Doubtless the Federal Rules of Civil Procedure, insofar as they govern the time for taking appeals, must be observed throughout the country by all eleven Courts of Appeals. But since the Rules do not lay down self-defining specifications or mechanically enforceable details on many matters, including the rendition and entry of judgments, does due regard for the Rules require more than obedience to the functional purposes they express? Does their observance necessarily imply a nation-wide uniformity in their formal application? We have for review the practical construction given to Rule 73(a) by a Court of Appeals with as large a volume of business as any. By this practice the appellate jurisdiction of that court has been guided for some years, and it has been approved by every appellate judge in the circuit who has had occasion to consider the question. The membership of the Court of Appeals reflects the experience of judges among those of longest experience in our judiciary, both on the District Courts and the Courts of Appeals, judges who have had extensive experience at the bar both in private and public litigation, and judges of special competence in the domain of procedure.4 A rule of procedure authenticated by such a weighty certificate of legitimacy should not be nullified out of regard for considerations of elegantia juris. Certainly we should not upset it unless compelled to do so by the clear requirements of unambiguous legislation or the enforcement of unassailable even if implicit standards for the fair administration of justice.
51
I would affirm the judgment.
1
Unless otherwise stated, all references herein to Rules are to the Federal Rules of Civil Procedure, 28 U.S.C.A.
2
The First Circuit in United States v. Higginson, 238 F.2d 439, declined to follow the Second Circuit's opinion in the instant case, unless the latter may be said to rest upon local Rule 10(a) of the Southern and Eastern Districts of New York, providing, in part, that a 'memorandum of the determination of a motion, signed by the judge, shall constitute the order,' and concluded: 'To the extent that the language of the Schaefer opinion might apply even where no such local rule exists, this decision is not in accord with it.' Id., 234 F.2d at page 443. In its later case of Matteson v. United States, 240 F.2d 517, the Second Circuit makes clear that it regards the Higginson opinion as in conflict with its opinion in the instant case, saying: 'Since we viewed the local rule as merely corroborative of the practice actually required by F.R. 58, Judge Hartigan's opinion must be taken as disapproving our reasoning.' Id., 240 F.2d at page 518.
The Fourth Circuit's opinion in Papanikolaou v. Atlantic Freighters, 232 F.2d 663, also appears, in result at least, to be in conflict with the Second Circuit's opinion in the instant case.
1
See Leonard v. Prince Line, Ltd., 2 Cir., 157 F.2d 987, 989; Murphy v. Lehigh Valley R. Co., 2 Cir., 158 F.2d 481, 484 485; Binder v. Commercial Travelers Mut. Acc. Ass'n, 2 Cir., 165 F.2d 896, 901; Markert v. Swift & Co., 2 Cir., 173 F.2d 517, 519, note 2.
2
United States v. Roth, 2 Cir., 208 F.2d 467; Napier v. Delaware, L. & W.R. Co., 2 Cir., 223 F.2d 28; Matteson v. United States, 2 Cir., 240 F.2d 517; Edwards v. Doctors Hospital, Inc., 2 Cir., 242 F.2d 888; Repan v. American President Lines, Ltd., 2 Cir., 243 F.2d 876.
3
In its opinion in the present case the Court of Appeals invokes not only the Federal Rules of Civil Procedure and its own carefuly formulated views on the rendition of judgment as understood in those Rules, but also Rule 10(a) of the Southern and Eastern Districts of New York. This Rule provides that, 'A memorandum of the determination of a motion, signed by the judge, shall constitute the order; but nothing herein contained shall prevent the court from making an order, either originally or on an application for resettlement, in more extended form.' However, in Matteson v. United States, 240 F.2d 517, following the decision in the present case, the Court of Appeals explained that it 'viewed the local rule as merely corroborative of the practice actually required by F.R. 58 * * *.' 240 F.2d at page 518.
4
The court sitting on the present case included:
Chief Judge Clark—6 years' private practice, 19 years on the Court of Appeals, 21 years member of the Advisory Committee on the Federal Rules of Civil Procedure.
Judge Frank—22 years' private practice, 6 years' federal administrative service, 16 years on the Court of Appeals.
Judge Medina—35 years' private practice, 4 years on the District Court, 7 years on the Court of Appeals.
Judge Hincks—14 years' private practice, 22 years on the District Court, 5 years on the Court of Appeals.
Judge Lumbard—21 years' private practice, 6 years in the United States Attorney's Office, 3 years on the Court of Appeals.
Judge Waterman—29 years' private practice, 3 years on the Court of Appeals.
Other judges who sat in United States v. Wissahickon Tool Works, Inc., 2 Cir., 200 F.2d 936, supra, or the cases cited in note 2 were:
Judge Learned Hand—12 years private practice, 15 years on the District Court, 27 years on the Court of Appeals at retirement.
Judge Augustus N. Hand—19 years' private practice, 13 years on the District Court, 26 years on the Court of Appeals at retirement.
Judge Swan—13 years' private practice, 26 years on the Court of Appeals at retirement.
Judge Chase—7 years' private practice, 10 years on state courts, 25 years on the Court of Appeals at retirement.
| 89
|
356 U.S. 260
78 S.Ct. 691
2 L.Ed.2d 743
COMMISSIONER OF INTERNAL REVENUE et al., Petitioners,v.P. G. LAKE, Inc., et al.
No. 108.
Argued March 11, 1958.
Decided April 14, 1958.
Rehearing Denied May 19, 1958.
See 356 U.S. 964, 78 S.Ct. 991.
Mr. John N Stull, Washington, D.C., for petitioners.
Messrs. Harry C. Weeks, Fort Worth, Tex., and J. Paul Jackson, Dallas, Tex., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
We have here, consolidated for argument, five cases involving an identical question of law. Four are from the Tax Court whose rulings may be found in 24 T.C. 1016 (the Lake case); 24 T.C. 818 (the Fleming case); 24 T.C. 1025 (the Weed case). (Its findings and opinion in the Wrather case are not officially reported.) Those four cases involved income tax deficiencies. The fifth, the O'Connor case, is a suit for a refund originating in the District Court. 143 F.Supp. 240. All five are from the same Court of Appeals, 241 F.2d 71, 65, 78, 84, 69. The cases are here on writs of certiorari which we granted because of the public importance of the question presented. 353 U.S. 982, 77 S.Ct. 1283, 1 L.Ed.2d 1141.
2
The facts of the Lake case are closely similar to those in the Wrather and O'Connor cases. Lake is a corporation engaged in the business of producing oil and gas. It has a seven-eighths working interest1 in two commercial oil and gas leases. In 1950 it was indebted to its president in the sum of $600,000 and in consideration of his cancellation of the debt assigned him an oil payment right in the amount of $600,000, plus an amount equal to interest at 3 percent a year on the unpaid balance remaining from month to month, payable out of 25 percent of the oil attributable to the taxpayer's working interest in the two leases. At the time of the assignment it could have been estimated with reasonable accuracy that the assigned oil payment right would pay out in three or more years. It did in fact pay out in a little over three years.
3
In its 1950 tax return Lake reported the oil payment assignment as a sale of property producing a profit of $600,000 and taxable as a long-term capital gain under § 117 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117. The Commissioner determined a deficiency, ruling that the purchase price (less deductions not material here) was taxable as ordinary income, subject to depletion. The Wrather case has some variations in its facts. In the O'Connor case the assignors of the oil payments owned royalty interests2 rather than working interests. But these differences are not material to the question we have for decision.
4
The Weed case is different only because it involves sulphur rights, rather than oil rights. The taxpayer was the owner of a pooled overriding royalty in a deposit known and Boling Dome.3 The royalty interest entitled the taxpayer to receive $0.00966133 per long ton of sulphur produced from Boling Dome, irrespective of the market price. Royalty payments were made each month, based on the previous month's production.
5
In 1947, the taxpayer, in order to obtain a sure source of funds to pay his individual income taxes, agreed with one Munro, his tax advisor, on a sulphur payment assignment. The taxpayer assigned to Munro a sulphur payment totaling $50,000 and consisting of 86.254514 percent of his pooled royalty interest, which represented the royalty interest on 6,000,000 long tons of the estimated remaining 21,000,000 long tons still in place. The purchase price was paid in three installments over a three-year period. Most of the purchase price was borrowed by Munro from a bank with the sulphur payment assignment as security. The assigned sulphur payment right paid out within 28 months. The amounts received by the taxpayer in 1948 and 1949 were returned by him as capital gains. The Commissioner determined that these amounts were taxable as ordinary income, subject to depletion.
6
The Fleming case is a bit more complicated and presents an additional question not in the other cases. Here oil payment assignments were made, not for cash but for real estate. Two transactions are involved. Fleming and others with whom he was associated made oil payment assignments, the rights and interests involved being held by them for productive use in their respective businesses of producing oil. Each oil payment was assigned for an interest in a ranch. Each was in an amount which represented the uncontested fair value of the undivided interest in the ranch received by the assignor, plus an amount equal to the interest per annum on the balance remaining unpaid from time to time. The other transaction consisted of an oil payment assignment by an owner of oil and gas leases, held for productive use in the assignor's business, for the fee simple title to business real estate. This oil payment assignment, like the ones mentioned above, was in the amount of the uncontested fair market value of the real estate received, plus interest on the unpaid balance remaining from time to time.
7
First, as to whether the proceeds were taxable as long-term capital gains under s 1174 or as ordinary income subject to depletion. The Court of Appeals started from the premise, laid down in Texas decisions, see especially Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53, that oil payments are interests in land. We too proceed on that basis; and yet we conclude that the consideration received for these oil payment rights (and the sulphur payment right) was taxable as ordinary income, subject to depletion.
8
The purpose of § 117 was 'to relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.' See Burnet v. Harmel, 287 U.S. 103, 106, 53 S.Ct. 74, 75, 77 L.Ed. 199. And this exception has always been narrowly construed so as to protect the revenue against artful devices. See Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29.
9
We do not see here any conversion of a capital investment. The lump sum consideration seems essentially a substitute for what would otherwise be received at a future time as ordinary income. The pay-out of these particular assigned oil payment rights could be ascertained with considerable accuracy. Such are the stipulations, findings, or clear inferences. In the O'Connor case, the pay-out of the assigned oil payment right was so assured that the purchaser obtained a $9,990,350 purchase money loan at 3 1/2 percent interest without any security other than a deed of trust of the $10,000,000 oil payment right, he receiving 4 percent from the taxpayer. Only a fraction of the oil or sulphur rights were transferred, the balance being retained.5 Except in the Fleming case, which we will discuss later, cash was received which was equal to the amount of the income to accrue during the term of the assignment, the assignee being compensated by interest on his advance. The substance of what was assigned was the right to receive future income. The substance of what was received was the present value of income which the recipient would otherwise obtain in the future. In short, consideration was paid for the right to receive future income, not for an increase in the value of the income-producing property.
10
These arrangements seem to us transparent devices. Their forms do not control. Their essence is determined not by subtleties of draftsmanship but by their total effect. See Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788; Harrison v. Schaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055. We have held that if one, entitled to receive at a future date interest on a bond or compensation for services, makes a grant of it by anticipatory assignment, he realizes taxable income as if he had collected the interest or received the salary and then paid it over. That is the teaching of Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, and Harrison v. Schaffner, supra; and it is applicable here. As we stated in Helvering v. Horst, supra, 311 U.S. 117, 61 S.Ct. 147, 'The taxpayer has equally enjoyed the fruits of his labor or investment and obtained the satisfaction of his desires whether he collects and uses the income to procure those satisfactions, or whether he disposes of his right to collect it as the means of procuring them.' There the taxpayer detached interest coupons from negotiable bonds and presented them as a gift to his son. The interest when paid was held taxable to the father. Here, even more clearly than there, the taxpayer is converting future income into present income.
11
Second, as to the Fleming case. The Court of Appeals in the Fleming case held that the transactions were tax-free under § 112(b)(1) which provides:
12
'No gain or loss shall be recognized if property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stocks, bonds, notes, choses in action, certificates of trust or beneficial interest, or other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment.' 53 Stat. 37.
13
In the alternative and as a second ground, it held that this case, too, was governed by § 117.
14
We agree with the Tax Court, 24 T.C. 818, that this is not a tax-free exchange under § 112(b)(1). Treasury Regulations 111, promulgated under the 1939 Act, provide in § 39.112(b)(1)—1 as respects the words 'like kind,' as used in § 112(b)(1), that 'One kind or class of property may not * * * be exchanged for property of a different kind or class.' The exchange cannot satisfy that test where the effect under the tax laws is a transfer of future income from oil leases for real estate. As we have seen, these oil payment assignments were merely arrangements for delayed cash payment of the purchase price of real estate, plus interest. Moreover, § 39.112(a)—1 states that the 'underlying assumption of these exceptions is that the new property is substantially a continuation of the old investment still unliquidated.' Yet the oil payment assignments were not conversions of capital investments, as we have seen.
15
Reversed.
1
An oil and gas lease ordinarily conveys the entire mineral interest less any royalty interest retained by the lessor. The owner of the lease is said to own the 'working interest' because he has the right to develop and produce the minerals.
In Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277, we described an oil payment as 'the right to a specified sum of money, payable out of a specified percentage of the oil, or the proceeds received from the sale of such oil, if, as and when produced.' Id., 310 U.S. at page 410, 60 S.Ct. at page 955. A royalty interest is 'a right to receive a specified percentage of all oil and gas produced' but, unlike the oil payment, is not limited to a specified sum of money. The royalty interest lasts during the entire term of the lease. Id., 310 U.S. at page 409, 60 S.Ct. at page 955.
2
See note 1, supra.
3
Boling Dome is a tract composed of various parcels of land. The owners of the royalty interests in sulphur produced from the separate parcels entered into a pooling agreement by which royalties from sulphur produced anywhere in Boling Dome were distributed pro rata among all the royalty interest holders. In that sense was the interest of each 'pooled.'
4
Section 117(a)(1) provides in relevant part:
'The term 'capital assets' means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or property, used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(l), or real property used in the trade or business of the taxpayer.' 53 Stat. 50, as amended, 56 Stat. 846.
Section 117(a)(4) provides:
'The term 'long-term capital gain' means gain from the sale or exchange of a capital asset held for more than 6 months, if and to the extent such gain is taken into account in computing net income.' 53 Stat. 51, as amended, 56 Stat. 843.
Section 117(b) provides:
'In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing net capital gain, net capital loss, and net income:
'100 per centum if the capital asset has been held for not more than 6 months;
'50 per centum if the capital asset has been held for more than 6 months.' 56 Stat. 843.
5
Until 1946 the Commissioner agreed with the contention of the taxpayers in these cases that the assignment of an oil payment right was productive of a long-term capital gain. In 1946 he changed his mind and ruled that 'consideration (not pledged for development) received for the assignment of a short-lived in-oil payment right carved out of any type of depletable interest in oil and gas in place (including a larger in-oil payment right) is ordinary income subject to the depletion allowance in the assignor's hands.' G.C.M. 24849, 1946—1 Cum.Bull. 66, 69. This ruling was made applicable 'only to such assignments made on or after April 1, 1946,' I.T. 3895, 1948—1 Cum.Bull. 39. In 1950 a further ruling was made that represents the present view of the Commissioner. I.T. 4003, 1950—1 Cum.Bull. 10, 11, reads in relevant part as follows:
'After careful study and considerable experience with the application of G.C.M. 24849, supra, it is now concluded that there is no
legal or practical basis for distinguishing between short-lived and long-lived in-oil payment rights. It is, therefore, the present position of the Bureau that the assignment of any in-oil payment right (not pledged for development), which extends over a period less than the life of the depletable property interest from which it is carved, is essentially the assignment of expected income from such property interest. Therefore, the assignment for a consideration of any such in-oil payment right results in the receipt of ordinary income by the assignor which is taxable to him when received or accrued, depending upon the method of accounting employed by him. Where the assignment of the in-oil payment right is donative, the transaction is considered as an assignment of future income which is taxable to the donor at such time as the income from the assigned payment right arises.
'Notwithstanding the foregoing, G.C.M. 24849, supra, and I.T. 3935, supra, do not apply where the assigned in-oil payment right constitutes the entire depletable interest of the assignor in the property or a fraction extending over the entire life of the property.'
The pre-1946 administrative practice was not reflected in any published ruling or regulation. It therefore will not be presumed to have been known to Congress and incorporated into the law by re-enactment. See Helvering v. New York Trust Co., 292 U.S. 455, 467—468, 54 S.Ct. 806, 809—810, 78 L.Ed. 1361. Cf. United States v. Leslie Salt Co., 350 U.S. 383, 389—397, 76 S.Ct. 416, 420—424, 100 L.Ed. 441. Moreover, prior administrative practice is always subject to change 'through exercise by the administrative agency of its continuing rule-making power.' See Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438.
| 1112
|
356 U.S. 269
78 S.Ct. 690
2 L.Ed.2d 751
Gerys DESSALERNOS, Petitioner,v.Joseph SAVORETTI, District Director of the United States Immigration and Naturalization Service, Miami, Florida.
No. 287.
Argued April 3, 1958.
Decided April 14, 1958.
Mr. David W. Walters, Miami, Fla., for the petitioner.
Mr. Maurice A. Roberts, Washington, D.C., for the respondent.
PER CURIAM.
1
It was stipulated by the parties in the District Court that the sole question for decision is whether petitioner is entitled to have his application for suspension of deportation considered under § 244(a)(1) of the Immigration and Nationality Act of 1952 (66 Stat. 163, 214; 8 U.S.C. § 1254(a)(1), 8 U.S.C.A. § 1254(a)(1)). We hold that petitioner is so entitled. The judgment of the Court of Appeals (244 F.2d 178) is therefore vacated and the cause is remanded to the District Court with directions to enter an appropriate judgment declaring that petitioner is entitled to have his application for suspension of deportation considered by the United States Immigration and Naturalization Service under § 244(a)(1).
2
So ordered.
3
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, would dismiss the writ for lack of jurisdiction. In his view the record fails to disclose a justiciable case or controversy because (1) the undisturbed administrative finding that petitioner 'does not meet the requirement that his deportation (would) result in exceptional and extremely unusual hardship to himself,' establishes that petitioner is not entitled to suspension of deportation under either subdivision (a)(1) or (a)(5) of § 244 of the Immigration and Nationality Act of 1952; and (2) the parties' stipulation in the District Court is ineffective to confer jurisdiction on this Court to decide the question sought to be presented. See Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722; Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240 241, 57 S.Ct. 461, 463—464, 81 L.Ed. 617. In holding on this record that subdivision (a)(1) governs petitioner's case the Court has, in his view, rendered what in effect is an advisory opinion.
4
Mr. Justice FRANKFURTER would join Mr. Justice HARLAN if he read the record to be as clear as the latter finds it to be. Being in sufficient doubt about the scope and meaning of the stipulation, he joins the Court's opinion. This leaves open, on the remand, the administrative determination of the issues under § 244(a)(1).
| 12
|
356 U.S. 271
78 S.Ct. 734
2 L.Ed.2d 754
Mary Harris BUTLER, Widow of Dupree Butler, et al., petitioners,v.George W. WHITEMAN.
No. 200, Misc.
Decided April 14, 1958.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed and the cause is remanded for trial. We hold that the petitioner's evidence presented an evidentiary basis for jury findings as to (1) whether or not the tug G. W. Whiteman was in navigation, Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 373, 77 S.Ct. 415, 417, 1 L.Ed.2d 404; Carumbo v. Cape Cod S.S. Co., 1 Cir., 123 F.2d 991; (2) whether or not the petitioner's decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688; Senko v. LaCrosse Dredging Corp., supra; Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687; and (3) whether or not employer negligence played a part in producing decedent's death. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668.
2
For reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, Mr. Justice Frankfurter is of the view that the writ of certiorari is improvidently granted.
3
Mr. Justice HARLAN, with whom Mr. Justice WHITTAKER joins, dissenting.
4
I think the evidence is insufficient to raise a question for the jury as to whether petitioner's decedent at the time of the accident was a seaman within the purview of the Jones Act.
5
Respondent was the owner of a wharf, barge and tug, all situated on the Mississippi River. The barge was moored to the wharf, and the tug was lashed to the barge. On October 7, 1953, the decedent met death by drowning in unclear circumstances. He was last seen alive running across the barge to the tug, and it was petitioner's theory of the case that the decedent had fallen into the river between the barge and the tug, and that respondent was liable under the Jones Act because of his negligent failure to provide a gangplank for crossing between the two vessels.
6
For some months before the accident the tug had been withdrawn from navigation because it was inoperable. During the entire year of 1953 the tug had neither captain nor crew and reported no earnings; the only evidence of its movement during the year related to an occasion on which it was towed to dry dock. At the time of the accident the tug was undergoing rehabilitation preparatory to a Coast Guard inspection, presumably in anticipation of a return to service. During the period of the tug's inactivity, the decedent was employed as a laborer doing odd jobs around respondent's wharf, and on the morning of the accident he had been engaged in cleaning the boiler of the tug.
7
In my opinion it taxes imagination to the breaking point to consider this unfortunate individual to have been a seaman at the time of the accident within the meaning of the Jones Act, and I think that if a jury were so to find, its verdict would have to be set aside. Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205. Because I would affirm the judgment of the Court of Appeals on this ground, I do not reach the question whether the accident was attributable in any way to respondent's negligence.
| 78
|
356 U.S. 326
78 S.Ct. 758
2 L.Ed.2d 799
Parris SINKLER, Petitioner,v.MISSOURI PACIFIC RAILROAD COMPANY.
No. 133.
Argued March 12 and 13, 1958.
Decided April 28, 1958.
Rehearing Denied June 2, 1958.
See 356 U.S. 978, 78 S.Ct. 1133.
Mr. Cornelius O. Ryan, Houston, Tex., for petitioner.
Mr. Roy L. Arterbury, Houston, Tex., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The petitioner was employed by the respondent railroad as a cook on the private car of respondent's general manager. He was working on the car when a switching crew, employed by the Houston Belt & Terminal Railway Company (hereinafter the Belt Railway), undertook to switch the car from one track to another in the Union Station at Houston, Texas. Through the fault of the switching crew, the car was caused violently to collide with another railroad car in the station, and the petitioner was injured. He recovered a judgment against the respondent in an action brought under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60, in the District Court of Harris County, Texas. The Court of Civil Appeals for the Ninth Supreme Judicial District of Texas reversed upon the ground that the FELA did not subject the respondent to liability for injuries of its employee caused by the fault of employees of the Belt Railway. 295 S.W.2d 508. The Supreme Court of Texas denied the petitioner's application for writ of error. We granted certiorari. 355 U.S. 809, 78 S.Ct. 14, 2 L.Ed.2d 28.
2
Neither the respondent railroad nor its predecessors have, since 1905, performed switching operations in the Houston terminal area. Switching is a vital operational activity of railroading consisting in the breaking up and assembly of trains and the handling of cars in interchange with other carriers. This function, in the Houston area, has been contracted by the respondent and its predecessors, and other carriers, to the Belt Railway, a carrier specially organized for that purpose.
3
The Belt Railway was organized by several carriers, including the predecessors of the respondent,1 to own and operate the Union Station and to perform these switching operations. The organizing carriers, or their successors, own the Belt Railway's stock and are represented on its Board of Directors in proportion to their holdings. The respondent owns one-half of the stock and designates one-half of the directors. The Belt Railway receives some income from non-stockholding carriers but the carrier stockholders otherwise share the net expenses of its operations according to an agreed formula. The Belt Railway employs its own switching crews and other personnel, and owns and operates the facilities and rolling stock used in the switching operations.
4
A railroad's liability under § 1 of the FELA is to compensate its employees in damages for injuries resulting in whole or in part from the fault of 'any of the officers, agents, or employees' of such carrier. 45 U.S.C. § 51, 45 U.S.C.A. § 51. No question of liability for the fault of officers or employees of the respondent is here raised, but only whether the petitioner's injuries were due to the fault of 'agents' of the respondent within the meaning of the section.
5
The Court of Civil Appeals held that, since the Belt Railway was an independent contractor under lawful contract with respondent to do the switching operations on its behalf, the petitioner's injuries were not caused by respondent's 'agents.' The Court of Civil Appeals applied the general rule that the doctrine of respondent superior does not extend to independent contractors and concluded that, since the evidence was insufficient to show that the respondent exercised control over the details of the Belt Railway's operations, the fault of its switching crew was not imputable to the respondent.2
6
It should first be noted that some common-law jurisdictions recognized an exception to the general rule of respondeat superior when a railroad engaged an independent contractor to perform operational activities required to carry out the franchise. In that circumstance the railroad was held liable for the fault of the servants of the independent contractor even though the railroad did not control the manner or method by which the latter did the contracted work. Different theories supported this liability, depending upon whether the person injured was an employee of the railroad, a passenger, or a third party. In the case of the employee the theory was phrased as a nondelegable duty of care springing from the contractual relationship between employer and employee, Floody v. Great Northern R. Co., 102 Minn. 81, 112 N.W. 875, 1081, 13 L.R.A., N.S., 1196, or as a duty springing from the franchise to see that no wrong is done through the exercise by other persons of chartered powers. North Chicago Street R. Co. v. Dudgeon, 184 Ill. 477, 56 N.E. 796. However phrased, substantial authority in common-law decisions supported recovery by the railroad employee from his employer for injuries caused by the fault of employees of an independent contractor performing a part of the employer's railroad operations.3
7
However, in interpreting the FELA, we need not depend upon common-law principles of liability. This statute, an avowed departure from the rules of the common law, cf. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 507—509, 77 S.Ct. 443, 448—450, 1 L.Ed.2d 493, was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier. Kernan v. American Dredging Co., 355 U.S. 426, 431, 438, 78 S.Ct. 394, 397, 401, 2 L.Ed.2d 382. The Senate Committee which reported the Act stated that it was designed to achieve the broad purpose of promoting
8
'the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to the strength of those who in the nature of the case ought to share the burden.' S.Rep. No. 460, 60th Cong., 1st Sess. 3.
9
Thus while the common law had generally regarded the torts of fellow servants as separate and distinct from the torts of the employer, holding the latter responsible only for his own torts, it was the conception of this legislation that the railroad was a unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any other member engaged in the common endeavor. Hence a railroad worker may recover from his employer for an injury caused in whole or in part by a fellow worker, not because the employer is himself to blame, but because justice demands that one who gives his labor to the furtherance of the enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered. If this standard is not met and injury results, the worker is compensated in damages.
10
This broad purpose controls our decision in determining whether the Belt Railway and its switching crew were 'agents' of the respondent within the meaning of the section.4 Plainly an accommodating scope must be given to the word 'agents' to give vitality to the standard governing the liability of carriers to their workers injured on the job.5 See Kernan v. American Dredging Co., supra, 355 U.S. at pages 431 432, 438—439, 78 S.Ct. at pages 397—398, 401.
11
In the present case the respondent, rather than doing the necessary switching incident to its business in the Houston Terminal area, arranged that the Belt Railway should supply the crews and equipment to perform this operation on its behalf. But the evidence clearly establishes that the respondent's trains, when under the control of the Belt Railway's switching crews, were being handled to further the task of the respondent's enterprise. While engaged in switching and handling respondent's cars and trains about the terminal area, the Belt Railway employees on the job were, for purposes of the FELA, as much a part of the respondent's total enterprise as was the petitioner while engaged in his regular work on the respondent's car.
12
It is manifest that the corporate autonomy of the Belt Railway, and its freedom from detailed supervision of its operations by respondent, are irrelevant inasmuch as the switching crew of the Belt Railway Company at the moment of the collision in the station was engaged in furthering the operational activities of respondent. We therefore hold that when a railroad employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' of the employer within the meaning of § 1 of FELA.
13
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
14
Reversed and remanded.
15
Mr. Justice CLARK concurs in the result, believing that for purposes of the FELA, the Belt Railway was performing a nondelegable duty of respondent's at the time of petitioner's injury.
16
Mr. Justice WHITTAKER, believing that petitioner was not only respondent's employee but, in the circumstances of this case, was also its passenger at the time and place in question and that respondent's franchised carrier responsibilities to him as its passenger were nondelegable, concurs in the result of this opinion.
17
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting.
18
This case is a further step in a course of decisions through which the Court has been rapidly converting the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60 (and the Jones Act, which incorporates the FELA, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688), into what amounts to a workmen's compensation statute.
19
This process recently gained marked momentum with Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 459, 478, 1 L.Ed.2d 493, decided at the 1956 Term, where the Court in effect established a 'scintilla' rule in these cases for judging the sufficiency of the evidence on the issue of 'causation.' In subsequent decisions that rule has been extended, sub silentio, to cover also the issue of 'negligence.'1 More recently in Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382, decided a few months ago, the Court still further expanded these enactments to embrace a concept of absolute liability for violation of any statutory duty occasioning injury to one entitled to sue under them. And today we are told that '* * * when a railroad employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' of the employer within the meaning of § 1 of FELA.' This is held to be so even though it has long been customary in railroading for carriers to delegate to others activities such as the switching operation here, see Fort Worth Belt R. Co. v. United States, 5 Cir., 22 F.2d 795, and notwithstanding that under traditional common-law concepts those performing such specialized activities would be regarded as independent contractors.2 See, e.g., Brady v. Chicago & G.W.R. Co., 8 Cir., 114 F. 100, 108—112, 57 L.R.A. 712; Moleton v. Union Pacific R.R. Co., 118 Utah 107, 114—115, 219 P.2d 1080, 1084.
20
In light of the FELA and its legislative history it is difficult to regard any of these developments as other than the products of freewheeling. The FELA '* * * is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms.' Urie v. Thompson, 337 U.S. 163, 182, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282. See also dissenting opinions in Rogers v. Missouri Pacific R. Co., supra, 352 U.S. at pages 524, 538—539, 559, 563—564, 77 S.Ct. at pages 458, 466—467, 478, 480—481, and in Kernan v. American Credging Co., supra, 355 U.S. at pages 441, 451—452, 78 S.Ct. at pages 402, 406—407. The only such qualifications which Congress has yet seen fit to enact are those effected by §§ 3 and 4 of the Act, modifying or abolishing the common-law defenses of contributory negligence and assumption of risk. 35 Stat. 66, 45 U.S.C. § 53, 45 U.S.C.A. § 53; 35 Stat. 66, as amended, 45 U.S.C. § 54, 45 U.S.C.A. § 54. More particularly, when a well-known legal term like 'agents' is used in legislation, it should be taken as carrying its ordinary meaning unless the statute indicates the contrary. Cf. Hull v. Philadelphia & R.R. Co., 252 U.S. 475, 479, 40 S.Ct. 358, 359, 64 L.Ed. 670. The principle of 'accommodating scope' to which the Court resorts for justification of the expansive meaning now given that term is, as applied here, a new rule of statutory construction of which I have not been aware until today.
21
I must dissent.
1
The stock of the Belt Railway was originally subscribed to by four railroad corporations. The two which were predecessors in interest to the present respondent were the Beaumont, Sour Lake & Western and the St. Louis, Brownsville & Mexico. This suit was brought originally against Thompson, Trustee in Bankruptcy for these two roads. Upon their reorganization as part of the Missouri Pacific, the respondent was substituted as party defendant.
2
The jury, in response to special issues submitted to it by the trial judge, had expressly found that the Belt Railway 'submits itself to the right of control and supervision of the other (respondent) with respect to all the details of such work.'
3
Wabash, St. L. & P. Ry. Co. v. Peyton, 106 Ill. 534, 46 Am.Rep. 705; Burnes v. Kansas City, Ft. S. & M.R. Co., 129 Mo. 41, 31 S.W. 347; Story v. Concord & M.R.R., 70 N.H. 364, 48 A. 288; Gulf, C. & S.F.R. Co. v. Shelton, 96 Tex. 301, 72 S.W. 165; Gulf, C. & S.F. Ry. Co. v. Shearer, 1 Tex.Civ.App. 343, 21 S.W. 133; Fort Worth & D.C.R. Co. v. Smith, 39 Tex.Civ.App. 92, 87 S.W. 371; but see Brady v. Chicago & G.W.R. Co., 8 Cir., 114 F. 100, 57 L.R.A. 712.
4
It may be significant that there was omitted from the section as enacted the language in the original bills which would have imposed liability upon a carrier for the fault 'of any other person subject to its control.' Hearings before the Senate Committee on Education and Labor on S. 5307, 60th Cong., 1st Sess. 3, 34; Hearings before the House Committee on the Judiciary on H.R. 17036, 60th Cong., 1st Sess. 3, 34.
5
Respondent's reliance on Robinson v. Baltimore & O.R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849, and Linstead v. Chesapeake & O.R. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453, is misplaced. The issue in each of those cases was whether the plaintiff was an employee of the defendant railroad.
1
Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503; Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511; Shaw v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Deen v. Gulf, Colorado & S.F.R. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Thomson v. Texas & P.R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722; Ringhiser v. Chesapeake & O.R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1; Stinson v. Atlantic Coast Line R. Co., 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93; Honeycutt v. Wabash Ry. Co., 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380; Ferguson v. St. Louis-San Francisco R. Co., 356 U.S. 41, 78 S.Ct. 671; Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734.
2
Although the Court in footnote 2 of its opinion refers to the jury's special finding that Belt Railway was under the 'control and supervision' of respondent, I do not understand that any reliance is placed upon that finding here. It seems enough to say that this finding was without support in the evidence, as the state appellate court held.
| 78
|
356 U.S. 282
78 S.Ct. 738
2 L.Ed.2d 771
The DENVER UNION STOCK YARD COMPANY, Petitioner,v.PRODUCERS LIVESTOCK MARKETING ASSOCIATION. Ezra Taft BENSON, Secretary of Agriculture of the United States, Petitioner, v. PRODUCERS LIVESTOCK MARKETING ASSOCIATION.
Nos. 106 and 118.
Argued March 10, 1958.
Decided April 28, 1958.
Mr. Ashley Sellers, Washington, D.C., for petitioner Denver Union Stock Yard Co.
Mr. Neil Brooks, Washington, D.C., for petitioner Benson.
Mr. Hadlond P. Thomas, Salt Lake City, Utah, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This litigation started with a complaint filed by respondent, a market agency at the Denver Union stockyard, with the Secretary of Agriculture, alleging that certain Regulations issued by Denver Union Stock Yard Company are invalid under the Packers and Stockyards Act, 42 Stat. 159, as amended, 7 U.S.C. s 181 et seq., 7 U.S.C.A. § 181 et seq. The Regulations complained of provide:
2
'No market agency or dealer engaging in business at this Stockyard shall, upon Stock Yard Company property, or elsewhere, nor shall any other person upon Stock Yard Company property—
3
'(1) Solicit any business for other markets, for sale at outside feed yards or at country points, or endeavor to secure customers to sell or purchase livestock elsewhere; or
4
'(2) In any manner divert or attempt to divert livestock from this market which would otherwise normally come to this Stock Yard; or
5
'(3) Engage in any practice or device which would impair or interfere with the normal flow of livestock to the public market at this Stockyard.'1
6
The complaint was entertained; and the Stock Yard Company admitted that it issued the Regulations and alleged that they were necessary to enable it 'to furnish, upon reasonable request, without discrimination, reasonable stockyard services * * * and to enable the patrons of the Denver Union Stockyards to secure, upon reasonable request, without discrimination, reasonable stockyard services * * *.' The prayer in the answer was that the Stock Yard Company be granted an oral hearing and that the complaint be dismissed. Thereafter the Stock Yard Company filed a motion to require respondent to produce for examination certain books and records. Respondent opposed the motion, electing to stand upon the illegality of the Regulations as a matter of law. The Examiner certified the question to the Judicial Officer for decision, recommending that the proceeding be dismissed. The Judicial Officer2 dismissed the complaint, holding that he could not find the Regulations invalid on their face. 15 Agr.Dec. 638. The Court of Appeals reversed,3 holding that the Regulations are an unlawful restriction on the statutory rights and duties of stockyards and market agencies under the Act. 10 Cir., 241 F.2d 192. It remanded the case to the Secretary of Agriculture with directions to issue a cease and desist order against the issuance or enforcement of the Regulations. The case is here by certiorari which we granted in view of the public importance of the issue raised. 353 U.S. 982, 77 S.Ct. 1283, 1285, 1 L.Ed.2d 1141.
7
The Act defines 'market agency' as 'any person engaged in the business of (1) buying or selling in commerce live stock at a stockyard on a commission basis or (2) furnishing stockyard services.' § 301(c). The Act also provides that 'no person shall carry on the business of a market agency * * * at such stockyard unless he has registered with the Secretary * * *.' § 303. Respondent is registered not only with the Denver Union Stock Yard Co. but with other stockyards as well. One impact of the Regulations on respondent is therefore clear: having registered with this Stock Yard Company it may not, in the 'normal marketing area' of the Denver yard (which is defined in the Regulations to embrace a vast area in Colorado4), solicit business for, or divert it to, other markets. The market agency registered with the Denver Stock Yard Co. must, while working in the, 'normal marketing area' of that yard, solicit or do business exclusively for it and for none of the other stockyards with which it is registered.
8
Yet § 304 of the Act makes it 'the duty' of every market agency 'to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.' Section 301(b) defines stockyard services to mean 'services or facilities furnished at a stockyard in connection with the receiving, buying, or selling on a commission basis or otherwise, marketing, feeding, watering, holding, delivery, shipment, weighing, or handling in commerce, of livestock.' And § 307 prohibits and declares unlawful 'every unjust, unreasonable, or discriminatory regulation or practice.'
9
The words 'at such stockyard' as used in § 304 obviously mean, as applied to a 'market agency,' every stockyard where that 'market agency' is registered. From the Act it seems plain, therefore, that the duty of respondent would be to furnish a producer in the Denver area stockyard service at Kansas City, if the producer so desired. Stockyards and market agencies are made public utilities by the Act. Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 402, 66 L.Ed. 735; Swift & Co. v. United States, 316 U.S. 216, 232, 62 S.Ct. 948, 956, 86 L.Ed. 1391. Their duty is to serve all, impartially and without discrimination. The Regulations bar both the market agency and the stockyard from performing their statutory duty. A market agency registered with Denver could not by force of the challenged Regulations furnish producers in the Denver area stockyard services at Kansas City or at any other stockyard where the agency is also registered. The conflict seems clear and obvious; and no evidence could make it clearer.5 The case is as simple to us as that of a utility that refuses to sell any power to a customer if the customer buys any power from a competitor; as clear as an attempt by a carrier by rail to deny service to one who ships by truck. Cf. Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.
10
When an Act condemns a practice that is 'unfair' or 'unreasonable,' evidence is normally necessary to determine whether a practice, rule, or regulation transcends the bounds. See Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953; Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683; Sugar Institute v. United States, 297 U.S. 553, 56 S.Ct. 629, 80 L.Ed. 859. But where an Act defines a duty in explicit terms, a hearing on the question of statutory construction is often all that is needed. See Securities and Exchange Commission v. Ralston Purina Co., 346 U.S. 119, 73 S.Ct. 981, 97 L.Ed. 1494 (public offering); Addison v. Holly Hill Fruit Products, 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488 (area of production). It is, of course, true that § 310 of the Act provides for a 'full hearing' on a complaint against a 'regulation' of a stockyard. That was also true of the Act involved in United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081. But we observed in that case that we never presume that Congress intended an agency 'to waste time on applications that do not state a valid basis for a hearing.' Id., 351 U.S. at page 205, 76 S.Ct. at page 772.
11
The critical statutory words in the present case are from § 304 providing, 'It shall be the duty of every stockyard owner and market agency to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.' The Secretary's emphasis in the argument was on the words 'reasonable stockyard services.' By analogy to the antitrust cases, a case is built for fact findings essential to a determination of what is 'reasonable.' See Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; Chicago Board of Trade v. United States, supra. Certainly an evidentiary hearing would be necessary if, for example, a method of handling livestock at a particular stockyard was challenged as unreasonable. See Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129; United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211. But that argument is misapplied here. It misconceives the thrust of the present Regulations, which are aimed at keeping market agencies registered at Denver from doing business for producers, who are in the 'normal marketing area' of the Denver yard, at any other market. These Regulations bar them from rendering, not some stockyard services at the other yards, but any and all other stockyard services for those producers, except at Denver. 'No' stockyard services cannot possibly be equated with 'reasonable' stockyard services under this Act.
12
The argument contra is premised on the theory that stockyard owners, like feudal barons of old, can divide up the country, set the bounds of their domain, establish 'no trespassing' signs, and make market agencies registering with them their exclusive agents. The institution of the exclusive agency is, of course, well known in the law; and the legal problem here would be quite different if the Act envisaged stockyards as strictly private enterprise. But, as noted, Congress planned differently. The Senate Report proclaimed that these 'great public markets' are 'public utilities.' S.Rep. No. 39, 67th Cong., 1st Sess. 7. The House Report, in the same vein, placed this regulation of the stockyards on a par with the regulation of the railroads. H.R.Rep. No. 77, 67th Cong., 1st Sess. 10. It was against this background that Chief Justice Taft wrote in Stafford v. Wallace, supra, 258 U.S. at page 514, 42 S.Ct. at page 401:
13
'The object to be secured by the act is the free and unburdened flow of five stock from the ranges and farms of the West and the Southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still, as live stock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market.'
14
He went on to say that the Act treats the stockyards 'as great national public utilities,' id., 258 U.S. at page 516, 42 S.Ct. at page 402. His opinion echoes and re-echoes with the fear of monopoly in this field.
15
We are told, however, that the economics of the business has changed, that while at the passage of the Act most livestock purchases were at these stockyards, now a substantial portion about 40 percent, it is said—takes place at private livestock markets such as feed yards and country points. From this it is argued that the present Regulation is needed to keep the business in the public markets, where there is regulation and competition, and out of the private markets where there is no competitive bidding and regulation. If the Act does not fit the present economics of the business, a problem is presented for the Congress. Though our preference were for monopoly and against competition, we should 'guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271.
16
We take the Act as written. As written, it is aimed at all monopoly practices, of which discrimination is one. When Chief Justice Taft wrote of the aim of the Act in terms of the ends of a monopoly, he wrote faithfully to the legislative history. The Senate Report, supra, at 7, stated 'It has been demonstrated beyond question that the history of the development of this industry has been the history of one effort after another to set up monopoly.' The present Regulations, it seems, have had a long ancestry.
17
Affirmed.
18
Mr. Justice CLARK, concurring.
19
I agree that invalidity is evident on the face of the regulations issued by the Denver Union Stock Yard Company. Section 304 of the Packers and Stockyards Act, 42 Stat. 164, as amended, 7 U.S.C. § 205, 7 U.S.C.A. § 205, requires a market agency registered at a given stockyard to furnish reasonable services at that stockyard on reasonable request of a customer. Respondent's complaint alleges that respondent is registered at other stockyards besides the Denver yard, and because of petitioner's motion to dismiss the complaint we take those allegations as true. Under § 304, the several registrations impose a duty on the part of respondent to offer Colorado customers reasonable service at each yard where it is registered. Since the Denver regulations prohibit respondent's fulfillment of that statutory duty, they would appear void on their face under § 307, which declares unlawful 'every unjust, unreasonable, or discriminatory regulation or practice.' 42 Stat. 165, as amended, 7 U.S.C. § 208, 7 U.S.C.A. § 208.
20
The regulatory scheme devised by the Congress, however, makes it possible for invalidity on the face of the regulations to be overcome by evidence showing that their application and operation is not in fact unjust, unreasonable, or discriminatory. Primary jurisdiction is placed in the Secretary to make such a determination. Because of that, I should think the normal course of action where dismissal is found unwarranted would be to remand the case to the Secretary for a full hearing.
21
That procedure does not appear to be in order here, however, because the purpose and intended effect of the regulations is crystal clear. The president of the Denver stockyard, before the case took its present posture, filed an affidavit in the record alleging in substance that in the period July 1, 1951, to June 30, 1955, respondent market agency 'continually diverted away from the Denver Union Stockyards a large volume of livestock' which normally would have been consigned to that yard, that respondent sold lambs 'direct to many packers * * * including some located on the Atlantic Coast and in interior Iowa,' and that 'many like transactions were conducted by (respondent) in its own name or for its account by its wholly owned subsidiary, the Western Order Buyers, or by the employees of (respondent) or its said subsidiary.' The affidavit further recites that, 'As a result, the Denver Union Stock Yard Company in the early part of this year (1955) issued item 10(c) of its rules and regulations which was designed to * * * eliminate an unjust, unreasonable, and discriminatory practice by (respondent) * * *.' The purpose and effect of the regulations is made certain by the additional statement that, '(I)t was felt that market agencies may not engage in transactions away from the Denver market inconsistent with the duties imposed upon them to render the best possible service which, when boiled down, means that they must refrain from diverting the normal flow of livestock to this market if they are to continue to operate at the market.' (Emphasis added.) With greater force than any other possible evidence, this frank statement reveals that petitioner intended to, and did, monopolize the livestock market in the entire State of Colorado, save a small area on the eastern border. Since the Denver stockyard itself would impose the only sanction possible for violation of the regulation, namely, cancellation of registration, the affidavit is a complete answer to any evidence offered as to reasonableness in practical operation. The regulations, according to their author, bluntly say that to continue operation on the Denver market a registrant 'must refrain' from selling Colorado livestock, unless from the small area mentioned above, on any other market. It would be a useless formality to remand in the light of such an irrefutable acknowledgment.
22
It also is worthy of note that petitioner elected to defend the regulations without any evidence when it moved to dismiss the complaint before the Secretary. Petitioner could have offered its presently proffered explanations then but chose not to do so. While such action does not preclude a remand now for a full hearing, petitioner's about-face on losing the battle lends no support to its cause.
23
For these reasons I join the judgment of affirmance.
24
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
25
The sole question presented by the case is this:
26
Under his powers and duties to effectuate the scheme designed by Congress through the Packers and Stockyards Act of 1921, for the regulation of the stockyards industry, is the Secretary of Agriculture barred from determining on the basis of evidence whether or not regulations are reasonable that are promulgated by the Denver Stockyards for the purpose of preventing the diversion of stockyard services from the Denver Stockyards that as a matter of normal business flow would go to the Denver yards, on the challenge to such regulations by a market agency registered at the Denver Stockyards to furnish 'reasonable stockyard services' at that yard?
27
To deny the Secretary of Agriculture the power even to hear evidence as to the reasonableness of such regulations is to misconceive the whole scheme for the regional regulation of the stockyards industry for which stockyards and market agencies are geographically licensed, and to deny to the Secretary of Agriculture powers of administration that Congress has conferred upon him.
28
While a regulation may, like the one in question, on its face that is, abstractly considered—appear to be unreasonable because discriminatory, elucidation of such a regulation in the concrete, on the basis of its practical operation in light of evidence, may negative such appearance. It is for the Secretary of Agriculture to hear such relevant evidence and to assess it, subject to the appropriate scope of judicial review. This proceeding should therefore be remanded to the Secretary of Agriculture for appropriate action. These views are elaborated in Mr. Justice WHITTAKER's opinion, which I join.
29
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
30
I respectfully dissent. The question presented is whether certain regulations issued by the owner of a posted stockyard are void on their face. Petitioner, the Denver Union Stock Yard Company, is the 'stockyard owner'1 of the Denver Union stockyard, a facility in Denver, Colorado, which constitutes a 'stockyard' within the meaning of § 302 of the Packers and Stockyards Act,2 42 Stat. 159, as amended, 7 U.S.C. § 181 et seq., 7 U.S.C.A. § 181 et seq.—hereinafter called the Act. In 1921 the Secretary of Agriculture, pursuant to § 302(b) of the Act, 'posted' that stockyard, and it thereupon became, and has since been, subject to the provisions of the Act. Under § 304, it became the 'duty' of petitioner 'to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard';3 and, under § 307, it also became its 'duty' to, 'establish, observe, and enforce just, reasonable, and non-discriminatory regulations and practices in respect to the furnishing of stockyard services' at that stockyard. Pursuant thereto petitioner filed with the Secretary on May 11, 1955, an amendment of its existing regulations to become effective May 25, 1955. The amended regulations, in pertinent part, provide:
31
'No market agency or dealer4 engaging in business at this Stock Yard shall, upon Stockyard Company property, or elsewhere, nor shall any other person upon Stock Yard Company property—
32
'(1) Solicit any business for other markets, for sale at outside feed yards or at country points, or endeavor to secure customers to sell or purchase livestock elsewhere; or '(2) In any manner divert or attempt to divert livestock from this market which would otherwise normally come to this Stock Yard; or
33
'(3) Engage in any practice or device which would impair or interfere with the normal flow of livestock to the public market at this Stockyard.'5 (Emphasis supplied.)
34
Sometime after the Denver Union stockyard was 'posted,' respondent, pursuant to the provisions of § 303, 'registered' with the Secretary as a market agency—not as a 'dealer'—on the Denver Union stockyard, and thereby acquired the status of a 'market agency' under the Act 'at such stockyard.' Section 301(c) defines the term 'market agency' to mean: '(A)ny person engaged in the business of (1) buying or selling in commerce livestock at a stockyard on a commission basis or (2) furnishing stockyard services.' (Emphasis supplied.) By § 306(a), it became the duty of respondent, as a 'market agency at such stockyard,' to print, file with the Secretary, and keep open to public inspection 'at the (Denver) stockyard,' a schedule showing all rates and charges for 'stockyard services' to be furnished by it 'at such stockyard'; and, under § 304, it became its duty 'to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.'6 (Emphasis supplied.)
35
Section 309(a) provides, inter alia, that: 'Any person complaining of anything done * * * by any stockyard owner * * * in violation of the provisions (of the Act) may * * * apply to the Secretary by petition which shall briefly state the facts, whereupon the complaint * * * shall be forwarded by the Secretary to the defendant, who shall be called upon * * * to answer it in writing, within a reasonable time to be specified by the Secretary.' (Emphasis supplied.) The following section (§ 310), in relevant part, provides: 'Whenever after full hearing upon a complaint * * * the Secretary is of the opinion that any * * * regulation * * * of a stockyard owner * * * for or in connection with the furnishing of stockyard services, is or will be unjust, unreasonable, or discriminatory, the Secretary—
36
'(a) May determine and prescribe * * * what regulation * * * is or will be just, reasonable, and non-discriminatory to be thereafter followed; and
37
'(b) May make an order that such owner or operator * * * (3) shall conform to and observe the regulation * * * so prescribed.' (Emphasis supplied.) Invoking the Secretary's regulatory powers under § 310(a), respondent, on July 7, 1955, filed a complaint with the Secretary, alleging that the quoted regulations were unauthorized because the Act authorized the stockyard owner 'to establish 'regulations and practices (only) in respect to the furnishing of stockyard services'; and that (the) practice purported to be prescribed or established by (the regulation) does not * * * relate to the furnishing of stockyard services and is therefore unauthorized and invalid'; and, without waiving that contention, it further alleged that the regulation 'is unjust, unreasonable and discriminatory, and should be set aside as unlawful'; it then proceeded to state its conclusions respecting the operation and effect of the regulations, and ultimately prayed that they 'be set aside and annulled.'
38
Thereupon the Secretary sent a copy of the complaint to petitioner, and, in a covering letter, stated that the complaint would be entertained as a 'disciplinary proceeding' in accordance with § 202.6(b) of his rules of practice; advised that petitioner was required to file an answer within 20 days from receipt of the complaint 'containing a definite statement of the facts which constitute the grounds of defense'; and concluded that, under his rules of practice, 'the burden of proof (would) be upon the complainant to establish the matters complained of.' Petitioner answered, admitting that it was the 'owner' of the 'posted' Denver Union 'stockyards'; that respondent was 'registered' to do business thereon as a 'market agency'; that it had published the questioned regulations, but specifically denied the conclusions concerning the interpretation and effect of the regulations, and generally denied all other averments of the complaint, and then proceeded to allege facts which it concluded made the regulations reasonable and necessary to prevent unfair and unjustly discriminatory practices by market agencies and dealers, registered as such at that stockyard, in connection with receiving and handling livestock, and to enable it to render, and to require market agencies to render, 'reasonable stockyard services' at the Denver Union stockyard.
39
Soon afterward, petitioner, in preparing for the hearing, filed with the Secretary and served upon respondent a motion to produce for inspection certain of the latter's books and records, alleged to contain evidence relevant and material to the issues. Respondent then filed a 'reply' to the motion in which it resisted production of the books and records upon the ground that the regulations were void on their face. Petitioner moved to strike that reply as not responsive to the motion to produce. After argument, the hearing examiner issued an 'interim ruling,' in which he said, 'We cannot hold, as complainant asks, that respondent's regulation violates the law on its face. We must have facts to see whether the regulation, or action taken under it, is reasonable under the circumstances'; but he did not sustain the motion to produce. Instead he set the proceeding for hearing at Denver on January 24, 1956, and indicated that if, after respondent had produced its evidence, it appeared necessary to the presentation of petitioner's defense he would sustain the motion.
40
On December 23, 1955, respondent filed what it termed an 'Election To Rest,' reciting 'that this complainant elects to stand upon the illegality of said regulation, as a matter of law,' and that it would 'not present evidence in this cause.' Thereupon petitioner moved to dismiss the complaint for failure of respondent 'to sustain the burden of making a prima facie case in support of its complaint.' After hearing the parties upon that motion, the hearing examiner certified the proceeding to the Judicial Officer7 for decision, with a recommendation that it be dismissed. The Judicial Officer, after hearing the parties orally and upon briefs, concluded that the regulations were not void on their face and that, in the total absence of evidence, he could not find that the regulations were invalid, and dismissed the proceeding. 15 Agr. Dec. 638.
41
Pursuant to 5 U.S.C. § 1034, 5 U.S.C.A. § 1034, respondent filed in the Court of Appeals its petition against the United States and the Secretary of Agriculture to review the decision and order of the Judicial Officer.8 The Denver Union Stock Yard Company intervened as a respondent. The Court of Appeals, concluding that '(t)he compulsion of the regulation is in immediate conflict with the requirement of Sec. 304 which contemplates and imposes the duty upon marketing agencies to render reasonable services to their customers at every stockyard where they do business,' held that the regulations were void on their face and reversed the decision of the Judicial Officer, and also remanded the proceeding to the Secretary 'with instructions to vacate the order dismissing (the) complaint and (to) enter an appropriate order requiring the Denver Union Stock Yards Company to cease and desist from issuing or enforcing (the) Regulation.' 241 F.2d, at pages 196—197. Upon petition of the Denver Union Stock Yard Company in No. 106, and of the Secretary of Agriculture in No. 118, we granted certiorari. 353 U.S. 982, 77 S.Ct. 1283, 1285, 1 L.Ed.2d 1141.
42
This Court now affirms. Its opinion, like that of the Court of Appeals, is based upon the conclusion that the regulations conflict with the provisions of § 304 of the Act. The majority have expressed the basis of their conclusion as follows (356 U.S. 286, 78 S.Ct. 741): 'The market agency registered with the Denver Stock Yard Co. must, while working in the 'normal marketing area' of that yard, solicit or do business exclusively for it and for none of the other stockyards with which it is registered. Yet § 304 of the Act makes it 'the duty' of every market agency 'to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.' * * * From the Act it seems plain, therefore, that the duty of respondent would be to furnish a producer in the Denver area stockyard service at Kansas City, if the producer so desired. * * * Their duty is to serve all, impartially and without discrimination. The Regulations bar both the market agency and the stockyard from performing their statutory duty. * * * The conflict seems clear and obvious; and no evidence could make it clearer.' (Emphasis supplied.)
43
In my view, the reasoning and conclusion of both the Court of Appeals and this Court misinterpret the provisions of the Act, and the regulations as well.
44
The first, and most grievous, misinterpretation stems from the failure to appreciate that respondent's status, privileges and obligations, as a registered 'market agency' at the Denver Union stockyard, are limited by the Act to 'such stockyard,' and that the challenged regulations apply only to a 'market agency or dealer engaging in business at this Stockyard'—the Denver Union stockyard. As earlier shown, § 303 plainly states that after the Secretary has 'posted' a particular stockyard 'no person shall carry on the business of a market agency * * * at such stockyard unless he has registered with the Secretary (stating, among other things) the kinds of stockyard services * * * which he furnishes at such stockyard.' By equally clear language § 306(a) makes it the duty of 'every market agency at such stockyard (to print, file with the Secretary) and keep open to public inspection at the stockyard, schedules showing all rates and charges for the stockyard services furnished by such person at such stockyard,' Section 304 is no less plain in stating that it is the duty of every 'market agency to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.' (Emphasis supplied.) I submit that these provisions of the Act leave no room to doubt that a person by registering with the Secretary to do business as a market agency at a particular stockyard acquires the rights, and assumes the obligations, of a 'market agency' only 'at such stockyard.' And inasmuch as the challenged regulations apply only to a 'market agency or dealer engaging in business at this Stockyard'—the Denver Union stockyard they cannot have any application or effect at any other stockyard. Registration to do business as a 'market agency' at 'such stockyard' does not give the registrant the status of a 'market agency,' or create the right or obligation to furnish 'stockyard services,' at all stockyards in the Nation, or at any place other than a particular stockyard where so registered as a 'market agency.' While a market agency is a public utility (Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735; Swift & Co. v. United States, 316 U.S. 216, 232, 62 S.Ct. 948, 956, 86 L.Ed. 1391), it is such only on the posted stockyard where registered as a market agency. Doubtless one who has the status of a 'market agency,' and thus also of a public utility, at the Denver stockyard, may, by an additional registration under § 303, acquire a like status at another posted stockyard, yet he would not thereby become one market agency or one public utility covering the several stockyards where so registered. On the contrary, his status as a market agency and public utility on each of such posted stockyards would be just as several, separate and independent as though owned by different persons. In legal effect, a 'market agency' and public utility on one posted stockyard is a separate entity from a 'market agency' and public utility on another, even though both be owned by the same person. And regulations promulgated by the 'stockyard owner' of one of such stockyards, applicable to a 'market agency' thereon, could have no application or effect at another posted stockyard or to a registered 'market agency' thereon. Hence the question is not whether the challenged regulations might restrict a 'market agency' on some other posted stockyard from furnishing reasonable stockyard services at such other stockyard for the challenged regulations have no application to a 'market agency' on such other stockyard, but apply only to a 'market agency or dealer engaging in business at (the Denver Union) Stockyard.'
45
The question then is whether the challenged regulations may be said, from their face as a matter of law, to obstruct a market agency on the Denver Union stockyard from furnishing just, reasonable and nondiscriminatory stockyard services at that stockyard, where, and only where, they apply. I think analysis of them shows that they do not upon their face in any way conflict with § 304 nor obstruct 'the duty of (a) market agency to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard'—the Denver Union stockyard as required by that section. It will be observed that they prohibit a 'market agency or dealer engaging in business at this Stockyard' from doing six things. The first subsection provides that they shall not (1) 'solicit any business for other markets,' (2) solicit any business 'for sale at outside feed yards,' (3) solicit any business for sale 'at country points,' or (4) 'endeavor to secure customers to sell or purchase livestock elsewhere'; and the second subsection provides that they shall not (5) '(i)n any manner divert or attempt to divert livestock from this market * * *'; and the third subsection provides that they shall not (6) '(e)ngage in any practice or device which would impair or interfere with the normal flow of livestock to the public market at this Stockyard.' (Emphasis supplied.) Surely the regulations prohibiting a registered 'market agency' on the Denver Union stockyard from soliciting business for other markets, and from soliciting business (livestock) for sale 'at outside feed yards' or 'at country points,' and from endeavoring to induce customers not to buy or sell their livestock on the Denver stockyard, do not at all prohibit it from furnishing stockyard services (note 3) 'at such stockyard' (§ 304); and, moreover, as shown, such a market agency is not authorized by the Act to furnish stockyard services 'at outside feed yards,' at 'country points,' or at any place other than the posted stockyard upon which it is registered as a market agency. § 303. And inasmuch as a 'market agency,' as distinguished from a 'dealer,' may not buy and sell livestock for its own account, but only on a 'commission basis' for others, it cannot lawfully own any livestock to 'divert,' but it is in position to 'attempt to divert' livestock from the Denver market, and thus to boycott it, by attempting to cause those who are owners of livestock to ship and sell elsewhere. A regulation prohibiting this surely cannot be said to prevent the market agency from furnishing stockyard services at the Denver yard. Lastly, I believe it cannot logically be contended that the regulation prohibiting a market agency on the Denver yard from engaging 'in any practice or device' which would impair or interfere with the normal flow of livestock to the Denver stockyard could prevent such market agency from furnishing stockyard services at that stockyard.
46
It is plain and undisputed that the regulations may not—in the total absence of evidence, as here—be held void unless it is clear upon their face that there cannot be any circumstances under which they, or any of them, could be lawful, 'just, reasonable, and nondiscriminatory.' s 307. And only when it affirmatively and clearly so appears upon the face of the regulations may it be said that a proceeding to contest their validity, in which no evidence whatever is offered to sustain the complaint, constitutes the 'full hearing' required by § 310. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361.
47
Under the terms of the Act and of the regulations, which we have shown, it seems entirely clear that this is not such a case, and I think it must follow that the regulations cannot be said to be void on their face. The foregoing demonstrates the error of the pivotal conclusion of the Court of Appeals that § 304 'contemplates and imposes the duty upon marketing agencies (registered as such at the Denver Union stockyard) to render reasonable services * * * at every stockyard where they do business.' (241 F.2d 196.) (Emphasis by the Court of Appeals.) It also demonstrates, I think, the error of the basic conclusion of the opinion of this Court that: 'From the Act it seems plain, therefore, that the duty of respondent would be to furnish a producer in the Denver area stockyard service at Kansas City, if the producer so desired. * * * Their duty is to serve all, impartially and without discrimination.' (Emphasis supplied.)
48
It is indeed obvious that the Secretary, after the 'full hearing' contemplated by § 310, might reasonably find from all the facts adduced at such 'full hearing' (1) that the conduct of a 'market agency' on the Denver stockyard in boycotting that yard by soliciting livestock for sale at other markets, or at outside feed yards, or at country points, or by endeavoring to induce livestock owners not to buy or sell on the Denver yard and to divert their livestock from the Denver market, constitutes an 'unfair, unjustly discriminatory, or deceptive practice or device in connection with the receiving, marketing, buying, or selling * * * delivery, shipment * * * or handling, in commerce at a stockyard, of livestock,' in violation of § 312 of the Act (note 6), and (2) that these regulations—or at least some of them—are a 'just, reasonable, and nondiscriminatory (means) to be thereafter followed' (§ 310) to prevent such illegal practices by a market agency on that yard, and to enable the stockyard owner to furnish, and to require market agencies on that yard to furnish, 'reasonable stockyard services,' at the Denver stockyard. But, of course, the Secretary could not make findings in a vacuum—in the total absence of evidence as here. We must keep in mind that Congress, by § 307, made it the 'duty' of petitioner to 'establish, observe, and enforce just, reasonable, and nondiscriminatory regulations and practices in respect to the furnishing of stockyard services' at its posted stockyard, and that the questioned regulations were promulgated by petitioner pursuant to that duty. And we must not forget that Congress gave to the Secretary—not to the courts—the duty and power to determine what regulations of a stockyard owner are or will be just, reasonable and nondiscriminatory to be followed in the future, and prescribed the method for challenging, and for determining, the validity of such regulations. By § 309(a) Congress prescribed that '(a)ny person complaining' shall file a complaint with the Secretary 'stat(ing) the facts, whereupon the complaint thus made shall be forwarded by the Secretary to the defendant, who shall be called upon * * * to answer it in writing,' and, by § 310, Congress prescribed that if 'after full hearing upon (the) complaint * * *, the Secretary is of the opinion that any * * * regulation * * * of a stockyard owner * * * is or will be unjust, unreasonable, or discriminatory, the Secretary—(a) may determine and prescribe * * * what regulation * * * is or will be just, reasonable, and nondiscriminatory to be thereafter followed; and (b) may make an order that such owner or operator * * * (3) shall conform to and observe the regulation * * * so prescribed.' Only after 'full hearing' of the facts and circumstances could the Secretary perform his duty under § 310 of determining 'what regulation * * * will be just, reasonable, and nondiscriminatory to be thereafter followed.' By the terms of the Act, Congress left these determinations to the experienced and informed judgment of the Secretary and gave to him appropriate discretion to assess all factors relevant to the subject. Addison v. Holly Hill Fruit Products, 322 U.S. 607, 614, 64 S.Ct. 1215, 1219, 88 L.Ed. 1488. To determine whether the regulations are just, reasonable and nondiscriminatory the Secretary must 'consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.' Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683. 'Courts deal with cases upon the basis of the facts disclosed, never with nonexistent and assumed circumstances,' Associated Press v. National Labor Relations Board, 301 U.S. 103, 132, 57 S.Ct. 650, 655, 81 L.Ed. 953. 'Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the (Secretary's) discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. After such 'full hearing' the Secretary might reasonably find, from all the facts and circumstances disclosed, that all of the regulations were just, reasonable and nondiscriminatory, or that only part of them met that test, or that none of them did so; but it is evident that he could reach no conclusion upon those matters in the total absence of any facts.
49
Respondent's complaint did not allege that the regulations were void on their face.9 Rather respondent injected that question collaterally and for the first time by its 'reply' to petitioner's motion for an order requiring respondent to produce certain of its records for inspection by petitioner as a step in the latter's preparation for the 'full hearing' to be held upon the issues of fact and law that had been joined in the proceeding; and when the hearing officer, after considering that motion and reply, found that he could not determine whether the regulations were valid or invalid without fully hearing the facts, respondent filed its 'Election To Rest' stating that 'this complainant elects to stand upon the illegality of said regulation, as a matter of law' and that it would 'not present evidence in this cause.' Respondent thus refused to adduce evidence to sustain its burden of proof upon the issues tendered by its complaint, and hence withdrew its challenge of the need for, and the reasonableness of, the regulations. The Judicial Officer did not hold that the regulations were valid or invalid. He held only that the question could not be determined in a vacuum—without a 'full hearing' of the facts—and dismissed the proceeding. In so doing, I believe he was entirely justified and that our analysis of the law and the regulations makes this clear.
50
It is worthy of note that though the questioned regulations apply to 'dealers' as well as market agencies on the Denver stockyard, the validity of the regulations in respect to dealers is in no way here questioned. Yet—in the total absence of evidence and assuming certain facts— this Court affirms the action of the Court of Appeals in striking down the regulations in whole on the ground that they are all void upon their face for conflict with § 304 of the Act. I believe it has been demonstrated that there is no such conflict, and that the regulations are not void on their face. In these circumstances, it was for the Secretary, under § 310, to say after 'full hearing' of the facts and circumstances whether the regulations—or some part of them—were just, reasonable and nondiscriminatory; and to say 'what regulation (would) be just, reasonable, and nondiscriminatory to be thereafter followed.' For these reasons I would vacate the judgment of the Court of Appeals and remand the case to that court with instructions to direct the Secretary of Agriculture to himself initiate a proceeding, as he may do under § 309(c), to determine whether the challenged regulations, or any of them, are just, reasonable and nondiscriminatory, and to determine, under § 310, after 'full hearing' just 'what regulation or practice is or will be just, reasonable, and nondiscriminatory to be thereafter followed.'
1
The Regulation goes on to state the applicability of the foregoing provisions.
'The normal marketing area from which livestock would normally come to the public market at this Stockyard, and which is the area to which this subdivision (c) shall apply, is defined as all of the state of Colorado except that part listed as follows:
'The area lying east of the line beginning with the westerly boundary of the County of Sedgwick where it intersects the Nebraska state line; thence south along the county line of Sedgwick and Phillips counties; thence west and south along the western boundary of Yuma county to its intersection with U.S. Highway 36; thence west to Cope and south along Colorado Highway 59 to Eads, Colorado; thence westerly along Highway 96 to Ordway; thence south on Highway 71 to Timpas; thence southwesterly via Highway 350 to Trinidad; thence south to New Mexico state line.
'The provisions of paragraph (c) do not apply on livestock solely used for breeding purposes.'
2
The authority of the Judicial Officer was delegated by the Secretary of Agriculture (10 Fed.Reg. 13769; 11 Fed.Reg. 177A—233; 18 Fed.Reg. 3219, 3648; 19 Fed.Reg. 11) pursuant to the Act of April 4, 1940, 54 Stat. 81, 5 U.S.C. § 516a et seq., 5 U.S.C.A. § 516a et seq.
3
The Court of Appeals had jurisdiction to review the case under 64 Stat. 1129, 5 U.S.C. § 1032, 5 U.S.C.A. § 1032.
4
For the definition of the 'normal marketing area' see note, 1, supra.
5
Whether the Regulations as applied to 'dealers' are valid is a question we do not reach.
1
By § 301(a) of the Packers and Stockyards Act (42 Stat. 159, as amended, 7 U.S.C. § 181 et seq., 7 U.S.C.A. § 181 et seq.) the term 'stockyard owner' is defined to mean 'any person engaged in the business of conducting or operating a stockyard.'
2
Section 302 of the Act defines a stockyard to be 'any place, establishment, or facility commonly known as stockyards, conducted or operated for compensation or profit as a public market, consisting of pens, or other inclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats are received, held, or kept for sale or shipment in commerce.'
3
Section 301(b) defines the term 'stockyard services' to mean 'services or facilities furnished at a stockyard in connection with the receiving, buying, or selling on a commission basis or otherwise, marketing, feeding, watering, holding, delivery, shipment, weighing, or handling in commerce, of livestock.'
4
Section 301(d) of the Act defines the term 'dealer' to mean 'any person, not a market agency, engaged in the business of buying or selling in commerce livestock at a stockyard, either on his own account or as the employee or agent of the vendor or purchaser.' (Emphasis supplied.)
5
The regulations also stated that the 'area from which livestock would normally come to the public market at this Stockyard' is the State of Colorado, except approximately the eastern one-sixth of it.
The amended regulations are similar to preceding ones, effective June 1, 1938, which, among other things, said: 'No person, without the express permission of this Company in writing, shall solicit any business in these yards for other markets, sales at outside feed yards or country points, or endeavor to secure customers to sell or purchase livestock elsewhere.' Regulations of the Denver Union Stockyards Company (effective June 1, 1938), p. 4, § 11, Rules 10 and 11, on file in the Livestock Division, Agricultural Marketing Service, United States Department of Agriculture, Washington, D.C.
6
Section 312 of the Act is also relevant. It provides: '(a) It shall be unlawful for any stockyard owner, market agency, or dealer to engage in or use any unfair unjustly discriminatory, or deceptive practice or device in connection with the receiving, marketing, buying, or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing, or handling, in commerce at a stockyard, of livestock.
'(b) Whenever complaint is made to the Secretary by any person, or whenever the Secretary has reason to believe, that any stockyard owner, market agency, or dealer is violating the provisions of subsection (a) the Secretary after notice and full hearing may make an order that he shall cease and desist from continuing such violation to the extent that the Secretary finds that it does or will exist.' (Emphasis supplied.)
7
Authority to review and determine such proceedings had been delegated by the Secretary of Agriculture to the Judicial Officer (10 Fed.Reg. 13769; 11 Fed.Reg. 177A—233; 18 Fed.Reg. 3219, 3648; 19 Fed.Reg. 11) pursuant to the Act of April 4, 1940, 54 Stat. 81, 5 U.S.C. § 516a, 5 U.S.C.A. § 516a.
8
The Court of Appeals had jurisdiction to review the proceeding under 5 U.S.C. § 1032, 5 U.S.C.A. § 1032.
9
As shown in the statement, respondent alleged that the regulation did not 'relate to the furnishing of stockyard services and is therefore unauthorized and invalid,' and, alternatively, that the regulation 'is unjust, unreasonable and discriminatory and should be set aside as unlawful.'
| 78
|
356 U.S. 320
78 S.Ct. 735
2 L.Ed.2d 795
ALASKA INDUSTRIAL BOARD and Carl E. Jenkins, Petitioners,v.CHUGACH ELECTRIC ASSOCIATION, Inc., a Corporation, and General Accident, Fire and Life Assurance Corporation, Ltd.
No. 303.
Argued April 8, 1958.
Decided April 28, 1958.
Mr. John Dimond, Juneau, Alaska, for the petitioners.
Mr. Frederick O. Eastaugh, Juneau, Alaska, for the respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case presents an important question under the Alaska Workmen's Compensation Act, 2 Alaska Comp.L.Ann.1939, § 43—3—1 et seq. Petitioner Jenkins, an employee of respondent Chugach Electric Association, was injured in the course of his employment. Three surgical operations were required: amputation of his left arm at the shoulder; amputation of four toes on his left foot; and later, amputation of his right leg below the knee. Though the injury occurred in September 1950, the left foot had not healed three years later. As a result Jenkins was for a rather long period totally disabled. Respondents made 'temporary disability'1 payments to Jenkins for approximately 38 weeks ($95.34 a week or a total of $3,645). At that point they decided that Jenkins had been totally and permanently disabled2 since the date of the last amputation and was therefore entitled to a lumpsum award of $8,100 under the Act and no more.3 They thereupon sent him a check for that amount less the $3,645 already received, viz., $4,455.
2
Jenkins then applied to the Alaska Industrial Board for continuing benefits for temporary disability, despite his receipt of the lump-sum award for total and permanent disability. The Board allowed him temporary disability from the date of the last amputation. This temporary disability, said the Board, 'continues to this date, no end medical result having been reached.'
3
Respondents thereupon instituted this action in the District Court to set aside the Board's decision. That court reversed the Board, holding that an award of temporary disability could not be granted under the Act for physical disability arising from the same accident in which a scheduled, lump-sum award for total permanent disability had been granted. 122 F.Supp. 210. The Court of Appeals, sitting en banc, affirmed, by a divided vote, modifying the judgment. 245 F.2d 855. By that modification the lump-sum award was not to be reduced by the amount received as temporary disability prior to that time. The case is here on a petition for certiorari. 355 U.S. 810, 78 S.Ct. 50, 2 L.Ed.2d 29.
4
The Court of Appeals reasoned that the lump-sum award for total and permanent disability was intended to represent a capitalization of future earnings. It concluded, therefore, that Jenkins had been compensated by the lump-sum award for any loss of future earnings and that he could not get a further award for loss of earnings, the lump-sum award being intended 'as a maximum award.' Id., 245 F.2d at page 862.
5
We read the Act differently. The lump-sum awards for total and permanent disability under this Compensation Act ignore wage losses. Whatever the employee may have made before, whatever his wages may be after the injury, the award is the same. To that extent it is an arbitrary amount. But it is the expression of a legislative judgment that on average there has been a degree of impairment, and whatever may be the fact in a particular case, the lump sum should be paid without more. See 2 Larson, Workmen's Compensation, § 58—10.
6
There may, nevertheless, be a continuing ability to do some work; and as long as that remaining ability exists there is a factual basis for temporary disability awards. That seems to be the theory of the Act for it extends those awards to 'all injuries causing temporary disability' and bases them on the 'average daily wage earning capacity' of the injured employee,4 as determined by the Board. That award takes care of the lost wages during the healing period and until the employee is able to return to work though perhaps at a different job and at reduced pay. It also compensates him for any temporary loss of earning power based on the 'wage earning capacity'5 that remains after the injury. The Court of Appeal assumed there was 'no remaining ability to work' and therefore 'no foundation for temporary disability benefits.' 245 F.2d at page 862. But the Act, we think, is drawn on a different hypothesis. It seems to provide a system of temporary disabilities to all who are injured, whether their injuries are disfigurement,6 partial permanent disability,7 total and permanent disability,8 or so minor as to fall in lesser categories. Any other reading would seem to be hostile to the benign purpose of this legislation. Cf. Baltimore & Philadelphia S. Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366.
7
Respondents maintain that Jenkins' claim was not timely filed and that for other reasons also the Board had no jurisdiction to enter this award. These questions were decided adversely to respondents by the Court of Appeals and no cross-petition was filed here. Those questions are therefore not open to respondents at this stage. LeTulle v. Scofield, 308 U.S. 415, 421—422, 60 S.Ct. 313, 316, 84 L.Ed. 355.
8
The judgment is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion.
9
Reversed.
10
Mr. Justice WHITTAKER, believing that an injured workman cannot be, or be legally compensated as, both 'totally and permanently disabled' and 'temporarily totally disabled' at one and the same time under the Alaska Workmen's Compensation Act, would affirm for the reasons stated by the Court of Appeals, 245 F.2d at 862.
1
Section 43—3—1 of the Act makes the following provision for 'temporary disability':
'For all injuries causing temporary disability, the employer shall pay to the employee, during the period of such disability, sixty-five per centum (65%) of his daily average wages. And in all cases where the injury develops or proves to be such as to entitle the employee to compensation under some provision in this schedule, relating to cases other than temporary disability, the amount so paid or due him shall be in addition to the amount to which he shall be entitled under such provision in this schedule.
'Payment for such temporary disability shall be made at the time compensation is customarily paid for labor performed or services rendered at the plant or establishment of the employer liable therefor and not less than once a month in any event.
'The average daily wage earning capacity of an injured employee in case of temporary disability shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his daily wage earning capacity. If such earnings do not fairly and reasonably represent his daily wage earning capacity, the Industrial Board shall fix such daily wage earning capacity as shall be reasonable and have a due regard for the nature of his injury, the degree of temporary impairment, his usual employment and any other factor or circumstance in the case which may affect his capacity to earn wages in his temporary disabled condition.'
2
Section 43—3—1 of the Act defines total and permanent disability as follows:
'The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, or hearing in both ears, shall constitute total and permanent disability and be compensated according to the provisions of this Act with reference to total and permanent disability.
'Amputation between the elbow and the wrist shall be considered equivalent to the loss of an arm, and amputation between the knee and the ankle shall be considered equivalent to the loss of a leg.'
3
Section 43—3—1 of the Act provides:
'Where any such employee receiving an injury arising out of, and in the course of his or her employment, as the result of which he or she is totally and permanently disabled, he or she shall be entitled to receive compensation as follows:
'If such employee was at the time of his injury married he shall be entitled to receive Seven Thousand Two Hundred Dollars ($7,200.00) with Nine Hundred Dollars ($900.00) additional for each child under the age of eighteen (18) years, but the total to be paid shall not exceed Nine Thousand Dollars ($9,000.00).'
4
Note 1, supra.
5
Note 1, supra.
6
Section 43—3—1 provides:
'The Industrial Board may award proper and equitable compensation for serious head, neck, facial, or other disfigurement, not exceeding, however, the sum of Two Thousand Dollars ($2,000.00).'
7
Section 43—3—1 provides a schedule of partial permanent liability for losses of thumbs, toes, fingers, arms, legs, eyes, nose, and ear.
8
See note 2, supra.
| 78
|
356 U.S. 309
78 S.Ct. 752
2 L.Ed.2d 788
PANAMA CANAL COMPANY, Petitioner,v.GRACE LINE, Inc., et al. GRACE LINE, Inc., Isbrandtsen Company, Inc., Luckenbach Steamship Company, Inc., et al., Petitioners, v. PANAMA CANAL COMPANY.
Nos. 251, 252.
Argued April 2 and 3, 1958.
Decided April 28, 1958.
Sol. Gen. J. Lee Rankin, Washington, D.C., for Panama Canal co.
Mr. Charles Dickerman Williams, New York City, for Grace Line and others.
Mr. Justice DOUGLAS, delivered the opinion of the Court.
1
Respondents, American shipping companies using the Panama Canal, brought this suit in the District Court to compel petitioner, the Panama Canal Co., to prescribe new tolls for the use of the Canal and to refund tolls which it was alleged had been illegally collected in the past. The District Court dismissed the complaint for lack of jurisdiction of the subject matter, 143 F.Supp. 539. The Court of Appeals refused relief for a refund but on other phases of the complaint entered a summary judgment for the respondent. 243 F.2d 844. The cases are here on petitions for certiorari which we granted because of the importance of the questions presented. 355 U.S. 810, 78 S.Ct. 37, 2 L.Ed.2d 29.1
2
Petitioner was created by Congress in 1950. 64 Stat. 1041. It holds the assets of the Panama Canal and has the duty of operating and maintaining it. It may sue and be sued in its corporate name. Canal Zone Code, Tit. 2, § 248, 62 Stat. 1078, as amended, 64 Stat. 1038. Prior to 1950 the Panama Canal was operated by the President through the Governor of the Canal Zone. 37 Stat. 561. Business activities incident to that operation were conducted by the Panama Railroad Co., a federal corporation, 62 Stat. 1076, which was an agency and instrumentality of the United States, ibid. Those auxiliary business activities were 'designed and used to aid' in the management and operation of the Canal. See People of State of New York ex rel. Rogers v. Graves, 299 U.S. 401, 406, 57 S.Ct. 269, 271, 81 L.Ed. 306. Since 1950 all those business activities have been carried on by petitioner, the Panama Canal Co., all of whose stock is held by the President or his designee, Canal Zone Code, Tit. 2, § 246(a), the present designee being the Secretary of the Army.
3
The Hay-Pauncefote Treaty, proclaimed February 22, 1902, 32 Stat. 1903, provided in Article III that the 'charges of traffic shall be just and equitable.' Under the original Panama Canal legislation, 37 Stat. 562, the President was authorized to fix the tolls on six months' notice by proclamation. Under that Act the tolls were to be not less than 75¢ nor more than $1.25 per net registered ton. In 1937 the ceiling was lowered to $1 per net vessel ton, the minimum of 75¢ being retained. 50 Stat. 750. When President Truman in 1948 sought to increase the toll rate to the statutory maximum, 62 Stat. 1494, Congress asked the President to withhold action until the entire problem could be studied. See H.R.Rep. No. 1304, 81st Cong., 1st Sess. 7. President Truman agreed by revoking his proclamation, 64 Stat. A433, and agreeing to the study.
4
On the basis of that study Congress separated the governmental functions of the Canal from its transit and business functions, the latter to be operated by petitioner. See H.R.Doc. No. 460, 81st Cong., 2d Sess.; H.R.Rep. No. 2935, 81st Cong., 2d Sess. It was learned that if the Canal were operated at cost, the tolls would have to be raised to a prohibitive level. Congress therefore undertook to reduce the financial burden that was imposed upon the users of the Canal. The interest on the capital investment of the United States was reduced and interest accrued during the construction period was to be disregarded for the purposes of computing interest on the capital investment. Free transits of government-owned vessels were eliminated for accounting purposes. The supporting business activities previously operated by the Panama Railroad Co. were to bear a proportionate share of the cost of the Canal Zone Government from which they had been exempted. H.R.Doc. No. 460, 81st Cong., 2d Sess. And the 'net costs of operation of the Canal Zone Government' were declared by Congress 'to form an integral part of the costs of operation of the Panama Canal enterprise as a whole.' See Canal Zone Code, Tit. 2, § 246(e), 64 Stat. 1041.
5
It was to carry out these provisions that the Congress merged the functions of operating and maintaining the Canal with the business activities formerly carried on by the Panama Railroad Co. At the same time, the Congress, by the Act of September 26, 1950, 64 Stat. 1038, Canal Zone Code, Tit. 2, §§ 411, 412, made changes in the provisions for the fixing of tolls.
Section 411 provides:
6
'The Panama Canal Company is authorized to prescribe and from time to time change (1) the rules for the measurement of vessels for the Panama Canal, and (2), subject to the provisions of the section next following, the tolls that shall be levied for the use of the Panama Canal: Provided, however, That the rules of measurement, and the rates of tolls, prevailing on the effective date of this amended section shall continue in effect until changed as provided in this section: Provided further, That the said corporation shall give six months' notice, by publication in the Federal Register, of any and all proposed changes in basic rules of measurement and of any and all proposed changes in rates of tolls, during which period a public hearing shall be conducted: And provided further, That changes in basic rules of measurement and changes in rates of tolls shall be subject to, and shall take effect upon, the approval of the President of the United States, whose action in such matter shall be final and conclusive.'
7
Section 412(b) provides the formula which petitioner must employ in computing new tolls:
8
'Tolls shall be prescribed at a rate or rates calculated to cover, as nearly as practicable, all costs of maintaining and operating the Panama Canal, together with the facilities and appurtenances related thereto, including interest and depreciation, and an appropriate share of the net costs of operation of the agency known as the Canal Zone Government. In the determination of such appropriate share, substantial weight shall be given to the ratio of the estimated gross revenues from tolls to the estimated total gross revenues of the said corporation exclusive of the cost of commodities resold, and exclusive of revenues arising from transactions within the said corporation or from transactions with the Canal Zone Government.'
9
By § 412(c) vessels operated by the United States, including naval ships, may 'in the discretion of the President' be required to pay tolls. In the event they do not, tolls shall nevertheless be computed for that use and the amounts thereof 'shall be treated as revenues of the Panama Canal Company for the purpose of prescribing the rates of tolls.'
10
A Committee of the Congress in 1953 directed petitioner to determine the adequacy of the canal tolls. See H.R.Rep. No. 889, 83d Cong., 1st Sess. 10. Petitioner in reply stated that no increase in tolls was at that time indicated but that, should canal traffic decline, and should the decline appear likely to continue for an appreciable length of time, 'the Company will promptly take the steps available to it to increase the rates of tolls.'2
11
Petitioner, being a wholly owned government corporation, is subject to annual audit by the General Accounting Office. 59 Stat. 599, 31 U.S.C. § 850, 31 U.S.C.A. § 850. And it is provided that the Comptroller General shall report on this audit to the Congress with 'such comments and information as may be deemed necessart to keep Congress informed of the operations and financial condition' of the corporation, 'together with such recommendations' as the Comptroller General may deem advisable. 31 U.S.C. § 851, 31 U.S.C.A. § 851.
12
The Comptroller General in 1955 expressed the view that the petitioner had allocated too high a share of the costs of the Canal Zone Government, of the corporate overhead, and of interest payments to the operations of the Canal and too little to its supporting or auxiliary activities. H.R.Doc. No. 160, 84th Cong., 1st Sess. According to his method of cost allocation, the canal operations showed a large surplus, the auxiliary or supporting activities a deficit. Ibid. He also claimed that the prices charged for the latter activities were inadequate. Ibid. He went on to give his construction of § 412(b) of the Canal Zone Code, which was that the tolls must be computed exclusively on the basis of the cost of operating the Canal without reference to the losses incident to the auxiliary or supporting operations. Ibid. He thought this result to be unsound and recommended that § 412(b) be amended to provide specifically that any losses of the auxiliary or supporting activities be included in the cost basis for the determination of the canal tolls. Ibid.
13
Petitioner vigorously opposes that construction of § 412(b), maintaining that the Comptroller's methods of cost allocation and his conclusions violate both sound accounting practices and the Act. Petitioner in particular objects to the Comptroller General's view that the Act requires the computation of toll rates without regard to any deficit in the operation of the auxiliary or supporting business activities. Petitioner concludes that the downward revision of the tolls recommended by the Comptroller General is not in harmony with the congressional program and that no change in the toll formula is needed.
14
It was shortly after the Comptroller General's Report for 1954 was submitted to the Congress that respondents instituted this suit.
15
It is, we think, impermissible to conclude that, because petitioner may sue and be sued, this suit can be maintained. We deal here with a problem in the penumbra of the law where generally the Executive and the Legislative are supreme. We do not say, for we are not called upon to do so, that no justiciable issues can arise out of the toll-making procedure for the Panama Canal. All we hold is that the controversy at present is not one appropriate for judicial action.
16
Section 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009, excludes from the categories of cases subject to judicial review 'agency action' that is 'by law committed to agency discretion.' We think the initiation of a proceeding for readjustment of the tolls of the Panama Canal is a matter that Congress has left to the discretion of the Panama Canal Co. Petitioner is, as we have seen, an agent or spokesman of the President in these matters. It is 'authorized' to prescribe tolls and to change them. Canal Zone Code, Tit. 2, § 411. But the exercise of that authority is far more than the performance of a ministerial act. As we have seen, the present conflict rages over questions that at heart involve problems of statutory construction and cost accounting: whether an operating deficit in the auxiliary or supporting activities is a legitimate cost in maintaining and operating the Canal for purpose of the toll formula. These are matters on which experts may disagree; they involve nice issues of judgment and choice, State of New York v. United States, 331 U.S. 284, 335, 67 S.Ct. 1207, 1234, 91 L.Ed. 1492, which require the exercise of informed discretion. Cf. United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148; Interstate Commerce Commission v. United States of America ex rel. Humboldt S.S. Co., 224 U.S. 474, 484—485, 32 S.Ct. 556, 559, 56 L.Ed. 849. The case is, therefore, quite unlike the situation where a statute creates a duty to act and an equity court is asked to compel the agency to take the prescribed action. Cf. Virginian R. Co. v. System Federation, 300 U.S. 515, 551, 57 S.Ct. 592, 601, 81 L.Ed. 789; Kansas City So. R. Co. v. Interstate Commerce Commission, 252 U.S. 178, 40 S.Ct. 187, 64 L.Ed. 517. We put the matter that way since the relief sought in this action is to compel petitioner to fix new tolls. The principle at stake is no different than if mandamus were sought—a remedy long restricted, Marbury v. Madison, 1 Cranch 137, 166, 2 L.Ed. 60; Decatur v. Paulding, 14 Pet. 497, 514—517, 10 L.Ed. 559, in the main, to situations where ministerial duties of a nondiscretionary nature are involved. Where the matter is peradventure clear, where the agency is clearly derelict in failing to act, where the inaction or action turns on a mistake of law, then judicial relief is often available. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503, is a recent example. There the Secretary of the Army issued less than 'honorable' discharges to soldiers, based on their activities prior to induction. The Court held that the 'records,' prescribed by Congress as the basis for his action, were only records of military service. But where the duty to act turns on matters of doubtful or highly debatable inference from large or loose statutory terms, the very construction of the statute is a distinct and profound exercise of discretion. See Work v. United States ex Rives, 267 U.S. 175, 183, 45 S.Ct. 252, 254, 69 L.Ed. 561; Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 219, 50 S.Ct. 320, 324, 74 L.Ed. 809; United States ex rel. Chicago Great Western R. Co. v. Interstate Commerce Commission, 294 U.S. 50, 62 63, 55 S.Ct. 326, 331, 79 L.Ed. 752. We then must infer that the decision to act or not to act is left to the expertise of the agency burdened with the responsibility for decision.
17
We think this case is in that area. The petitioner, as agent of the President, is given questions of judgment requiring close analysis and nice choices. Petitioner is not only agent for the President but a creature of Congress. It is on close terms with its committees, reporting to the Congress, airing its problems before them, looking to Congress for guidance and direction. It is at least arguable that Congress to date has sided with petitioner and against the Comptroller General in construing §§ 411 and 412 of the Code. For Congress, fully advised of the Comptroller General's views in his Report for 1954, approved the budgets for the Panama Canal Co. for 1956, 1957, and 1958, based on petitioner's interpretation of the statute and its methods of accounting and cost allocation, 69 Stat. 235—237, 70 Stat. 322—324, 71 Stat. 78.3 That does not necessarily mean that the construction of the Act, pressed on us and on Congress by petitioner, is the correct one. It does, however, indicate that the question is so wide open and at large as to be left at this stage to agency discretion.4 The matter should be far less cloudy, much more clear for courts to intrude.
18
Reversed.
1
In No. 251 we granted the Panama Canal Co.'s petition for certiorari and in No. 252 we granted a cross-petition filed by the respondents in No. 251. The Panama Canal Co. will hereinafter be referred to as the petitioner. It is not necessary to discuss the petitions separately under the view we take of these cases.
2
The reply was in the form of a letter to the Speaker of the House from J. S. Seybold, President of petitioner, 100 Cong. Rec. (daily ed.) A1995, stating, inter alia:
'An initial study of the adequacy of tolls rates under the new legislation has now been completed by the Company. This study reveals that, largely as a result of the very high level of traffic using the canal in recent years without a corresponding increase in costs, the tolls rates that have been in effect since 1938 are still sufficient to cover all operating costs, including interest and depreciation, as required by the tolls statutes. This conclusion is based on the assumption that the Director of the Bureau of the Budget, who under the law must approve the valuation of the assets transferred to the Company from the agency formerly known as the Panama Canal, will concur generally in the valuations tentatively established by the Company upon which the interest and depreciation requirements for the most part have been based.
'In recent months, chiefly as the result of the cessation of hostilities in Korea, there has been some drop in traffic transiting the canal. The Company's study indicates that a further and more substantial decline in the volume of canal traffic during the next few years is to be expected primarily as the result of changing economic factors affecting world movements of petroleum and its products, iron ore, and coal. It is possible that by sometime during the fiscal year 1955 canal traffic will have declined to a point where revenues at existing rates will no longer be adequate to cover all charges. Should this condition materialize and should it appear reasonably certain that it will continue for an appreciable length of time, the Company will promptly take the steps available to it to increase the rates of tolls.
'In computing the tolls requirements for purposes of this study the
Company has made what it believes to be an adequate allowance for depreciation giving due consideration to the factors of obsolescence and potential inadequacy of the capital assets includable in the tolls base. Estimates of the service lives used for the principal classes of plant and equipment have been approved by independent engineering consultants. A depreciation rate of 1 percent per annum from date of service has been used for the investment in the channel, harbors, lock structures, dams, breakwaters and similar long-lived facilities. Including this accrual the annual depreciation requirements of the Company are presently approximately $9 million.
'The tentative valuations used in the study result in a net interest-bearing investment of the Government in the Canal enterprise, as defined by law, of $274 million. At the rate of 2.342 percent currently established for repayment of interest costs as required by the Company's charter annual interest payments to the Treasury will amount to $6.4 million. It is expected that this amount will increase somewhat in the future years as the result of the generally rising trend of long term interest rates.
'No depreciation or return on the capital value of interest during the 1904—14 construction period has been included in the study because the legislative history of the present tolls statutes clearly indicates the intent of the Congress to exclude this item entirely from the tolls base. Likewise no provision has been made for amortization of lands and treaty rights because of lack of statutory authority, although these assets have been included in the investment for interest purposes.
'Using the tentative plant valuations developed by the Company and recomputing the operating costs and expenses accordingly, the aggregate net income of the Company from all sources for the 4-year period from the reorganization to June 30, 1955, under present tolls rates is estimated to be approximately $9 million after providing for all charges currently authorized and required by law. As previously indicated however, it appears that a possible decline in volume of Canal traffic coupled with rising interest and wage rates may necessitate an increase in the tolls rates in the near future. Current indications are that such an increase may be necessary by July 1, 1955, in which case public announcement of the new rates would be made 6 months earlier or January 1, 1955, as required by law.'
3
Congress has been repeatedly informed of the basic problem involved here, indeed of this very litigation. See, e.g., Reports on Audit of Panama Canal Company and the Canal Zone Government, by the Comptroller General: For the Fiscal Year Ending June 30, 1954, H.R.Doc. No. 160, 84th Cong., 1st Sess. 1—3, 8—9, 12—18; For the Fiscal Year Ending June 30, 1955, H.R.Doc. No. 465, 84th Cong., 2d Sess. 2, 9—10, 17—24; For the Fiscal Year Ending June 30, 1956, H.R.Doc. No. 210, 85th Cong., 1st Sess. 2—5, 15—21. See also, Hearings before the Subcommittee on Panama Canal of the House Committee on Merchant Marine and Fisheries on H.R. 6917, 7645, and 7697, 84th Cong., 1st Sess. 159—165; Hearings before the Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 2167, 84th Cong., 2d Sess. 23, 68—70, 89—92, 101 102.
4
A bill was introduced in the Senate in 1955, S. 2167, 84th Cong., 1st Sess., by Senator Magnuson which would give judicial review of agency action in fixing tolls. That bill was reported favorably by the Committee, S.Rep. No. 2375, 84th Cong., 2d Sess. But it never came to a vote. See 102 Cong.Rec. 11541, 12791, 13901.
| 89
|
356 U.S. 274
78 S.Ct. 730
2 L.Ed.2d 765
FIDELITY-PHILADELPHIA TRUST COMPANY and Robert B. Haines, III, Executors of the Will of Mary H. Haines, Deceased, Petitioners,v.Francis R. SMITH, Collector of Internal Revenue.
No. 130.
Argued Jan. 30, 1958.
Decided April 28, 1958.
Mr. Robert T. McCracken, Philadelphia, Pa., for the petitioner.
Mr. Myron C. Baum, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question before the Court is whether the proceeds of certain insurance policies on the life of the decedent, payable to named beneficiaries and irrevocably assigned by the insured, should be included in the estate of the decedent for the purposes of the federal estate tax. The facts are not in dispute. In 1934 decedent, then aged 76, purchased a series of annunity-life insurance policy combinations. Three single-premium life insurance policies, at face values of 200,000, $100,000, and $50,000, respectively, were obtained without the requirement of a medical examination. As a condition to selling decedent each life insurance policy, the companies involved required decedent also to purchase a separate, singlepremium, nonrefundable life annuity policy. The premiums for each life insurance policy and for each annuity policy were fixed at regular rates. The size of each annuity, however, was calculated so that in the event the annuitant-insured died prematurely the annuity premium, less the amount allocated to annuity payments already made, would combine with the companion life insurance premium, plus interest, to equal the amount of insurance proceeds to be paid.1 Each annuity policy could have been purchased without the insurance policy for the same premium charged for it under the annuity-life insurance combination.
2
The decedent's children were primary beneficiaries of the insurance policies; the Fidelity-Philadelphia Trust Company, as trustee of a trust established by decedent, was named beneficiary of the interests of any of decedent's children who predeceased her. In the year of purchase, decedent assigned all rights and benefits under two of the life insurance policies to her children and under the other to the Fidelity-Philadelphia Trust Company as trustee. These rights and benefits included the rights to receive dividends, to change the beneficiaries, to surrender the policies, and to assign them. Dividends were received, but, as far as the record discloses, none of the other rights was exercised. A gift tax on these transfers was paid by the decedent in 1935. In 1938 decedent amended the above-mentioned trust so that it became irrevocable. As the Government concedes, the decedent retained no beneficial or reversionary interest in the trust.
3
The insured died in 1946. The proceeds of the three insurance policies were not included in her estate in the estate tax return. The Commissioner of Internal Revenue determined that these proceeds should have been included and assessed a deficiency accordingly. The adjusted tax was paid by the executors, and when claim for refund was denied, this action for refund followed. The District Court entered judgment for the taxpayers but the Court of Appeals for the Third Circuit reversed. 241 F.2d 690. We granted certiorari.2 354 U.S. 921, 77 S.Ct. 1383, 1 L.Ed.2d 1435.
4
It is conceded by the parties that the question of whether the proceeds should be included in the estate is not determinable by the federal estate tax provision dealing with life insurance proceeds. Cf. Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996. To support the decision below, the Government argues that the proceeds are includible in the estate under Section 811(c)(1)(B) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811(c)(1)(B), which includes, in the estate of the decedent, property, to the extent of the decedent's interest therein, which the decedent had transferred without adequate and full consideration, under wuich transfer the decedent
5
'has retained for his life * * * (i) the possession or enjoyment of, or the right to the income from, the property * * *.'
6
The Government contends that the annuity payments, which were retained until death, were income from property transferred by the decedent to her children through the use of the life insurance policies.
7
On the other hand, petitioners, executors of the estate, assert that the annuity payments were income from the annuity policies, which were separate property from the insurance policies, and that since decedent had assigned away the life insurance policies before death, she retained no interest in them at death.
8
The Government relies on Helvering v. Le Gierse, supra, where this Court also had before it the issue of the taxability of proceeds from a life insurance policy in an annuity-life insurance combination. After holding that hte taxability of these proceeds was not to be determined for estate tax purposes according to the statutory provisions dealing with life insurance,3 the Court held that the proceeds were includible in the estate under Section 302(c) of the Revenue Act of 1926 because they devolved on the beneficiaries in a transfer which took 'effect in possession or enjoyment at or after * * * death.' 312 U.S. at page 542, 61 S.Ct. at page 650. However, in reaching this conclusion the decision did not consider the problem in the case at bar, for in Le Gierse the insured had retained the rights and benefits of the insurance policy until death. The facts in the instant case on this point are fundamentally different. Prior to death, the decedent had divested herself of all interests in the insurance policies, including the possibility that the funds would return to her or her estate if the beneficiaries predeceased her.4 The assignees became the 'owners' of the policies before her death; they had received the right to the immediate and unlimited use of the policies to the full extent of their worth. The immediate value of the policies was always substantial. In the year of assignment their total cash surrender value was over $289,000; in the year of death it was over.$326,000. Under the assignment, the decedent had not become a life tenant who postpones the possession and enjoyment of the property by the remaindermen until her death.5 Cf. Helvering v. Bullard, 303 U.S. 297, 58 S.Ct. 565, 82 L.Ed. 852; Commissioner v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 337, 93 L.Ed. 288. On the contrary, the assignees held the bundle of rights, the incidents of ownership, over property from which the decedent had totally divorced herself. Cf. Chase National Bank of City of New York v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405; Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323, 89 L.Ed. 1871.
9
Illustrative of the distinction between Helvering v. Le Gierse and the case at bar is the fact that the Government has not endeavored here to sustain the tax under the statutory provision applied in that case. Instead of the provision taxing transfers 'intended to take effect in possession or enjoyment at or after' the transferor's death,6 the provision applied in Le Gierse, the Government relies on the provision taxing transfers in which the transferor has retained until death 'the right to income from' the transferred property.7 However, the Government's position that the annuities were income from property which the insured transferred to her children under the life insurance policies is not well taken.
10
To establish its contention, the Government must aggregate the premiums of the annuity policies with those of the life insurance policies and establish that the annuity payments were derived as income from the entire investment. This proposition cannot be established. Admittedly, when the policies were purchased, each life insurance-annuity combination was the product of a single, integrated transaction. However, the parties neither intended that, nor acted as if, any of the transactions would have a quality of indivisibility. Regardless of the considerations prompting the insurance companies to hedge their life insurance contracts with annuities, each time an annuity-life insurance combination was written, two items of property, an annuity policy and an insurance policy, were transferred to the purchaser. The annuity policy could have been acquired separately, and the life insurance policy could have been, and was, conveyed separately. The annuities arose from personal obligations of the insurance companies which were in no way conditioned on the continued existence of the life insurance contracts. These periodic payments would have continued unimpaired and without diminution in size throughout the life of the insured even if the life insurance policies had been extinguished.8 Quite clearly the annuity payments arose solely from the annuity policies. The use and enjoyment of the annuity policies were entirely independent of the life insurance policies. Because of this independence, the Commissioner may not, by aggregating the two types of policies into one investment, conclude that by receiving the annuities, the decedent had retained income from the life insurance contracts.9
11
Accordingly, the judgment of the Court of Appeals is reversed.
12
Reversed.
13
Mr. Justice BURTON, with whom Mr. Justice BLACK and Mr. Justice CLARK join, dissenting.
14
For the reasons stated by the court below, 3 Cir., 241 F.2d 690, and also in Conway v. Glenn, 6 Cir., 193 F.2d 965, and Burr v. Commissioner, 2 Cir., 156 F.2d 871, it seems to me that, for federal estate tax purposes, this case is indistinguishable from one in which a settlor places a sum in trust under such terms that he shall receive the income from it for life, and the principal shall be payable to designated beneficiaries upon his death. As the principal, in that event, would be includable in the settlor's estate for federal estate tax purposes, so here the proceeds of the insurance policies should be included in this decedent's estate. Accordingly, I would affirm the judgment of the Court of Appeals.
1
Of course, an additional amount is added to the premiums to compensate the insurance companies for expenses.
2
In agreement with the decision below are Burr v. Commissioner, 2 Cir., 156 F.2d 871, and Conway v. Glenn, 6 Cir., 193 F.2d 965. To the contrary is Bohnen v. Harrison, 7 Cir., 199 F.2d 492, affirmed by an equally divided Court, 345 U.S. 946, 73 S.Ct. 863, 97 L.Ed. 1371.
3
Section 302(g) of the Revenue Act of 1926, 44 Stat. 9, 71, exempted from the estate proceeds up to $40,000 'receivable * * * as insurance' by persons other than the executor. The proceeds in Helvering v. Le Gierse were not considered to have arisen from 'insurance' as Congress meant the word to be used because the ordinary 'insurance risk' was not present. The insurance company had not undertaken to shift the risk of premature death from the insured and to distribute the risk among its other policyholders. On the contrary, by requiring a concurrent purchase of a nonrefundable annuity contract, the company had neutralized the risk at the expense of the 'insured.' The remaining risk, whether the annuitant would live beyond the actuarial prediction and after the insurance policy had been surrendered, was considered not an insurance risk but a risk of ordinary investment. Cf. Meisenholder, Taxation of Annuity Contracts under Estate and Inheritance Taxes, 39 Mich.L.Rev. 856, 883.
The principle that the proceeds are not considered 'receivable * * * as insurance' applies whether at death the rights and benefits of the policies are in the hands of the insured or of another person. Goldstone v. United States, 325 U.S. 687, 690, 65 S.Ct. 1323, 1325, 89 L.Ed. 1871.
4
Cf. Goldstone v. United States, supra.
5
Nor are the assignees like second annuitants in survivorship annuities or joint annuitants in joint and survivor annuities. The donor's and donee's annuities have a common fund as the source so that if the source of the donor's annuity is extinguished, the donee's annuity is destroyed. The entire economic enjoyment of the second annuitant must, realistically speaking, await the death of the first annuitant, and a substantial portion of the surviving joint annuitant's enjoyment is similarly postponed. Cf., e.g., Commissioner v. Wilder's Estate, 5 Cir., 118 F.2d 281; Commissioner v. Clise, 9 Cir., 122 F.2d 998; Mearkle's Estate v. Commissioner, 3 Cir., 129 F.2d 386.
6
Section 811(c)(1)(C) of the Internal Revenue Code of 1939, as amended by Section 7(a) of the Act of October 25, 1949, c. 720, 63 Stat. 891, 895, 26 U.S.C.A. § 811(c)(1)(C).
7
Section 811(c)(1)(B) of the Internal Revenue Code of 1939, as amended by Section 7(a) of the Act of October 25, 1949, c. 720, 63 Stat. 894, 26 U.S.C.A. § 811(c)(1)(B). This provision was also a part of Section 302(c) of the Revenue Act of 1926 at the time applicable in Helvering v. Le Gierse.
8
Where a decedent, not in contemplation of death, has transferred property to another in return for a promise to make periodic payments to the transferor for his lifetime, it has been held that these payments are not income from the transferred property so as to include the property in the estate of the decedent. E.g., Estate of Sarah A. Bergan, 1 T.C. 543, Acq., 1943 Cum.Bull. 2; Security Trust & Savings Bank, Trustee, 11 B.T.A. 833; Seymour Johnson, 10 B.T.A. 411; Hirsh v. United States, 1929, 35 F.2d 982, 68 Ct.Cl. 508; cf. Welch v. Hall, 1 Cir., 134 F.2d 366. In these cases the promise is a personal obligation of the transferee, the obligation is usually not chargeable to the transferred property, and the size of the payments is not determined by the size of the actual income from the transferred property at the time the payments are made.
9
For the treatment by lower courts of the life insurance-annuity combination in a similar situation in the field of federal income taxation, cf. Commissioner v. Meyer, 6 Cir., 139 F.2d 256; Edna E. Meredith, 1 T.C.M. 847, affirmed Helvering v. Meredith, 8 Cir., 140 F.2d 973; John Koehrer, 4 T.C.M. 219.
| 1112
|
356 U.S. 335
78 S.Ct. 764
2 L.Ed.2d 806
Henry M. JUNG, John H. Jung, Arthur E. Serwich et al., Petitioners,v.K. & D. MINING CO., Inc., a Corporation of the State of Washington, M. L. Davies (sometimes known as Myron L. Davies), et al.
No. 619.
Decided April 28, 1958.
Zeamore A. Ader, Chicago, Illinois, for petitioners.
Samuel J. Wettrick, Seattle Wash. and Floyd F. Shields, Chicago, Ill., for respondents.
PER CURIAM.
1
Petitioners seek our writ of certiorari to review the judgment of the Court of Appeals dismissing their appeal as untimely.
2
The facts are undisputed. Petitioners brought this action to recover the purchase price of securities alleged to have been worthless and fraudulently sold to them by respondents in violation of § 12 them by responents in violation of § 12 of the Securities Act of 1933, as amended (48 Stat. 84, 15 U.S.C.A. § 77l) and of § 10(b) of the Securities Exchange Act of 1934, as amended (48 Stat. 891, 15 U.S.C.A. § 78j(b). Respondents amended complaint for failure to state a claim upon which relief could be granted. On May 10, 1955, the District Court sustained the motion, dismissed the complaint, and granted petitioners 'twenty days from this date within which to file an amended complaint.' On May 27, 1955, petitioners moved to vacate the order of May 10 dismissing the first amended complaint or, in the alternative, to extend the time to file an amended complaint. On that date (May 27, 1955) the Court overruled petitioners' motion to vacate the order of May 10, but granted leave to petitioners to file an amended complaint within 20 days from May 27, 1955. Petitioners did not file an amended complaint. On March 25, 1957, petitioners filed an instrument in the case by which they elected to stand on their first amended complaint. On that day (March 25, 1957) the Court ordered that 'this cause of action be and it hereby is dismissed without costs.' On April 16, 1957, petitioners filed notice of appeal 'from final judgment entered in this action on March 25, 1957.' Respondent moved in the Court of Appeals to dismiss the appeal as untimely. The Court of Appeals, holding that the order of May 27, 1955, became the District Court's final judgment in the case when petitioners failed to file an amended complaint within the 20 days thereby allowed for that purpose, sustained the motion and dismissed the appeal of April 16, 1957, as not taken within 30 days from the entry of the judgment. 246 F.2d 281.
3
We think that the District Court's order of May 27, 1955, denying petitioners' motion to vacate the order of May 10, 1955, but granting further leave to petitioners to amend their complaint, did not constitute the final judgment in the case. It did not direct 'that all relief be denied' (Rule 58 of Federal Rules of Civil Procedure, 28 U.S.C.A.) but left the suit pending for further proceedings 'either by amendment of the (complaint) or entry of final judgment.' Missouri & Kansas Interurban R. Co. v. City of Olathe, 222 U.S. 185, 186, 32 S.Ct. 46, 47, 56 L.Ed. 155. The situation did 'not differ from an order sustaining a demurrer with leave to amend; another order of absolute dismissal after ecpiration of the time allowed for amendment is required to make a final disposition of the cause.' Cory Bros. & Co., Limited, v. United States, 2 Cir., 47 F.2d 607. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674; Clark v. Kansas City, 172 U.S. 334, 19 S.Ct. 207, 43 L.Ed. 467; Crutcher v. Joyce, 10 Cir., 134 F.2d 809; Western Electric Co. v. Pacent Reproducer Corp., 2 Cir., 37 F.2d 14, and Riverside Oil & Refining Co. v. Dudley, 8 Cir., 33 F.2d 749.
4
Although to be sure nearly two years elapsed between the time petitioners were given leave to file an amended complaint and their motion of March 25, 1957, the defendants also did not, as they so easily could have done, nor did the District Court exercising power sua sponte over its own calendar, take any step to put a definitive end to the case and thereby fix an unequivocal terminal date for appealability. The undesirability of useless delays in litigation is more than offset by the hazards of confusion or misunderstanding as to the time for appeal.
5
It was the District Court's order of March 25, 1957, dismissing 'this cause of action,' that constituted the final judgment in the case. It directed 'that all relief be denied' and required 'the clerk (to) enter judgment' accordingly (Rule 58). The appeal of April 16, 1957, was taken within 30 days from the date of entry of the judgment and hence was timely under 73(a) of Federal Rules of Civil Procedure.
6
The writ of certiorari is granted and the judgment of the Court of Appeals is reversed and the cause is remanded to that court for further proceedings not inconsistent with this opinion.
7
Reversed and remanded with direction.
| 89
|
356 U.S. 342
78 S.Ct. 718
2 L.Ed.2d 823
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WOOSTER DIVISION OF BORG-WARNER CORPORATION. WOOSTER DIVISION OF BORG-WARNER CORPORATION, Cross-Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
Nos. 53, 78.
Argued Nov. 20, 21, 1957.
Decided May 5, 1958.
[Syllabus from pages 342-343 intentionally omitted]
Mr. Dominick L. Manoli, Washington, D.C., for National Labor Relations board.
Mr. James C. Davis, for Wooster Division of Borg-Warner Corp.
Mr. Justice BURTON delivered the opinion of the Court.
1
In these cases an employer insisted that its collective-bargaining contract with certain of its employees include: (1) a 'ballot' clause calling for a prestrike secret vote of those employees (union and nonunion) as to the employer's last offer, and (2) a 'recognition' clause which excluded, as a party to the contract, the International Union which had been certified by the National Labor Relations Board as the employees' exclusive bargaining agent, and substituted for it the agent's uncertified local affiliate. The Board held that the employer's insistence upon either of such clauses amounted to a refusal to bargain, in violation of § 8(a)(5) of the National Labor Relations Act, as amended.1 The issue turns on whether either of these clauses comes within the scope of mandatory collective bargaining as defined in § 8(d) of the Act.2 For the reasons hereafter stated, we agree with the Board that neither clause comes within that definition. Therefore, we sustain the Board's order directing the employer to cease insisting upon either clause as a condition precedent to accepting any collective-bargaining contract.
2
Late in 1952, the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (here called International) was certified by the Board to the Wooster (Ohio) Division of the Borg-Warner Corporation (here called the company) as the elected representative of an appropriate unit of the company's employees. Shortly thereafter, International chartered Local No. 1239, UAW—CIO (here called the Local). Together the unions presented the company with a comprehensive collective-bargaining agreement. In the 'recognition' clause, the unions described themselves as both the 'International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and its Local Union No. 1239, U.A.W.—C.I.O. * * *.'
3
The company submitted a counterproposal which recognized as the sole representative of the employees 'Local Union 1239, affiliated with the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW—CIO).' The unions' negotiators objected because such a clause disregarded the Board's certification of International as the employees' representative. The negotiators declared that the employees would accept no agreement which excluded International as a party.
4
The company's counterproposal also contained the 'ballot' clause, quoted in full in the margin.3 In summary, this clause provided that, as to all nonarbitrable issues (which eventually included modification, amendment or termination of the contract), there would be a 30-day negotiation period after which, before the union could strike, there would have to be a secret ballot taken among all employees in the unit (union and nonunion) on the company's last offer. In the event a majority of the employees rejected the company's last offer, the company would have an opportunity, within 72 hours, of making a new proposal and having a vote on it prior to any strike. The unions' negotiators announced they would not accept this clause 'under any conditions.'
5
From the time that the company first proposed these clauses, the employees' representatives thus made it clear that each was wholly unacceptable. The company's representatives made it equally clear that no agreement would be entered into by it unless the agreement contained both clauses. In view of this impasse, there was little further discussion of the clauses, although the parties continued to bargain as to other matters. The company submitted a 'package' proposal covering economic issues but made the offer contingent upon the satisfactory settlement of 'all other issues * * *.' The 'package' included both of the controversial clauses. On March 15, 1953, the unions rejected that proposal and the membership voted to strike on March 20 unless a settlement were reached by then. None was reached and the unions struck. Negotiations, nevertheless, continued. On April 21, the unions asked the company whether the latter would withdraw its demand for the 'ballot' and 'recognition' clauses if the unions accepted all other pending requirements of the company. The company declined and again insisted upon acceptance of its 'package,' including both clauses. Finally, on May 5, the Local, upon the recommendation of International, gave in and entered into an agreement containing both controversial clauses.
6
In the meantime, International had filed charges with the Board claiming that the company, by the above conduct, was guilty of an unfair labor practice within the meaning of § 8(a)(5) of the Act. The trial examiner found no bad faith on either side. However, he found that the company had made it a condition precedent to its acceptance of any agreement that the agreement include both the 'ballot' and the 'recognition' clauses. For that reason, he recommended that the company be found guilty of a per se unfair labor practice in violation of § 8(a)(5). He reasoned that, because each of the controversial clauses was outside of the scope of mandatory bargaining as defined in § 8(d) of the Act, the company's insistence upon them, against the permissible opposition of the unions, amounted to a refusal to bargain as to the mandatory subjects of collective bargaining. The Board, with two members dissenting, adopted the recommendations of the examiner. 113 N.L.R.B. 1288, 1298. In response to the Board's petition to enforce its order, the Court of Appeals set aside that portion of the order relating to the 'ballot' clause, but upheld the Board's order as to the 'recognition' cluase. 236 F.2d 898.
7
Because of the importance of the issues and because of alleged conflicts among the Courts of Appeals,4 we granted the Board's petition for certiorari in No. 53, relating to the 'ballot' clause, and the company's cross-petition in No. 78, relating to the 'recognition' clause. 353 U.S. 907, 77 S.Ct. 661, 1 L.Ed.2d 662.
8
We turn first to the relevant provisions of the statute. Section 8(a)(5) makes it an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees * * *.'5 Section 8(d) defines collective bargaining as follows:
9
'(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.' 61 Stat. 142, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d).
10
Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to 'wages, hours, and other terms and conditions of employment * * *.' The duty is limited to those subjects, and within that area neither party is legally obligated to yield. National Labor Relations Board v. American Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027. As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree.
11
The company's good faith has met the requirements of the statute as to the subjects of mandatory bargaining. But that good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining. We agree with the Board that such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining. This does not mean that bargaining is to be confined to the statutory subjects. Each of the two controversial clauses is lawful in itself.6 Each would be enforceable if agreed to by the unions. But it does not follow that, because the company may proposed these clauses, it can lawfully insist upon them as a condition to any agreement.
12
Since it is lawful it insist upon matters within the scope of mandatory bargaining and unlawful to insist upon matters without, the issue here is whether either the 'valid' or the 'recognition' clause is a subject within the phrase 'wages, hours, and other terms and conditions of employment' which defines mandatory bargaining. The 'ballot' clause is not within that definition. It relates only to the procedure to be followed by the employees among themselves before their representative may call a strike or refuse a final offer. It settles no term or condition of employment—it merely calls for an advisory vote of the employees. It is not a partial 'no-strike' clause. A 'no-strike' clause prohibits the employees from striking during the life of the contract. It regulates the relations between the employer and the employees. See National Labor Relations Board v. American Insurance Co., supra, 343 U.S. at page 408, n. 22, 72 S.Ct. at page 831, 96 L.Ed. 1027. The 'ballot' clause, on the other hand, deals only with relations between the employees and their unions. It substantially modifies the collective-bargaining system provided for in the statute by weakening the independence of the 'representative' chosen by the employees. It enables the employer, in effect, to deal with its employees rather than with their statutory representative. Cf. Medo Photo Corp. v. National Labor Relations Board, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007.
13
The 'recognition' clause likewise does not come within the definition of mandatory bargaining. The statute requires the company to bargain with the certified representative of its employees. It is an evasion of that duty to insist that the certified agent not be a party to the collective-bargaining contract. The Act does not prohibit the voluntary addition of a party, but that does not authorize the employer to exclude the certified representative from the contract.
14
Accordingly, the judgment of the Court of Appeals in No. 53 is reversed and the cause remanded for disposition consistent with this opinion. In No. 78, the judgment is affirmed.
15
No. 53—Reversed and remanded.
16
No. 78—Affirmed.
17
Mr. Justice FRANKFURTER joins this opinion insofar as it holds that insistence by the company on the 'recognition' clause, in conflict with the provisions of the Act requiring an employer to bargain with the representative of his employees, constituted an unfair labor practice. He agrees with the views of Mr. Justice HARLAN regarding the 'ballot' clause. The subject matter of that clause is not so clearly outside the reasonable range of industrial bargaining as to establish a refusal to bargain in good faith, and is not prohibited simply because not deemed to be within the rather vague scope of the obligatory provisions of § 8(d).
18
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice WHITTAKER join, concurring in part and dissenting in part.
19
I agree that the company's insistence on the 'recognition' clause constituted an unfair labor practice, but reach that conclusion by a different route from that taken by the Court. However, in light of the finding below that the company bargained in 'good faith,' I dissent from the view that its insistence on the 'ballot' clause can support the charge of an unfair labor practice.
20
Over twenty years ago this Court said in its first decision under the Wagner Act: 'The theory of the act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the act in itself does not attempt to compel.' National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893. (Italics added.) Today's decision proceeds on assumptions which I deem incompatible with this basic philosophy of the original labor Act, which has retained its vitality under the amendments effected by the Taft-Hartley Act. See National Labor Relations Board v. American National Insurance Co., 343 U.S. 395, 401—404, 72 S.Ct. 824, 828—829, 96 L.Ed. 1027. I fear that the decision may open the door to an intrusion by the Board into the substantive aspects of the bargaining process which goes beyond anything contemplated by the National Labor Relations Act or suggested in this Court's prior decisions under it.
21
The Court considers both the 'ballot' and 'recognition' clauses to be outside the scope of the mandatory bargaining provisions of § 8(d) of the Act, which in connection with §§ 8(a)(5) and 8(b)(3) imposes an obligation on an employer and a union to '* * * confer in good faith with respect to wages, hours, and other terms and conditions of employment * * *.' From this conclusion it is said to follow that although the company was free to 'propose' these clauses and 'bargain' over them, it could not 'insist' on their inclusion in the collective bargaining contract as the price of agreement, and that such insistence was a per se unfair labor practice because it was tantamount to a refusal to bargain on 'mandatory' subjects. At the same time the Court accepts the Trial Examiner's unchallenged finding that the company had bargained in 'good faith,' both with reference to these clauses and all other subjects, and holds that the clauses are lawful in themselves and '* * * would be enforceable if agreed to by the unions.'
22
Preliminarily, I must state that I am unable to grasp a concept of 'bargaining' which enables one to 'propose' a particular point, but not to 'insist' on it as a condition to agreement. The right to bargain becomes illusory if one is not free to press a proposal in good faith to the point of insistence. Surely adoption of so inherently vague and fluid a standard is apt to inhibit the entire bargaining process because of a party's fear that strenuous argument might shade into forbidden insistence and thereby produce a charge of an unfair labor practice. This watered-down notion of 'bargaining' which the Court imports into the Act with reference to matters not within the scope of § 8(d) appears as foreign to the labor field as it would be to the commercial world. To me all of this adds up to saying that the Act limits effective 'bargaining' to subjects within the three fields referred to in § 8(d), that is 'wages, hours, and other terms and conditions of employment,' even though the Court expressly disclaims so holding.
23
I shall discuss my difficulties with the Court's opinion in terms of the 'ballot' clause. The 'recognition' clause is subject in my view to different considerations.
I.
24
At the start, I question the Court's conclusion that the 'ballot' clause does not come within the 'other terms and conditions of employment' provision of § 8(d). The phrase is inherently vague and prior to this decision has been accorded by the Board and courts an expansive rather than a grudging interpretation. Many matters which might have been thought to be the sole concern of management are now dealt with as compulsory bargaining topics. E.g. National Labor Relations Board v. J. H. Allison & Co., 6 Cir., 165 F.2d 766, 3 A.L.R.2d 990 (merit increases). And since a 'no-strike' clause is something about which an employer can concededly bargain to the point of insistence, see Shell Oil Co., 77 N.L.R.B. 1306, I find it difficult to understand even under the Court's analysis of this problem why the 'ballot' clause should not be considered within the area of bargaining described in § 8(d). It affects the employer-employee relationship in much the same way, in that it may determine the timing of strikes or even whether a strike will occur by requiring a vote to ascertain the employees' sentiment prior to the union's decision.
25
Nonetheless I shall accept the Court's holding that this clause is not a condition of employment, for even though the union would accordingly not be obliged under § 8(d) to bargain over it, in my view it does not follow that the company was prohibited from insisting on its inclusion in the collective bargaining agreement. In other words, I think the clause was a permissible, even if not an obligatory, subject of good faith bargaining.
26
The legislative history behind the Wagner and Taft-Hartley Acts persuasively indicates that the Board was never intended to have power to prevent good faith bargaining as to any subject not violative of the provisions or policies of those Acts. As a leading proponent for the Wagner Act explained:
27
'When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, 'Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.' 79 Cong.Rec. 7660.
28
The Wagner Act did not contain the 'good faith' qualification now written into the bargaining requirements of § 8(d), although this lack was remedied by early judicial interpretation which implied from former § 8(5), 49 Stat. 453, the requirement that an employer bargain in good faith. E.g., National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713. But apart from this essential check on the bargaining process, the Board possessed no statutory authority to regulate the substantive scope of the bargaining process insofar as lawful demands of the parties were concerned. Nevertheless, the Board engaged occasionally in the practice of determining that certain contract terms urged by unions were conditions of employment and thereby imposing on employers an affirmative duty to bargain as to such terms rather than insist upon their unilateral determination, e.g., Singer Mfg. Co., 24 N.L.R.B. 444, or conversely of determining that certain clauses were not conditions of employment and thereby prohibiting an employer from bargaining over them. E.g., Jasper Blackburn Products Corp., 21 N.L.R.B. 1240.
29
These early intrusions of the Board into the substantive aspects of the bargaining process became a matter of concern to Congress, and in the 1947 Taft-Hartley amendments to the Wagner Act, Congress took steps to curtail them by writing into § 8(d) the particular fields as to which it considered bargaining should be required. The bill originally passed by the House of Representatives contained a definition of the term 'collective bargaining' which restricted the area of compulsory negotiation to specified subjects, such as wages, hours, discharge or seniority provisions, safety conditions, and vacations. § 2(11), H.R. 3020, 80th Cong., 1st Sess. The House Report on this bill, submitted by its sponsor, noted that the suggested provision would require unions and employers to bargain collectively as to specified topics and would limit that area '* * * to matters of interest to the employer and to the individual man at work.' H.R.Rep. No. 245, 80th Cong., 1st Sess. 7. In explaining the need for specifying the topics over which bargaining was mandatory, and thereby establishing 'objective standards' for the Board to follow, the Report continues:
30
'* * * (T)he present Board has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make * * *. (Discussion of Board cases.)
31
'These cases show that unless Congress writes into the law guides for the Board to follow, the Board may attempt to carry this process still further and seek to control more and more the terms of collective-bargaining agreements.' Id., at 19—20.
32
The Senate amendment to the House bill recast these provisions to read in substantially the form of present § 8(d). That is, the Senate provisions contained no elaboration of compulsory bargaining topics, but used the general phrase: 'wages, hours, and other terms and conditions of employment.' In commenting on these changes, the managers of the House Conference appended a statement to the House Conference Report which observed:
33
'* * * (T)he Senate amendment, while it did not prescribe a purely objective test of what constituted collective bargaining, as did the House bill, had to a very substantial extent the same effect as the House bill in this regard, since it rejected, as a factor in determining good faith, the test of making a concession and thus prevented the Board from determining the merits of the positions of the parties.' H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 34.
34
The foregoing history evinces a clear congressional purpose to assure the parties to a proposed collective bargaining agreement the greatest degree of freedom in their negotiations, and to require the Board to remain as aloof as possible from regulation of the bargaining process in its substantive aspects.
35
The decision of this Court in 1952 in National Labor Relations Board v. American National Insurance Co., supra, was fully in accord with this legislative background in holding that the Board lacked power to order an employer to cease bargaining over a particular clause because such bargaining under the Board's view, entirely apart from a showing of bad faith, constituted per se an unfair labor practice. There an employer insisted during negotiations upon the union's acceptance of a 'management functions' clause which would vest exclusively in management during the period of the collective bargaining agreement the right to select, hire, and promote employees, to discharge for cause and maintain discipline, and to determine work schedules. The arguments advanced by the Board in that case in support of its conclusion that the employer had committed an unfair labor practice through its insistence on this clause were strikingly similar to those before us here. It was said that such a clause was 'in derogation of' statutory rights to bargain given to the employees, and that insistence upon it was tantamount to refusal to bargain as to all statutory subjects covered by it.
36
But this Court, in reversing the Board, emphasized that flexibility was an essential characteristic of the process of collective bargaining, and that whether the topics contained in the disputed clause should be allocated exclusively to management or decided jointly by management and union '* * * is an issue for determination across the bargaining table, not by the Board.' 343 U.S. at page 409, 72 S.Ct. at page 832, 96 L.Ed. 1027. It is true that the disputed clause related to matters which concededly were 'terms and conditions of employment,' but the broad rationale of the Court's opinion undercuts an attempt to distinguish the case on any such ground. 'Congress provided expressly that the Board should not pass upon the desirability of the substantive terms of labor agreements. * * * The duty to bargain collectively is to be enforced by application of the good faith bargaining standards of Section 8(d) to the facts of each case * * *.' 343 U.S. at pages 408—409, 72 S.Ct. at pages 831—832, 96 L.Ed. 1027.
37
I therefore cannot escape the view that today's decision is deeply inconsistent with legislative intention and this Court's precedents. The Act sought to compel management and labor to meet and bargain in good faith as to certain topics. This is the affirmative requirement of § 8(d) which the Board is specifically empowered to enforce, but I see no warrant for inferring from it any power in the Board to prohibit bargaining in good faith as to lawful matters not included in § 8(d). The Court reasons that such conduct on the part of the employer, when carried to the point of insistence, is in substance equivalent to a refusal to bargain as to the statutory subjects, but I cannot understand how this can be said over the Trial Examiner's unequivocal finding that the employer did in fact bargain in 'good faith,' not only over the disputed clauses but also over the statutory subjects.
38
It must not be forgotten that the Act requires bargaining, not agreement, for the obligation to bargain '* * * does not compel either party to agree to a proposal or require the making of a concession.' § 8(d). Here the employer concededly bargained but simply refused to agree until the union would accept what the Court holds would have been a lawful contract provision. It may be that an employer or union, by adamant insistence in good faith upon a provision which is not a statutory subject under § 8(d), does in fact require the other party to bargain over it. But this effect is traceable to the economic power of the employer or union in the circumstances of a given situation and should not affect our construction of the Act. If one thing is clear, it is that the Board was not viewed by Congress as an agency which should exercise its powers to aid a party to collective bargaining which was in an economically disadvantageous position.
39
The most cursory view of decisions of the board and the circuit courts under the National Labor Relations Act reveals the unsettled and evolving character of collective bargaining agreements. Provisions which two decades ago might have been thought to be the exclusive concern of labor or management are today commonplace in such agreements.1 The bargaining process should be left fluid, free from intervention of the Board leading to premature crystallization of labor agreements into any one pattern of contract provisions, so that these agreements can be adapted through collective bargaining to the changing needs of our society and to the changing concepts of the responsibilities of labor and management. What the Court does today may impede this evolutionary process. Under the facts of this case, an employer is precluded from attempting to limit the likelihood of a strike. But by the same token it would seem to follow that unions which bargain in good faith would be precluded from insisting upon contract clauses which might not be deemed statutory subjects within § 8(d).
40
As unqualifiedly stated in Labor Board v. American National Insurance Co., supra, 78 S.Ct. 727, it is through the 'good faith' requirement of § 8(d) that the Board is to enforce the bargaining provisions of § 8. A determination that a party bargained as to statutory or nonstatutory subjects in good or bad faith must depend upon an evaluation of the total circumstances surrounding any given situation. I do not deny that there may be instances where unyielding insistence on a particular item may be a relevant consideration in the over-all picture in determining 'good faith,' for the demands of a party might in the context of a particular industry be so extreme as to constitute some evidence of an unwillingness to bargain. But no such situation is presented in this instance by the 'ballot' clause. 'No-strike' clauses, and other provisions analogous to the 'ballot' clause limiting the right to strike, are hardly novel to labor agreements.2 And in any event the uncontested finding of 'good faith' by the Trial Examiner forecloses that issue here.
41
Of course an employer or union cannot insist upon a clause which would be illegal under the Act's provisions, National Labor Relations Board v. National Maritime Union, 2 Cir., 175 F.2d 686, or conduct itself so as to contravene specific requirements of the Act. Medo Photo Supply Corp. v. Labor Board, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007. But here the Court recognizes, as it must, that the clause is lawful under the Act,3 and I think it clear that the company's insistence upon it violated no statutory duty to which it was subject. The fact that the employer here did bargain with the union over the inclusion of the 'ballot' clause in the proposed agreement distinguishes this case from the situation involved in the Medo Photo Supply Corp. case, supra, where an employer, without the sanction of a labor agreement contemplating such action, negotiated directly with its employees in reference to wages. This Court upheld the finding of an unfair labor practice, observing that the Act '* * * makes it the duty of the employer to bargain collectively with the chosen representatives of his employees. The obligation being exclusive * * *, it exacts 'the negative duty to treat with no other." 321 U.S., at pages 683—684, 64 S.Ct. at page 833, 88 L.Ed. 1007. (Italics added.) Bargaining directly with employees '* * * would be subversive of the mode of collective bargaining which the statute has ordained * * *.' 321 U.S. at page 684, 64 S.Ct. at page 833. The important consideration is that the Act does not purport to define the terms of an agreement but simply secures the representative status of the union for purposes of bargaining. The controlling distinction from Medo Photo is that the employer here has not sought to bargain with anyone else over the terms of the agreement being negotiated.
II.
42
The company's insistence on the 'recognition' clause, which had the effect of excluding the International Union as a party signatory to agreement and making Local 1239 the sole contracting party on the union side, presents a different problem. In my opinion the company's action in this regard did constitute an unfair labor practice since it contravened specific requirements of the Act.
43
Section 8(a)(5) makes it an unfair labor practice for an employer not to bargain collectively 'with the representatives of his employees.' Such representatives are those who have been chosen by a majority of the employees of the appropriate unit, and they constitute '* * * the exclusive representatives of all the employees in such unit for the purposes of collective bargaining * * *.' § 9(a). The Board under § 9(c) is authorized to direct a representation election and certify its results. The employer's duty to bargain with the representatives includes not merely the obligation to confer in good faith, but also '* * * the execution of a written contract incorporating any agreement reached if requested * * *' by the employees' representatives. § 8(d). I think it hardly debatable that this language must be read to require the company, if so requested, to sign any agreement reached with the same representative with which it is required to bargain. By conditioning agreement upon a change in signatory from the certified exclusive bargaining representative, the company here in effect violated this duty.
44
I would affirm the judgment of the Court of Appeals in both cases and require the Board to modify its cease and desist order so as to allow the company to bargain over the 'ballot' clause.
1
'Sec. 8. (a) It shall be an unfair labor practice for an employer—
'(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).'
'Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment * * *.' 61 Stat. 140, 141, 143, 29 U.S.C. §§ 158(a)(5), 159(a), 29 U.S.C.A. §§ 158(a)(5), 159(a).
2
See § 8(d) as set forth in the text of the opinion, 356 U.S. 348, 78 S.Ct. 722.
3
'5. Responsibilities of the Company and the Union
'5.4 It is agreed by both the Company and the Union that it is their mutual intent to provide peaceful means for the settlement of all disputes that may arise between them. To assist both parties to carry out this intent in good faith, it is agreed that it is essential that three basic steps be taken with respect to each dispute, in order to permit the greatest opportunity for satisfactory settlement: such steps shall include (1) a clear definition of the issue or issues, officially made known to all employees in the bargaining unit; (2) a reasonable period of good faith bargaining on the issues as defined, after such issues have been made known to all employees in the bargaining unit; and (3) an opportunity for all employees in the bargaining unit to vote, by secret, impartially supervised, written ballot, on whether to accept or reject the Company's last offer, and on any subsequent offers made.
'5.5 It is mutually agreed that the definition of issues referred to in Section 5.4 will include the proposals and counter-proposals of each party; that the reasonable period of good faith bargaining referred to in Section 5.4 shall be at least 30 days, with full discussion of the issue taking place during that period; and that the secret written ballot referred to in Section 5.4 shall be supervised by a representative of the United States Mediation and Conciliation Serv-
ice, or by some other party mutually agreed upon by the Company and the Union. The Company and the Union further agree that such a ballot shall be taken on Company premises, at reasonable and convenient times, and with proper safeguards, similar to those observed in NLRB elections, being taken to insure freedom of choice and a fair election.
'5.6 It is further mutually agreed that if a majority of employees in the bargaining unit reject the Company's last offer, and the Company makes a subsequent offer within 72 hours from the time the results of the election are known, another secret, impartially supervised written ballot will be taken within the following 72 hours.
'5.7 It is further mutually agreed that the question of whether or not this Agreement is to be terminated is one of the issues subject to vote by such a secret, impartially supervised, written ballot.
'5.8 It is further mutually agreed that during the life of this Agreement the Company will not engage in any form of lockout, and the Union will not cause or permit the members of the bargaining unit to take part in any sit-down, stay-in, or slow-down, or any curtailment of work or restriction of production or interference with production, or take part in any strike or stoppage of any kind, or picket the plant, on any matter subject to arbitration, and not in any other matter, until all the bargaining procedure outlined in this Agreement, (including the Grievance Procedure, where applicable, and in all cases the three steps outlined in this Article), have been completely fulfilled.' 113 N.L.R.B. 1288, 1310—1311.
4
National Labor Relations Board v. Darlington Veneer Co., 4 Cir., 236 F.2d 85; National Labor Relations Board v. Corsicana Cotton Mills, 5 Cir., 178 F.2d 344. Cf. Allis-Chalmers Mfg. Co. v. National Labor Relations Board, 7 Cir., 213 F.2d 374.
5
See note 1, supra.
6
See §§ 201(c) and 203(c) of the Act, 61 Stat. 152, 154, 29 U.S.C. §§ 171(c) and 173(c), 29 U.S.C.A. §§ 171(c), 173(c).
1
A variety of topics have been held to be subjects over which an employer must bargain. E.g., Inland Steel Co. v. National Labor Relations Board, 7 Cir., 170 F.2d 247 (pension and retirement plans); Union Mfg. Co., 76 N.L.R.B. 322 (bonuses).
2
It was stipulated by the parties during hearings on the charge of unfair labor practices that collective bargaining agreements between several unions and companies have incorporated clauses requiring, in one form or another, secret ballots of employees before the union is able to call a strike. The clauses varied in defining employees to include only union members or all those working in the unit represented by the union and gave varying effect to the employee vote. The clause here involved does not purport to make the vote of the employees binding on the union.
3
I find no merit in the union's position that the 'ballot' clause is unlawful under the Act since in derogation of the representative status of the union. The statute and its legislative background undermine any such argument, for the Taft-Hartley Act incorporates in two sections provisions for a pre-strike ballot of employees and earlier drafts of the Act would have made an employee ballot mandatory as a condition precedent to all strikes.
'The Hartley bill, as passed by the House, provided that employees should be informed in writing of issues in dispute and that a secret ballot of employees should be held on the employer's last offer of settlement and on the question of a strike. Only if the employees rejected the last offer and voted to strike could the union authorize a strike. § 2(11), H.R. 3020, 80th Cong., 1st Sess. The Report on the bill states that '* * * at least the more irresponsible strikes * * * will be greatly reduced by requiring strike votes after each side has had an opportunity to state its position and to urge its fairness upon those called upon to do the striking.' H.R.Rep. No. 245, 80th Cong., 1st Sess. 22.
These mandatory provisions were later discarded, and in their place Congress enacted § 203(c) in Title II of the Taft-Hartley Act, 61 Stat. 154, 29 U.S.C. § 173(c), 29 U.S.C.A. § 173(c), under which the Director of the Federal Mediation and Conciliation Service is in certain situations to seek to induce the parties in dispute to agree voluntarily to an employee vote on the employer's last offer prior to a strike. In commenting on this change, the managers of the House Conference stated: 'While the vote on the employer's last offer by secret ballot is not compulsory as it was in the House bill, it is expected that this procedure will be extensively used and that it will have the effect of preventing many strikes which might otherwise take place.' H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 63. The inescapable conclusion in view of this legislative history is that Congress, instead of making the pre-strike ballot mandatory, intended to leave such ballot clauses to the decision of the parties to a labor agreement to be arrived at through the normal collective bargaining process. Cf. § 201(c) of Title II, 61 Stat. 152, 29 U.S.C. § 171(c), 29 U.S.C.A. § 171(c). There is a further provision for a pre-strike ballot in § 209(b) of Title II, 61 Stat. 156, 29 U.S.C. § 179(b), 29 U.S.C.A. § 179(b), which relates to disputes which imperil national health or safety.
| 67
|
356 U.S. 363
78 S.Ct. 766
2 L.Ed.2d 837
Oleta O'Connor YATES, Petitioner,v.UNITED STATES of America.
No. 841.
Decided May 5, 1958.
Messrs.
Ben Margolis, and Leo Branton, Jr., Los Angeles, Cal., for petitioner.
Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondent.
PER CURIAM.
1
This case has a long history, the course of which must be summarized for understanding of the Court's disposition. On July 26, 1951, petitioner was arrested for conspiracy to violate the Smith Act, 18 U.S.C. §§ 371, 2385, 18 U.S.C.A. §§ 371, 2385, and was released on furnishing $7,500 bail. On the following day bail was increased to $50,000 pending transfer of the proceedings to a different city and petitioner was recommitted. On August 2 petitioner was arraigned, and several days later bail was set at $25,000. Petitioner's writ of habeas corpus seeking a reduction of bail was dismissed. The district judge who had fixed bail was disqualified, see Connelly v. United States District Court 9 Cir., 191 F.2d 692, and the district judge whose sentence is now under review was assigned to the case. On motion of the Government, the court increased bail to $50,000 on August 30; petitioner's motion to reduce bail and her petition for a writ of habeas corpus were denied; on review of the denial of habeas corpus, the Court of Appeals affirmed, Stack v. Boyle 9 Cir., 192 F.2d 56. This Court, however, found that bail had 'not been fixed by proper methods' and remitted the case for the proper remedy of a motion to reduce bail, Stack v. Boyle 342 U.S. 1, 7, 72 S.Ct. 1, 4, 96 L.Ed. 3. The District Court denied such motion by petitioner, United States v. Schneiderman, 102 F.Supp. 52; on appeal, the Court of Appeals ordered bail set at $10,000. Stack v. United States, 9 Cir., 193 F.2d 875. Shortly thereafter, on December 10, 1951, petitioner, having been found to have been imporperly confined since August 30 of that year, was released on bail.
2
The trial under the conspiracy indictment began on February 5, 1952. Testifying in her own defense, petitioner on cross-examination on June 26 refused to answer four questions about Communist membership of other persons; she was adjudged guilty of civil contempt and committed to jail until the contempt had been purged. On June 30 she refused to answer eleven questions about Communist membership of other persons; the court announced its intention to treat these refusals as criminal contempt. At the conclusion of the trial petitioner was found guilty of conspiracy to violate the Smith Act and was sentenced to serve five years' imprisonment and to pay a $10,000 fine. The District Court denied bail pending appeal of the conspiracy conviction; on application to the Court of Appeals to fix bail, the case was remanded to the District Court, which again denied bail. United States v. Schneiderman, 106 F.Supp. 941. The Court of Appeals then fixed bail at $20,000, and on August 30 petitioner, upon furnishing that amount, was released from custody, having been in jail since June 26. The conspiracy conviction was later affirmed by the Court of Appeals, 9 Cir., 225 F.2d 146, but reversed by this Court, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. The indictment was eventually dismissed on motion of the Government.
3
Petitioner had in the meantime, on August 8, 1952, been adjudged guilty of eleven criminal contempts for her eleven refusals to answer on June 30, and she was sentenced by the District Court to eleven one-year terms of imprisonment, to run concurrently and to commence upon the completion of petitioner's imprisonment for the conspiracy. It is as to this sentence that review is sought here today.
4
On September 3, 1952, four days after petitioner's release from custody, the District Court ordered her recommitted on the civil contempt arising out of the four refusals to answer on June 26. 107 F.Supp. 408. The District Court denied her application for bail pending appeal, but the Court of Appeals granted it, and she was released two days after her commitment; the Court of Appeals subsequently reversed the recommitment order of the District Court on the ground that petitioner should not have been reconfined for civil contempt after the close of the main trial. ,9 Cir., 227 F.2d 844. Two days after her release on bail, on September 8, petitioner was adjudged guilty of criminal contempt for the four June 26 refusals and sentenced to four three-year terms of imprisonment, to run concurrently. 107 F.Supp. 412. Petitioner was then reconfined; the District Court denied her bail pending appeal, but the Court of Appeals granted it, and she was released on bail three days after her recommitment. The Court of Appeals subsequently reversed this contempt judgment because of the District Court's failure to give any notice that it intended to regard the June 26 refusals as criminal contempts, 9 Cir., 227 F.2d 848.
5
Petitioner appealed her conviction of criminal contempt for the eleven refusals to answer on June 30; the Court of Appeals affirmed. 9 Cir., 227 F.2d 851. This Court held that there was but one contempt, not eleven, and that a sentence for only one offense could be imposed. Accordingly, we vacated the one-year sentence for that one conviction and remanded the case to the District Court for determination of a new sentence appropriate in view of our setting aside of the punishment for eleven offenses when in fact only one was legally established. 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95. On remand, the District Court, after hearing, resentenced petitioner to one year's imprisonment. The court denied petitioner bail pending appeal; the Court of Appeals ordered her admitted to bail in the amount of $5,000, 9 Cir., 252 F.2d 568, and she was released after fifteen days' confinement. The Court of Appeals affirmed the judgment of the District Court, noting that the sentence was 'severe.' Ibid.
6
Reversing a judgment for contempt because of errors of substantive law may naturally call for a reduction of the sentence based on an extent of wrongdoing found unsustainable in law. Such reduction of the sentence, however, normally ought not be made by this Court. It should be left, on remand, to the sentencing court. And so, when this Court found that only a single offense was committed by petitioner, and not eleven offenses, it chose not to reduce the sentence but to leave this task, with gentle intimations of the necessity for such action, to the District Court. However, when in a situation like this the District Court appears not to have exercised its discretion in the light of the reversal of the judgment but, in effect, to have sought merely to justify the original sentence, this Court has no alternative except to exercise its supervisory power over the administration of justice in the lower federal courts by setting aside the sentence of the District Court.
7
Although petitioner's conviction under the Smith Act, the substantive offense out of which this subsidiary matter arose, was reversed on appeal and the indictment itself dismissed on motion of the Government, she has in fact spent seven months in jail in the course of these proceedings. Not unmindful of petitioner's offense, this Court is of the view, exercising the judgment that we are now called upon to exercise, that the time that petitioner has already served in jail is an adequate punishment for her offense in refusing to answer questions and is to be deemed in satisfaction of the new sentence herein ordered formally to be imposed. Accordingly, the writ of certiorari is granted, and the judgment of the Court of Appeals is vacated and the cause remanded to the District Court with directions to reduce the sentence to the time petitioner has already been confined in the course of these proceedings.
8
It is so ordered.
9
Cause remanded with directions.
10
The CHIEFT JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS concur in the result for reasons set out in their dissents in Yates v. United States, 355 U.S. 66, 76, 78 S.Ct. 128, 134, 2 L.Ed.2d 95, and Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, but under constraint of the Court's holdings in those cases they acquiesce in the opinion here.
11
Mr. Justice CLARK, with whom Mr. Justice BURTON and Mr. Justice WHITTAKER concur, dissenting.
12
It is for us to say whether the one-year sentence was improper rather than to pass on the adequacy of time already served on other judgments. Petitioner has served but 15 days on this sentence, and I therefore dissent from the judgment releasing her.
| 01
|
356 U.S. 464
78 S.Ct. 829
2 L.Ed.2d 913
William HOAG, Petitioner,v.The STATE OF NEW JERSEY.
No. 40.
Argued Nov. 19, 1957.
Decided May 19, 1958.
Mr. Robert E. Knowlton, Camden, for the petitioner.
Mr. David D. Furman, Trenton, for the respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In this case we are asked to set aside, under the Due Process Clause of the Fourteenth Amendment, a state conviction secured under somewhat unusual circumstances.
2
On June 26, 1951, a Bergen County, New Jersey, grand jury returned three indictments against the petitioner charging that on September 20, 1950, in concert with two others, he robbed three individuals, Cascio, Capezzuto and Galiardo, at Gay's Tavern in Fairview, New Jersey. These indictments were joined for trial. The State called five witnesses: the three victims named in the indictment, and two other persons, Dottino and Yager. Dottino and Yager were also victims of the robbery, but they were not named in the indictment. All the witnesses, after stating that they were in Gay's Tavern on September 20, testified to the elements of a robbery as defined in the New Jersey statute:1 that they were put in fear and that property was taken from their persons. The petitioner, who claimed that he was not at the tavern on the fateful day and testified to an alibi, was the sole witness for the defense. Although Galiardo and Dottino had both identified petitioner from a photograph during the police investigation, only one of the witnesses, Yager, identified him at the trial as one of the robbers. On May 27, 1952, the jury acquitted the petitioner on all three indictments.
3
Subsequently, on July 17, 1952, another Bergen County grand jury returned a fourth indictment against petitioner, which was the same as the first three in all respects except that it named Yager as the victim of the robbery at Gay's Tavern. At the trial upon this indictment the State called only Yager as a witness, and he repeated his earlier testimony identifying petitioner. The defense called Cascio, Capezzuto, Galiardo and Dottino, and they each once again testified either that petitioner was not one of the robbers or that a positive identification was not possible. Petitioner repeated his alibi. This time the jury returned a verdict of guilty. The conviction was sustained on appeal in both the Superior Court of New Jersey, 35 N.J.Super. 555, 114 A.2d 573, and the Supreme Court of New Jersey, 21 N.J. 496, 122 A.2d 628. We granted certiorari to consider petitioner's claim, timely raised below, that he was deprived of due process. 352 U.S. 907, 77 S.Ct. 150, 1 L.Ed.2d 116.
4
Petitioner contends that the second prosecution growing out of the Gay's Tavern robberies infringed safeguards of the Double Jeopardy Clause of the Fifth Amendment which are 'implicit in the concept of ordered liberty' and that these safeguards as such are carried over under the Fourteenth Amendment as restrictions on the States. Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. More particularly, it is said that petitioner's trial for the robbery of Yager, following his previous acquittal on charges of robbing Cascio, Capezzuto, and Galiardo, amounted to trying him again on the same charges. However, in the circumstances shown by this record, we cannot say that petitioner's later prosecution and conviction violated due process.
5
At the outset it should be made clear that petitioner has not been twice put in jeopardy for the same crime. The New Jersey courts, in rejecting his claim that conviction for robbing Yager violated the Double Jeopardy Clause of the State Constitution,2 have construed the New Jersey statute as making each of the four robberies, though taking place on the same occasion, a separate offense. This construction was consistent with the usual New Jersey rule that double jeopardy does not apply unless the same evidence necessary to sustain a second indictment would have been sufficient to secure a conviction on the first. See State v. Di Giosia, 3 N.J. 413, 419, 70 A.2d 756, 759; State v. Labato, 7 N.J. 137, 144, 80 A.2d 617, 620. Certainly nothing in the Due Process Clause prevented the State from making that construction.
6
But even if it was constitutionally permissible for New Jersey to punish petitioner for each of the four robberies as separate offenses, it does not necessarily follow that the State was free to prosecute him for each robbery at a different trial. The question is whether this case involved an attempt 'to wear the accused out by a multitude of cases with accumulated trials.' Palko v. State of Connecticut, supra, 302 U.S. at page 328, 58 S.Ct. at page 153.3
7
We do not think that the Fourteenth Amendment always forbids States to prosecute different offenses at consecutive trials even though they arise out of the same occurrence. The question in any given case is whether such a course has led to fundamental unfairness. Of course, it may very well be preferable practice for a State in circumstances such as these normally to try the several offenses in a single prosecution, and recent studies of the American Law Institute have led to such a proposal. See Model Penal Code § 1.08(2) (Tent.Draft.No.5, 1956).4 But it would be an entirely different matter for us to hold that the Fourteenth Amendment always prevents a State from allowing different offenses arising out of the same act or transaction to be prosecuted separately, as New Jersey has done.5 For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice. See Hurtado v. State of People of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 494, 44 L.Ed. 597; West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. In the last analysis, a determination whether an impermissible use of multiple trials has taken place cannot be based on any overall formula. Here, as elsewhere, 'The pattern of due process is picked out in the facts and circumstances of each case.' Brock v. State of North Carolina, 344 U.S. 424, 427—428, 73 S.Ct. 349, 350—351, 97 L.Ed. 456. And thus, without speculating as to hypothetical situations in which the Fourteenth Amendment might prohibit consecutive prosecutions of multiple offenses, we reach the conclusion that the petitioner in this case was not deprived of due process.
8
In Brock v. State of North Carolina, supra, this Court upheld a state conviction against a somewhat similar claim of denial of due process. In Brock two of the State's key witnesses had previously been tried and convicted of crimes arising out of the same transaction which formed the basis of the charge against the petitioner. Before judgments were entered on their convictions they were called by the State of testify at petitioner's trial. Because of their intention to appeal their convictions and the likelihood of a new trial in the event of reversal, the two witnesses declined to testify at petitioner's trial on the ground that their answers might be self-incriminatory. At this point the States was granted a mistrial upon its representation that the evidence of the two witnesses was necessary to its case and that it intended to procure their testimony at a new trial of the petitioner. This Court held that a second trial of the petitioner did not violate due process.
9
Remembering that the Yager robbery constituted a separate offense from the robberies of the other victims, we find no basis for a constitutional distinction between the circumstances which led to the retrial in Brock and those surrounding the subsequent indictment and trial in the present case. It is a fair inference from the record before us that the indictment and trial on the charge of robbing Yager resulted from the unexpected failure of four of the State's witnesses at the earlier trial to identify petitioner, after two of these witnesses had previously identified him in the course of the police investigation. Indeed, after the second of the two witnesses failed to identify petitioner, the State pleaded surprise and attempted to impeach his testimony. We cannot say that, after such an unexpected turn of events, the State's decision to try petitioner for the Yager robbery was so arbitrary or lacking in justification that it amounted to a denial of those concepts constituting "the very essence of a scheme of ordered justice,' which is due process.' Brock v. State of North Carolina, supra, 344 U.S. at page 428, 73 S.Ct. at page 351. Thus, whatever limits may confine the right of a State to institute separate trials for concededly different criminal offenses, it is plain to us that these limits have not been transgressed in this case.
10
Petitioner further contends that his conviction was constitutionally barred by 'collateral estoppel.' His position is that because the sole disputed issue in the earlier trial related to his identification as a participant in the Gay's Tavern robberies, the verdict of acquittal there must necessarily be taken as having resolved that issue in his favor. The doctrine of collateral estoppel, so the argument runs, is grounded in considerations of basic fairness to litigants, and thus for a State to decline to apply the rule in favor of a criminal defendant deprives him of due process. Accordingly, it is claimed that New Jersey could not relitigate the issue of petitioner's 'identity,' and is thus precluded from convicting him of robbing Yager.
11
A common statement of the rule of collateral estoppel is that 'where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action.' Restatement, Judgments, § 68(1). As an aspect of the broader doctrine of res judicata, collateral estoppel is designed to eliminate the expense, vexation, waste, and possible inconsistent results of duplicatory litigation. See Developments in the Law—Res Judicata, 65 Harv.L.Rev. 818, 820. Although the rule was originally developed in connection with civil litigation, it has been widely employed in criminal cases in both state and federal courts. See, e.g., Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980; Commonwealth v. Evans, 101 Mass. 25; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161; Sealfon v. United States, 332 U.S. 575, 68 § .Ct. 237, 92 L.Ed. 180; cf. Yates v. United States, 354 U.S. 298, 335, 77 S.Ct. 1064, 1085, 1 L.Ed.2d 1356.
12
Despite its wide employment, we entertain grave doubts whether collaterial estoppel can be regarded as a constitutional requirement. Certainly this Court has never so held. However, we need not decide that question, for in this case, New Jersey both recognized the rule of collateral estoppel and considered its applicability to the facts of this case. The state court simply ruled that petitioner's previous acquittal did not give rise to such an estoppel because 'the trial of the first three indictments involved several questions, not just (petitioner's) identity, and there is no way of knowing upon which question the jury's verdict turned.' 21 N.J. at page 505, 122 A.2d at page 632. Possessing no such corrective power over state courts as we do over the federal courts, see Watts v. State of Indiana, 338 U.S. 49, 50, note 1, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801, we would not be justified in substituting a different view as to the basis of the jury's verdict.
13
It is of course true that when necessary to a proper determination of a claimed denial of constitutional rights this Court will examine the record in a state criminal trial and is not foreclosed by the conclusion of the state court. Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 328, 95 L.Ed. 267, 280; Feiner v. People of State of New York, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 267. But this practice has never been thought to permit us to overrule state courts on controverted or fairly debatable factual issues. 'On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple.' Watts v. State of Indiana, supra, 338 U.S. at pages 50 51, 69 S.Ct. at page 1348.
14
In this case we are being asked to go even further than to overrule a state court's findings on disputed factual issues. For we would have to embark on sheer speculation in order to decide that the jury's verdict at the earlier trial necessarily embraced a determination favorable to the petitioner on the issue of 'identity.' In numerous criminal cases both state and federal courts have declined to apply collateral estoppel because it was not possible to determine with certainty which issues were decided by the former general verdict of acquittal. See, e.g., People v. Rogers, 102 Misc. 437, 170 N.Y.S. 86; State v. Erwin, 101 Utah 365, 422—424, 120 P.2d 285, 312—313; United States v. Halbrook, D.C., 36 F.Supp. 345. Keeping in mind the fact that jury verdicts are sometimes inconsistent or irrational, see, e.g., Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356; United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, we cannot say that the New Jersey Supreme Court exceeded constitutionally permissible bounds in concluding that the jury might have acquitted petitioner at the earlier trial because it did not believe that the victims of the robbery had been put in fear, or that property had been taken from them, or for other reasons unrelated to the issue of 'identity.' For us to try to outguess the state court on this score would be wholly out of keeping with the proper discharge of our difficult and delicate responsibilities under the Fourteenth Amendment in determining whether a State has violated the Federal Constitution.
15
Finally, in the circumstances shown by this record, we cannot hold that petitioner was denied a 'speedy trial' on the Yager indictment, whatever may be the reach of the Sixth Amendment under the provisions of the Fourteenth.6 And we need hardly add that the sufficiency of the evidence to support the identification of the petitioner as one of the Gay's Tavern robbers is a matter solely within the province of the state courts.
16
Affirmed.
17
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
18
Mr. Chief Justice WARREN, dissenting.
19
I think the undisputed facts disclosed by this record plainly show that the conviction of this petitioner has been obtained by use of a procedure inconsistent with the due process requirements of the Fourteenth Amendment. These are the facts: On Sept. 20, 1950, three armed men entered a tavern in Fairview, New Jersey, lined up five persons against a wall and robbed each of them. Petitioner alone was charged in three indictments with robbery of three of these five victims. The three indictments were joined for trial. At his trial, petitioner put only one fact in issue—whether or not he was one of the men who had committed the robbery. All five victims testified for the State on this issue. Three said petitioner was not the man; one said he could not swear that petitioner was the man; one made a positive identification of petitioner. Petitioner's sole defense was an alibi. He sought to establish his presence elsewher at the time of the robbery. The jury heard all the evidence, duly deliberated, and found petitioner not guilty. Thereafter, petitioner was indicted and tried for the robbery of victim number four. This time, only the victim who had identified petitioner as one of the robbers at the first trial was called by the State as a witness. The other four victims testified for the defense. All five testified substantially as at the first trial. Again, the only contested issue was whether petitioner was one of the three robbers. Again, petitioner testified that he was in New York City at the time of the robbery. This time the jury found petitioner guilty.
20
The issue is whether or not this determination of guilt, based as it is on the successive litigation of a single issue that had previously been resolved by a jury in petitioner's favor, is contrary to the requirements of fair procedure guaranteed by the Due Process Clause of the Fourteenth Amendment. The issue is not whether petitioner has technically committed five offenses, nor whether he could receive a total of five punishments had he been convicted in a single trial of robbing five victims.
21
Few would dispute that after the first jury had acquitted petitioner of robbing the first three victims, New Jersey could not have retried petitioner on the identical charge of robbing these same three persons. After a jury of 12 had heard the conflicting testimony of the five victims on the issue of the robber's identity and concluded that at least a reasonable doubt existed as to whether petitioner was one of the robbers, the same evidence could not be presented to 12 new jurors in the hope that they would come to a different conclusion. I fail to see how the unconstitutionality of that procedure is altered one whit by the fact that the new indictment, brought in this case after petitioner's acquittal, relates to a different victim of the same robbery. The name of the particular victim specified in the indictment has absolutely no bearing on the issue of the robber's identity. The vice of this procedure lies in relitigating the same issue on the same evidence before two different juries with a man's innocence or guilt at stake. This taints the second trial, whether the new indictment charges robbery of the same or different victims.
22
The Court finds it unnecessary to come to grips with this problem, because it elects to defer to the appraisal of the record made by a 4—3 majority of the New Jersey Supreme Court. That court concluded that the first trial raised issues other than identity of the robber, thus making it impossible to say that the jury's verdict of acquittal resolved the issue of identity favorably to petitioner. This Court now concludes that the state court's appraisal of the record was a resolution of the sort of 'factual issue' that is normally not open for reconsideration by this Court. But "issue of fact' is a coat of many colors.' Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801. In my view the issue posed here is not a 'fact issue' at all. The facts are clear and undisputed. The problem is to judge their legal significance. And since the claim of a denial of due process depends on an evaluation of the signifiance of these undisputed facts, the task of making that evaluation is inescapably the function of this Court. Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 328, 95 L.Ed. 267, 280; Watts v. State of Indiana, supra; Fay v. People of State of New York, 332 U.S. 261, 272, 67 S.Ct. 1613, 1619, 91 L.Ed. 2043.
23
Assessing the significance of a jury verdict in some criminal cases may involve, as the Court terms it, 'sheer speculation.' But the records of other trials are such as to indicate plainly, when 'viewed with an eye to all the circumstances of the proceedings,' Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180, that a jury verdict of acquittal is determinative of a particular issue that was contested at that trial. This Court unanimously found the record in Sealfon v. United States, supra, sufficient to justify such a conclusion. Cf. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534. Other courts have similarly evaluated trial records and come to the same conclusion in situations where, precisely as in the instant case, the sole contested issue was the identity of the criminal. United States v. De Angelo, 3 Cir., 138 F.2d 466; Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980; People v. Grzesczak, 77 Misc. 202, 137 N.Y.S. 538. Of course, such a review of the record cannot tell us in fact what was in the mind of each juror. This we would not know even if the issue of the robber's identity in this case had been submitted to the jury as a special interrogatory, for an answer in petitioner's favor might reflect a wide assortment of 'facts' believed by each juror. But because a court cannot say with certainty what was in the mind of each juror is no reason for declining to examine a record to determine the manifest legal significance of a jury's verdict.
24
Evaluating the record in this case requires no speculation. The only contested issue was whether petitioner was one of the robbers. The proof of the elements of the crime of robbery was overwhelming and was not challenged. The suggestion that the jury might have acquitted because of a failure of proof that property was taken from the victims is simply unrealistic. The guarantee of a constitutional right should not be denied by such an artificial approach. The first jury's verdict of acquittal is merely an illusion of justice if its legal significance is not a determination that there was at least a reasonable doubt whether petitioner was present at the scene of the robbery.
25
The Court's effort to enlist Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456, in aid of the conclusions reached is, in my view, entirely unwarranted. In that case a trial was halted before completion when two state witnesses unexpectedly invoked their privilege against self-incrimination and declined to testify. Upon a motion by the prosecutor, a mistrial was declared. On retrial, the defendant was convicted, and this Court affirmed. Whatever view one might take of the correctness of that decision, its holding should not be expanded to cover the situation here. The obvious difference between that case and this is that Brock does not involve determination of the same issue by two different juries. At the first Brock trial, the case never went to the jury. Here, however, the prosecution did not ask for a mistrial when its own witnesses failed to give expected testimony. Instead, the State proceeded to the conclusion of the trial, and the issue of guilt, which turned solely on the issue of identity, went to the jury. The verdict was in petitioner's favor. The trial was free of error. To convict petitioner by litigating this issue again before 12 different jurors is to employ a procedure that fails to meet the standard required by the Fourteenth Amendment.
26
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
27
We recently stated in Green v. United States, 355 U.S. 184, 190, 79 S.Ct. 221, 225, 2 L.Ed.2d 199, that by virtue of the constitutional protection against double jeopardy an accused can be forced to 'run the gantlet' but once on a charge. That case, involving a federal prosecution, provides for me the standard for every state prosecution as well, and by that standard this judgment of conviction should be reversed.1
28
Hoag is made to run the gantlet twice. The facts are simple. Five men—Cascio, Capezzuto, Galiardo, Dottino, and Yager—were together at Gay's Tavern when three armed men entered and robbed them. Petitioner was indicted and tried for the offenses of robbing three of the five.
29
One indispensable element of the crime was the taking of property 'by violence or putting him in fear,' as provided by the New Jersey statute defining robbery. N.J.Stat.Ann.1939, 2:166—1.2 The critical evidence was petitioner's alibi: He claimed to be at another place at the time. One witness, however, identified him as one of the robbers. The jury acquitted. Then petitioner was indicted for robbing one of the remaining five named individuals. The criminal transaction, unlike that in Burton v. United States, 202 U.S. 344, 378, 26 S.Ct. 688, 697, 50 L.Ed. 1057, was indivisible. The time and place were the same.3 The central issue was the same, for, as stated by Justice Heher, dissenting, below, '* * * here the assaults were simultaneous, the putting in fear was but a single act or offense operating alike upon all the victims of the felonious endeavor at the same time.' 21 N.J. at page 510, 122 A.2d at page 635. The basic facts canvassed were the same. Petitioner's alibi was tendered once more. The testimony of the selfsame witness identifying petitioner as one of the robbers was introduced. This time petitioner was convicted.
30
The resolution of this crucial alibi issue in favor of the prosecution was as essential to conviction in the second trial as its resolution in favor of the accused was essential to his acquittal in the first trial. Since petitioner was placed in jeopardy once and found not to have been present or a participant, he should be protected from further prosecution for a crime growing out of the identical facts and occurring at the same time.4
31
Hoag was once made to 'run the gantlet' on whether he was present when the violence and putting in fear occurred. Having once run that gantlet successfully, he may not be compelled to run it again.5
1
Section 2:166—1 of the Revised Statutes of New Jersey, under which petitioner was indicted, provided:
'Any person who shall forcibly take from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear * * * shall be guilty * * *.' This section was subsequently repealed and substantially re-enacted. N.J.Stat.Ann.1953, § 2A:141—1.
2
Article I, par. 11, of the New Jersey Constitution provides in part that 'No person shall, after acquittal, be tried for the same offense.'
3
Indeed, the New Jersey Superior Court recognized this problem under the double jeopardy clanse of the State Constitution when it said in the present case: 'Assuredly our prosecutors are aware that the concept of double jeopardy is designed to prevent the government from unduly harassing an accused, and we are confident that they will not resort unfairly to multiple indictments and successive trials in order to accomplish indirectly that which the constitutional interdiction precludes.' 35 N.J.Super. at pages 561—562, 114 A.2d at page 577.
4
See also Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805; Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513; Gershenson, Res Judicata in Successive Criminal Prosecutions, 24 Brooklyn L.Rev. 12.
5
The New Jersey Rules in force during 1952 provided:
'(Rule) 2:4—15 Joinder of Offenses (now Revised Rule 3:4—7):
'Two or more offenses may be charged in the same indictment or accusation in a separate court for each offense if the offenses charged, whether high misdemeanors or misdemeanors or both are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.'
'(Rule) 2:5—4 Trial of Indictments or Accusations Together (now Revised Rule 3:5—6):
'The court may order two or more indictments or accusations to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment or accusation.'
6
The robbery at Gay's Tavern occurred on September 20, 1950. On September 23 or 24, 1950, petitioner absconded from parole in New York. He was arrested on November 20, 1950, and returned to prison in New York, where he remained until January 12, 1952, when he was transferred to the Bergen County jail in New Jersey. In the meantime, on June 26, 1951, the Bergen County grand jury returned indictments charging petitioner with the robberies of Cascio, Capezzuto and Galiardo. These were tried together, at petitioner's first trial, on May 26 and 27, 1952. Following his acquittal petitioner was returned to New York to complete his sentence, and he was in a New York prison on July 17, 1952, when the Bergen County grand jury returned the indictment charging him with the robbery of Yager. New Jersey reacquired petitioner by extradition on May 11, 1954. The second trial was held on October 18, 1954, at the next term of the Bergen County Court, which was not in session for criminal trials during the summer months. It thus appears that a substantial portion of the time elapsing prior to petitioner's trial on the Yager indictment can be accounted for by his incarceration in New York.
1
See Brock v. State of North Carolina, 344 U.S. 424, 440, 73 S.Ct. 349, 357 (dissenting opinion).
2
This section has been repealed and reenacted in substantially the same form. N.J.Stats.Ann.1953, 2A:141—1.
3
Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, arose in the Philippines under an Act of Congress which applied to the Islands the protection of double jeopardy. Petitioner was first convicted of being drunk and indecent in a public place, an offense under an ordinance of Manila. Then he was convicted a second time for insulting a public official, a crime under the penal code of the Islands. The acts and words charged in the second prosecution were the same as those charged in the first. The Court sustained the second conviction, Mr. Justice Harlan dissenting, on the grounds that while 'the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other.' Id., 220 U.S. at page 345, 31 S.Ct. at page 423. This case appears contrary to the position I take here. But it, like other cases arising under the laws of the Philippine Islands prior to their independence, has not been deemed an authoritative construction of the constitutional provision. See Green v. United States, supra, 355 U.S. at pages 194—198, 78 S.Ct. at pages 227—229.
4
In 1912, a New York court, under almost identical circumstances, stated:
'The only litigated question of fact on both these indictments is the presence of the accused when these crimes were committed. That question having been once decided, it cannot again be tried. Should the jury in this case find the defendant guilty under the defense herein interposed, that of an alibi, we would be confronted with two incompatible verdicts, which would amount to a finding on the one hand that the defendant was not present, and on the other hand that he was present.' People v. Grzesczak, 77 Misc. 202, 206, 137 N.Y.S. 538, 541.
Or, as Chitty said:
'It is not, in all cases, necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other.' 1 Chitty, Criminal Law (5th Am. ed. 1847), 455.
To like effect is State v. Shepard, 7 Conn. 54, 55—56,
'He has been convicted of an assault, with an attempt to commit a rape; for this he has been punished. Of these facts he has been found guilty; and they must be alleged, and proved, to convict him of a rape. But for these facts he cannot be tried again; otherwise, he might be twice punished for the same fact.'
And see State v. Cooper, 13 N.J.L. 361; State v. Labato, 7 N.J. 137, 80 A.2d 617; Commonwealth v. Roby, 12 Pick. 496, 504 505, 29 Mass. 496, 504—505.
5
The result I reach does not square with Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Palko was indicted for the crime of murder in the first degree and was found guilty by a jury of murder in the second degree. He was sentenced to confinement for life. Pursuant to a state statute, the prosecution appealed and obtained a reversal and a new trial. This time Palko was convicted of murder in the first degree and sentenced to death. That is a decision under the Double Jeopardy Clause with which I do not agree since Palko was forced to face the risk of the death penalty twice on the same evidence and the same charge.
| 01
|
356 U.S. 525
78 S.Ct. 893
2 L.Ed.2d 953
James Earl BYRD, Petitioner,v.BLUE RIDGE RURAL ELECTRIC COOPERATIVE, Inc.
No. 57.
Reargued April 28, 29, 1958.
Decided May 19, 1958.
Rehearing Denied June 23, 1958.
See 357 U.S. 933, 78 S.Ct. 1366.
Mr. Henry Hammer, Columbia, S.C., for petitioner.
Messrs. Wesley M. Walker and Ray R. Williams, Greenville, S.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case was brought in the District Court for the Western District of South Carolina. Jurisdiction was based on diversity of citizenship. 28 U.S.C. § 1332, 28 U.S.C.A. § 1332. The petitioner, a resident of North Carolina, sued respondent, a South Carolina corporation, for damages for injuries allegedly caused by the respondent's negligence. He had judgment on a jury verdict. The Court of Appeals for the Fourth Circuit reversed and directed the entry of judgment for the respondent. 238 F.2d 346. We granted certiorari, 352 U.S. 999, 77 S.Ct. 557, 1 L.Ed.2d 544, and subsequently ordered reargument, 355 U.S. 950, 78 S.Ct. 530, 2 L.Ed.2d 527.
2
The respondent is in the business of selling electric power to subscribers in rural sections of South Carolina. The petitioner was employed as a lineman in the construction crew of a construction contractor. The contractor, R. H. Bouligny, Inc., held a contract with the respondent in the amount of $334,300 for the building of some 24 miles of new power lines, the reconversion to higher capacities of about 88 miles of existing lines, and the construction of 2 new substations and a breaker station. The petitioner was injured while connecting power lines to one of the new substations.
3
One of respondent's affirmative defenses was that under the South Carolina Workmen's Compensation Act,1 the petitioner—because the work contracted to be done by his employer was work of the kind also done by the respondent's own construction and maintenance crews—had the status of a statutory employee of the respondent and was therefore barred from suing the respondent at law because obliged to accept statutory compensation benefits as the exclusive remedy for his injuries.2 Two questions concerning this defense are before us: (1) whether the Court of Appeals erred in directing judgment for respondent without a remand to give petitioner an opportunity to introduce further evidence; and (2) whether petitioner, state practice notwithstanding, is entitled to a jury determination of the factual issues raised by this defense.
I.
4
The Supreme Court of South Carolina has held that there is no particular formula by which to determine whether an owner is a statutory employer under § 72—111. In Smith v. Fulmer, 198 S.C. 91, 97, 15 S.E.2d 681, 683, the State Supreme Court said:
5
'And the opinion in the Marchbanks case (Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825, said to be the 'leading case' under the statute) reminds us that while the language of the statute is plain and unambiguous, there are so many different factual situations which may arise that no easily applied formula can be laid down for the determination of all cases. In other words, 'it is often a matter of extreme difficulty to decide whether the work in a given case falls within the designation of the statute. It is in each case largely a question of degree and of fact."
6
The respondent's manager testified on direct examination that three of its substations were built by the respondent's own construction and maintenance crews. When pressed on cross-examination, however, his answers left his testimony in such doubt as to lead the trial judge to say, 'I understood he changed his testimony, that they had not built three.' But the credibility of the manager's testimony, and the general question whether the evidence in support of the affirmative defense presented a jury issue, became irrelevant because of the interpretation given § 72—111 by the trial judge. In striking respondent's affirmative defense at the close of all the evidence3 he ruled that the respondent was the statutory employer of the petitioner only if the construction work done by respondent's crews was done for somebody else, and was not the statutory employer if, as the proofs showed, the crews built facilities only for the respondent's own use. 'My idea of engaging in the business is to do something for somebody else. What they (the respondent) are doing—and everything they do about repairing lines and building substations, they do it for themselves.' On this view of the meaning of the statute, the evidence, even accepting the manager's testimony on direct examination as true, lacked proof of an essential element of the affirmative defense, and there was thus nothing for the petitioner to meet with proof of his own.
7
The Court of Appeals disagreed with the District Court's construction of § 72—111. Relying on the decisions of the Supreme Court of South Carolina, among others, in Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825, and Boseman v. Pacific Mills, 193 S.C. 479, 8 S.E.2d 878, the Court of Appeals held that the statute granted respondent immunity from the action if the proofs established that the respondent's own crews had constructed lines and substations which, like the work contracted to the petitioner's employer, were necessary for the distribution of the electric power which the respondent was in the business of selling. We ordinarily accept the interpretation of local law by the Court of Appeals, cf. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520, and do so readily here since neither party now disputes the interpretation.
8
However, instead of ordering a new trial at which the petitioner might offer his own proof pertinent to a determination according to the correct interpretation, the Court of Appeals made its own determination on the record and directed a judgment for the respondent. The court noted that the Rural Electric Cooperative Act of South Carolina4 authorized the respondent to construct, acquire, maintain, and operate electric generating plants, buildings, and equipment, and any and all kinds of property which might be necessary or convenient to accomplish the purposes for which the corporation was organized, and pointed out that the work contracted to the petitioner's employer was of the class which respondent was empowered by its charter to perform.
9
The court resolved the uncertainties in the manager's testimony in a manner largely favorable to the respondent: 'The testimony with respect to the construction of the substations of Blue Ridge, stated most favorably to the (petitioner), discloses that originally Blue Ridge built three substations with its own facilities, but that all of the substations where were built after the war, including the six it was operating at the time of the accident, were constructed for it by independent contractors, and that at the time of the accident it had no one in its direct employ capable of handling the technical detail of substation construction.' 238 F.2d 346, 350.
10
The court found that the respondent financed the work contracted to the petitioner's employer with a loan from the United States, purchased the materials used in the work, and entered into an engineering service contract with an independent engineering company for the design and supervision of the work, concluding from these findings that 'the main actor in the whole enterprise was the Cooperative itself.' Ibid.
11
Finally, the court held that its findings entitled the respondent to the direction of a judgment in its favor. '* * * (T)here can be no doubt that Blue Ridge was not only in the business of supplying electricity to rural communities, but also in the business of constructing the lines and substations necessary for the distribution of the product * * *.' Id., at page 351.
12
While the matter is not adverted to in the court's opinion, implicit in the direction of verdict is the holding that the petitioner, although having no occasion to do so under the District Court's erroneous construction of the statute, was not entitled to an opportunity to meet the respondent's case under the correct interpretation. That holding is also implied in the court's denial, without opinion, of petitioner's motion for a rehearing sought on the ground that '* * * '(T)he direction to enter judgment for the defendant instead of a direction to grant a new trial denies plaintiff his right to introduce evidence in contradiction to that of the defendant on the issue of defendant's affirmative defense, a right which he would have exercised if the District Judge had ruled adversely to him on his motion to dismiss, and thus deprives him of his constitutional right to a jury trial on a factual issue.'
13
We believe that the Court of Appeals erred. We do not agree with the petitioner's argument in this Court that the respondent's evidence was insufficient to withstand the motion to strike the defense and that he is entitled to our judgment reinstating the judgment of the District Court. But the petitioner is entitled to have the question determined in the trial court. This would be necessary even if petitioner offered no proof of his own. Although the respondent's evidence was sufficient to withstand the motion under the meaning given the statute by the Court of Appeals, it presented a fact question, which, in the circumstances of this case to be discussed infra, is properly to be decided by a jury. This is clear not only because of the issue of the credibility of the manager's vital testimony, but also because, even should the jury resolve that issue as did the Court of Appeals, the jury on the entire record—consistent with the view of the South Carolina cases that this question is in each case largely one of degree and of fact—might reasonably reach an opposite conclusion from the Court of Appeals as to the ultimate fact whether the respondent was a statutory employer.
14
At all events, the petitioner is plainly entitled to have an opportunity to try the issue under the Court of Appeals' interpretation. His motion to dismiss the affirmative defense, property viewed, was analogous to a defendant's motion for involuntary dismissal of an action after the plaintiff has completed the presentation of his evidence. Under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., in such case 'the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.' The respondent argues, however, that before the trial judge ruled on the petitioner's motion, the petitioner's counsel, in effect, conceded that he had no other evidence to offer and was submitting the issue of whether the respondent was a statutory employer on the basis of the evidence already in the case. The judge asked petitioner's counsel: 'In the event I overrule your motion, do you contemplate putting up any testimony in reply?' Counsel answered: 'We haven't discussed it, but we are making that motion. I frankly don't know at this point of any reply that is necessary. I don't know of any evidence in this case .' The interruption which prevented counsel's completion of the answer was the trial judge's comment: 'I am inclined to think so far it is a question of law but I will hear from Mr. Walker (respondent's counsel) on that. I don't know of any issue of fact to submit to the jury. It seems to me under the testimony here there has been—I don't know of any conflict in the testimony, so far as that's concerned, so far.' The judge turned to respondent's counsel and there followed a long colloquy with him,5 at the conclusion of which the judge dismissed the defense upon the ground that under his interpretation of the statute the defense was not sustained without evidence that the respondent's business involved the doing of work for others of the kind done by the petitioner's employer for the respondent. Upon this record it plainly cannot be said that the petitioner submitted the issue upon the evidence in the case and conceded that he had no evidence of his own to offer. The petitioner was fully justified in that circumstance in not coming forward with proof of his own at that stage of the proceedings, for he had nothing to meet under the District Court's view of the statute. He thus cannot be penalized by the denial of his day in court to try the issue under the correct interpretation of the statute. Cf. Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971; Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704; Globe Liquor Co. v. Sam Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849.
II.
15
A question is also presented as to whether on remand the factual issue is to be decided by the judge or by the jury. The respondent argues on the basis of the decision of the Supreme Court of South Carolina in Adams v. DavisonPaxon Co., 230 S.C. 532, 96 S.E.2d 566,6 that the issue of immunity should be decided by the judge and not by the jury. That was a negligence action brought in the state trial court against a store owner by an employee of an independent contractor who operated the store's millinery department. The trial judge denied the store owner's motion for a directed verdict made upon the ground that § 72—111 barred the plaintiff's action. The jury returned a verdict for the plaintiff. The South Carolina Supreme Court reversed, holding that it was for the judge and not the jury to decide on the evidence whether the owner was a statutory employer, and that the store owner had sustained his defense. The court rested its holding on decisions, listed in footnote 8, infra, involving judicial review of the Industrial Commission and said:
16
'Thus the trial court should have in this case resolved the conflicts in the evidence and determined the fact of whether (the independent contractor) was performing a part of the 'trade, business or occupation' of the department store-appellant and, therefore, whether (the employee's) remedy is exclusively under the Workmen's Compensation Law.' 230 S.C. at page 543, 96 S.E.2d at page 572.
17
The respondent argues that this state-court decision governs the present diversity case and 'divests the jury of its normal function' to decide the disputed fact question of the respondent's immunity under § 72—111. This is to contend that the federal court is bound under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to follow the state court's holding to secure uniform enforcement of the immunity created by the State.7
18
First. It was decided in Erie R. Co. v. Tompkins that the federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. We must, therefore, first examine the rule in Adams v. Davison-Paxon Co. to determine whether it is bound up with these rights and obligations in such a way that its application in the federal court is required. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196.
19
The Workmen's Compensation Act is administered in South Carolina by its Industrial Commission. The South Carolina courts hold that, on judicial review of actions of the Commission under § 72—111, the question whether the claim of an injured workman is within the Commission's jurisdiction is a matter of law for decision by the court, which makes its own findings of fact relating to that jurisdiction.8 The South Carolina Supreme Court states no reasons in Adams v. Davison-Paxon Co. why, although the jury decides all other factual issues raised by the cause of action and defenses, the jury is displaced as to the factual issue raised by the affirmative defense under § 72—111. The decisions cited to support the holding are those listed in footnote 8, which are concerned solely with defining the scope and method of judicial review of the Industrial Commission. A State may, of course, distribute the functions of its judicial machinery as it sees fit. The decisions relied upon, however, furnish no reason for selecting the judge rather than the jury to decide this single affirmative defense in the negligence action. They simply reflect a policy, cf. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, that administrative determination of 'jurisdictional facts' should not be final but subject to judicial review. The conclusion is inescapable that the Adams holding is grounded in the practical consideration that the question had theretofore come before the South Carolina courts from the Industrial Commission and the courts had become accustomed to deciding the factual issue of immunity without the aid of juries. We find nothing to suggest that this rule was announced as an integral part of the special relationship created by the statute. Thus the requirement appears to be merely a form and mode of enforcing the immunity, Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079, and not a rule intended to be bound up with the definition of the rights and obligations of the parties. The situation is therefore not analogous to that in Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398, where this Court held that the right to trial by jury is so substantial a part of the cause of action created by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. that the Ohio courts could not apply, in an action under that statute, the Ohio rule that the question of fraudulent release was for determination by a judge rather than by a jury.
20
Second. But cases following Erie have evinced a broader policy to the effect that the federal courts should conform as near as may be—in the absence of other considerations—to state rules even of form and mode where the state rules may bear substantially on the question whether the litigation would come out one way in the federal court and another way in the state court if the federal court failed to apply a particular local rule.9 E.g., Guaranty Trust Co. of New York v. York, supra; Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199. Concededly the nature of the tribunal which tries issues may be important in the enforcement of the parcel of rights making up a cause of action or defense, and bear significantly upon achievement of uniform enforcement of the right. It may well be that in the instant personal-injury case the outcome would be substantially affected by whether the issue of immunity is decided by a judge or a jury. Therefore, were 'outcome' the only consideration, a strong case might appear for saying that the federal court should follow the state practice.
21
But there are affirmative countervailing considerations at work here. The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence—if not the command10—of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury. Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166.11 The policy of uniform enforcement of state-created rights and obligations, see, e.g., Guaranty Trust Co. of New York v. York, supra, cannot in every case exact compliance with a state rule12—not bound up with rights and obligations—which disrupts the federal system of allocating functions between judge and jury. Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857. Thus the inquiry here is whether the federal policy favoring jury decisions of disputed fact questions should yield to the state rule in the interest of furthering the objective that the litigation should not come out one way in the federal court and another way in the state court.
22
We think that in the circumstances of this case the federal court should not follow the state rule. It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts. In Herron v. Southern Pacific Co., supra, the trial judge in a personal-injury negligence action brought in the District Court for Arizona on diversity grounds directed a verdict for the defendant when it appeared as a matter of law that the plaintiff was guilty of contributory negligence. The federal judge refused to be bound by a provision of the Arizona Constitution which made the jury the sole arbiter of the question of contributory negligence.13 This Court sustained the action of the trial judge, holding that 'state laws cannot alter the essential character or function of a federal court' because that function 'is not in any sense a local matter, and state statutes which would interfere with the appropriate performance of that function are not binding upon the federal court under either the Conformity Act or the 'Rules of Decision' Act.' Id., 283 U.S. at page 94, 51 S.Ct. at page 384. Perhaps even more clearly in light of the influence of the Seventh Amendment, the function assigned to the jury 'is an essential factor in the process for which the Federal Constitution provides.' Id., 283 U.S. at page 95, 51 S.Ct. at page 384. Concededly the Herron case was decided before Erie R. Co. v. Tompkins, but even when Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, was governing law and allowed federal courts sitting in diversity cases to disregard state decisional law, it was never thought that state statutes or constitutions were similarly to be disregarded. Green v. Neal's Lessee, 6 Pet. 291, 8 L.Ed. 402. Yet Herron held that state statutes and constitutional provisions could not disrupt or alter the essential character or function of a federal court.14
23
Third. We have discussed the problem upon the assumption that the outcome of the litigation may be substantially affected by whether the issue of immunity is decided by a judge or a jury. But clearly there is not present here the certainty that a different result would follow, cf. Guaranty Trust Co. of New York v. York, supra, or even the strong possibility that this would be the case, cf. Bernhardt v. Polygraphic Co., supra. There are factors present here which might reduce that possibility. The trial judge in the federal system has powers denied the judges of many States to comment on the weight of evidence and credibility of witnesses, and discretion to grant a new trial if the verdict appears to him to be against the weight of the evidence. We do not think the likelihood of a different result is so strong as to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome.15
24
The Court of Appeals did not consider other grounds of appeal raised by the respondent because the ground taken disposed of the case. We accordingly remand the case to the Court of Appeals for the decision of the other questions, with instructions that, if not made unnecessary by the decision of such questions, the Court of Appeals shall remand the case to the District Court for a new trial of such issues as the Court of Appeals may direct.
25
Reversed and remanded.
26
Mr. Justice WHITTAKER concurring in part and dissenting in part.
27
In 1936 the South Carolina Legislature passed an Act known as 'The South Carolina Workmen's Compensation Law.' S.C.Code, 1952, Tit. 72. It created a new, complete, detailed and exclusive plan for the compensation by an 'employer' of his 'employee'1 for bodily injuries sustained by the latter which arise 'by accident arising out of and in the course of the employment,' whether with or without fault of the employer. § 72—14. The Act also prescribes the measure and nature of the remedy,2 which 'shall exclude all other rights and remedies of such employee * * * against his employer, at common law or otherwise, on account of such injury' (§ 72—121), and vests exclusive jurisdiction in the South Carolina Industrial Commission over all claims falling within the purview of the Act (§ 72—66), subject to review by appeal to the State's courts upon 'errors of law.' § 72—356.
28
Section 72—111 expands the definition of the terms 'employee' and 'employer' (note 1) by providing, in substance, that when an "owner" of premises 'undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (called 'subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.' (Emphasis supplied.) Employees of such subcontractors are commonly called 'statutory employees' of the 'owner.'
29
Petitioner, a lineman employed by a 'subcontractor' who had contracted to build more than 25 miles of new transmission lines and to convert from single-phase to double-phase more than 87 miles of existing transmission lines and to construct two substations and a breaker station for the 'owner,' was severely injured by an accident which arose out of and in the course of that employment. Subsequent to his injury he sought and received the full benefits provided by the South Carolina Workmen's Compensation Law.
30
Diversity existing, petitioner then brought this common-law suit in a Federal District Court in South Carolina against the 'owner,' the respondent here, for damages for his bodily injury, which, he alleged, had resulted from the 'owner's' negligence. The respondent-'owner' answered setting up, among other defenses, the affirmative claim that petitioner's injury arose by accident out of and in the course of his employment, as a lineman, by the subcontractor while executing the contracted work 'which (was) a part of (the owner's) trade, business or occupation.' It urged, in consequence, that petitioner was its 'statutory employee' and that, therefore, his exclusive remedy was under the South Carolina Workmen's Compensation Law, and that exclusive jurisdiction of the subject matter of his claim was vested in the State's Industrial Commission and, hence, the federal court lacked jurisdiction over the subject matter of this common-law suit.
31
At the trial petitioner adduced evidence upon the issue of negligence and rested his case in chief. Thereupon respondent, in support of its affirmative defense, adduced evidence tending to show (1) that its charter, issued under the Rural Electric Cooperative Act of South Carolina (S.C.Code, 1952, § 12—1025), authorized it to construct and operate electric generating plants and transmission lines essential to its business of generating and distributing electricity; (2) that it had (before the Second World War) constructed substations with its own direct employees and facilities, although the six substations which it was operating at the time petitioner was injured had been built by contractors, and that when petitioner was injured it did not have in its direct employ any person capable of constructing a substation;3 (3) that it regularly employed a crew of 16 men—8 linemen and 8 groundmen two-thirds of whose time was spent in constructing new transmission lines and extensions, and that such was 'a part of (its) trade, business (and) occupation.' This evidence stood undisputed when respondent rested its case.
32
At the close of respondent's evidence petitioner moved to strike respondent's affirmative jurisdictional defense, and all evidence adduced in support of it. Respondent made known to the court that when petitioner had rested it wished to move for a directed verdict in its favor. Thereupon the colloquy between the court and counsel, which is set forth in substance in Mr. Justice FRANKFURTER'S dissenting opinion, occurred. The District Court sustained petitioner's motion and struck respondent's affirmative jurisdictional defense and its supporting evidence from the record. His declared basis for that action was that the phrase in § 72—111 'a part of his trade, business or occupation' related only to work being performed by the 'owner' 'for somebody else.' Thereafter, the district judge heard arguments upon and overruled respondent's motion for a directed verdict,4 and submitted the case to the jury which returned a verdict for petitioner.
33
On appeal, the Court of Appeals found that the district judge's construction of § 72—111 was not supportable under controlling South Carolina decisions. It further found that respondent's evidence disclosed that respondent 'was not only in the business of supplying electricity to rural communities, but (was) also in the business of constructing the lines and substations necessary for the distribution of the product,' (238 F.2d 351), and that the contracted work was of like nature and, hence, was 'a part of (respondent's) trade, business or occupation,' within the meaning of § 72—111, and, therefore, petitioner was respondent's statutory employee, and, hence, the court was without jurisdiction over the subject matter of the claim. Upon this basis, it reversed the judgment of the District Court with directions to enter judgment for respondent. 238 F.2d 346.
34
This Court now vacates the judgment of the Court of Appeals and remands the case to it for decision of questions not reached in its prior opinion, with directions, if not made unnecessary by its decision of such questions, to remand the case to the District Court for a new trial upon such issues as the Court of Appeals may direct.
35
I agree with and join in that much of the Court's opinion. I do so because—although, as found by the Court of Appeals, respondent's evidence was ample, prima facie, to sustain its affirmative jurisdictional defense—petitioner had not waived his right to adduce evidence in rebuttal upon that issue, in other words had not 'rested,' at the time the district judge erroneously struck respondent's jurisdiction defense and supporting evidence from the record. In these circumstances, I believe that the judgment of the Court of Appeals, insofar as it directed the District Court to enter judgment for respondent, would deprive petitioner of his legal right, which he had not waived, to adduce evidence which he claims to have and desires to offer in rebuttal of respondent's prima facie established jurisdictional defense. The procedural situation then existing was not legally different from a case in which a defendant, without resting, moves, at the close of the plaintiff's case, for a directed verdict in its favor which the court erroneously sustains, and, on appeal, is reversed for that error. It could not fairly be contended, in those circumstances, that the appellate court might properly direct the trial court to enter judgment for the plaintiff and thus deprive the defendant, who had not rested, of his right to offer evidence in defense of plaintiff's case. Rule 50, Fed.Rules Civ.Proc. 28 U.S.C.A. It is urged by respondent that, from the colloquy between the district judge and counsel, which, as stated, as set forth in substance in Mr. Justice FRANKFURTER'S dissenting opinion, it appears that petitioner had 'rested,' and thus had waived his right to adduce rebuttal evidence upon the issue of respondent's jurisdictional defense, before the district judge sustained his motion to strike that defense and the supporting evidence. But my analysis of the record convinces me that petitioner, in fact, never did so. For this reason I believe that so much of the judgment of the Court of Appeals as directed the District Court to enter judgment for respondent deprives petitioner of his right to adduce rebuttal evidence upon the issue of respondent's prima facie established jurisdictional defense, and, therefore, cannot stand.
36
But the Court's opinion proceeds to discuss and determine the question whether, upon remand to the District Court, if such becomes necessary, the jurisdictional issue is to be determined by the judge or by the jury—a question which, to my mind, is premature, not now properly before us, and is one we need not and should not now reach for or decide. The Court, although premising its conclusion 'upon the assumption that the outcome of the litigation may be substantially affected by whether the issue of immunity5 is decided by a judge or a jury,' holds that the issue is to be determined by a jury—not by the judge. I cannot agree to this conclusion for the following reasons.
37
As earlier shown, the South Carolina Workmen's Compensation Law creates a new, complete, detailed and exclusive bundle of rights respecting the compensation by an 'employer' of his 'employee' for bodily injuries sustained by the latter which arise by accident out of and in the course of the employment, regardless of fault, and vests exclusive jurisdiction in the State's Industrial Commission over all such claims, subject to review by appeal in the South Carolina courts only upon 'errors of law.' Consonant with § 72—66, which vests exclusive jurisdiction over such claims in the Commission, and with § 72—356, which allows judicial review only upon 'errors of law,' the Supreme Court of the State has uniformly held that the question, in cases like the present, whether jurisdiction over such claims is vested in the Industrial Commission or in the courts presents a question of law for determination by the court, not a jury. In Adams v. Davison-Paxon Co., 1957, 230 S.C. 532, 96 S.E.2d 566, which appears to be the last case by the Supreme Court of the State on the question, plaintiff, an employee of a concessionaire operating the millinery department in defendant's store, was injured, she claimed by negligence, while using a stairway in the store. She brought a common-law suit for damages against the owner of the store. The latter defended upon the ground, among others, that the operation of the millinery department, though under a contract with the concessionaire, plaintiff's employer, was 'a part of (its) trade, business or occupation,' that the plaintiff was therefore its statutory employee under § 72—111 and exclusive jurisdiction over the subject matter of plaintiff's claim was vested in the Industrial Commission, and that the court was without jurisdiction over the subject matter in her common-law suit. It seems that the trial court submitted this issue, along with others, to the jury which returned a verdict for plaintiff. On appeal the Supreme Court of the State reversed, saying:
38
'It has been consistently held that whether the claim of an injured workman is within the jurisdiction of the Industrial Commission is a matter of law for decision by the court, which includes the finding of the facts which relate to jurisdiction. Knight v. Shepherd, 191 S.C. 452, 4 S.E.2d 906; Tedars v. Savannah River Veneer Co., 202 S.C. 363, 25 S.E.2d 235, 147 A.L.R. 914; McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872; Miles v. West Virginia Pulp & Paper Co., 212 S.C. 424, 48 S.E.2d 26; Watson v. Wanamaker & Wells, Inc., 212 S.C. 506, 48 S.E.2d 447; Gordon v. Hollywood-Beaufort Package Corp., 213 S.C. 438, (439), 49 S.E.2d 718; Holland v. Georgia Hardwood Lbr. Co., 214 S.C. 195, 51 S.E.2d 744; Younginer v. J. A. Jones Const. Co., 215 S.C. 135, 54 S.E.2d 545; Horton v. Baruch, 217 S.C. 48, 59 S.E.2d 545.
39
'Thus the trial court should have in this case resolved the conflicts in the evidence and determined the fact of whether Emporium (the concessionaire) was performing a part of the 'trade, business or occupation' of the department store-appellant and, therefore, whether respondent's remedy is exclusively under the Workmen's Compensation Law.' Id., 230 S.C. at page 543, 96 S.E.2d at page 571. (Emphasis supplied.)
40
It thus seems to be settled under the South Carolina Workmen's Compensation Law, and the decisions of the highest court of that State construing it, that the question whether exclusive jurisdiction, in cases like this, is vested in its Industrial Commission or in its courts of general jurisdiction is one for decision by the court, not by a jury. The Federal District Court, in this diversity case, is bound to follow the substantive South Carolina law that would be applied if the trial were to be held in a South Carolina court, in which State the Federal District Court sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. A Federal District Court sitting in South Carolina may not legally reach a substantially different result than would have been reached upon a trial of the same case 'in a State court a block away.' Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079.
41
The Court's opinion states (78 S.Ct. 900): 'Concededly the nature of the tribunal which tries issues may be important in the enforcement of the parcel of rights making up a cause of action or defense, and bear significantly upon achievement of uniform enforcement of the right. It may well be that in the instant personal-injury case the outcome would be substantially affected by whether the issue of immunity is decided by a judge or a jury.' And the Court premises its conclusion 'upon the assumption that the outcome of the litigation may be substantially affected by whether the issue of immunity is decided by a judge or a jury.' Upon that premise, the Court's conclusion, to my mind, is contrary to our cases. 'Here (as in Guaranty Trust Co. of New York v. York, supra) we are dealing with a right to recover derived not from the United States but from one of the States. When, because the plaintiff happens to be a non-resident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic. But since a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State.' Guaranty Trust Co. of New York v. York, supra, 326 U.S. at pages 108—109, 65 S.Ct. at page 1469. (Emphasis supplied.)
42
The words 'substantive' and 'procedural' are mere conceptual labels and in no sense talismanic. To call a legal question by one or the other of those terms does not resolve the question otherwise than as a purely authoritarian performance. When a question though denominated 'procedural' is nevertheless so 'substantive' as materially to affect the result of a trial, federal courts, in enforcing state-created rights, are not free to disregard it, on the ground that it is 'procedural,' for such would be to allow, upon mere nomenclature, a different result in a state court from that allowable in a federal court though both are, in effect, courts of the State and 'sitting side by side.' Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477. 'The federal court enforces the state-created right by rules of procedure which it has acquired from the Federal Government and which therefore are not identical with those of the state courts. Yet, in spite of that difference in procedure, the federal court enforcing a state-created right in a diversity case is, as we said in Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079, in substance 'only another court of the State.' The federal court therefore may not 'substantially affect the enforcement of the right as given by the State.' Id., 326 U.S. 109, 65 S.Ct. 1470.' Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199. (Emphasis supplied.) 'Where local law qualifies or abridges (the right), the federal court must follow suit. Otherwise there is a different measure of the cause of action in one court than in the other, and the principle of Erie R. Co. v. Tompkins is transgressed.' Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533, 69 S.Ct. 1233, 1234, 93 L.Ed. 1520. 'It is therefore immaterial whether (state-created rights) are characterized either as 'substantive' or 'procedural' in State court opinions in any use of those terms unrelated to the specific issue before us. Erie R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result. And so, putting to one side abstractions regarding 'substance' and 'procedure', we have held that in diversity cases the federal courts must follow the law of the State * * *.' Guaranty Trust Co. of New York v. York, supra, 326 U.S. at page 109, 65 S.Ct. at page 1470. (Emphasis supplied.)
43
Inasmuch as the law of South Carolina, as construed by its highest court, requires its courts—not juries—to determine whether jurisdiction over the subject matter of cases like this is vested in its Industrial Commission, and inasmuch as the Court's opinion concedes 'that in the instant personal-injury case the outcome would be substantially affected by whether the issue of immunity is decided by a judge or a jury,' it follows that in this diversity case the jurisdictional issue must be determined by the judge—not by the jury. Insofar as the Court holds that the question of jurisdiction should be determined by the jury, I think the Court departs from its past decisions. I therefore respectfully dissent from part II of the opinion of the Court.
44
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
45
This is a suit for common-law negligence, brought in a United States District Court in South Carolina because of diversity of citizenship, 28 U.S.C. § 1332, 28 U.S.C.A. § 1332. Respondent is a cooperative, organized and operating under the South Carolina Rural Electric Cooperative Act, S.C.Code 1952, § 12—1001 et seq., engaged in distributing electric power to its members, and extending the availability of power to new users, in rural areas of the State. Incident to the expansion of its facilities and services, it had made a contract with R. H. Bouligny, Inc., whereby the latter was to construct 24.19 miles of new power lines, to rehabilitate and convert to higher capacity 87.69 miles of existing lines, and to construct two substations and a breaker station. In the execution of this contract, petitioner, a citizen of North Carolina, and a lineman for Bouligny, was seriously burned when he attempted to make a connection between the equipment in one of the new substations and an outside line through which, by a mistake on the part of another of Bouligny's employees, current was running. Petitioner filed a claim against Bouligny pursuant to the South Carolina Workmen's Compensation Law, S.C.Code 1952, § 72—1 et seq., under which both Bouligny and respondent operated, and recovered the full benefits under the Law. He then brought this suit.
46
Respondent defended on the ground, among others, that, since petitioner was injured in the execution of his true employer's (Bouligny's) contract with respondent to perform a part of its 'trade, business or occupation,' respondent was petitioner's 'statutory employer' and therefore liable to petitioner under § 72 111 of the State's Workmen's Compensation Law.1 It would follow from this that petitioner, by virtue of his election to proceed against Bouligny, was barred from proceeding against respondent, either under the statute or at common law (§§ 72—121, 72—123).2 After all the evidence was in, the court granted petitioner's motion to strike the defense, on the ground that an activity could not be a part of a firm's 'trade, business or occupation' unless it was being performed 'for somebody else.' The court also denied respondent's motion for a directed verdict and submitted the case to the jury, which returned a verdict for petitioner in the amount of $126,786.80.
47
On appeal, the United States Court of Appeals for the Fourth Circuit found the District Court's construction of § 72—111 unsupportable under controlling South Carolina decisions.3 In concluding that respondent had sustained its defense, the appellate court cited the following evidence elicited at trial. Respondent employed a sixteen-man 'outside crew,' two-thirds of whose time was spent in such construction work as building new power lines and extensions; since World War II the demand for electrical service had been so great that independent contractors had to be employed to do much of the necessary construction work. All of respondent's construction work, regardless of who was actually performing it, was done under the supervision of an engineering firm with which respondent has an engineering service contract. Testimony as to the construction of substations was not altogether consistent; however, stated most favorably to petitioner—and that is the light in which the Court of Appeals considered it—that evidence was to the effect that respondent had with its own facilities constructed three substations, although it had built none of the six it was operating at the time petitioner was injured, nor was respondent at that time employing personal capable of constructing substations. The construction work in connection with which petitioner was injured was clearly among the functions respondent was empowered to perform by the statute under which it was organized; moreover, this construction was necessary to the discharge of respondent's duty to serve the area in which it operated. Finally, respondent was the 'main actor' in this particular construction project: it secured the necessary financing; its consulting engineer prepared the plans (approved by respondent) and supervised the construction; it purchased the materials of which the substations were constructed; it had the responsibility of de-energizing and re-energizing existing lines that were involved in the work. From this evidence the Court of Appeals was satisfied that 'there can be no doubt that Blue Ridge was not only in the business of supplying electricity to rural communities, but also in the business of constructing the lines and substations necessary for the distribution of the product,' 238 F.2d 346, 351. The Court of Appeals, having concluded that respondent's defense should have been sustained, directed the District Court to enter judgment for the respondent. The District Court had decided the question of whether or not respondent was a statutory employer without submitting it to the jury. It is not altogether clear whether it did so because it thought it essentially a nonjury issue, as it is in the South Carolina courts under Adams v. Davison-Paxon Co., 230 S.C. 532, 96 S.E.2d 566, or because there was no controverted question of fact to submit to the jury.
48
The construction of the state law by the Court of Appeals is clearly supported by the decisions of the Supreme Court of South Carolina, and so we need not rest on the usual respect to be accorded to a reading of a local statute by a Federal Court of Appeals. Estate of Spiegel v. Commissioner, 335 U.S. 701, 708, 69 S.Ct. 301, 304, 93 L.Ed. 330. It is clear from the state cases that a determination as to whether a defendant is an 'employer' for purposes of § 72—111 will depend upon the entire circumstances of the relationship between such defendant and the work being done on its behalf; no single factor is determinative. Both the approach of the Court of Appeals and the conclusions that it reached from the evidence in this case are entirely consistent with prior declarations of South Carolina law by the highest court of that State.4
49
In holding respondent a statutory employer, the Court of Appeals was giving the South Carolina Workmen's Compensation Law the liberal construction called for by the Supreme Court of that State. In Yeomans v. Anheuser-Busch, Inc., 198 S.C. 65, 72, 15 S.E.2d 833, 835, 136 A.L.R. 894, that court said:
50
'(T)he basic purpose of the Compensation Act is the inclusion of employers and employees, and not their exclusion; and we add that doubts of jurisdiction must be resolved in favor of inclusion rather than exclusion.'
51
It would be short-sighted to overlook the fact that exclusion of an employer in a specific case such as this one might well have the consequence of denying any recovery at all to other employees vis-a -vis this employer and others similarly situated. The Court of Appeals, through the experienced Judge Soper, recognized the short-sighted illiberality of yielding to the temptation of allowing a single recovery for negligence to stand and do violence to the consistent and legislatively intended interpretation of the statute in Berry v. Atlantic Greyhound Lines, 4 Cir., 114 F.2d 255, 257:
52
'It may well be, and possibly this is true in the instant case, that sometimes a recovery might be had in a common law action for an amount much larger than the amount which would be received under a Compensation Act. This, though, is more than balanced by the many advantages accorded to an injured employee in a proceeding under a Compensation Act which would not be found in a common law action.'
53
When, after the evidence was in, petitioner moved to strike respondent's defense based on § 72—111, the following colloquy ensued:
54
'The Court: In the event I overrule your motion, do you contemplate putting up any testimony in reply? You have that right, of course. On this point, I mean.
55
'Mr. Hammer (petitioner's counsel): We haven't discussed it, but we are making that motion. I frankly don't know at this point of any reply that is necessary. I don't know of any evidence in this case—
56
'The Court: The reason I am making that inquiry as to whether you intend to put up any more testimony in the event I overrule your motion, counsel may wish to move for a directed verdict on that ground since it is a question of law. But that is his prerogative after all the evidence is in. Of course, he can't move for a directed verdict as long as you have a right to reply.
57
'Mr. Hammer: We are moving at this time in the nature of a voluntary dismissal.
58
'The Court: You move to dismiss that defense?
59
'Mr. Hammer: Yes, sir, at this stage of the game.'
60
After argument by counsel, the court made its ruling, granting petitioner's motion. Respondent having indicated its intention to move for a directed verdict, the court then said, 'I will allow you to include in that Motion for Directed Verdict your defense which I have stricken, if you desire. * * *' Respondent's motion was overruled.
61
It is apparent that petitioner had no intention of introducing any evidence on the issue of whether respondent was his statutory employer and that he was prepared to—and did—submit the issue to the court on that basis. Clearly petitioner cannot be said to have relied upon, and thus to have been misled by, the court's erroneous construction of the law, for it was before the court had disclosed its view of the law that petitioner made apparent his willingness to submit the issue to it on the basis of respondent's evidence. If petitioner could have cast any doubt on that evidence or could have brought in any other matter relevant to the issue, it was his duty to bring it forward before the issue was submitted to the court. For counsel to withhold evidence on an issue submitted for decision until after that issue has been resolved against him would be an abuse of the judicial process that this Court surely should not countenance, however strong the philanthropic appeal in a particular case. Nor does it appear that petitioner had any such 'game' in mind. He gave not the slightest indication of an intention to introduce any additional evidence, no matter how the court might decide the issue. It seems equally clear that, had the trial court decided the issue—on any construction—in favor of the respondent, the petitioner was prepared to rely solely upon his right of appeal.
62
We are not to read the record as though we are making an independent examination of the trial proceedings. We are sitting in judgment on the Court of Appeals' review of the record. That court, including Chief Judge Parker and Judge Soper, two of the most experienced and esteemed circuit judges in the federal judiciary, interpreted the record as it did in light of its knowledge of local practice and of the ways of local lawyers. In ordering judgment entered for respondent, it necessarily concluded, as a result of its critical examination of the record, that petitioner's counsel chose to have the issue decided on the basis of the record as it then stood. The determination of the Court of Appeals can properly be reversed only if it is found that it was baseless. Even granting that the record is susceptible of two interpretations, it is to disregard the relationship of this Court to the Courts of Appeals, especially as to their function in appeals in diversity cases, to substitute our view for theirs.
63
The order of the Court of Appeals that the District Court enter judgment for the respondent is amply sustained on either theory as to whether or not the issue was one for the court to decide. If the question is for the court, the Court of Appeals has satisfactorily resolved it in accordance with state decisions. And if, on the other hand, the issue is such that it would have to be submitted to the jury if there were any crucial facts in controversy, both the District Court and the Court of Appeals agreed that there was no conflict as to the relevant evidence—not, at any rate, if such inconsistency as existed was resolved in favor of petitioner. According to the governing view of South Carolina law, as given us by the Court of Appeals, that evidence would clearly have required the District Court to grant a directed verdict to the respondent. Accordingly, I would affirm the judgment.
64
Mr. Justice HARLAN, dissenting.
65
I join in Mr. Justice FRANKFURTER'S dissenting opinion, but desire to add two further reasons why I believe the judgment of the Court of Appeals should be affirmed. As I read that court's opinion, it held that under South Carolina law the construction of facilities needed to transmit electric power was necessarily a part of the business of furnishing power, whether such construction was performed by the respondent itself or let out to others, and that in either case respondent would be liable to petitioner for compensation as his statutory employer. Since there is no dispute that respondent at the time of the accident was engaged in the business of furnishing power and that petitioner was injured while engaged in construction in furtherance of that business, I do not perceive how any further evidence which might be adduced by petitioner could change the result reached by the Court of Appeals. In any event, in the circumstances disclosed by the record before us, we should at the very least require petitioner to make some showing here of the character of the further evidence he expects to introduce before we disturb the judgment below.
1
S.C.Code, 1952, provides:
§ 72—111. Liability of owner to workmen of subcontractor.
'When any person, in this section and § 72—113 and 72—114 referred to as 'owner', undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and § 72—113 to 72—116 referred to as 'subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.'
§ 72—121. Employee's rights under Title exclude all others against employer.
'The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, is personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.'
§ 72—123. Only one remedy available.
'Either the acceptance of an award under this Title or the procurement and collection of a judgment in an action at law shall be a bar to proceeding further with the alternate remedy.'
2
In earlier proceedings the case was dismissed on the ground that the respondent, a nonprofit corporation, was immune from tort liability under South Carolina law. D.C., 118 F.Supp. 868. The Court of Appeals reversed and remanded the case for trial, 4 Cir., 215 F.2d 542.
3
The trial judge, in spite of his action striking the defense, permitted the respondent to include the affirmative defense as a ground of its motions for a directed verdict and judgment non obstante veredicto.
4
S.C.Code, § 1952, § 12—1025.
5
The only remarks thereafter made by the petitioner's counsel reiterated his statement that he pressed his motion to dismiss the affirmative defense.
6
The decision came down several months after the Court of Appeals decided this case.
7
See Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Ragan v. Merchants Transfer Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524; Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528; Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199; Sampson v. Channell, 1 Cir., 110 F.2d 754, 128 A.L.R. 394.
8
Knight v. Shepherd, 191 S.C. 452, 4 S.E.2d 906; Tedars v. Savannah River Veneer Co., 202 S.C. 363, 25 S.E.2d 235, 147 A.L.R. 914; McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872; Miles v. West Virginia Pulp & Paper Co., 212 S.C. 424, 48 S.E.2d 26; Watson v. Wannamaker & Wells, Inc., 212 S.C. 506, 48 S.E.2d 447; Gordon v. Hollywood-Beaufort Package Corp., 213 S.C. 438, 49 S.E.2d 718; Holland v. Georgia Hardwood Lumber Co., 214 S.C. 195, 51 S.E.2d 744; Younginer v. J. A. Jones Construction Co., 215 S.C. 135, 54 S.E.2d 545; Horton v. Baruch, 217 S.C. 48, 59 S.E.2d 545.
9
Cf. Morgan, Choice of Law Governing Proof,58 Harv.L.Rev. 153; 3 Beale, Conflict of Laws, § 594.1; Restatement of the Law, Conflict of Laws, pp. 699—701.
10
Our conclusion makes unnecessary the consideration of—and we intimate no view upon—the constitutional question whether the right of jury trial protected in federal courts by the Seventh Amendment embraces the factual issue of statutory immunity when asserted, as here, as an affirmative defense in a common-law negligence action.
11
The Courts of Appeals have expressed varying views about the effect of Erie R. Co. v. Tompkins on judge-jury problems in diversity cases. Federal practice was followed in Gorham v. Mutual Benefit Health & Accident Ass'n, 4 Cir., 1940, 114 F.2d 97; Diederich v. American News Co., 10 Cir., 1942, 128 F.2d 144; McSweeney v. Prudential Ins. Co., 4 Cir., 1942, 128 F.2d 660; Ettelson v. Metropolitan Life Ins. Co., 3 Cir., 1943, 137 F.2d 62; Order of United Commercial Travelers of America v. Duncan, 6 Cir., 1955, 221 F.2d 703. State practice was followed in Cooper v. Brown, 3 Cir., 1942, 126 F.2d 874; Gutierrez v. Public Service Interstate Transportation Co., 2 Cir., 1948, 168 F.2d 678; Prudential Ins. Co. of America v. Glasgow, 2 Cir., 1953, 208 F.2d 908; Pierce Consulting Engineering Co. v. City of Burlington, 2 Cir., 1955, 221 F.2d 607; Rowe v. Pennsylvania Greyhound Lines, 2 Cir., 1956, 231 F.2d 922.
12
This Court held in Sibbach v. Wilson & Co., 312 U.S. 1, 655, 61 S.Ct. 422, 85 L.Ed. 479, that Federal Rules of Civil Procedure 35 should prevail over a contrary state rule.
13
'The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.' § 5, Art. 18, A.R.S.
14
Diederich v. American News Co., 10 Cir., 128 F.2d 144, decided after Erie R. Co. v. Tompkins, held that an almost identical provision of the Oklahoma Constitution, art. 23, § 6, O.S.1951 was not binding on a federal judge in a diversity case.
15
Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284, is not contrary. It was there held that the federal court should follow the state rule defining the evidence sufficient to raise a jury question whether the state-created right was established. But the state rule did not have the effect of nullifying the function of the federal judge to control a jury submission as did the Arizona constitutional provision which was denied effect in Herron. The South Carolina rule here involved affects the jury function as the Arizona provision affected the function of the judge: The rule entirely displaces the jury without regard to the sufficiency of the evidence to support a jury finding of immunity.
1
The terms 'employee' and 'employer' are conventionally defined in §§ 72—11 and 72—12.
2
S.C.Code 1952, c. 4, §§ 72—151 to 72—165.
3
As I see it, the evidence referred to in '(1)' is only collaterally material, and that referred to in '(2)' is wholly immaterial, to the issue of whether petitioner was respondent's statutory employee at the time of the injury, because that question, under the South Carolina Workmen's Compensation Law, does not depend upon what particular trade, business or occupation the 'owner' lawfully might pursue, or lawfully might have pursued in the past. Rather, it depends upon what work he is engaged in at the time of the injury—i.e., whether the contracted work 'is a part of (the owner's) trade, business or occupation.' The statute thus speaks in the present tense, and, hence, the relevant inquiry here is limited to whether the work being done by petitioner for the 'owner' at the time of the injury was a part of the trade, business, or occupation of the 'owner' at that time.
4
The Court's opinion and Mr. Justice FRANKFURTER'S dissent comment upon the fact that the district judge stated to respondent's counsel that he would 'allow' him to include in his motion for a directed verdict the affirmative jurisdictional defense which had just been stricken. To my mind this is wholly without significance, for the district judge was without power to control what points and arguments respondent's counsel might urge in support of his motion for a directed verdict.
5
Here, as at other places in its opinion, the Court treats with the South Carolina Workmen's Compensation Law as an 'immunity' of the employer from liability. To me, the question is not one of immunity. Rather, it is which of two tribunals—the Industrial Commission of the court of general jurisdiction—has jurisdiction, to the exclusion of the other, over the subject matter of the action, and, hence, the power to award relief upon it.
1
'§ 72—111. Liability of owner to workmen of subcontractor.
'When any person, in this section and §§ 72—113 and 72—114 referred to as 'owner', undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 72—113 to 72—116 referred to as 'subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.'
2
'§ 72—121. Employee's rights under Title exclude all others against employer.
'The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.
§ 72—123. Only one remedy available.
'Either the acceptance of an award under this Title or the procurement and collection of a judgment in an action at law shall be a bar to proceeding further with the alternate remedy.'
3
It may be noted that not even petitioner's counsel supports the trial court's theory regarding the South Carolina Workmen's Compensation Law.
4
For example, whether or not the defendant had ever itself performed the work contracted out has not been thought to be a conclusive criterion. In fact, in Boseman v. Pacific Mills, 193 S.C. 479, 8 S.E.2d 878, the court rejected the defendant's contention that, because it had never performed the work in question, it could not be held an employer. See also Hopkins v. Darlington Veneer Co., 208 S.C. 307, 38 S.E.2d 4; Kennerly v. Ocmulgee Lumber Co., 206 S.C. 481, 34 S.E.2d 792. Nor is the question whether or not the accomplishment of the work involved requires specialized skill determinative. See Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825.
| 78
|
356 U.S. 390
78 S.Ct. 885
2 L.Ed.2d 863
Arthur THOMAS, Petitioner,v.STATE OF ARIZONA.
No. 88.
Argued March 4, 5, 1958.
Decided May 19, 1958.
Rehearing Denied June 30, 1958.
See 357 U.S. 944, 78 S.Ct. 1379.
Mr. W. Edward Morgan, Tucson, Ariz., for the petitioner.
Mr. Wesley E. Polley, Phoenix, Ariz., and John G. Pidgeon, Bisbee, Ariz., for the respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner has been convicted of first degree murder and sentenced to death by an Arizona court for the killing of one Janie Miscovich. He asks this Court to reverse his conviction on the ground that a confession received in evidence at his trial was coerced by fear of lynching, in violation of his rights under the Due Process Clause of the Fourteenth Amendment.
2
The victim, proprietor of a grocery store in Kansas Settlement, Arizona, was killed while tending her store on the evening of March 16, 1953. No one witnessed the crime, but strong circumstantial evidence indicated that it occurred between 10 p.m. and 11 p.m., and that petitioner was responsible. He was arrested the next day under circumstances which lend credence to his assertion of a 'putative lynching.' The confession at issue, however, was not made until the day following the arrest, when he was taken before a Justice of the Peace for preliminary examination.
3
After an initial determination of voluntariness, the trial judge in the Superior Court of Cochise County, Arizona, submitted the issue of coercion to the jury under instructions to ignore the confession as evidence unless it was found entirely voluntary. A general verdict of guilty was returned by the jury and accepted by the trial court. The Supreme Court of Arizona affirmed, 78 Ariz. 52, 275 P.2d 408, and we denied certiorari.1 1956, 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828. Petitioner then made application for habeas corpus in the United States District Court for the District of Arizona. After reviewing the entire record, the District Court denied the writ without a hearing. The Court of Appeals affirmed, 235 F.2d 775, and we granted certiorari because of the seriousness of petitioner's allegations under the Due Process Clause. 352 U.S. 1024, 77 S.Ct. 593. An exhaustive review of the record, however, impels us to conclude that petitioner's confession was 'the expression of free choice,' Watts v. State of Indiana, 1949, 338 U.S. 49, 53, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801, and not the product of fear, duress, or coercion.
4
The prosecution's use of a coerced confession first led to this Court's reversal of a state conviction in Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. Our resolution of similar claims in subsequent cases makes clear that 'the question whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession is one on which we must make an independent determination on the undisputed facts.' Malinski v. People of State of New York, 1945, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029. No encroachment of the traditional jury function results, for the issue of coercion, unlike the basic facts on which coercion is ascertained, involves the application of constitutional standards of fundamental fairness under the Fourteenth Amendment. See Brown v. Allen, 1953, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (concurring opinion). In each instance our inquiry must weigh the 'circumstances of pressure against the power of resistance of the person confessing.' Fikes v. State of Alabama, 1957, 352 U.S. 191, 197, 77 S.Ct. 281, 285, 1 L.Ed.2d 246, quoting Stein v. People of State of New York, 1953, 346 U.S. 156, 185, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522.
5
We turn then to the undisputed portions of the record to ascertain the facts against which petitioner's claim of coercion must be measured.
I.
6
Petitioner is an itinerant Negro laborer who lived with his common-law wife and four other Negroes, including one Ross Lee Cooper, a 17-year-old boy, in an old barracks provided by his employer about a half mile from the victim's store. Petitioner is a Navy veteran, 27 years old at the time of the murder, with a partial high school education. He had a criminal record of three different convictions, the most serious being a five-year larceny sentence, as well as two terms in the Navy brig for twice being absent without leave from his service post.
7
The body of Janie Miscovich was found Tuesday morning, March 17. A supplier noticed smoke coming from the store and summoned the help of three men constructing a building nearby, one of whom was petitioner. Petitioner did nothing to assist in putting out the fire, and left the scene before the victim's body was discovered, declaring that he 'never could stand the stench of burning flesh.' Although the body was severely beaten and burned, death was attributed to knife wounds in the heart, inflicted with a large knife found later in the store.
8
Preliminary investigation by local police disclosed that petitioner and Cooper were at the store together Monday afternoon and evening. After they returned to the barracks at approximately 8:30 p.m., petitioner left again by himself, returning around midnight. A trail of blood and footprints was traced from the store to within 50 yards of the barracks, where a strip of freshly harrowed ground made further tracking impossible. Blood spots were found in the kitchen of the barracks, and two bloody gloves were found hidden near the barracks. Both gloves were for the right hand and one of them was slit across the middle, ring and little fingers. Matching gloves were found in the store, where nine pairs plus two gloves for the left hand remained out of 12 pairs of gloves stocked by Janie Miscovich on Monday. The only pair of shoes petitioner owned, found under his bed in the barracks, exactly matched the 13 1/2-inch footprints trailed to the barracks. He had returned to the barracks after discovery of the fire and exchanged his shoes for a pair of old work boots he got 'out of the trash pile.'
II.
9
A posse of 12 to 15 men headed by the Sheriff of Cochise County apprehended petitioner Tuesday at 3 p.m. lying under a pasture brush pile over 200 yards from the road and about 1 1/2 miles from Kansas Settlement. Three fingers of his right hand had been severely cut, matching the slits in the bloody glove found outside the barracks.
10
Petitioner was placed under arrest by the Sheriff and handcuffed by a state highway patrolman with the posse. When asked by the Sheriff 'why he had killed the woman,' petitioner asserted that he had not killed her, but that he could take the posse to the man who had done so, accusing Cooper of the murder. He also stated that he had cut his hand on a can. At this point a local rancher on horseback, who had no official connection with the Sheriff's posse, lassoed petitioner around the neck and jerked him a few steps in the general direction of both the Sheriff's car and the nearest trees, some 200 yards away. The Sheriff quickly intervened, removed the rope, and admonished, 'Stop that. We will have none of that * * *.' There was no talk of lynching among the other members of the posse.
11
The Sheriff then put petitioner and two other men in his car and drove a few miles south where petitioner directed him in search of Cooper. They found Cooper working in a field about half a mile off the road. The Sheriff borrowed a horse from a member of the posse—which had followed the Sheriff's car—and rode alone across the field to arrest Cooper. As he was bringing Cooper back to the car, a second rancher on horseback roped Cooper around the waist and led him along. When they reached the car, the Sheriff removed the rope. Petitioner, who had a full view of Cooper's apprehension, got out of the car and identified Cooper as the Miscovich killer.
12
Cooper was handcuffed and standing beside petitioner when the rancher responsible for Cooper's roping lassoed both men, catching them either by their shoulders or their necks and pulling them down to their knees. The Sheriff, looking 'kind of mad,' reacted 'immediately,' removing the rope and shouting, 'Hey, stop that. We will have no more of that.' Two or three other men joined the Sheriff in protesting the third roping incident. No trees at all could be seen from the location of these last two ropings, and no mention or threat of lynching was heard.
13
By 4:30 p.m. both prisoners had been placed in the Sheriff's car. They were taken directly to Willcox, the nearest town with a Justice Court, for preliminary examination in compliance with Arizona law.2 However, the judge, who also was a school bus driver, already had departed on the evening run. Before leaving Willcox, the Sheriff stopped briefly at the local mortuary, where the body of the murder victim was shown to both suspects. The prisoners then were taken to Bisbee, site of the county jail and courthouse. Arriving there after closing time of the nearest Justice Court, the Sheriff took them to nearby Warren for questioning by the County Attorney.
14
It was 6 p.m. when the Sheriff and his prisoners reached the home of the County Attorney, whom a prior injury had confined to a full body cast and stretcher. Petitioner and Cooper were placed together in a back bedroom under guard of an armed deputy, but each was separately quizzed for an hour in a front room. Petitioner was questioned solely by the County Attorney, though six other men, some of whom were armed, were present.3 Petitioner was barefoot; his shoes had been seized as evidence in the case, and there were no shoes at the jail large enough to fit him. He wore the same coveralls in which he was arrested. The County Attorney first identified each man in the room, assured petitioner that no threats and no promises would be made, 'explained to him his rights,' and told him to tell the truth. No force was used or threatened against either prisoner. While petitioner's statement was never tendered in evidence at the trial, it was filed with the United States District Court in the habeas proceeding as proof of his composure on the very day of his arrest. The statement included petitioner's stout denial of any responsibility for the murder, and a detailed story designed to incriminate Cooper, a young and backward boy called 'Baby John.'4 Petitioner claimed to have returned to the store with Cooper a second time the night before, and to have waited outside while Cooper entered the store to buy beer. Upon hearing screams, petitioner said he rushed inside, found Cooper holding a knife over the woman, cut his hand trying to seize the knife from Cooper, and then ran back to the barracks, leaving Cooper with the woman. He illustrated the story in some detail by tracing his movements with crayons on a diagram of the Miscovich store.
15
At 9 p.m., the Cochise County Under-Sheriff took petitioner to a hospital where his hand was treated, and at 10 p.m. left him at the county jail. Later the Sheriff stopped by petitioner's cell, but nothing was said aside from the Sheriff's inquiry as to 'how he was feeling.'
16
At 11:30 a.m. the next morning, Wednesday, March 18, the Sheriff brought petitioner before the Lowell Justice Court for preliminary examination. Petitioner was barefoot, and remained so until the Sheriff bought him a pair of shoes. Prior to leaving the jail for court, the Sheriff gave petitioner a pack of cigarettes. Upon further inquiry as to how he was feeling, petitioner complained of his hand injury, and the Sheriff said he would see that it was dressed again.
17
When petitioner arrived at the court, three other men were conducting business with the Justice of the Peace, delaying petitioner's hearing for five minutes until they finished and departed. Then, in the presence of the Sheriff, a Deputy Sheriff, and a female secretary, Justice of the Peace Frazier read the complaint to petitioner, advised him of his rights to preliminary hearing and to counsel,5 told him the hearing could be waived, and instructed him that he could plead guilty or not guilty as he chose, but that a guilty plea would automatically waive the preliminary. Petitioner immediately replied with the oral confession in issue here: 'I am guilty. I don's need any lawyer. I killed the woman.' Judge Frazier asked if the murder was committed with an axe. Petitioner said, 'No. I killed her with a knife.'
18
Immediately thereafter, the Sheriff again took petitioner to the home of the County Attorney, where a detailed confession was made in the presence of the County Attorney, his secretary, the Sheriff, and a Deputy Sheriff. Just as he had the night before, the County Attorney identified those present and told petitioner that no threats or promises would be made. He also warned petitioner that the secretary would record everything said, and concluded, 'You don't have to talk to me if you don't want to, but you can, if you will, tell me in your own words, in your own free will, just what took place out at Kansas Settlement.' Later in the afternoon, after his return to the jail, petitioner was taken downstairs to the County Attorney's courthouse office, where in the presence of five people6 he read through and signed the typed transcript of his confession at the County Attorney's home.
19
Either the next day, Thursday, March 19, or else Friday, March 20 (the record being inconclusive), a newspaper reporter visited petitioner in jail. At the trial he testified petitioner seemed nervous and afraid. Petitioner indicated that he'd been 'roughed up' and that the Sheriff had saved his life. At the reporter's request, he posed for a picture with the Sheriff. Petitioner asked the Sheriff on Thursday to be moved to a part of the jail where he could be by himself, and the Sheriff said he would try to arrange it. On the same day, the Sheriff took petitioner to a doctor for additional treatment of his hand.
20
The third and last confession was taken down on Friday, March 20, in the County Attorney's office in the presence of seven men, including a Deputy United States Marshal.7 After the same preliminary precautions as preceded petitioner's statements Tuesday night and Wednesday, afternoon, the County Attorney obtained a detailed confession. Several days later, on April 1, the Marshal met alone with petitioner and had him read the transcript of this last confession, telling him to initial the bottom of each page if, and only if, the material thereon was true. After an hour's reading, petitioner initialed all the pages.
21
The written confessions, signed on the 18th and the 1st, were found 'procured by threat of lynch' and declared involuntary by the trial judge after his preliminary inquiry. Although the oral confession before the Justice of the Peace was made between the time of the ropings and the written confessions, the trial judge made an initial determination that it was voluntary. He justified this seeming incongruity on the basis of the different circumstances under which the oral statement was made, namely, the judicial surroundings and the presence of the Sheriff with only one other deputy, the Sheriff being 'the very man who had protected (petitioner).'
III.
22
Deplorable as these ropings are to the spirit of a civilized administration of justice, the undisputed facts before us do not show that petitioner's oral statement was a product of fear engendered by them. Arizona's determination that the written confessions were involuntary cannot control the separate constitutional inquiry posed by the character of the oral confession. And since ours is to be an independent resolution of the issue of coercion, the range of our inquiry is not limited to those factors which differentiate the oral from the written confessions. The inquiry to be made here, primary in both time and logic, is the voluntariness of the oral confession, which was admitted into evidence. Consequently we do not consider the subsequent confessions.
23
Coercion here is posited solely upon the roping incidents. There is no claim and no evidence of physical beating, as in Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; of continuous relay questioning, as in Watts v. State of Indiana, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; of incommunicado detention, as in Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; or of psychiatric inducement, as in Leyra v. Denno, 1954, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. Petitioner in neither of tender age, as was the accused in Haley v. State of Ohio, 1948, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, nor of subnormal intelligence, as was the defendant in Fikes v. State of Alabama, supra. Nor, in view of his extensive cirminal record, can he be thought an impressionable stranger to the processes of law.
24
The 20-hour interval between the time of the ropings and petitioner's oral confession was devoid of all coercive influences other than the sight of the victim's body.8 No threats were made, no promises offered, no force used, and no intimation of mob action existent. Petitioner's own activity during the crucial 20 hours is eloquent rebuttal of the contention that he was a man dominated by fear. At the logical height of oppression, during the ropings themselves, petitioner stoutly denied the offense and attempted to put the police on the trail of Cooper. That very evening he reiterated his position in a detailed story of Cooper's guilt and his own innocence, notwithstanding Cooper's presence with him in the same house. Even though petitioner appeared apprehensive and worried to a newspaperman two or three days after the oral statement, his demeanor both at the County Attorney's home the night of his arrest and before the Justice Court the next morning bespoke complete voluntariness to other witnesses, including Judge Frazier. Nothing in the undisputed record seriously substantiates the contention that a fear engendered by the ropings overbore petitioner's free will at the time he appeared in the Justice Court. His statement appears to be the spontaneous exclamation of a guilty conscience.
25
Petitioner relies heavily on the testimony of the state patrolman who was present at the first roping. He testified that when petitioner was first roped, the Sheriff said, 'Will you tell the truth, or I will let them go ahead and do this.' Petitioner argues that this testimony completely negates the Sheriff's role as petitioner's 'protector,' eliminating one of the two factors by which the trial judge distinguished the oral from the other confessions. The Sheriff, however, expressly denied making any such statement, and all other witnesses of the first roping agreed that no such threat ever was uttered. Whatever the merits of this dispute, our inquiry clearly is limited to a study of the undisputed portions of the record. '(T)here has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court's concern. Such conflict comes here authoritatively resolved (against petitioner) by the State's adjudication.' Watts v. State of Indiana, 1949, 338 U.S. 49, 51—52, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801.9 Time and again we have refused to consider disputed facts when determining the issue of coercion. See Gallegos v. State of Nebraska, 1951, 342 U.S. 55, 60—61, 72 S.Ct. 141, 144—145, 96 L.Ed. 86; Haley v. State of Ohio, 1948, 332 U.S. 596, 597—598, 68 S.Ct. 302, 303, 92 L.Ed. 224; Ward v. State of Texas, 1942, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663. The rationale behind such exclusion, of course, lies in the superior opportunity of trial court and jury to observe the witnesses and weigh the fleeting intangibles which may indicate truth or falsehood. We abide by the wisdom of that reasoning.
IV.
26
Petitioner has an alternative prayer that his case be remanded to the District Court for a plenary hearing on the issue of coercion. There is no merit, however, to his contention that the District Court erred in denying the writ on the basis of the record without a full hearing. The granting of a hearing is within the discretion of the District Court, Brown v. Allen, 1953, 344 U.S. 443, 463—465, 73 S.Ct. 397, 410—411, 97 L.Ed. 469, and no abuse of that discretion appears here.
27
Petitioner also urges that the District Court erred in considering the transcript of his interrogation in the County Attorney's home after his arrest. As stated above, that transcript never was made part of the record in the case. The State, however, filed it as an affidavit before the District Court. Petitioner asserts error because in the absence of any hearing, he had no opportunity to rebut the affidavit. It does not appear, however, that petitioner made any objection in the District Court, nor did he file any counter-affidavit. Moreover, the substance of the transcript—petitioner's denial of guilt and attempt to implicate Cooper just three hours after the ropings appears at other places in the record. We fail to see how prejudice could have resulted.
28
Affirmed.
29
The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN dissent.
1
The State contends preliminarily that petitioner failed to exhaust his state remedy before seeking habeas in the federal courts, because his application in this Court for certiorari to the state court was not timely. The normal rule that certiorari must be applied for here after a state conviction before habeas is sought in the District Court, Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, is not inflexible, however, and in special circumstances need not be complied with. Darr v. Burford, supra, 339 U.S. at page 210, 70 S.Ct. at page 593. 'Whether such circumstances exist calls for a factual appraisal by the (District Court) in each special situation. Determination of this issue, like others, is largely left to the trial courts subject to appropriate review by the courts of appeals.' Frisbie v. Collins, 1952, 342 U.S. 519, 521, 72 S.Ct. 509, 511, 96 L.Ed. 541. Petitioner's failure to timely apply for certiorari was noted by the District Court in this case, but expressly was stated not to be the basis for its denial of habeas. Since that court and the Court of Appeals considered petitioner's application on the merits, we are not inclined at this late date to consider the procedural defect a fatal error.
2
'An officer who has arrested a person without a warrant shall without unnecessary delay take the person arrested before the nearest or most accessible magistrate in the county in which the arrest occurs, and shall make before the magistrate a complaint, which shall set forth the facts showing the offense for which the person was arrested.' Ariz.Rev.Stat.1956, § 13—1418.
3
The Sheriff, the Under-Sheriff, a court reporter, a police photographer, and two County Attorney's deputies.
4
A young mother living in the barracks who sat up all Monday night with her sick child completely discredited petitioner's story by her unshaken testimony that Cooper never left the barracks again after returning with petitioner about 8:30 p.m.
5
Out of the jury's presence during the initial inquiry of the trial court into the coercion issue, Judge Frazier testified that he told petitioner the Superior Court would appoint an attorney for him, but that he said nothing about appointing an attorney himself for the preliminary examination in the Justice Court. Subsequently, testifying before the jury, he stated that petitioner was told of a 'right to counsel before his preliminary in Justice Court.'
6
The Sheriff, two Deputy Sheriffs, a County Attorney's deputy, and the County Attorney's secretary.
7
Others present were the Under-Sheriff, a Deputy Sheriff, the County Attorney, two County Attorney's deputies, and a court reporter.
8
Unlike many cases where this Court has found coercion, there apparently was no failure here to comply with the state statute requiring that a prisoner be taken before a magistrate without unnecessary delay after the arrest. Contrast, e.g., Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Watts v. State of Indiana, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Malinski v. People of State of New York, 1945, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Ward v. State of Texas, 1942, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663. The Arizona statute, see note 2, supra, was construed in State v. Johnson, 69 Ariz. 203, 211 P.2d 469, where the accused apparently was not taken before a magistrate until the morning following his 5 p.m. arrest.
9
The '(state) adjudication' upon which this rule turns is that of the trial judge in this case. While the general verdict of guilty is not instructive here as to the jury's view on the issue of coercion, the judge made an initial determination of voluntariness before submitting the confession to the jury. That preliminary finding occurred prior to the highway patrolman's testimony, but a motion for mistrial by defense counsel immediately after the conflict arose was denied before the case went to the jury. Therefore, we need not decide whether the mere fact of conviction, absent a more specific adjudication of voluntariness, would suffice to invoke the rule foreclosing assessment of the disputed facts.
| 01
|
356 U.S. 560
78 S.Ct. 844
2 L.Ed.2d 975
Frank Andrew PAYNE, Petitioner,v.STATE OF ARKANSAS.
No. 99.
Argued March 3, 1958.
Decided May 19, 1958.
Mr. Wiley A. Branton, Pine Bluff, Ark., for the petitioner.
Mr. Throp Thomas, Little Rock, Ark., for the respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Petitioner, a 19-year-old Negro, was convicted by a jury in Jefferson County, Arkansas, of first degree murder and sentenced to death by electrocution. On appeal to the Supreme Court of Arkansas he pressed two main contentions: (1) that the trial court erred in overruling his motion to suppress, and in receiving in evidence over his objection, a coerced and false confession, and that the error takes and deprives him of his life without due process of law in violation of the Fourteenth Amendment of the Constitution, and (2) that the trial court erred in overruling his motion to quash the panel of petit jurors upon the ground that Negroes were systematically excluded, or their number limited, in the selection of the jury panel, and that the error deprives him of the equal protection of the laws and of due process of law, in violation of the Fourteenth Amendment of the Constitution. The court held that these contentions were without merit and affirmed the judgment. 226 Ark. 910, 295 S.W.2d 312, 313. He then applied to us for a writ of certiorari, based on these contentions, which we granted because the constitutional questions presented appeared to be substantial. 353 U.S. 929, 77 S.Ct. 721, 1 L.Ed.2d 723.
2
We will first consider petitioner's contention that the confession was coerced, and that its admission in evidence over his objection denied him due process of law, in violation of the Fourteenth Amendment.
3
The use in a state criminal trial of a defendant's confession obtained by coercion—whether physical or mental—is forbidden by the Fourteenth Amendment.1 Enforcement of the criminal laws of the States rests principally with the state courts, and generally their findings of fact, fairly made upon substantial and conflicting testimony as to the circumstances producing the contested confession—as distinguished from inadequately supported findings or conclusions drawn from uncontroverted happenings—are not this Court's concern;2 yet where the claim is that the prisoner's confession is the product of coercion we are bound to make our own examination of the record to determine whether the claim is meritorious. 'The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both.'3 The question for our decision then is whether the confession was coerced. That question can be answered only by reviewing the circumstances under which the confession was made. We therefore proceed to examine those circumstances as shown by this record.
4
Near 6:30 p.m. on October 4, 1955, J. M. Robertson, an elderly retail lumber dealer in the City of Pine Bluff, Arkansas, was found in his office dead or dying from crushing blows inflicted upon his head. More than $450 was missing from the cash drawer. Petitioner, a 19-year-old Negro with a fifth-grade education,4 who had been employed by Robertson for several weeks, was suspected of the crime. He was interrogated that night at his home by the police, but they did not then arrest him. Near 11 a.m. the next day, October 5, he was arrested without a warrant and placed in a cell on the first floor of the city jail. Arkansas statutes provide that an arrest may be made without a warrant when an officer 'has reasonable grounds for believing that the person arrested has committed a felony,'5 and that when an arrest is made without a warrant the person arrested 'shall be forthwith carried before the most convenient magistrate of the county in which the arrest is made,'6 and when the person arrested is brought before such magistrate it is the latter's duty to 'state the charge (against the accused and to) inquire * * * whether he desires the aid of counsel (and to allow him) a reasonable opportunity' to obtain counsel.7 It is admitted that petitioner, though arrested without a warrant, was never taken before a magistrate, and that the statutes mentioned were not complied with.
5
Petitioner was held incommunicado without any charge against him from the time of his arrest at 11 a.m. on October 5 until after his confession on the afternoon of October 7, without counsel, advisor or friend being permitted to see him. Members of his family who sought to see him were turned away, because the police did not 'make it a practice of letting anyone talk to (prisoners) while they are being questioned.' Two of petitioner's brothers and three of his nephews were, to his knowledge, brought by the police to the city jail and questioned during the evening of petitioner's arrest, and one of his brothers was arrested and held in jail overnight. Petitioner asked permission to make a telephone call but his request was denied.
6
Petitioner was not given lunch after being lodged in the city jail on October 5, and missed the evening meal on that day because he was then being questioned in the office of the chief of police. Near 6:30 the next morning, October 6, he was taken by the police, without breakfast, and also without shoes or socks,8 on a trip to Little Rock, a distance of about 45 miles, for further questioning and a lie detector test, arriving there about 7:30 a.m. He was not given breakfast in that city, but was turned over to the state police who gave him a lie detector test and questioned him for an extended time not shown in the record. At about 1 p.m. that day he was given shoes and also two sandwiches—the first food he had received in more than 25 hours. He was returned to the city jail in Pine Bluff at about 6:30 that evening—too late for the evening meal—and placed in a cell on the second floor. The next morning, October 7, he was given breakfast—which, except for the two sandwiches he had been given at Little Rock at 1 p.m. the day before, was the only food he had received in more than 40 hours.
7
We come now to an even more vital matter. Petitioner testified,9 concerning the conduct that immediately induced his confession, as follows: 'I was locked up upstairs and Chief Norman Young came up (about 1 p.m. on October 7) and told me that I had not told him all of the story—he said that there was 30 or 40 people outside that wanted to get me, and he said if I would come in and tell him the truth that he would probably keep them from coming in.' When again asked what the chief of police had said to him on that occasion petitioner testified: 'Chief Norman Young said thirty or forty people were outside wanting to get in to me and he asked me if I wanted to make a confession he would try to keep them out.' The chief of police, on cross-examination, admitted that he had made the substance of that statement to petitioner,10 and had told him that he would be permitted to confess to the chief 'in private.' In this setting, petitioner immediately agreed to make a statement to the chief. The chief then took petitioner to his private office, and almost immediately after arriving at that place there was a knock on the door. The chief opened the door and stepped outside, leaving the door ajar, and petitioner heard him say "He is fixing to confess now,' and he would like to have me alone.' Petitioner did not know what persons or how many were outside the door. The chief re-entered his office and began questioning petitioner who orally confessed that he had committed the crime. Thereupon Sergeant Halsell of the State Police and Sheriff Norton were admitted to the room, and under questioning by Sergeant Halsell petitioner gave more details concerning the crime. Soon afterward a court reporter was called in and several businessmen were also admitted to the room. Sergeant Halsell then requestioned petitioner and the questions and answers were taken by the reporter in shorthand. After being transcribed by the reporter, the typed transcription was returned to the room about 3 p.m. and was read and signed to petitioner and witnessed by the officers and businessmen referred to. Thus the 'confession' was obtained.
8
At the beginning of the trial petitioner's counsel moved to suppress the confession because obtained by coercion culminating in a threat of mob violence. Following Arkansas procedure (McClellan v. State, 203 Ark. 386, 156 S.W.2d 800), a hearing upon that motion was held before the trial judge in chambers, at which the facts above recited were shown without dispute. In addition petitioner testified that the confession did not contain the truth, and when asked why he made it, he answered: 'Well, as a matter of fact lawyer Branton I was more than afraid because Chief Norman Young had already told me that there was 30 or 40 people outside and the way he stated it, if I hadn't, if I didn't make the confession that he would let them in, from the conversation, from the way that he told me.' The trial judge overruled the motion to supporess the confession. The same evidence was then repeated before the jury, and the confession was admitted in evidence over petitioiner's objection. The court instructed the jury to disregard the confession if they found it was not voluntarily made. The jury returned a general verdict finding petitioner guilty of first degree murder as charged and assessed the penalty of death by electrocution. Judgment accordingly was entered on the verdict.
9
That petitioner was not physically tortured affords no answer to the question whether the confession was coerced, for '(t)here is torture of mind as well as body; the will is as much affected by fear as by force. * * * A confession by which life becomes forfeit must be the expression of free choice.' Watts v. State of Indiana, 338 U.S. 49, 52, 53, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801.11 The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which he would have been advised of his right to remain silent and of his right to counsel, as required by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel, (4) was held incommunicado for three days, without counsel, advisor or friend, and though members of his family tried to see him they were turned away, and he was refused permission to make even one telephone call, (5) was denied food for long periods, and, finally, (6) was told by the chief of police 'that there would be 30 or 40 people there in a few minutes that wanted to get him,' which statement created such fear in petitioner as immediately produced the 'confession.' It seems obvious from the totality of this course of conduct,12 and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an 'expression of free choice,'13 and that its use before the jury, over petitioiner's objection, deprived him of 'that fundamental fairness essential to the very concept of justice,'14 and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment.
10
Respondent suggests that, apart from the confession, there was adequate evidence before the jury to sustain the verdict. But where, as here, a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.15
11
The admitted facts, set out above, make applicable the conclusion reached in Chambers v. State of Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716: 'Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.' The judgment must be reversed because of the admission in evidence of the coerced confession. It is therefore unnecessary at this time for us to discuss or decide the other question presented by petitioner—whether the overruling of his motion to quash the panel of petit jurors upon the ground that Negroes were systematically excluded, or their number limited, in the selection of the jury panel denied him the equal protection of the laws under the Fourteenth Amendment—for we will not assume that the same issue will be present upon a new trial.
12
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
13
Reversed.
14
Mr. Justice HARLAN, concurring.
15
I join in the reversal of the judgment in this case because the Police Chief's testimony, quoted in footnote 10 of the Court's opinion, seems to me to require acceptance of petitioner's claim that his confession was induced through fear of mob violence.
16
Mr. Justice BURTON, on this record, would accept the conclusion of the state court and jury that petitioner's confession was voluntary. Therefore, he would affirm the judgment rendered. See his dissent in Moore v. State of Michigan, 355 U.S. 155, 165, 78 S.Ct. 191, 197, 2 L.Ed.2d 167.
17
Mr. Justice CLARK, dissenting.
18
I believe that on this record the state courts properly held petitioner's confession voluntary. Moreover, even if the confession be deemed coerced, there is sufficient other evidence of guilt to sustain the conviction on the authority of Stein v. People of State of New York, 1953, 346 U.S. 156, 188—194, 73 S.Ct. 1077, 1094—1098, 97 L.Ed. 1522. Just five years ago this Court established in Stein that there was no constitutional error 'if the jury admitted and relied on the confession,' or 'rejected it and convicted on other evidence.' 346 U.S. at pages 193—194, 73 S.Ct. at page 1097. For purpose of making the latter determination, this Court assumed there that the confession was found coerced by the jury. It makes no difference that the determination of coercion here is by this Court rather than by the jury, for as is evident from the majority opinion, the inquiry is the same—whether the confession was coerced. I must apply the Stein rule here because the Arkansas procedure on admission of challenged confessions is identical to that which we approved in that case. See Nolan v. State, 205 Ark. 103, 104, 167 S.W.2d 503, 504; Dinwiddie v. State, 202 Ark. 562, 570, 151 S.W.2d 93, 95, 96.
1
See, e.g., Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. These cases illustrate the settled view of this Court that the admission in evidence over objection of a coerced confession vitiates a judgment of conviction.
2
Watts v. State of Indiana, supra, 338 U.S. at pages 50—53, 69 S.Ct. at pages 1348, 1349; Cf. Ashcraft v. State of Tennessee, supra, 332 U.S. at page 153, 64 S.Ct. at page 926; Malinski v. People of State of New York, supra, 324 U.S. at page 404, 65 S.Ct. at page 783; Haley v. State of Ohio, supra, 332 U.S. at page 598, 68 S.Ct. at page 303; and Leyra v. Denno, supra, 347 U.S. at page 558, 74 S.Ct. at page 717.
3
Lisenba v. People of State of California, supra, 314 U.S. at pages 237—238, 62 S.Ct. at pages 290, 291. See also Brown v. State of Mississippi, supra, 297 U.S. 278, 56 S.Ct. 461; Chambers v. State of Florida, supra, 309 U.S. at pages 228—229, 60 S.Ct. at pages 473, 474; Haley v. State of Ohio, supra, 332 U.S. at page 599, 68 S.Ct. at page 303; Watts v. State of Indiana, supra, 338 U.S. at page 50, 69 S.Ct. at page 1348.
4
Petitioner was mentally dull and 'slow to learn' and was in the fifth grade when he became 15 years of age. Because of his age he was arbitrarily promoted to the seventh grade and soon thereafter quit school.
5
Ark.Stat.1947, § 43—403.
6
Ark.Stat.1947, § 43—601.
7
Ark.Stat.1947, § 43—605.
8
His shoes and socks had been taken from him for laboratory examination of suspected bloodstains.
9
Petitioner took the stand both on the hearing of the motion to suppress the confession, which was held in chambers outside the presence of the jury, and upon the trial before the jury.
10
The chief of police testified:
'Q. When did the defendant first tell you he was going to confess? A. Approximately 1:00 P.M. on the afternoon of the 7th.
'Q. Now where were you at the time? A. At the time that he told me he was ready to confess he was in the jail in an upstairs cell and I was standing outside of the cell talking to him.
'Q. Were any other officers present? A. There was not.
'Q. State whether or not anything was said to the defendant to the effect that there would be 30 or 40 people there in a few minutes that wanted to get him? A. I told him that would be possible there would be that many—it was possible there could be that many.
'Q. Did you promise the defendant that he would have an opportunity to confess in private? A. I did.
'Q. Did you then go down to your office? A. We did.'
11
The cases of Chambers v. State of Florida, supra, 309 U.S. at page 240, 60 S.Ct. at page 478; Lisenba v. People of State of California, supra, 314 U.S. at pages 237, 240, 62 S.Ct. at pages 290, 291; Haley v. State of Ohio, supra, 332 U.S. at page 600, 68 S.Ct. at page 304; Ashcraft v. State of Tennessee, supra, 322 U.S. at page 154, 64 S.Ct. at page 926; and Ward v. State of Texas, 316 U.S. 547, 555, 62 S.Ct. 1139, 1143, 86 L.Ed. 1663, all announce the same principle.
12
See Fikes v. State of Alabama, supra, 352 U.S. at page 197, 77 S.Ct. at page 284.
13
Watts v. State of Indiana, supra, 338 U.S. at page 53, 69 S.Ct. at page 1350.
14
Lisenba v. People of State of California, supra, 314 U.S. at page 236, 62 S.Ct. at page 290; Lyons v. State of Oklahoma, 322 U.S. 596, 605, 64 S.Ct. 1208, 1213, 88 L.Ed. 1481.
15
Watts v. State of Indiana, supra, 338 U.S. at page 50, 69 S.Ct. at page 1348; Malinski v. People of State of New York, supra, 324 U.S. at page 404, 65 S.Ct. at page 783; Lyons v. State of Oklahoma, supra, 322 U.S. at page 597, 64 S.Ct. at page 1210. Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, is not to the contrary, for in that case this Court did not find that the confession was coerced. Indeed it was there recognized that when 'the ruling admitting the confession is found on review to be erroneous, the conviction, at least normally, should fall with the confession. * * * (R)eliance on a coerced confession vitiates a conviction because such a confession combines the persuasiveness of apparent conclusiveness with what judicial experience shows to be illusory and deceptive evidence. A forced confession is a false foundation for any conviction * * *.' Id., 346 U.S. at pages 191—192, 73 S.Ct. at page 1096.
| 01
|
356 U.S. 481
78 S.Ct. 851
2 L.Ed.2d 926
FEDERAL MARITIME BOARD, Petitioner,v.ISBRANDTSEN COMPANY, Inc., United States of America and Secretary of Agriculture. JAPAN-ATLANTIC AND GULF FREIGHT CONFERENCE; Mitsui Steamship Co., Ltd., et al. v. UNITED STATES of America, Federal Maritime Board, Isbrandtsen Company, Inc., and Ezra Taft Benson, Secretary of Agriculture.
Nos. 73 and 74.
Argued Dec. 11, 1957.
Decided May 19, 1958.
Mr. Warner W. Gardner, Washington, D.C., for the Federal Maritime board.
Mr. Elkan Turk, New York City, for petitioners Japan-Atlantic and Gulf Freight Conference and others.
Mr. John J. O'Connor, Washington, D.C., for respondent Isbrandtsen Company, Inc.
Mr. Philip Elman, Washington, D.C., for respondents United States and Secretary of Agriculture.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Isbrandtsen Co., Inc., filed a petition in the United States Court of Appeals for the District of Columbia Circuit to review, under 5 U.S.C. § 1034, 5 U.S.C.A. § 1034, an order of the Federal Maritime Board1 approving a rate system proposed by the Japan-Atlantic and Gulf Freight Conference (the Conference).2 Under the proposed system a shipper would pay less than regular freight rates for the same service if he signs an exclusive-patronage contract with the Conference. Contract rates would be set at levels 9 1/2 percent below noncontract rates. The Court of Appeals3 set aside the Board's order on the ground that this system of dual rates was illegal per se under § 14 of the Shipping Act, 1916, 39 Stat. 733, as amended, 46 U.S.C. § 812 Third, 46 U.S.C.A. § 812 Third.4 We granted certiorari. 353 U.S. 908, 77 S.Ct. 664, 1 L.Ed.2d 662.
2
The Conference is a voluntary association of 17 common carriers by water serving the inbound trade from Japan, Korea, and Okinawa to ports on the United States Atlantic and Gulf Coasts. Five of the carriers are American lines, eight are Japanese, and four are of other nationalities. The Conference presently operates under a Board-approved Conference Agreement made in 1934. Prior to World War II, the Conference had no direct liner competition and little tramp competition.
3
After the war, Isbrandtsen entered the trade as the sole non-Conference line maintaining a regular berth service in the Japan-Atlantic trade. From 1947 to early 1949, isbrandtsen operated from Japan to Atlantic Coast ports via the Suez Canal. Since 1949 Isbrandtsen has operated an approximately fortnightly service from Japan to United States Atlantic Coast ports via the Panama Canal as part of its Eastbound, Round-the-World Service.5
4
Although Conference membership is open to any common carrier regularly operating in the trade, Isbrandtsen has refused to join. Isbrandtsen's practice, between 1947 and March 12, 1953, was to maintain rates at approximately 10 percent below the corresponding Conference rates. The general understanding of shippers and carriers in the trade was that Isbrandtsen underquoted Conference rates by 10 percent. This practice of undercutting Conference rates during the years 1950, 1951, and 1952, captured for Isbrandtsen 30 percent of the total cargo in the trade although Isbrandtsen provided only 11 percent of the sailings.6
5
Since outbound tonnage from the United States exceeds the inbound tonnage, the Japan-Atlantic and Gulf trade is presently overtonnaged, and both Isbrandtsen and Conference vessels have had substantial unused cargo space after loading cargoes in Japan. Total sailings in the trade rose from 109 in 1949 to more than 300 in 1953. (Cf. Note 6, supra.) The re-entry of the Japanese lines in the trade after World War II, four in 1951 and four in 1952, greatly contributed to the excess of tonnage. For the years 1951, 1952, and the first 6 months of 1953, the Japanese lines carried approximately 15 percent, 49 percent, and 66 percent, respectively, of the trade's total liner cargo. For the years 1950, 1951, 1952, and the first 6 months of 1953, American flag lines, including Isbrandtsen but excluding two others, carried 53 percent, 46 percent, 34 percent, and 21 percent respectively.
6
When, in late 1952, Isbrandtsen announced a plan to increase sailings from two to three or four sailings a month, the Conference foresaw a further increase in Isbrandtsen's participation which, because of the nationalistic preference of Japanese shippers, would probably be at the expense of the non-Japanese Conference lines. To meet this outside competition the Conference first attempted, in November of 1952, a 10-percent reduction in rates, but Isbrandtsen answered with a reduction of its rates 10 percent under the Conference rates.
7
On December 24, 1952, the Conference proposed the dual-rate system and filed its plan with the Board as required by the Board's General Order 76, 46 CFR § 236.3, which permitted proposed rate changes to become effective after 30 days unless postponed by the Board on its own motion or on the protest of interested persons. Protests were filed by Isbrandtsen and the Department of Justice. The Secretary of Agriculture intervened as an interested commercial shipper opposed to the proposal. On January 21, 1953, the Board ordered a hearing on the protests but refused, pending the Board's determination, to suspend operations of the dual-rate system. Isbrandtsen, therefore, filed a petition in the United States Court of Appeals for the District of Columbia Circuit for a stay of the Board's order insofar as it authorized the Conference to institute the dualrate system. The court announced on February 3, 1953, that the Board's order would be stayed and the stay was entered on March 23, 1953.7 The Conference response to the stay was to open rates to allow each line to fix its own rates. At a meeting on March 12, 1953, the Conference voted to open Conference rates on 10 of the major commodities moving in the trade. The action was primarily directed at Isbrandtsen's competition; the Board found that 'it was hoped that the rate war would lead to Isbrandtsen's joining the Conference or to the institution of the dual rate system or other system.' On succeeding dates in the spring of that year, the Conference opened rates on most of the major items in the trade. In the resulting rate war, the level of rates dropped to about 80 percent and later to about 30 percent to 40 percent of the pre-March 12 rates. In some instances, rates fell below handling costs. Isbrandtsen attempted to keep on a competitive basis in the rate war but, when pegging of minimum rates in May did not improve its position, in July it set its rates at 50 percent of the pre-March 12 Conference rates. Since that date, Isbrandtsen has carried little cargo in the trade. Meanwhile the Board proceeded with the hearing and issued its report on December 14, 1955, followed on December 21, 1955, and January 11, 1956, by orders approving the proposed dual-rate system.8 The question for our decision is whether the Court of Appeals correctly set aside the Board's orders.
8
It has long been almost universal practice for American and foreign steamship lines engaging in ocean commerce to operate under conference arrangements and agreements. At least by 1913 it was recognized that such agreements might run counter to the policy of the anti-trust laws; several cases were pending against foreign and domestic water carriers for alleged violations of the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note. The House Committee on Merchant Marine and Fisheries of the 62d Congress, of which committee Representative J. W. Alexander was Chairman, undertook an exhaustive inquiry into the practices of shipping conferences. The work of this Committee is set forth in two volumes of hearings,9 a volume of diplomatic and consular reports, and a fourth volume containing the Committee's report, known as the Alexander Report.10 Contemporaneously a British inquiry was conducted by the Royal Commission on Shipping Rings. The Royal Commission's report was available to the House Committee and was considered by it in formulating recommended legislation. See Hearings, at 369.
9
Both inquiries brought to light a number of predatory practices by shipping conferences designed to give the conferences monopolies upon particular trades by forestalling outside competition and driving out all outsiders attempting to compete. The crudest form of predatory practice was the fighting ship. The conference would select a suitable steamer from among its lines to sail on the same days and between the same ports as the non-member vessel, reducing the regular rates low enough to capture the trade from the outsider. The expenses and losses from the lower rates were shared by the members of the conference. The competitor by this means was caused to exhaust its resources and withdraw from competition.
10
More sophisticated practices depended upon a tie between the conference and the shipper. The most widely used tie, because the most effective, was the system of deferred rebates. Under this system a shipper signed a contract with the conference exclusively to patronize its steamers, and if he did so during the contract term, and for a designated period thereafter, a rebate of a certain percentage of his freight payments was made to him at the end of the latter period. In this way, the shipper was under constant obligation to give his patronage exclusively to the conference lines or suffer the loss of the rebate, which often amounted to a considerable sum.
11
But the Alexander Committee also found evidence of other predatory practices. Shippers who patronized outside competitors were denied accommodations for future shipments even at full rates of freight, or were discriminated against in the matter of lighterage and other services. Outside competition was also met by dual-rate contracts, by contracts with large shippers at lower rates for volume shipments, and by contracts with American railroads giving conference vessels preference in the handling of cargoes at the docks, and delivering through shipments of freight to conference vessels. Report, at 287—293.
12
The Alexander Committee recommended against a flat prohibition of shipping combinations because if found that the restoration of unretricted competition among carriers would operate against the public interest by depriving American shippers of desirable advantages of conference arrangements honestly and fairly conducted. The Committee mentioned advantages such as 'greater regularity and frequency of service, stability and uniformity of rates, economy in the cost of service, better distribution of sailings, maintenance of American and European rates to foreign markets on a parity, and equal treatment of shippers through the elimination of secret arrangements and underhanded methods of discrimination.' Id., at 416. The Committee believed that these advantages could be preserved 'only by permitting the several lines in any given trade to cooperate through some form of rate and pooling arrangement under Government supervision and control,' ibid., and further 'that the disadvantages and abuses connected with steamship agreements and conferences as now conducted are inherent, and can only be eliminated by effective government control; and it is such control that the Committee recommends as the means of preserving to American exporters and importers the advantages enumerated, and of preventing the abuses complained of.' Id., at 418.
13
In passing the Shipping Act of 1916, 39 Stat. 728, 733, as amended, 46 U.S.C. § 812 Third, 46 U.S.C.A. § 812 Third, Congress followed the basic recommendations of the Alexander Committee.11 The Act does not forbid shipping conferences in foreign commerce but requires all conference agreements covering the subjects mentioned in § 15 to be submitted for Board approval.12 No power to fix rates is granted to the Board. Subject to familiar limitations, the power vested in the Board is to approve agreements not found to be unjustly or unfairly discriminatory in violation of §§ 16 and 17 or otherwise in violation of the Act. Approved agreements are exempted from the antitrust laws.
14
But it must be emphasized that the freedom allowed conference members to agree upon terms of competition subject to Board approval is limited to the freedom to agree upon terms regulating competition among themselves. The Congress in § 14 has flatly prohibited practices of conferences which have the purpose and effect of stifling the competition of independent carriers. Thus the deferred-rebate system (§ 14 First) and the fighting ship (§ 14 Second) are specifically outlawed. Similarly, § 14 Third prohibits another practice, common in 1913: to '(r)etaliate against any shipper by refusing * * * space accommodations when such are available * * *'; that prohibition, moreover, is enlarged to condemn retaliation not only when taken 'because such shipper has patronized any other carrier' but also when taken because the shipper 'has filed a complaint charging unfair treatment, or for any other reason.' (Emphasis added.) But in addition to these specifically proscribed abuses, Congress, as previously noted, was aware that other devices—some known but not so widely used, and others that might be contrived—might be employed to achieve the same results. Therefore, coordinate with these three clauses aimed at specific practices, a fourth category, couched in general language, was added: 'resort to other discriminating or unfair methods * * *.' In the context of § 14 this clause must be construed as constituting a catchall clause by which Congress meant to prohibit other devices not specifically enumerated but similar in purpose and effect to those barred by § 14 First, Second, and the 'retaliate' clause of § 14 Third.
15
The reason to 'resort to' clause was added to the statute as an independent prohibition of practices designed to stifle outside competition is revealed in the Alexander Report. From information contained in the Report of the British Royal Commission and a communication from a major New York carrier organization, the Alexander Committee was aware that the outlawing of the deferred-rebate system would lead conferences to adopt a contract system to accomplish the same result. The British Royal Commission believed that ties to shippers were justified and that the abuses of the deferred-rebate system should be tolerated in the interest of achieving a strong conference system. Hearings, 369—381. However, the Alexander Committee, and the Congress in adopting the Committee's proposals, reached a different conclusion. Congress was unwilling to tolerate methods involving ties between conferences and shippers designed to stifle independent carrier competition. Thus Congress struck the balance by allowing conference arrangements passing muster under §§ 15, 16, and 17 limiting competition among the conference members while flatly outlawing conference practices designed to destroy the competition of independent carriers.13 Ties to shippers not designed to have the effect of stifling outside competition are not made unlawful. Whether a particular tie is designed to have the effect of stifling outside competition is a question for the Board in the first instance to determine.
16
Since the Board found that the dual-rate contract of the Conference was 'a necessary competitive measure to offset the effect of non-conference competition' required 'to meet the competition of Isbrandtsen in order to obtain for its members a greater participation in the cargo moving in this trade,'14 it follows that the contract was a 'resort to other discriminating or unfair methods' to stifle outside competition in violation of § 14 Third.
17
The Board argues, however, that Congress, although aware of the use of such contracts, did not specifically outlaw them and therefore implicitly approved them. But the contracts called to the attention of Congress bear little resemblance to the contracts here in question. Those joint contracts were described by the Alexander Committee as follows:
18
'Such contracts are made for the account of all the lines in the agreement, each carrying its proportion of the contract freight as tendered from time to time. The contracting lines agree to furnish steamers at regular intervals and the shipper agrees to confine all shipments to conference steamers, and to announce the quantity of cargo to be shipped in ample time to allow for the proper supply of tonnage. The rates on such contracts are less than those specified in the regular tariff, but the lines generally pursue a policy of giving the small shipper the same contract rates as the large shippers, i.e. are willing at all times to contract with all shippers on the same terms.' Report, at 290.
19
These contracts were very similar to ordinary requirements contracts. They obligated all members of the Conference to furnish steamers at regular intervals and at rates effective for a reasonably long period, sometimes a year. The shipper was thus assured of the stability of service and rates which were of paramount importance to him. Moreover, a breach of the contract subjected the shipper to ordinary damages.
20
By contrast, the dual-rate contracts here require the carriers to carry the shipper's cargo only 'so far as their regular services are available'; rates are 'subject to reasonable increase' within two calendar months plus the unexpired portion of the month after notice of increase is given; '(e)ach Member of the Conference is responsible for its own part only in this Agreement'; the agreement is terminable by either party on three months' notice; and for a breach, 'the Shipper shall pay as liquidated damages to the Carriers fifty per centum (50%) of the amount of freight which the Shipper would have paid had such shipment been made in a vessel of the Carriers at the Contract rate currently in effect.' Until payment of the liquidated damages the shipper is denied the reduced rate, and if he violates the agreement more than once in 12 months, he suffers cancellation of the agreement and the denial of another until all liquidated damages have been paid in full. Thus under this agreement not only is there no guarantee of services and rates for a reasonably long period, but the liquidated-damages provision bears a strong resemblance to the feature which Congress particularly objected to in the outlawed deferred-rebate system. Certainly the coercive force of having to pay so large a sum of liquidated damages ties the shipper to the Conference almost as firmly as the prospect of losing the rebate. It would be anomalous for Congress to strike down deferred rebates and at the same time fail to strike down dual-rate contracts having the same objectionable purpose and effect. Events have proved the accuracy of the prediction that the outlawing of the deferred-rebate system would lead conferences to adopt a contract system, as here, specially designed to accomplish the same result.
21
It is urged that our construction 'produces a flat and unqualified prohibition of any discrimination by a carrier for any reason' and converts the rest of the statute into surplusage. But that argument overlooks the revealed congressional purpose in § 14 Third. That purpose, as we have said, was to outlaw practices in addition to those specifically prohibited elsewhere in the section when such practices are used to stifle the competition of independent carriers. The characterization 'unjustly discriminatory' and 'unjustly prejudicial' found in other sections (§§ 15, 16 and 17) imply a congressional intent to allow some latitude in practices dealt with by those sections, but the practices outlawed by the 'resort to' clause of § 14 Third take their gloss from the abuses specifically proscribed by the section; that is, they are confined to practices designed to stifle outside competition.15 Petitioners argue that our construction of § 14 Third is foreclosed by this Court's decisions in United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, and Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. A reading of those opinions immediately refutes any suggestion either that this issue was expressly decided in those cases or that our holding here is not fully consistent with the disposition of those cases. In Cunard the petitioner had filed a complaint in the District Court alleging that respondents had conspired to maintain 'a general tariff rate and a lower contract rate, the latter to be made available only to shippers who agree to confine their shipments to the lines of respondents.' 284 U.S., at page 479, 52 S.Ct. at page 248. The differentials were alleged to be unrelated to volume or regularity of shipments, but to be wholly arbitrary and unreasonable and designed 'for the purpose of coercing shippers to deal exclusively with respondents and refrain from shipping by the vessels of petitioner, and thus exclude it entirely from the carrying trade between the United States and Great Britain.' 284 U.S. at page 480, 52 S.Ct., at page 248. An injunction was sought under the Sherman and Clayton Acts, 15 U.S.C.A. §§ 1—7, 15 note, 12 et seq. The Court held that the questions raised by this complaint were within the primary jurisdiction of the Shipping Board and therefore the courts could not entertain the suit until the Board had considered the matter. In Far East Conference the Court similarly held that the Board's primary jurisdiction precluded the United States from bringing antitrust proceedings against a shipping conference maintaining dual rates.
22
The Board and the Conference argue that, if the Court in these earlier cases had thought that § 14 Third in any way makes dual rates per se illegal and thus not within the power of the Board to authorize, it would not have found it necessary to require that the Board first pass upon the claims. But in the Cunard case the Court said:
23
'Whether a given agreement among such carriers should be held to contravene the act may depend upon a consideration of economic relations, of facts peculiar to the business or its history, of competitive conditions in respect of the shipping of foreign countries, and of other relevant circumstances, generally unfamiliar to a judicial tribunal, but well understood by an administrative body especially trained and experienced in the intricate and technical facts and usages of the shipping trade; and with which that body, consequently, is better able to deal.' 284 U.S. 474, 485, 52 S.Ct. 247, 250.
24
Similarly, in the Far East Conference case:
25
'The Court (in Cunard) thus applied a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.' 342 U.S. 470, 574—575, 72 S.Ct. 492, 494. (Emphasis added.)
26
It is, therefore, very clear that these cases, while holding that the Board had primary jurisdiction to hear the case in the first instance, did not signify that the statute left the Board free to approve or disapprove the agreements under attack. Rather, those cases recognized that in certain kinds of litigation practical considerations dictate a division of functions between court and agency under which the latter makes a preliminary, comprehensive investigation of all the facts, analyzes them, and applies to them the statutory scheme as it is construed. Compare Denver Union Stock Yard Co. v. Producers Livestock Marketing Ass'n, 356 U.S. 282, 78 S.Ct. 738. It is recognized that the courts, while retaining the final authority to expound the statute, should avail themselves of the aid implicit in the agency's superiority in gathering the relevant facts and in marshaling them into a meaningful pattern. Cases are not decided, nor the law appropriately understood, apart from an informed and particularized insight into the factual circumstances of the controversy under litigation.
27
Thus the Court's action in Cunard and Far East Conference is to be taken as a deferral of what might come to be the ultimate question—the construction of § 14 Third—rather than an implicit holding that the Board could properly approve the practices there involved. The holding that the Board had primary jurisdiction, in short, was a device to prepare the way, if the litigation should take its ultimate course, for a more informed and precise determination by the Court of the scope and meaning of the statute as applied to those particular circumstances. To have held otherwise would, necessarily, involve the Court in comparatively abstract exposition.
28
This consideration, moreover, is particularly compelling in light of our present holding. Since, as we hold, § 14 Third strikes down dual-rate systems only where they are employed as predatory devices, then precise findings by the Board as to a particular system's intent and effect would become essential to a judicial determination of the system's validity under the statute. In neither Cunard nor Far East Conference did the Court have the assistance of such findings on which to base a determination of validity. We conclude, therefore, that the present holding is not foreclosed by these two cases.16
29
Finally, petitioners argue that this Court should not construe the Shipping Act in such a way as to overturn the Board's consistent interpretation. '(T)he rulings, interpretations and opinions of the (particular agency) * * *, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124. But we are here confronted with a statute whose administration has been shifted several times from one agency to another, and it is by no means clear that the Board and its predecessors have taken iniform and consistent positions in regard to the validity of dual-rate systems under § 14 Third.17 See Isbrandtsen Co. v. United States, D.C., 96 F.Supp. 883, 889—891. In view of the fact that in the present case the dual-rate system was instituted for the purpose of curtailing Isbrandtsen's competition, thus becoming a device made illegal by Congress in § 14 Third, we need not give controlling weight to the various treatments of dual rates by the Board under different circumstances.
30
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dis senting.
31
The Court today holds that any dual system of international steamship rates tied to exclusive patronage contracts that is designed to meet outside competition—howsoever justified it may be as a reasonable means of counteracting cutthroat competition violates § 14 of the Shipping Act of 19161 and cannot be approved by the Federal Maritime Board pursuant to § 15 of that Act. The Court thus outlaws a practice that has prevailed among international steamship conferences for half a century,2 that is presently employed by at least half of the hundred-odd conferences subject to Board jurisdiction,3 and that has been found by the Board in this case to decrease the probability of ruinous rate wars in the shipping industry.4 In doing so, the Court does more than set aside a weighty decision of the Federal Maritime Board. It could do so only by rendering meaningless two prior decisions in which this Court respected the power given by Congress to the Board, within the usual limits of administrative discretion, to approve or disapprove such agreements.
32
The agreement involved in this case is typical of the contracts used by the loose associations of steamship lines known as 'conferences' to effectuate their dualrate systems. See Marx, International Shipping Cartels, 207—210. The contracting shipper agrees to forward all of his shipments moving in the 'trade' or route of the conference by bottoms of conference members (§ 1). In return, the conference members, 'so far as their regular services are available,' agree to carry the shipper's goods at rates below those charged to noncontracting shippers; rates are subject to reasonable increase upon specified notice (§ 2). The conference members agree to maintain service adequate to the reasonable requirements of the trade, and if they fail to provide the shipper (who may ordinarily select which of the conference members' vessels will carry his goods) with needed space, he may obtain space from nonconference carriers (§ 4). If the shipper makes any shipments in violation of the agreement, he must pay as liquidated damages 50 percent of the amount of freight he would have paid if he had made the shipment under the contract, and he is not entitled to contract rates until he pays these damages (§ 5). If the shipper violates the agreement more than once in a twelve-month period, the agreement is canceled, and no new agreement will be entered into until all damages are paid (ibid.). Either party may cancel the agreement on three months' notice (§ 9), and any dispute arising out of the agreement is to be submitted to arbitration (§ 10).
33
Such differences as exist among the dual-rate systems that have for long been in wide use in international ocean tranportation are irrelevant if each such system is to be judged by the new test laid down by the Court: is it aimed at meeting outside competition? Of course these exclusive patronage contracts and the dual-rate systems of which they are an integral part are designed to meet nonconference competition. And there should be no doubt that today's decision outlaws such systems. This result cannot be clouded by the Court's reliance upon 'findings' of the Board that it
34
'consider(s) the inauguration of a dual rate system to be a necessary competitive measure to offset the effect of non-conference competition in this trade.' (4 F.M.B. 706, 736, 1956 A.M.C. 414, 450).
35
and that
36
'a reduction in the amount of conference sailings or other solution to the overtonnaging problem would not mitigate the conference's need to meet the competition of Isbrandtsen in order to obtain for its members a greater participation in the cargo moving in the trade.' (4 F.M.B., at page 737, 1956 A.M.C., at page 451.)
37
These statements in the Board's opinion are nothing more than a recognition of the dual-rate system as a device for meeting outside competition; they provide a basis neither for dustinguishing the situation before us from any other familiar use of a dual-rate system nor for concluding that the conference members in this case instituted the system in order to 'stifle' outside competition.
38
While limits have been imposed upon enterprise in meeting competition, which is itself the governing principle of our economic system, these limits, embodied in the antitrust laws, were found to be inapplicable to, because destructive of our national interest in, the international ocean transportation industry. The United States obviously could not completely regulate the foreign carriers with whom American carriers compete (not to mention the carriers that serve foreign shippers with whom American shippers compete). In view of the prevailing characteristics of the industry, it early became apparent that t would, on the whole, be in the national interest to tolerate some practices of steamship lines that in other industries would be deemed inadmissible. For the alternative, so it was concluded, would be to put it within the power of unregulated foreign carriers seriously to injure American firms—both carriers and shippers—if not, indeed, to put them out of business. And so, in the development of a scheme for regulating this international industry, self-protective measures by way of collective action were not left to the condemnation of the Sherman and Clayton Acts. In order to appreciate the Shipping Act of 1916 as an attempt to balance the need for some regulation with the economic and political objections to sweeping the shipping industry under the antitrust concept, the circumstances that begot the Act must be recalled.
39
The second half of the Nineteenth Century saw a tremendous rise in the development of ocean transportation by steamship. Unfor tunately, the supply of available cargo space increased during this period much more rapidly than the demand for it. The inevitable result was cut-throat competition among steamship owners. This in turn was followed by mergers of ownership and by concerted efforts among individual owners to limit competition. The practices by which this end was pursued led to abuses and demands for their correction, to which a number of governments at the turn of the century began to direct their attention. A series of investigations of rates and practices in various parts of the British Empire was followed by the appointment in 1906 of the Royal Commission on Shipping Rings, which rendered its report in 1909. See, generally, Marx, supra, at 45—50; see also Johnson and Huebner, Principles of Ocean Transportation, 263—302. In the United States, the Department of Justice in 1911 brought two proceedings against three steamship conferences to enjoin competitive practices in alleged violation of the Sherman Act, United States v. Prince Line, Ltd., D.C., 220 F.230; United States v. Hamburg-American S.S. Line, D.C., 216 F. 971.5
40
The terms of the resolutions that gave rise to the historic investigation of shipping combinations by the House Committee on the Merchant Marine and Fisheries in 1912—1913, H.Res. 425 and H.Res. 587, 62d Cong., 2d Sess., 48 Cong.Rec. 2835—2836, 9159 9160, manifest the concern of Congress over these steamship conferences and their practices. The investigation was thorough and detailed. The Committee, under the chairmanship of Representative Joshua W. Alexander of Missouri, elicited great quantities of relevant data from shippers, carriers, trade organizations and the Departments of State and Justice, including copies of many kinds of agreements among carriers and between carriers and shippers, and it held extensive hearings in January-March, 1913. Fully considered were exclusive patronage agreements between shippers and conferences providing for a dual rate, see, e.g., Hearings before the House Committee on the Merchant Marine and Fisheries in the Investigation of Shipping Combinations, 62d Cong., 248, 254, 262—263; see also id., at 246, 263.
41
In 1914 the Committee submitted its comprehensive report. In summarizing the competitive methods used by steamship conferences in the American foreign trade, the report discussed, under the heading 'Meeting the competition of lines outside of the conference,' deferred rebate systems, the use of fighting ships, agreements with American railroads, and such types of contracts with shippers as individual requirements contracts, contracts giving preferential rates to large shippers, and the following:
42
'(a) Joint contracts made by the conference as a whole.—Such contracts are made for the account of all the lines in the agreement, each carrying its proportion of the contract freight as tendered from time to time. The contracting lines agree to furnish steamers at regular intervals and the shipper agrees to confine all shipments to conference steamers, and to announce the quantity of cargo to be shipped in ample time to allow for the proper supply of tonnage. The rates on such contracts are less than those specified in the regular tariff, but the lines generally pursue a policy of giving the small shipper the same contract rates as the large shippers, i.e. are willing at all times to contract with all shippers on the same terms.' Report on Steamship Agreements and Affiliations in the American Foreign and Domestic Trade, H.R. Doc. No. 805, 63d Cong., 2d Sess. 290. There can be no doubt that the Committee was amply alive to the primary purpose of the dual-rate system. But it did not, in subsequently discussing (id., at 304—307) the 'Disadvantages of Shipping Conferences and Agreements, as Now Conducted,' make any reference to the system as such, although it dealt extensively and disapprovingly, on the basis of evidence put before it, with such practices as deferred rebates, fighting ships, and retaliation against shippers for airing grievances. Nor were there any strictures against dual-rate systems in the survey of recommendations of witnesses at the hearings for corrective legislation (id., at 307—314), although it was there noted that recommendations were made in favor of prohibitions against deferred rebates and retaliation by refusal of accommodations to a shipper because 'he may have shipped by an independent line, or may have filed a complaint charging unfair treatment, or for other unjust reasons.' Id., at 313.
43
In making its own recommendations (id., at 415—421), the Committee recognized that steamship lines almost universally form conferences and enter into agreements for the purpose (among others) of 'meeting the competition of non-conference lines.' Id., at 415. The Committee recognized that it had to choose between prohibition of these conferences or subjection of them to government supervision.
44
'It is the view of the Committee that open competition can not be assured for any length of time by ordering existing agreements terminated. The entire history of steamship agreements shows that in ocean commerce there is no happy medium between war and peace when several lines engage in the same trade. Most of the numerous agreements and conference arrangements discussed in the foregoing report were the outcome of rate wars, and represent a truce between the contending lines.' Id., at 416. To prohibit existing arrangements, said the Committee, would be to invite rate wars leading to monopoly or to the exposure of American shippers and lines to disastrous competition with foreign shippers and lines. Among the complaints relating to existing conditions was 'the unfairness of certain methods—such as fighting ships, deferred rebates, and threats to refuse shipping accommodations—used by some conference lines to meet the competition of nonconference lines.' Id., at 417. The Committee concluded that the system of conferences and agreements was not to be uprooted. Its disadvantages and abuses must be curbed by effective government control.
45
Among the specific recommendations of the Committee were that carriers be required to file for approval with the regulatory agency (the Committee recommended use of the Interstate Commerce Commission) any agreements among themselves or with shippers, with the agency being empowered to cancel agreements it found to be 'discriminating or unfair in character, or detrimental to the commercial interests of the United States' (id., at 420); that the agency be empowered to investigate and institute proceedings concerning rates that are 'unreasonably high, or discriminating in character as between shippers' (ibid.), and
46
'* * * That the use of 'fighting ships' and deferred rebates be prohibited in both the export and import trade of the United States. Moreover, all carriers should be prohibited from retaliating against any shipper by refusing space accommodations when such are available, or by resorting to other unfair methods of discrimination, because such shipper has patronized an independent line, or has filed a complaint charging unfair treatment, or for any other reason.' Id., at 421. The cautious generality of the latter portion of this last recommendation (and, surely, of the legislative provision based on it) doubtless reflects a feeling on the part of the Committee that many shippers refrained from describing the various forms of and reasons for retaliation against them by carriers, for fear that they would subsequently be retaliated against for making the disclosures. See, e.g., id., at 5.
47
The report of the Committee was filed in February 1914, and four months later Representative Alexander introduced a bill, H.R. 17328, 63d Cong., 2d Sess., incorporating its recommendations. The bill provided, among other things, that carriers be required to file for approval with the Interstate Commerce Commission any of a wide variety of agreements, that the Commission be empowered to cancel or modify agreements that it found 'discriminating or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or that it may find to operate to the detriment of the commerce of the United States, or that may be in violation of this Act,' and that agreements when approved should be exempt from the antitrust laws (§ 3). Where the Commission was of the opinion that rates, charges, classifications, regulations or practices were 'unjust or unreasonable,' it was empowered to determine and enforce what would be just and reasonable under the circumstances (§ 7). And the bill (§ 2) provided that it should be a misdemeanor (punishable by fine of up to $25,000) for any carrier to allow deferred rebates, use a fighting ship, or:
48
'Third. Retaliate against any shipper by refusing, or threatening to refuse, space accommodations when such are available, or resort to other discriminating or unfair methods, because such shipper has patronized any other carrier or has filed a complaint charging unfair treatment or for any other reason.'
49
As no action was taken on H.R. 17328 in 1914, it was reintroduced by Mr. Alexander in the 64th Congress late in 1915 as H.R. 450. Shortly thereafter he introduced H.R. 10500, a bill To establish a United States Shipping Board for the purpose of encouraging, developing, and creating a naval auxiliary and naval reserve and a merchant marine to meet the requirements of the commerce of the United States with its territories and possessions, and with foreign countries, and for other purposes.' That bill authorized the Board to purchase or charter commercial vessels to be leased to private concerns in peacetime and used as a naval auxiliary in wartime; the bill also (§§ 9, 10) provided for very general regulation by the Board of the ocean transportation industry.
50
Approximately two months later, in April 1916, Mr. Alexander introduced H.R. 14337, which adapted his earlier regulatory bill (H.R. 450) to the administrative framework of the Shipping Board bill (H.R. 10500). The bill was considered in committee with a view to substituting its provisions for the general regulatory language of §§ 9 and 10 of the Shipping Board bill. See Hearings before the House Committee on the Merchant Marine and Fisheries on H.R. 14337, 64th Cong., 1st Sess. 5. In these hearings, there was no discussion of the 'retaliation' provision of the bill; attention was concentrated on its more controversial aspects, such as the power of the Board to regulate rates.
51
At the close of these hearings, in early May 1916, a new Shipping Board bill, H.R. 15455, in which the substitution of the more detailed regulatory provisions had been made, was introduced by Mr. Alexander. The bill added a 'Fourth' to the prohibitions against deferred rebates, fighting ships and retaliation: unfair or unjustly discriminatory contracts with or treatment of shippers under specified circumstances; the standard ('discriminating and unfair') in the provision empowering the Board to cancel or modify agreements became 'unjustly discriminatory and unfair.' The bill was promptly reported out of the Merchant Marine and Fisheries Committee with a report that set forth in extenso the recommendations in the 1914 report of the investigation of the shipping industry. H.R.Rep. No. 659, 64th Cong., 1st Sess. 27—31. The debate in the House centered on the ship purchase and lease provisions of the bill, and the bill passed the House with no detailed consideration of the regulatory provisions. In the Senate, the hearings before the Committee on Commerce were also concerned primarily with the ship purchase and lease provisions, as were the floor debates. Once again, the Committee report set forth the recommendations arising out of the 1914 investigation. S.Rep. No. 689, 64th Cong., 1st Sess. 7—11. With no relevant amendment to the regulatory portions of the bill, H.R. 15455 passed the Senate and became law in September of 1916. 39 Stat. 728.
52
As enacted, then, the statute provided for the following scheme of regulation. Carriers subject to the Act must file with the Board copies of agreements establishing (inter alia) preferential or cooperative arrangements. Such of these as the Board finds 'to be unjustly discriminatory or unfair * * * or to operate to the detriment of the commerce of the United States, or to be in violation of this Act,' it may disapprove, cancel or modify; all others it must approve, and those approved are exempt from the antitrust laws (§ 15). As to any 'rate, fare, charge, classification, tariff, regulation, or practice' of carriers that the Board finds to be unjust or unreasonable, it may take corrective measures (§ 18). As an exception to, or qualification upon, this scheme, certain practices were specifically outlawed and may not, therefore, be approved by the Board: to allow deferred rebates, use fighting ships,
53
'* * * Retaliate against any shipper by refusing, or threatening to refuse, space accommodations when such are available, or resort to other discriminating or unfair methods, because such shipper has patronized any other carrier or has filed a complaint charging unfair treatment, or for any other reason. * * *.'
54
and treat or contract with shippers in certain unfair or unjustly discriminatory ways; violation of this provision is a misdemeanor punishable by a fine of up to $25,000 (§ 14).6
55
The form that this regulation takes, considered in light of its legislative background, makes clear the congressional purpose. It was found that abuses and discriminations were inherent in the international shipping trade when it was conducted on the basis of cooperation among competitors. It was further found that the alternative to cooperation was cut-throat competition leading to monopoly and, more particularly, working to the serious detriment of American carriers and shippers and to the advantage of their foreign competitors. The conclusion was that the system of cooperation must be domesticated and exposed to, and policed by, a continuing process of regulation. Only the flagrant abuses were flatly prohibited. The pervading purpose of the Shipping Act is to be found in a statement made in the House debate by Representative Burke, a majority member of the Alexander Committee during both the investigation and the consideration of the various bills:
56
'Your committee at the conclusion of such hearings and after consideration and due deliberation made its report to Congress upon the subject with many valuable recommendations. Among the recommendations made in such report to Congress were that laws should be passed prohibiting the grossest and most vicious of such unfair practices * * *.
57
'It was found by your committee that many of the unfair practices had become so firmly established and contained in many instances elements of usefulness that, with the exception of some of the more prominent ill practices, it was considered that a system of regulation and control of water transportation would be for the best interest of both the public and those interested in water transportation.' 53 Cong.Rec. 8095.
58
It is important to keep in mind the relation of this scheme of regulation to the antitrust laws. Prior to the enactment of the Shipping Act, the ocean transportation industry was, of course, subject to the antitrust laws, and, indeed, as has been noted, proceedings under the Sherman Act had been brought against several conferences by the Government. Congress might have provided that, in addition to being subjected to the general surveillance involved in a comprehensive pattern of regulation, the steamship owners must continue to confrom to the affirmative policy in favor of a high level of competition that underlies the antitrust laws. Such was the condition in which legislation had placed the railroads. They were subject to both Interstate Commerce Commission regulation and the outlawry of the Sherman Act. United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 17 S.Ct., 540, 41 L.Ed. 1007; United States v. Joint Traffic Ass'n, 171 U.S. 505, 19 S.Ct. 25, 43 L.Ed. 259. Not until 1920 were agreements among rail carriers excepted from the antitrust laws. § 407, Transportation Act of 1920, 41 Stat. 456, 480, amending § 5 of the Interstate Commerce Act, 24 Stat. 379, 380, 49 U.S.C.A. § 5. With respect to ocean transportation, however, Congress from the beginning chose to exempt agreements among carriers and between carriers and shippers from the antitrust laws. They thus rejected court-determined competition and preferred to rely upon regulation under an expert administrative agency.
59
It is in the light of this background that we must consider § 14 Third of the Shipping Act of 1916, which both the Court of Appeals and this Court have construed as prohibiting the dual-rate contract system. The section imposes a heavy fine for conduct it makes criminal and so should be strictly construed. See Yates v. United States, 354 U.S. 298, 304—305, 77 S.Ct. 1064, 1069, 1 L.Ed.2d 356. It deserves narrow construction also on the ground that it is an undoubted exception to a comprehensive and complex scheme of regulation by the Board. For it must be construed not as though it were an isolated piece of writing but as part of a reticulated scheme of government for the shipping industry. No form of conduct should be brought within its terms that was not designed to be included. As the foregoing survey of the legislative history demonstrates, there is no evidence of such purpose with respect to the dual-rate contract system. The evidence in fact points to the intention of its exclusion.
60
Under no fairly applicable meaning of the word 'retaliation' can the conclusion of the Court of Appeals, that the initiation and maintenance of a dual-rate contract system is retaliation, be sustained. It is clear from the congressional history that the framers of the legislation were concerned with certain forms of conduct, notably refusal of available accommodations, directed against shippers because they had previously done such things as shipping by an independent line or publicly filing complaints against carriers. The very concept of retaliation is that the retaliating party takes action against the party retaliated against after, and because of, some action of the latter. In the dual-rate contract system, there is nothing of this 'getting even'; the parties simply enter into an agreement that is designed to guide their future conduct but in no way depends upon or arises out of past conduct. It does violence to the English language—and certainly to the duty of reading congressional language in context—to characterize such a contractual arrangement as 'retaliation.' As conduct relating to the competitive struggle between carriers combined in a conference and those who prefer to stay out—yes; as an act of reprisal—no.
61
But if the dual-rate contract system is not 'retaliation,' then it does not violate § 14 Third, for it seems evident that that section was directed only at retaliation. It is, indeed, rather inartfully drawn, but under the circumstances, and particularly in light of the legislative background, its ambiguities should be resolved in favor of the narrower construction. The recommendation of the Alexander Committee, supra, a body on which Congress placed an extraordinarily high degree of reliance with respect to the regulatory aspects of the Shipping Bill, contemplated nothing but 'retaliation.' When, four months later, the recommendation had been put into the language of proposed legislation, it took substantially the form it takes in the statute as enacted. No doubt, the intention to limit the application of the provision to 'retaliation' is not so clear in the statutory language as it was in the recommendation; however, since there is no evidence of purposefulness in this change, and no apparent reason for it, the alternation in language should not be regarded as having effected a decisive change in the substance of the provision. Attaching such drastic significance to this change in wording has no supporting reason and is contradicted by the underlying philosophy of the legislation. This conclusion is emphasized by the fact that after the change the Committee Reports in both Houses of Congress quoted the language of the recommendation in support of the proposed legislation without qualification. And in the House debate, when Representative Alexander was briefly summarizing the provisions of the bill, he said, in describing the provision that became § 14 Third nothing more than that it 'forbids retaliation against shippers who patronize other carriers, or complain of unfair treatment by refusing, or threatening to refuse, space accommodations when available, or by other unfair practices * * *' 53 Cong.Rec. 8080. Surely, when there is nothing in the legislative history to suggest that Congress wished to prohibit the dual-rate contract system of which they were fully aware, and everything to suggest that § 14 Third was designed to respond solely to an entirely different problem, that section cannot be stretched to embrace that practice and thereby to undercut the rationale of the legislation.
62
The Court's construction makes of the latter portions of § 14 Third a general catchall. The relevant words, as abstracted from the entire provision, would be these: 'No common carrier by water shall, directly or indirectly * * * resort to * * * discriminating or unfair methods * * * for any * * * reason.' Such a provision even if it be limited to conduct designed to 'stifle' competition would not only make the remainder of § 14 redundant but would be inconsistent with the whole philosophy, not to say the language, of much of the regulatory portion of the Shipping Act. There is nothing in the words of the statute or in its congressional background to indicate that Congress intended to bury such a broad prohibition in the third portion of a four-part penal section. Moreover, as noted above, the most probable explanation for the generality of the language in § 14 Third is that Congress sought to cover forms of retaliation that shippers had been afraid to bring to the legislators' attention.
63
Nor is there any merit to the suggestion that if Congress made 'deferred rebates' unlawful, the practice of dual-rate contract although not specifically prohibited—should also be unlawful because it has 'the same objectionable purpose and effect.' This mode of approach is a judicial utilization of the salesmanship that offers something as 'just as good.' This Court certainly has not the power to say that conduct is unlawful simply because it is 'just as bad' as some conduct that Congress has specifically prohibited. The principal basis that the Alexander Committee set forth for its conclusion that deferred rebates were objectionable was precisely that the rebates were deferred. The Committee, in outlining the objections that had been made to steamship agreements, noted that '(b)y deferring the payment of the rebate until three or six months following the period to which the rebate applies ship owners effectively tie the merchants to a group of lines for sucessive periods.' Report, supra, at 307. The Committee recited the contention that 'the ordinary contract system does not place the shipper in the position of continual dependence that results from the deferred rebate system' (ibid.); it is not unlikely that they had in mind the dual-rate contract system. This Court in Swayne & Hoyt, Ltd., v. United States, 300 U.S. 297, at page 307, note 3, 57 S.Ct. 478, at page 482, 81 L.Ed. 659, adopted that point of view when it said: 'The Committee recognized that the exclusive contract system does not necessarily tie up the shipper as completely as 'deferred rebates,' since it does not place him in 'continual dependence' on the carrier by forcing his exclusive patronage for one contract period under threats of forfeit of differentials accumulated during a previous contract period.'
64
Twice this Court has rejected the contention that it now accepts. Twice this Court has held that the Shipping Act of 1916 did not render illegal per se a dual-rate contract system enforced by a combination of steamship carriers essentially like the one now before the Court, whereby lower rates are tied to an agreement for exclusive carriage. Such were the decisions, upon full consideration, in United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, in 1932 and again in Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576, in 1952 by a wholly differently constituted Court. In both these cases the claim was that such a dual-rate system constituted a combination in violation of the Sherman Act, for which relief by way of an injunction could be had by a competing carrier outside the conference, as in the Cunard case, and by the United States, as in the Far East Congerence case, under § 4 of the Sherman Act. The immediate issue in both cases was, of course, the applicability of the principle of 'primary jurisdiction'—that is, whether the legality of a dual-rate system could be adjudicated by a United States District Court without a determination by the Federal Maritime Board as to whether 'the matters complained of' (United States Navigation Co. v. Cunard S.S. Co., supra, 284 U.S. at page 478, 52 S.Ct. at page 248) and whether the dual-rate system 'on the merits' (Far East Conference v. United States, supra, 342 U.S. at page 573, 72 S.Ct. at page 493) offend the Shipping Act of 1916. The doctrine of 'primary jurisdiction' was recognized by Mr. Chief Justice Taft as an achievement whereby its author, Mr. Chief Justice White, 'had more to do with placing this vital part of our practical government on a useful basis than any other judge.' (257 U.S. xxv.) The Court's opinion makes of it an empty ritual.
65
By virtue of these two decisions, an independent shipowner who claimed to be hurt by the operation of a dual-rate contract system, employed as a competitive measure against him by a shipping conference, could not bring his complaint to court as might a manufacturer hurt by an analogous combination competitor. Such a shipowner would have to appeal to the Federal Maritime Board, as did Isbrandtsen. The ensuing Board proceedings would probably be similar to those in this case. On Isbrandtsen's protests, filed January 12, 1953, and amended on January 19, hearings were conducted before a Board Examiner from October 5 to December 23, 1953, in which was compiled a record of over 4,500 pages of testimony and over 150 exhibits. The examiner rendered his recommended decision on September 13, 1954, but on October 6 the Board remanded the record for supplemental findings of fact; these supplemental findings were served on January 17, 1955. Eleven months later the Board filed its detailed, comprehensive report approving the conference's dual-rate system (as amended in accordance with the Board's report) as not unjustly discriminatory or unfair, nor likely to operate to the detriment of the commerce of the United States, nor in violation of the Shipping Act. But all this elaborate process and determination are legally meaningless. The agency is made to serve as a circumlocution office. The sole function of this carnival of procedural emptiness is that of a formal preliminary to a suit in a federal court. For such a suit, the Court now holds, is to proceed in complete disregard of all the hearing, weighing and interpreting of evidence before the Board. The Court is to make a ruling of law with entire indifference to all the findings of the expert body set up to make appropriate findings on the basis of the law's policy. Surely it is a form of playfulness to make resort to the Board a prerequisite when the judicial determination of law could have been made precisely as though there had been no proceeding before the Board. This is to make a mockery of the doctrine of primary jurisdiction and to interpret the decisions in the Cunard and Far East Conference cases as utterly wasteful futilities.
66
Until today the doctrine of 'primary jurisdiction' was not an empty ritual. Its observance in scores of cases was not a wasteful futility. In denying to the District Courts jurisdiction in situations like those in the Cunard and Far East Conference cases the doctrine of primary jurisdiction was not devised for the purposeless delay of giving the same jurisdiction to Courts of Appeals, on condition that they use the administrative agency as a sterile conduit to them. Such a view would denigrate and distort the significance of one of the most important movements in our law. Legal scholars have rightly compared it to the rise of equity, a view endorsed by this Court through Mr. Chief Justice Stone, himself a scholar. See United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211. The utilization of these administrative agencies is a legislative realization, judicially respected, that the regulatory needs of modern society demand law-enforcing tribunals other than the conventional courts. The doctrine of primary jurisdiction, based as it is on the discharge of functions for which courts normally have neither training and experience nor procedural freedoms, is an essential aspect of this modern administrative law. It is a means of achieving the proper distribution of the law-enforcing roles as between administrative agencies and courts. It gives these agencies the necessary scope for exploring a wide realm of facts, not to be confined within the exclusionary rules of evidence controlling proceedings in courts, to weigh such facts with an expert's understanding and to choose between allowable inferences where wise choice so often depends on informed judgment.7 These agencies do not supplant courts. They are subject to what may broadly be called the judicial Rule of Law. Appeal lies to courts to test whether an agency acted within its statutory bounds, on the basis of rational evidence supporting a reasoned conclusion, and ultimately satisfies the constitutional requirement of due process. Within these limits, a large range of discretion is entrusted to administrative agencies to make effective the social and economic policies adopted by Congress in the myriad concrete situations calling for their application. Whether rates are reasonable, whether discriminations are fair, whether particular combined economic arangements are justified, whether practices that would, for industry generally, fall afoul the Sherman Act are permissible under a legislative regime for a particular industry that to that extent supersedes the antitrust laws—these and like questions come within the operation of the doctrine of primary jurisdiction, and it limits the power of courts to pass on their merits.
67
Contrariwise, where a decision of a case depends on determination of a question of law as such, either because of explicit statutory outlawry of some specific conduct or by necessary implication of judicial power because not involving the exercise of administrative discretion or the need of uniform application of specialized competence, the doctrine of primary jurisdiction has no function, because there is no occasion to refer a matter to the administrative agency. Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943 (reaffirmed in United States v. Western Pacific R. Co., 352 U.S. 59, 69, 77 S.Ct. 161, 167, 1 L.Ed.2d 126); Texas & Pacific R. Co. v. Gulf, C. & S.F.R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578; Civil Aeronautics Board v. Modern Air Transport, Inc., 2 Cir., 179 F.2d 622, 624—625; see Davis, Administrative Law, 666—668. The course of decisions was accurately summarized in Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 254, 71 S.Ct. 692, 696, 95 L.Ed. 912: '* * * we know of no case where the court has ordered reference of an issue which the administrative body would not itself have jurisdiction to determine in a proceeding for that purpose.' It would be a travesty of law and an abuse of the judicial process to force litigants to undergo an expensive and merely delaying administrative proceeding when the case must eventually be decided on a controlling legal issue wholly unrelated to determinations for the ascertainment of which the proceeding was sent to the agency. Such, however, is the result in this case.
68
The Cunard and Far East Conference decisions mean nothing if they do not mean that the denial of jurisdiction to the District Courts to entertain the suits in those cases and their reference to the Federal Maritime Board, and the holding that the complaints against the dual-rate system in those two cases must be passed on by the Board, constituted the plainest possible recognition that it was for the Board to approve or disapprove the dual-rate contract system complained of, and, therefore, that the practice was not illegal as a matter of law that is, by virtue of a statutory condemnation. In both cases the Court's attention was directed to the claim of per se illegality. In both cases the plaintiffs urged that, since the dula-rate contract system violated § 14, the Board was without power to approve it. Brief for Petitioner, pp. 47—56, United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; Brief for United States, pp. 22—23 (incorporating by reference Brief for United States, pp. 21—45, A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 342 U.S. 950, 72 S.Ct. 623, 96 L.Ed. 706); Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. See, also, United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 478, 52 S.Ct. 247, 248, 76 L.Ed. 408 (argument of petitioner's counsel). And in Far East Conference, the claim that now prevails was a main ground of dissent. See 342 U.S. at pages 578—579, 72 S.Ct. at page 496.8 When an issue is squarely and fully presented to the Court and its disposition is essential to the result reached in a case, the issue is decided, whether the Court says much or little, whether the opinion is didactic or elloptical. Otherwise very few opinions in which Mr. Justice Holmes spoke for the Court, in most instances tersely and often cryptically, would have formulated decisions.
69
Nor can these cases be distinguished on their facts. The complaints in both cases alleged that the conferences had initiated the dual-rate contract system in order to eliminate competition. See United States Navigation Co. v. cunard S.S. Co., 284 U.S. 474, 479—480, 52 S.Ct. 247, 248, 76 L.Ed. 408; Transcript of Record, p. 6, Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. And the dual-rate agreement involved in Far East Conference was, if anything, more coercive and more closely analogous to a system of deferred rebates than is the one involved in the cases before the Court. It provided (§ 4) that if a shipper violated the agreement, the agreement was void, and the shipper became liable to pay 'additional freight on all commodities theretofore shipped with such carriers for a period not exceeding twelve months immediately preceding the date of such shipment, at the non-contract rate or rates * * * .' Id., at 18. Such an accumulation of potential liability was much more likely to result in 'continual dependence' on the conference than is the liquidated damages provision in the agreement before us. The latter provides for damages of 50 percent of the freight that would have been paid under the agreement (i.e., at the lower, or contract rate) for the shipment made in violation of the agreement; the agreement does not become void on account of a single violation. There is no basis for concluding that these damages are unreasonably high or that they do not bear a rational relation to the actual loss a carrier sustains when he is denied a shipment to which his contract entitles him.
70
Since this Court has twice rejected the theory that dual-rate contract systems violate § 14 of the Shipping Act, and since there is nothing in that statute or its legislative history to suggest that those cases were wrongly decided in the light of new knowledge not before the Court when they were decided, the question in this case is, as it was in the earlier two cases, one lying within the Board's administrative discretion. As I see no reason for overturning the detailed, well-reasoned report of the Board in these proceedings, I am of opinion that the decision of the Court of Appeals should be reversed.
71
Mr. Justice HARLAN, dissenting.
72
Except in one respect, I agree with the dissenting opinion of Mr. Justice FRANKFURTER. I do not think that this Court's decisions in United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, and Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576, have the effect which that opinion attributes to them. Despite the logic of the argument flowing from the doctrine of primary jurisdiction, and the lack of any substantial factual distinction between the agreements in those cases and in this one, I am unable to read Cunard and Far East Conference as having determined, without any discussion, the far-reaching question which has been decided today. See especially Cunard, 284 U.S. at pages 483—484, 487, 52 S.Ct. at pages 249—250, 251.
73
On the merits, however, I dissent for the reasons set forth in Mr. Justice FRANKFURTER's opinion.
1
4 F.M.B. 706. The Federal Maritime Board and its predecessors are hereinafter referred to as 'the Board.' Its predecessors were the United States Shipping Board (1916 to 1933); the United States Shipping Board Bureau in the Department of Commerce (1933 to 1936); and the United States Maritime Commission (1936 to 1950).
2
The Federal Maritime Board was named a respondent in Isbrandtsen's petition. The United States was also named as statutory respondent pursuant to 5 U.S.C. § 1034, 5 U.S.C.A. § 1034, but, appearing by the Department of Justice, joined Isbrandtsen in attacking the Board order. The Secretary of Agriculture intervened and joined in the Justice Department's brief. The Conference intervened by leave of the court. The same parties are before this Court.
3
99 U.S.App.D.C. 312, 239 F.2d 933.
4
Section 14 provides:
'No common carrier by water shall, directly or indirectly, in respect to the transportation by water of passengers or property between a port of a State, Territory, District, or possession of the United States and any other such port or a port of a foreign country—
'First. Pay or allow, or enter into any combination, agreement, or understanding, express or implied, to pay or allow a deferred rebate to any shipper. The term 'deferred rebate' in this chapter means a return of any portion of the freight money by a carrier to any shipper as a consideration for the giving of all or any portion of his shipments to the same or any other carrier, or for any other purpose, the payment of which is deferred beyond the completion of the service for which it is paid, and is made only if, during both the period for which computed and the period of deferment, the shipper has complied with the terms of the rebate agreement or arrangement.
'Second. Use a fighting ship either separately or in conjunction with any other carrier, through agreement or otherwise. The term 'fighting ship' in this chapter means a vessel used in a particular trade by a carrier or group of carriers for the purpose of excluding, preventing, or reducing competition by driving another carrier out of said trade.
'Third. Retaliate against any shipper by refusing, or threatening to refuse, space accommodations when such are available, or resort to other discriminating or unfair methods, because such shipper has patronized any other carrier or has filed a complaint charging unfair treatment, or for any other reason.
'Fourth. Make any unfair or unjustly discriminatory contract with any shipper based on the volume of freight offered, or unfairly treat or unjustly discriminate against any shipper in the matter of (a) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage; (b) the loading and landing of freight in proper condition; or (c) the adjustment and settlement of claims.
'Any carrier who violates any provision of this section shall be guilty of a misdemeanor punishable by a fine of not more than $25,000 for each offense.'
5
Isbrandtsen's vessels are not equipped with refrigerated space or silkrooms, as are many of the Conference vessels, and do not compete for cargoes requiring these facilities.
6
The comparative sailings and carryings are indicated in the following table:
Average Percentage of
Cargo carried (revenue carryings per total liner
Number of sailings tons) sailing cargo
Is Is Is Is
Calendar brandt brandt brandt brandt
year sen Conf. Total sen Conf. Total sen Conf. sen Conf.
1949 6 103 109 18,099 135,635 153,734 3,016 1,317 12 88
1950 21 137 158 120,381 229,829 350,210 5,780 1,678 34 66
1951 21 174 195 93,450 219,343 312,793 4,450 1,261 30 70
1952 24 221 245 98,834 281,308 380,142 4,118 1,273 26 74
1953—6
months. 12 153 165 37,308 189,503 226,811 3,109 1,239 16 84
7
On January 21, 1954, the Court of Appeals handed down its final decision holding that § 15 of the Shipping Act required the Board to hold a hearing on the proposed dual-rate system before approval. 93 U.S.App.D.C. 293, 211 F.2d 51.
8
The Board did modify the exclusivepatronage contracts to delete from their coverage refrigerated cargoes for which Isbrandtsen did not compete.
9
Proceedings of the House Committee on the Merchant Marine and Fisheries in the Investigation of Shipping Combinations under House Resolution 587, Hearings, 62d Cong. (Hereinafter 'Hearings.')
10
H.R.Doc. No. 805, 63d Cong., 2d Sess. (Hereinafter 'Report.')
11
H.R.Rep. No. 659, 64th Cong., 1st Sess. 27; see S.Rep. No. 689, 64th Cong., 1st Sess. 7. The Alexander Report was submitted in 1914 to the 63d Congress and a bill to carry out its recommendations was introduced but not passed. H.R. 17328, 63d Cong., 2d Sess. In the following Congress substantially the same bill was reintroduced, H.R. 15455, 64th Cong., 1st Sess., and became the Shipping Act of 1916.
12
Section 15 provides:
'Every common carrier by water, or other person subject to this chapter, shall file immediately with the Federal Maritime Board a true copy, or, if oral, a true and complete memorandum, of every agreement, with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term 'agreement' in this section includes understandings, conferences, and other arrangements.
'The Board may by order disapprove, cancel, or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors or to operate to the detriment of the commerce of the United States, or to be in violation of this chapter, and shall approve all other agreements, modifications, or cancellations.
'Every agreement, modification, or cancellation lawful under this section shall be excepted from the provisions of (the Antitrust Acts) * * *.' 39 Stat. 733, as amended, 46 U.S.C. § 814, 46 U.S.C.A. § 814.
13
Both the section which became § 14 Third and the section which became § 15, as originally proposed, used the language 'discriminating or unfair.' H.R. 17328, 63d Cong., 2d Sess. The bill which became the Shipping Act, H.R. 15455, 64th Cong., 1st Sess., substituted 'unjustly discriminatory or unfair' in § 15 but left untouched 'discriminating or unfair' in § 14 Third.
14
The Board estimated that Isbrandtsen would lose approximately two-thirds of its 1952 volume. '* * * (I)t (is) probable that Isbrandtsen will retain 10 percent or more of the cargo moving in the trade as against the 26 percent carried by it in 1952 * * *.' 4 F.M.B. 706, 737, 1956, Am.Mar.Cas. 414, 451.
15
The Court of Appeals made a partial application of the rule of ejusdem generis and related the 'resort to' clause to retaliation, holding the dual-rate contract or suit was retaliatory and within the ban of the section. The Board urges that the Court of Appeals did not carry the rule of ejusdem generis far enough, that by carrying the rule 'a hand's breadth farther' and also relating—and limiting—the 'resort to' clause to the refusal of space accommodations and similar services to shippers, the dualrate contract falls without the prohibition because the contract is concerned only with charges for services and not with denial of services. We do not believe that these constructions can be reconciled with the language of the statute or the scope of the congressional plan.
16
Certainly it must be assumed that the Court would refrain from settling sub silentio an issue of such obvious importance and difficulty plainly requiring a clearly expressed disposition.
Petitioners' reliance on Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 57 S.Ct. 478, 81 L.Ed. 659, is similarly misplaced. In that case the Court upheld the administrative determination that a dual-rate system gave an 'undue or unreasonable preference or advantage' under § 16 of the Shipping Act. Because the Court sustained the finding as supported by substantial evidence it did not need to reach the more contentions problem of whether that particular contract was illegal under § 14 Third.
17
Compare, e.g., Eden Mining Co. v. Bluefields Fruit & S.S. Co., 1 U.S.S.B. 41, and Contract Routing Restrictions, 2 U.S.M.C. 220, 226—227, with W.T. Rawleigh Co. v. Stoomvart, 1 U.S.S.B. 285, 290.
1
39 Stat. 728, 733, as amended, 46 U.S.C. § 812, 46 U.S.C.A. § 812.
2
See, e.g., agreements set forth at pp. 262—263 of Hearings before the House Committee on the Merchant Marine and Fisheries in the Investigation of Shipping Combinations, 62d Cong.
3
Respondent Isbrandtsen, in its petition to the Court of Appeals to review the order of the Federal Maritime Board stated (at par. 10b) that '(o)f the about one hundred seventeen steamship freight conferences organized pursuant to Section 15 of the Shipping Act, and subject to the jurisdiction of the Board, about sixty-two conferences presently employ that system * * *.' See, also, Marx, International Shipping Cartels, 207.
4
4 F.M.B. 706, 737, 739—740, 1956, A.M.C. 414, 451, 454.
5
On appeal, the very limited decrees obtained by the Government against some members of two of the conferences were reversed, 239 U.S. 466, 36 S.Ct. 212, 60 L.Ed. 387; United States v. American Asiatic S.S. Co., 242 U.S. 537, 37 S.Ct. 233, 61 L.Ed. 479, and the suits directed to be dismissed on the score of mootness because of World War I.
6
It is worth noting that in §§ 14, Fourth and 15 the statute speaks in terms of 'unjust' discrimination, a standard to which it was quite clearly the legislative purpose for the Board to give substance and meaning. Congress had no intention of condemning all of the practices described by the very general language of the two provisions; it relied on the Board to prevent only those that are unwarranted by the competitive situation in which they are found. But in § 14, Third no such qualification was adopted, for the kind of 'discriminating and unfair methods' toward which Congress was directing its attention had been clearly identified (i.e., by retaliation against shippers), and they were to be flatly prohibited irrespective of the circumstances in which they might be practiced.
7
'(The) differences in origin and function (between court and agency) preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts. Thus, this Court has recognized that bodies like the Interstate Commerce Commission, into whose mould Congress has cast more recent administrative agencies, 'should not be too narrowly constrained by technical rules as to the admissibility of proof,' Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S.Ct. 563, 568, 569, 48 L.Ed. 860, should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties. Compare New England Divisions Case, 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605. To be sure, the laws under which these agencies operate prescribe the fundamentals of fair play. They require that interested parties be afforded an opportunity for hearing and that judgment must express a reasoned conclusion. But to assimilate the relation of these administrative bodies and the courts to the relationship between lower and upper courts is to disregard the origin and purposes of the movement for administrative regulation and at the same time to disregard the traditional scope, however far-reaching, of the judicial process. Unless these vital differentiations between the functions of judicial and administrative tribunals are observed, courts will strary outside their province and read the laws of Congress through the distorting lenses of inapplicable legal doctrine.' Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 143—144, 60 S.Ct. 437, 441—442, 84 L.Ed. 656.
8
The Court in the Cunard case discussed the claim in the following terms:
'It is said that the agreement referred to in the bill of complaint cannot legally be approved. But this is by no means clear. * * * (W)hatever may be the form of the agreement, and whether it be lawful or unlawful upon its face, Congress undoubtedly intended that the Board should possess the authority primarily to hear and adjudge the matter. For the courts to take jurisdiction in advance of such hearing and determination would be to usurp that authority. Moreover, having regard to the peculiar nature of ocean traffic, it is not impossible that, although an agreement be apparently bad on its face, it properly might, upon a full consideration of all the attending circumstances, be approved or allowed to stand with modifications.' 284 U.S. at page 487, 52 S.Ct. at page 251.
It may be noted that, after this Court ordered the dismissal of the complaints in the Cunard and Far East Conference cases, the complaining party in neither case initiated proceedings before the Board concerning the dual-rate system involved. The Government has, however, intervened in Board proceedings involving the systems of other conferences, as it did in the instant case.
| 78
|
356 U.S. 412
78 S.Ct. 880
2 L.Ed.2d 879
COUNTY OF MARIN et al., Appellants,v.UNITED STATES of America et al.
No. 415.
Argued April 9, 1958.
Decided May 19, 1958.
Mr. Spurgeon Avakian, Oakland, Cal., for the appellants.
Mr. Robert W. Ginnane, Washington, D.C., for appellees United States of America and Interstate Commerce Commission.
Mr. Allan P. Matthew, San Francisco, Cal., for the intervening appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
At issue here is the exclusive and plenary authority of the Interstate Commerce Commission to approve a transaction in which Pacific Greyhound Lines, a motor carrier subsidiary of the Greyhound Corporation,1 would transfer its operations in the San Francisco Bay area to Golden Gate Transit Lines, a subsidiary of Pacific Greyhound organized by it for that purpose. Pacific Greyhound would receive all Golden Gate capital stock in exchange for the operating rights, certain equipment, and an amount in cash. Appellants, two counties in the area and their respective commuter associations, opposed the transaction and challenged the power of the Commission to authorize it,2 but the Commission asserted jurisdiction and, on certain terms and conditions, approved the plan on the merits. 65 M.C.C. 347. A three-judge District Court, in which appellants sought to set aside the order, held that the Commission had jurisdiction under § 5(2)(a) of the Interstate Commerce Act.3
2
150 F.Supp. 619. In view of the importance of the jurisdictional question and its impact on federal-state relations, we noted probable jurisdiction. 1957, 355 U.S. 866, 78 S.Ct. 116, 2 L.D.2d 72. We conclude that the proposed transaction is beyond the scope of Commission power under § 5(2)(a).4
3
At the time of the application, Pacific Greyhound was a motor common carrier of passengers in seven western and southwestern States under certificates issued by the Interstate Commerce Commission. In combination with members of the Greyhound system and other lines, it provided joint through service to and from more distant areas of the country. In California, the extensive services of Pacific Greyhound included the operations in the San Francisco Bay area which are involved here. These routes are within 25 or 30 miles of the city, extending north into Marin County, east into Contra Costa County, and south on the Peninsula. Measured in terms of revenue, only 5.7% of the traffic is in interstate movement; 94.3% is intrastate, largely commuter.
4
The corporate transaction for which Commission approval was sought was conceived in an environment of financial difficulties plaguing the Bay area operations. The service consistently was operated at a loss, and Pacific Greyhound to some extent blamed the rate-making practices and policies of the California Public Utilities Commission. In proceedings for commutation rate increases over these routes, for example, the State Commission had held that Pacific Greyhound's applications should be determined in light of total revenues from all intrastate operations in California. Pacific Greyhound Lines, Fares, 50 Cal.P.U.C. 650. This the company deemed to be an unjustified subsidization of the local losses with profits from unrelated operations.5
5
The transfer in question admittedly was designed to escape, upon approval of the Interstate Commerce Commission, the practices and policies of the State Commission. Golden Gate was incorporated in 1953, but had engaged in no business activity and was not a carrier. Under the agreement, arrived at early in 1954, Pacific Greyhound would transfer to Golden Gate substantially all interstate and intrastate operating rights in the Bay area, $150,000 in cash, and certain equipment.6 Golden Gate would in turn issue all of its capital stock to Pacific Greyhound. The result is obvious: for rate-making purposes before the State Commission, the deficit-ridden local operation, after the split-up of operating rights into separate corporations, would be forced to stand on its own—or collapse.
6
Although it did not formally intervene, the State Commission filed its views regarding the transaction with the Interstate Commerce Commission. It was stated that the proposed transfer of 'local' operations was wholly unnecessary, would create questionable expense, and would tend to inject confusion into intrastate rate-fixing. Further, the State Commission feared that Golden Gate's resulting capital structure would be of 'questionable soundness.'
7
The Interstate Commerce Commission conditioned its approval of the proposal on an increase in the cash consideration to $250,000, after the hearing officer had recommended disapproval of the plan in its entirety.
8
The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940, enacting § 5(2)(a) in its present form, was to facilitate merger and consolidation in the national transportation system.7 In the Transportation Act of 1920 the Congress had directed the Commission itself to take the initiative in developing a plan 'for the consolidation of the railway properties of the continental United States into a limited number of systems,' 41 Stat. 481, but after 20 years of trial the approach appeared inadequate. The Transportation Act of 1940 extended § 5 to motor and water carriers, and relieved the Commission of its responsibility to initiate the unifications. 'Instead, it authorized approval by the Commission of carrier-initiated, voluntary plans of merger or consolidation if, subject to such terms, conditions and modifications as the Commission might prescribe, the proposed transactions met with certain tests of public interest, justice and reasonableness * * *.' (Emphasis added.) Schwabacher v. United States, 1948, 334 U.S. 182, 193, 68 S.Ct. 958, 964, 92 L.Ed. 1305. In order to avoid the delays incident to approval by each State through which a company operated, the Congress provided for effectuation of Commission-approved plans 'without invoking any approval under State authority.'8 In short, the result of the Act was a change in the means, while the end remained the same. The very language of the amended 'unification section'9 expresses clearly the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification. Subject to approval and authorization of the Commission, § 5(2)(a) makes lawful the consolidation or merger of two or more carriers; the purchase or lease of property, or acquisition of control, of one carrier by another; and the acquisition of control of a carrier by a noncarrier.10
9
In determining whether the Commission had jurisdiction in this case, we must examine the proposed transaction in light of the congressional purpose and statutory language. The Commission and the companies regard the transaction as an 'acquisition' of Golden Gate by Pacific Greyhound, within the language of § 5(2)(a) authorizing Commission approval '* * * for any carrier * * * to acquire control of another through ownership of its stock or otherwise.' We think it is clear that this contemplates an acquisition, by one carrier, of another carrier. Golden Gate, a mere corporate shell without property or function, can by no stretch of the imagination be deemed a 'carrier.' Even if we look beyond Golden Gate's present status, however, and view the plan at its consummation, we find that the alleged 'acquisition' amounts to little more than a paper transaction. In reality the carriers propose a split-up—something beyond the purpose and language of § 5(2)(a). The operating rights which now are solely those of Pacific Greyhound would be divided with Golden Gate; where now there is one carrier, there would be two. Pacific Greyhound's control would be dissipated and its functions dismembered, in the hope of escaping certain practices of the State Commission.
10
There may or may not, in fact, be financial or operational justification for the proposed transaction; that question is not before us. We consider only the applicability of § 5(2)(a) as a ground for Commission jurisdiction, and in so doing the question narrows to 'the nature of the change in relations between the companies.' Alleghany Corp. v. Breswick & Co., 1957, 353 U.S. 151, 169, 77 S.Ct. 763, 773, 1 L.Ed.2d 726. For reasons we have stated, the nature of that change here eliminates this transaction from the 'acquisition' language of § 5(2)(a).
11
Our holding does not create a vacuum in regulation. In cases where the transaction is not within § 5, the Commission nevertheless may assert jurisdiction over the transfer of interstate operating rights under § 212(b) of the Act.11 Although the operations sought to be transferred here were predominantly suburban-commuter in nature, they involved at least some traffic in interstate movement, serviced under certificates issued by the Interstate Commerce Commission; the transfer of these certificates must be Commission-approved. See Atwood's Transport Line—Lease John A. Clarke, 52 M.C.C. 97, 105—108, where the Commission discussed the distinction between § 5 and § 212(b). The transfer of intrastate rights here will, of course, be subject to approval of the State Commission. Far from being a void in regulation, this will invoke the authority of the body most directly concerned with the local operation. This is not to say that the Interstate Commerce Commission could never have jurisdiction over the transfer of intrastate operating rights along with the interstate operations of a carrier. The test is whether the transaction comes within the terms of § 5(2)(a), authorizing the exercise of exclusive and plenary jurisdiction.
12
Finally, we are referred to certain cases in the Commission as evidence that prior administrative practice supports the sustaining of § 5(2)(a) jurisdiction here. Gehlhaus and Hollobinko Control, 60 M.C.C. 167; Takin—Purchase—Takin Bros. Freight Line, Inc., 37 M.C.C. 626; Consolidated Freightways, Inc.—Control Consolidated Convoy Co., 36 M.C.C. 358; Columbia Motor Service Co. Purchase—Columbia Terminals Co., 35 M.C.C. 531. While the interpretation given a statute by those charged with its application and enforcement is entitled to considerable weight, it hardly is conclusive. United States v. Missouri Pacific R. Co., 1929, 278 U.S. 269, 280, 49 S.Ct. 133, 137, 73 L.Ed. 322. The Commission practice as evidenced by these cases is, in our opinion, insufficient to outweigh the apparent congressional purpose and the clear language of the statute—especially in this delicate area where the sustaining of federal jurisdiction leads, by statute, to the complete ouster of state authority.12
13
While the original application to the Commission for approval of the transaction is not a part of the record on appeal, it appears from the briefs that such application contained an alternative prayer for approval of the certificate transfers under § 212(b). Therefore, the judgment is reversed and the case is remanded for proceedings in conformity with this opinion. It is so ordered.
14
Reversed and remanded.
15
Mr. Justice FRANKFURTER, Mr. Justice BURTON, Mr. Justice HARLAN, and Mr. Justice WHITTAKER would affirm the judgment, substantially for the reasons given in the opinion of the District Court, 150 F.Supp. 619.
1
A merger of Pacific Greyhound and Greyhound, pending when the instant proceedings were before the Commission, No. MC—F—573, has since been consummated.
2
Certain divisions of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, representing employees of Pacific Greyhound, also opposed the application, and joined appellants in seeking to set aside the Commission's order in the District Court. However, the complaint was later dismissed as to the union for reasons not material here.
3
Section 5(2)(a): 'It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b)—
'(i) for two or more carriers to consolidate or merge their properties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership; or for any carrier, or two or more carriers jointly, to purchase, lease, or contract to operate the properties, or any part thereof, of another; or for any carrier, or two or more carriers jointly, to acquire control of another through ownership of its stock or otherwise; or for a person which is not a carrier to acquire control of two or more carriers through ownership of their stock or otherwise; or for a person which is not a carrier and which has control of one or more carriers to acquire control of another carrier through ownership of its stock or otherwise * * *.' 41 Stat. 481, as amended, 49 U.S.C. § 5(2)(a), 49 U.S.C.A. § 5(2), (a).
4
Our disposition makes unnecessary any consideration of appellants' alternative contention, namely, that the District Court abused its discretion in denying a motion by appellants to amend their complaint.
5
In 1952 Pacific Greyhound unsuccessfully sought approval from the State Commission for the transfer of local operations between San Francisco and Marin County to an operator who offered to invest $200,000 in working capital. The State Commission, finding the proposed transfer 'adverse to the public interest,' denied the application. Pacific Greyhound Lines, Certificate Transfer, 52 Cal.P.U.C. 2, 7.
6
This included 52 buses recently purchased by Pacific Greyhound under conditional sales contracts, 138 other buses in use in the system, and 194 cash fare boxes. Golden Gate was to assume payment of $982,566 on the new buses, and in addition was to pay Pacific Greyhound $173,394 for its equity therein.
7
See S.Rep. No. 433, 76th Cong., 1st Sess. 28—32; H.R.Rep. No. 1217, 76th Cong., 1st Sess. 6, 12, 17; H.R.Rep. No. 2016, 76th Cong., 3d Sess. 61; H.R.Rep. No. 2832, 76th Cong., 3d Sess. 68—69. See the historical outline of the 'consolidation' provisions in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 1954, 347 U.S. 298, 315, 74 S.Ct. 574, 584 (appendix), 98 L.Ed. 1118.
8
Section 5(11): 'The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in or resulting from any transaction approved by the Commission thereunder, shall have full power * * * to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction without invoking any approval under State authority * * *.' 54 Stat. 908, 49 U.S.C. § 5(11), 49 U.S.C.A. § 5(11).
9
See S.Rep. No. 433, 76th Cong., 1st Sess. 28.
10
See note 3, supra.
11
Section 212(b): 'Except as provided in section 5 of this title, any certificate or permit may be transferred, pursuant to such rules and regulations as the Commission may prescribe.' 49 Stat. 555, as amended, 54 Stat. 924, 49 U.S.C. § 312(b), 49 U.S.C.A. § 312(b).
12
See note 8, supra.
| 78
|
356 U.S. 386
78 S.Ct. 827
2 L.Ed.2d 859
Frank MASCIALE, Petitioner,v.UNITED STATES of America.
No. 84.
Argued Jan. 16, 1958.
Decided May 19, 1958.
Rehearing Denied June 23, 1958.
See 357 U.S. 933, 78 S.Ct. 1367.
Mr. Merrell E. Clark, Jr., New York City, for the petitioner.
Mr. James W. Knapp, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case presents the same issue as Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819: Should petitioner's conviction be set aside on the ground that as a matter of law the defense of entrapment was established? Cf. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Petitioner was convicted on three counts, two of which charged him with the illegal sale of narcotics and one with conspiracy to make a sale.1 The issue of entrapment went to the jury,2 and conviction followed. The Court of Appeals for the Second Circuit affirmed. 236 F.2d 601. We granted certiorari. 352 U.S. 1000, 77 S.Ct. 568, 1 L.Ed.2d 545.
2
The evidence discloses the following events. On January 14, 1954, petitioner was introduced to government agent Marshall by a government informer, Kowel. Although petitioner had known kowel for approximately four years, he was unaware of Kowel's undercover activities. Marshall was introduced as a big narcotics buyer. Both Marshall and petitioner testified concerning the ensuing conversation. Marshall testified that he immediately made it clear that he wanted to talk about buying large quantities of high-grade narcotics and that if petitioner were not interested, the conversation would end at once. Instead of leaving, petitioner questioned Marshall on his knowledge of the narcotics traffic and then boasted that while he was primarily a gambler, 'he knew someone whom he considered high up in the narcotics traffic to whom he would introduce me (Marshall) and that I was able to get and I can quote this—'88 per cent pure heroin' from this source.' Marshall also stated that petitioner gave him a telephone number where he could be reached. In his testimony petitioner admitted that he was a gambler and had told Marshall that through his gambling contacts he knew about the narcotics traffic. He denied that he had then known any available source of narcotics or that he said he could obtain narcotics for Marshall at that time. Petitioner explained that he met marshall only to help Kowel impress Marshall. Petitioner also said that it was Marshall who gave him the telephone number. It is noteworthy that nowhere in his testimony did petitioner state that during the conversation either Marshall or Kowel tried to persuade him to enter the narcotics traffic. In the six weeks following the conversation just related Marshall and petitioner met or spoke with each other at least ten times; petitioner kept telling Marshall that he was trying to make his contact but was having trouble doing so. Finally, on March 1, 1954, petitioner introduced Marshall to Seifert, who sold some heroin to Marshall on the next day. Petitioner even loaned his sister's car to Seifert in order to get the narcotics. It was this sale for which petitioner was convicted.
3
In this case entrapment could have occurred in only one of two ways. Either Marshall induced petitioner, or Kowel did. As for Marshall, petitioner has conceded here that the jury could have found that when petitioner met Marshall he was ready and willing to search out a source of narcotics and to bring about a sale.3 As for Kowel, petitioner testified that the informer engaged in a campaign to persuade him to sell narcotics by using the lure of easy income. Petitioner argues that this undisputed testimony4 explained why he was willing to deal with Marshall and so established entrapment as a matter of law. However, his testimony alone could noth have this effect. While petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to Kowel and so find for the Government on the issue of guilt. Therefore, the trial court properly submitted the case to the jury.5
4
The judgment of the Court of Appeals is affirmed.
5
Affirmed.
6
Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS, Mr. Justice HARLAN, and Mr. Justice BRENNAN join, dissenting.
7
The trial court in this case, according to the view expressed in my concurring opinion in Sherman v. United States, 356 U.S. 378, 78 S.Ct. 823, should itself have ruled on the issue of entrapment and not left it to determination by the jury. On a mere reading of the cold record the evidence for sustaining such a claim seems rather thin. But the judge who heard and saw the witnesses might give different weight to the evidence than the printed record reveals. Accordingly, I would remand the case to the District Court for determination of the issue of entrapment by the trial judge. If he should conclude, as the jury was allowed to conclude, that the claim of entrapment was not sustained, the conviction would stand. If he reached a different result, the indictment shoule be dismissed. This seems, on my view of the law, a better disposition than for this Court to decide that no harm was done in leaving the question to the jury because as a matter of law there was no entrapment.
1
See 26 U.S.C. §§ 2553(a), 2554(a), 26 U.S.C.A. §§ 2553(a), 2554(a); 21 U.S.C. § 174, 21 U.S.C.A. § 174, and 18 U.S.C. § 2, 18 U.S.C.A. § 2.
2
The charge to the jury was not in issue here.
3
Well might petitioner concede this, for despite petitioner's version of the meeting and his explanation for being there, the jury could have believed Marshall and have inferred from his narration that petitioner needed no persuasion to seek a narcotics buyer.
4
We conclude from the argument that neither party even attempted to subpoena Kowel.
5
For the reasons stated in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, we decline to consider the contention that this case should be reversed and remanded to the District Court for a determination of the issue of entrapment by the trial judge. This issue was never raised by the parties. The question of entrapment was submitted to the jury, and the charge to the jury was not put in issue by petitioner either here or in the Court of Appeals.
| 01
|
356 U.S. 421
78 S.Ct. 796
2 L.Ed.2d 886
PUBLIC SERVICE COMMISSION OF UTAH and Utah Citizens Rate Association, Appellants,v.UNITED STATES of America, Interstate Commerce Commission, et al.
No. 15.
Argued Dec. 9, 1957.
Decided May 19, 1958.
Messrs. Calvin L. Rampton and Keith Sohm, Salt Lake City, Utah, for appellants.
Mr. Charles H. Weston, Washington, D.C., for appellees, United States and Interstate Commerce Commission.
Mr. Elmer B. Collins, Omaha, Neb., for Railroad appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
This appeal presents another clash between state and federal authority in the regulation of intrastate commerce. The Public Service Commission of Utah and the Utah Citizens Rate Association, appellants, seek to set aside an order of the Interstate Commerce Commission entered in a proceeding under § 13(3) and (4) of the Interstate Commerce Act1 in which an increase in intrastate freight rates to the general level of interstate rates was granted to railroads operating in Utah. 297 I.C.C. 87. The principal contention here is that the evidence before the Commission was insufficient to support its ultimate finding that existing intrastate rates caused 'undue, unreasonable, and unjust discrimination against interstate commerce.' 297 I.C.C., at 105. A three-judge District Court found against appellants on this and all subsidiary issues. 146 F.Supp. 803. Upon direct appeal, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, we noted probable jurisdiction. 1956, 352 U.S. 888, 77 S.Ct. 128, 1 L.Ed.2d 84. Having concluded that certain findings of the Commission lack sufficient support in the evidence, we reverse the judgment of the District Court.
2
The action of the Commission was limited to freight rates on intrastate traffic in Utah. In Ex Parte No. 175 the Commission had increased interstate freight rates on a national basis by an aggregate of 15%.2 The appellee railroads applied to the Public Service Commission of Utah for a like increase in intrastate rates. After a full hearing, the Utah Commission dismissed the application on the ground that the railroads had not produced evidence concerning their intrastate operations as required by Utah law. No appeal was taken. Instead, pursuant to 49 U.S.C. § 13(3) and (4), 49 U.S.C.A. § 13(3, 4), the railroads filed a petition with the Interstate Commerce Commission which led to the order under attack here. The Commission found the evidence insufficient to establish any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce, on the one hand, and interstate commerce on the other. But in findings patterned after those approved in King v. United States, 1952, 344 U.S. 254, 73 S.Ct. 259, 267, 97 L.Ed. 301, it concluded that the intrastate rates caused 'undue, unreasonable, and unjust discrimination against interstate commerce.' 297 I.C.C., at 105. It sought to remove this burden by generally applying to intrastate traffic the 15% interstate increase previously granted in Ex Parte No. 175.3
3
Appellants attack two findings of the Commission as not being supported by substantial evidence. The first is that existing intrastate rates were abnormally low and failed to contribute their fair share of the revenue needs of the railroads. Evidence was introduced to show that some of Utah's intrastate rates were lower than corresponding interstate rates for like distances. No showing was made, however, of the comparative costs of performing such services. The second finding under attack is that the conditions incident to intrastate transportation were not more favorable than those incident to interstate movements. The evidence underlying this finding indicated only that goods moving intrastate were handled precisely as were those in interstate transportation, being intermingled on the same trains.
4
Intrastate transportation is primarily the concern of the State. Federal power exists in this area only when intrastate tariffs are so low that an undue or unreasonable advantage, preference, or prejudice is created as between persons or localities in intrastate commerce on the one hand and interstate commerce on the other, or when those rates cast an undue burden on interstate commerce.4 Proof of such must meet 'a high standard of certainty,' Illinois Central R. Co. v. Public Utilities Comm'n, 1918, 245 U.S. 493, 510, 38 S.Ct. 170, 176, 62 L.Ed. 425; before a state rate can be nullified, the justification for the exercise of federal power must 'clearly appear.' State of Florida v. United States, 1931, 282 U.S. 194, 211—212, 51 S.Ct. 119, 123—124, 75 L.Ed. 291. The Court pointed out in State of North Carolina v. United States, 1945, 325 U.S. 507, 511, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760, that the findings supporting such an order of the Interstate Commerce Commission must encompass each of the elements essential to federal power. Thereafter, in King v. United States, supra, we stressed the necessity of substantial evidence to support the findings, although we held it unnecessary 'to establish for each item in each freight rate a fully developed rate case.' 344 U.S. at page 275, 73 S.Ct. at page 270. In King, however, the insufficiency of the findings rather than of the evidence was urged upon the Court. Those findings, which we held adequate to support an order increasing intrastate rates, were, inter alia, (1) that existing intrastate rates were abnormally low and did not contribute a fair share of the railroads' revenue needs; (2) that conditions as to the movement of intrastate traffic were not more favorable than those existing in interstate commerce; (3) that the rates cast an undue burden on interstate commerce; (4) that the increase ordered by the Commission would yield substantial revenues; and (5) that such increase would not result in intrastate rates being unreasonable and would remove the existing discrimination against interstate commerce. 344 U.S. at pages 267 268, 73 S.Ct. at pages 266—267, footnote 13. We also held in King that the Commission might give weight to deficits in passenger revenue when prescribing intrastate freight rates so as to meet overall revenue needs. In our most recent review of federal power in this intrastate area, Chicago, M., St. P. & P.R. Co. v. State of Illinois, 1958, 355 U.S. 300, 78 S.Ct. 304, 2 L.Ed.2d 292, we relied on the principles of the above cases in striking down an increase in intrastate passenger fares for a suburban commuter service because the Commission had failed to take into account 'the carrier's other intrastate revenues from Illinois traffic, freight and passenger.' 355 U.S. at page 308, 78 S.Ct. at page 309.
5
We do not believe that the evidence here met the exacting standards required by our prior cases. As to the finding that prevailing intrastate rates were abnormally low and failed to contribute a fair share of overall revenue, we discover no positive evidence to indicate that the relative cost of intrastate traffic was as great as that of interstate shipments. The absence of such evidence is important, for it is not enough to say that interstate rates were higher on similar shipments for like distances, State of Florida v. United States, supra, 282 U.S. at page 212, 51 S.Ct. at page 124, especially where, as here, there was some indication that intrastate traffic moved at lower cost than interstate. The annual reports of the four interstate railroads operating in Utah showed that their Utah operating ratios (freight service cost divided by freight service revenue) and the Utah density statistics (ton mils of traffic per mile of main track) were more favorable than comparable system-wide figures. The Commission discredited the density statistics because of the absence of branch-line inclusion in the totals. This was true, however, in the case of both Utah and syste-wide computations, leaving no apparent foundation for the conclusion of unreliability.
6
Other evidence seemed to indicate that those railroads with the larger percentages of total operations within Utah enjoyed higher rates of overall return for 1953, the year just prior to the hearings in this case. The Denver & Rio Grande, with almost half of its entire operations within Utah, showed a rate of return of 6.06%. The Southern Pacific and Union Pacific, with substantially smaller proportions of Utah operations Showed returns of 3.48% and 3.56%, respectively.
7
Statistics introduced by the railroads as to comparative economic conditions showed recent economic improvement to be greater percentagewise in the West and particularly in Utah than in other sections. The emphasis recently has switched from agriculture to industrial and mining activity, with its resulting increase in traffic—a factor tending to suggest more favorable railroad operating conditions.
8
As to the finding that intrastate conditions were not more favorable than those incident to interstate transportation,5 the railroad evidence on this point was far from substantial. In essence, it merely showed that intrastate and interstate traffic was handled by the same crews and intermingled in the same movement. This evidence failed to establish that all material factors bearing on the reasonableness of rates were substantially the same. As we have previously noted, appellants offered convincing evidence not only of greater density on intrastate operations, permitting a wider spread of fixed costs, but also of lower operating ratios and higher returns as the percentage of intrastate traffic increased. In the face of this proof the evidence as to general similarity of conditions falls short of the 'high standard of certainty' required.
9
It is suggested that the Commission, in granting general interstate increases, frequently proceeds on the assumption that intrastate rates will be raised to the same level. But this assumption is no through ticket permitting it to approach the question of intrastate rates with partiality for a uniform increase. Rate uniformity is not necessarily the goal of federal regulation, nor can the Commission's wishful thinking be substituted for substantial evidence. Section 13 is not cast in terms of 'assumption' or 'partiality.' As applied to this case, it contemplates an inquiry into intrastate rates and conditions within Utah, and any conclusion that interstate operating conditions equally exist there must be ticketed on more than assumption.
10
Finally, we note an absence in the findings of any indication that the Commission concerned itself with the revenues derived from, or the conditions incident to, intrastate passenger operations. While a sweeping inquiry into those operations is not required, we believe that in light of our opinion in Chicago, M., St. P. & P.R. Co. v. State of Illinois, supra, the findings must reflect consideration of these factors in arriving at a general intrastate freight level. 'A fair picture of the intrastate operation, and whether the intrastate traffic unduly discriminates against interstate traffic, is not shown * * * by limiting consideration to the particular * * * service in disregard of the revenue contributed by the other intrastate service.' 355 U.S. at page 308, 78 S.Ct. at page 309. This issue was not argued by the parties, our opinion in that case having been announced after submission of the instant case. We mention it at this point, however, since further proceedings before the Commission no doubt will ensue.
11
The judgment of the District Court is reversed and the cause is remanded to that court with instructions to set aside the order of the Commission and remand the cause to the Commission for further proceedings in conformity with this opinion.
12
It is so ordered.
13
Reversed and remanded with instructions.
14
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON, Mr. Justice HARLAN, and Mr. Justice WHITTAKER join, dissenting.
15
This case involves an order of the Interstate Commerce Commission raising rates on Utah intrastate freight traffic on the ground that such rates unduly discriminate against interstate commerce. The Court has found the evidence insufficient to support the Commission's findings bearing on discrimination, and, although petitioners do not call them in question, has also concluded that the findings themselves are inadequate. Our holding in the recent case of Chicago, M., St. P. & P.R. Co. v. State of Illinois, 355 U.S. 300, 78 S.Ct. 304, 2 L.Ed.2d 292, has been extended to require, even in such a case as this, comprehensive findings concerning all intrastate operations.
16
There comes a time in the development of law, especially when it concerns as complex and important a subject as that in the present case, when a comprehensive survey must be made and the cumulative effect of episodic instances appraised to determine whether or not they reveal a harmonious whole. Case-by-case adjudication, without scrutiny of underlying generalizations or presuppositions, must culminate in an effort to determine whither we are going, and whether the direction cut by the specific instances should be further pursued or whether it represents a deviation from the path demanded by the purpose of the regulatory legislation. These considerations, and the fact that the sufficiency of the evidence can only be judged intelligently in the light of the findings, make it necessary to consider at some length the cases in which this Court has been concerned with intrastate rate discrimination against interstate commerce and the findings that have been required of the Commission to justify an order removing such discrimination.
17
Federal regulation of intrastate rates originated in cases involving discrimination as between particular persons or localities engaged in interstate commerce and particular persons or localities engaged in intrastate commerce. The discrimination in the Shreveport case, Houston, E. & W.T.R. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341, arose from the fact that interstate shippers were required to pay more than intrastate shippers although the rate disparity was not justified by any difference in costs, transportation conditions, or other factors usually considered in setting rates. This discrimination was removed in order to protect the interstate commerce of the particular shippers or localities shown to have been prejudiced, the same reason for prohibiting under § 3(1) of the Interstate Commerce Act, 24 Stat. 379, 380, as amended, 49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1), any 'undue or unreasonable preference or advantage to any particular person * * * locality * * * or any particular description of traffic * * *' where two forms of interstate commerce are involved. It has often been said that this form of discrimination arises simply from the relation of rates to each other, but this is true only if it is understood that the circumstances that enter into the setting of rates and justify differences between them are also taken into consideration. Even in a persons-localities case, discrimination is not made out merely from a disparity in rates, but, as the Court made clear in the Shreveport case, the disparity must exist under "substantially similar conditions and circumstances * * *." 234 U.S. at page 347, 34 S.Ct. at page 834.
18
The power to remove discrimination thus announced in the Shreveport case, as between persons and localities in interstate and intrastate commerce, was given express statutory basis by § 416 of the Transportation Act of 1920, 41 Stat. 456, 484, 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4), amending § 13 of the Interstate Commerce Act. The amendment added, however, as part of a much more comprehensive regulation of the Nation's transportation system, a broad prohibition against 'any undue, unreasonable, or unjust discrimination against interstate or foreign commerce * * *.' This provision, taken in conjunction with § 15a(2), 41 Stat. 456, 488, as amended, 49 U.S.C. § 15a(2), 49 U.S.C.A. § 15a(2), was construed in Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371, to authorize the Commission to remove 'revenue discrimination' resulting from unjustifiably low intrastate rates. The constitutionality of this power was upheld against claims of unwarranted intrusion into the area reserved to the States in their control over intrastate commerce. 'Revenue discrimination' consists, not in prejudice to particular shippers or localities, but in the burden cast on interstate commerce because of the failure of intrastate commerce to contribute its fair share to meet the revenue needs of the carrier. Of course interstate shippers and localities will ultimately be prejudiced by having to make up revenues properly due from intrastate commerce or by the collapse of an adequate transportation system, but the immediate purpose of the exercise of the Commission's power under this head is to assure to the carrier needed revenues. The test of what revenues are needed is found in § 15a(2), 41 Stat. 456, 488, as amended 49 U.S.C. § 15a(2), 49 U.S.C.A. § 15a(2), which instructs the Commission in prescribing rates to give due consideration to the need 'in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management to provide such service.' The National Transportation Policy of 1940, 54 Stat. 899, 49 U.S.C. at pp. 7107—7108, 49 U.S.C.A. preceding section 1, in turn expanded and supplemented the test of § 15a(2). The 'dovetail relation,' as Mr. Chief Justice Taft termed it in the Wisconsin case, 257 U.S. at 586, 42 S.Ct. at page 236, between the second part of § 13(4) and § 15a(2), thus gave a much broadened purpose to federal regulation. 'Theretofore, the effort of Congress had been directed mainly to the prevention of abuses; particularly those arising from excessive or discriminatory rates. The 1920 Act sought to ensure, also, adequate transportation service.' Akron, C. & Y.R. Co. v. United States (New England Divisions Case), 261 U.S. 184, 189, 43 S.Ct. 270, 273, 67 L.Ed. 605.
19
The order sustained in the Wisconsin case affected intrastate fares on a state-wide basis. The Court expressly rejected discrimination against persons or localities as justification for the order, on the ground that there was insufficient evidence to support a finding of state-wide discrimination of this kind. This conclusion may have been justified in the Wisconsin case itself. However, the limitation imposed by that case and later cases upon the effective scope of the persons-localities basis of discrimination, because of stringent evidentiary requirements, seems to have derived more from the origin of the prohibition in the particular kind of situation presented by the Shreveport case than from restrictions inherent in the regulatory scheme contemplated by the statute. Whether discrimination is directly against shippers or against the revenues of the carriers, practical considerations require that evidence typical of discriminatory conditions be sufficient to justify an order that goes beyond the particular instances shown. In revenue cases evidence of some intrastate rates may be deemed typical and relied on to show that intrastate rates in general do not contribute their fair share to revenues. Likewise it might not have been unreasonable to rely on evidence of prejudice to certain interstate shippers as indicative of prejudice throughout the State to interstate shippers, and thus justify a state-wide order to remove discrimination against 'interstate commerce' without resort to the question of revenues.
20
For a time it appeared that § 13(4) would be construed to authorize the removal of discrimination against interstate commerce on such a basis. In Georgia Public Service Commission v. United States, 283 U.S. 765, 51 S.Ct. 619, 75 L.Ed. 1397, for example, the Court sustained a state-wide order not confined in its effect to traffic directly shown to have been prejudiced, yet attention does not seem to have been directed to the revenue needs of the carriers. In its opinion the Court spoke particularly of 'undue prejudice and discrimination to interstate shippers and localities * * *,' 283 U.S. at page 773, 51 S.Ct. at page 622 and the brief for the Interstate Commerce Commission indicates that the case was not primarily conceived of as a revenue case. Pp. 38 40. (See also the significance of the Court's reliance, 283 U.S. at page 774, 51 S.Ct. at page 622, on Nashville, C. & St. L.R. v. State of Tennessee, 262 U.S. 318, 43 S.Ct. 583, 67 L.Ed. 999.) In Louisiana Public Serv. Commission v. Texas & N.O.R. Co., 284 U.S. 125, 52 S.Ct. 74, 76 L.Ed. 201, an order affecting rates throughout most of the State was sustained in spite of the fact, as appellants pointed out, 284 U.S. at pages 126—128, 52 S.Ct. at page 75, that there were no findings in regard to revenue. Finally, in State of Ohio v. United States, 292 U.S. 498, 54 S.Ct. 792, 78 L.D. 1388, the Court sanctioned an unusually wide application of the persons-localities basis of discrimination in sustaining an order raising coal rates throughout the entire northeastern part of Ohio.
21
Nevertheless, the approach suggested by these cases was not in fact carried forward. The first Florida case, State of Florida v. United States, 282 U.S. 194, 208, 51 S.Ct. 119, 122, 75 L.Ed. 291, strongly reaffirmed the Wisconsin case in its rejection of the persons-localities basis for a state-wide order, and in the requirement that an order predicated on such a theory be restricted to 'competitive territory.' See American Express Co. v. State of South Dakota ex rel. Caldwell, 244 U.S. 617, 626, 37 S.Ct. 656, 661, 61 L.Ed. 1352. This was perhaps inevitable in view of the fact that the Shreveport doctrine had been evolved to remedy a specific situation—prejudice against particular shippers or localities shown be relatively direct evidence—so that the evil that gave rise to the legal theory in turn limited its growth. Furthermore, the broad power that the Court found in the relation between § 13(4) and § 15a(2), to protect the carriers' revenues, made it appear unnecessary to expand the persons-localities theory in order effectively to protect interstate commerce. The result has been that, over the years, the cases that have come before this Court that have resulted in significant developments under § 13(4) have been almost exclusively revenue cases.
22
Findings in revenue cases under section 13(4).—In these cases we have been concerned to set forth, with such precision as the subject matter permits, the findings required to justify an ultimate conclusion that there is a revenue discrimination against interstate commerce. Such findings need not be, in any partcular form of words, the automatic recitation of a talismanic formula, but must give ample assurance that the Commission has applied the standards and engaged in the process of judgment contemplated by the statute. Only through the findings can a court know what it is that the Commission has decided and is to be reviewed.
23
Since the purpose of the proceeding is to increase the contribution to revenues from intrastate traffic, there must be a finding that higher rates will in fact result in increased revenues. If business is unable to bear the higher rates, and either production will be curtailed or traffic diverted to cheaper modes of transport, increased rates may actually decrease revenues. The Commission's finding on this matter must express an informed, expert judgment about probabilities. It may not rest simply on the mechanical application of proposed rates to the volume of past traffic, but, on the other hand, the fact that there is uncertainty about the actual revenue outcome will not make the finding insufficient. United States v. State of Louisiana, 290 U.S. 70, 80, 54 S.Ct. 28, 33, 78 L.Ed. 181.
24
The finding principally required in a revenue case is that intrastate commerce is not contributing its 'fair share' to the revenues needed to achieve the ends set forth in § 15a(2) and the National Transportation Policy. What share is a fair share? Intrastate traffic is not contributing a fair share if it pays lower rates than interstate traffic when, on balance, the circumstances that usually go to the setting of rates are not substantially more favorable for intrastate traffic than for interstate traffic. As already indicated, this same test is applicable in cases involving discrimination against persons or localities. A disparity in rates does not alone establish a forbidden discrimination, as the Court has frequently said, nor, it is equally clear, since conditions surrounding interstate transportation may be more favorable, does identity of rates alone give assurance that there is not such discrimination.
25
The most obvious of the circumstances thus made relevant are the costs that enter into the rendering of the transportation service. The circumstances that go to the setting of a rate, however, are not necessarily confined to such costs, but may include a wide range of other considerations such as the ability of traffic to bear the increase and the economic condition of an industry. Costs, furthermore, may be considered indirectly through the factors that generate costs, such as the quality of the service rendered, the physical characteristics of the area through which the traffic moves, average loading, average length of haul, density of traffic, and so forth. In regard to the average length of haul, for example, if terminal costs are fixed, the longer the haul the more the carrier will realize per mile unless the rate is itself graduated to take this fact into account. Interstate hauls are probably on the whole longer than intrastate hauls. Where passenger service is concerned, wholly different factors may become important in deciding whether fare differentials are justified. For instance, coaches used in intrastate suburban or commuter service may require more cleaning and average fewer passenger miles per day than through coaches. See, e.g., In re Intrastate Rates Within Illinois, 102 I.C.C. 479, 483. It is apparent that the factors that may reasonably be found to enter into costs are inexhaustible in number and too changing in significance to permit a definitive catalogue to be drawn up. Least of all should such a task be undertaken by courts that cannot be assumed to have familiarity with, let alone specialized knowledge of, the practicalities of the transportation industry, and whose contact with these matters is necessarily episodic. Understanding in such a complex area as rate regulation, and the feel for the subject essential to successful administration, come only from saturation in the elements of the problem by those constantly concerned. Even to the Commission, what one year has appeared an inconsiderable factor in appraising relative transportation conditions affecting costs has the next, in the light of new experience, been deemed highly relevant.
26
It is essential to bear in mind precisely what it is that the Commission compares when it compares the circumstances surrounding the movement of interstate and intrastate traffic that go to the setting of rates. In the case of interstate traffic, one rate set for an entire interstate movement may take into account not only conditions within the State whose intrastate rates are in question, but also conditions in surrounding States. In comparing cost factors, therefore, it may be necessary to consider not only whether interstate and intrastate traffic as they move through the State move under the same conditions, but also the conditions under which interstate traffic moves beyond the borders of the State. The interstate area relevant to this inquiry may embrace several States, such as the Western District in the present case, or half the country; it is the area chosen in setting the interstate rates.
27
What findings the Commission is required to make concerning the circumstances surrounding interstate and intrastate transportation to justify an ultimate finding that intrastate traffic is not contributing its fair share to revenues have necessarily been dictated more by the practicalities of administration than the demands of abstract logic. The Commission has not been required to make findings as to revenues and costs attributable to intrastate traffic or even to make findings specifically negativing the existence of any factors that might affect costs. Although such findings would give increased assurance that intrastate commerce was not being made to bear more than its fair share, an unwillingness to render nugatory the provisions of § 13(4) by imposing upon the Commission obligations impossible of fulfillment has precluded the Court from such a requirement.
28
In Illinois Commerce Commission v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371, a case involving rates in the Chicago Switching District, the Court clearly laid down what had been implicit in earlier cases sustaining Commission orders. In reply to a contention that there had been no finding separating interstate and intrastate property, revenues, and expenses, the Court stated: 'Where the conditions under which interstate and intrastate traffic move are found to be substantially the same with respect to all factors bearing on the reasonableness of the rate, and the two classes are shown to be intimately bound together, there is no occasion to deal with the reasonableness of the intrastate rates more specifically, or to separate intrastate and interstate costs and revenues.' 292 U.S. at pages 483—484, 54 S.Ct. at page 787. This statement was quoted with approval and applied in King v. United States, 344 U.S. 254, 273, 73 S.Ct. 259, 269, 97 L.Ed. 301. The order in the King case was sustained although the only finding respecting the similarity of conditions surrounding interstate and intrastate transportation was the general finding that, 'the transportation conditions incident to the intrastate transportation of freight in Florida are not more favorable and such conditions in the Florida peninsula are somewhat less favorable than those (1) within southern territory and (2) between Florida and interstate points.' 278 I.C.C. 41, 72. See also the second Florida case, State of Florida v. United States, 292 U.S. 1, 11, 54 S.Ct. 603, 607, 78 L.Ed. 1077.
29
More elaborate findings have not been required because of the practical impossibility, at least where the traffic is mingled and carried on as one operation, of accurately segregating costs between interstate and intrastate commerce. Moreover, a general finding of similarity of conditions was held sufficient because it would have been the height of imprudence for this Court to require the Commission specifically to negative the existence of all factors that might touch on costs when, because of the changing nature of the transportation industry and the endless variety of situations giving rise to discrimination, such factors are not precise, fixed, or equal in importance. The holding in the King case was a practical solution hammered out to meet the almost intractable difficulty of regulating as two systems what is in fact one integrated transportation system of interstate and intrastate commerce, where regulation, if there is to be regulation at all, must be by approximation and compromise.
30
Evidence in section 13(4) cases.—In the present case the Commission found that, 'The conditions incident to the intrastate transportation of freight in Utah are not more favorable than those incident to the interstate transportation between Utah and adjoining States.' Petitioners attack this finding as not supported by substantial evidence. The findings necessary to support an order under § 13(4) have been considered at length because only in the light of them, and the reasons that led the Court to require these, and not more elaborate, findings, can the sufficiency of the evidence be appraised. Thus it would be paradoxical, after deciding that the Commission need not make findings segregating costs because of the practical impossibility of accurate allocation, to require that evidence to the same effect be in the record. Likewise, if individual findings on particular factors that may bear on costs need not be made because an authoritative catalogue of such factors cannot be compiled, it would be inconsistent, and would disregard the criteria governing the findings, to require that the record contain evidence as to all such factors or as to any particular factor.
31
Since, as cannot too often be pointed out, the Commission's administration of § 13(4) must from the nature of the case proceed by approximation and estimate, and for this reason the possible must have a large share in determining the permissible, it is highly relevant to examine at least some of the § 13(4) cases that have come before this Court to determine what evidence has actually been in the record in support of findings of similarity of conditions. In determining whether the record in the present case satisfied the requirement of substantial evidence, we do not deal with a new problem.
32
In the Wisconsin case itself, Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371, a stipulation that operating and transportation conditions were substantially the same made it unnecessary to examine the evidence underlying the Commission's finding on this point, and the record on which the Commission founded its order was not in fact before this Court. In State of New York v. United States, 257 U.S. 591, 42 S.Ct. 239, 66 L.Ed. 385, however, a case also involving intrastate passenger fares, this Court affirmed the District Court's dismissal of a bill brought to annul the Commission's order when the substantiality of the evidence was squarely in issue. The record contained testimony that physical characteristics of interstate and intrastate service, type of equipment, running time, and accommodations were similar, and in addition there was testimony of the most general sort that transportation conditions within the State did not justify lower rates. There was some indication that traffic density in New England was greater than in New York.
33
State of Alabama v. United States, 283 U.S. 776, 51 S.Ct. 623, 75 L.Ed. 1406, involved intrastate rates on fertilizer and fertilizer materials. The issue of the substantiality of the evidence to support the Commission's findings was squarely presented. The record contained no evidence of the cost of the intrastate service. Instead there was general testimony that the conditions surrounding intrastate and interstate transportation in Alabama were substantially similar, and that the witnesses knew of no conditions in Alabama that would justify different intrastate rates. There was some evidence that the tonnage of fertilizer moving intrastate was much greater than that moving interstate, and that ton-miles per loaded car of fertilizer were greater in Alabama than in the Southern District as a whole. Evidence was introduced of competition from wagons on short, intrastate hauls. Yet in spite of this specific evidence tending to show, as against the more general testimony, that conditions affecting intrastate traffic were not the same as those affecting interstate traffic, this Court sustained the Commission's order, finding that the question of similarity of transportation conditions had been 'thoroughly canvassed,' and that the findings were supported by evidence. 283 U.S. at page 779 and note 4, 51 S.Ct. at page 624.
34
In Louisiana Public Service Commission v. Texas & N.O.R. Co., 284 U.S. 125, 52 S.Ct. 74, 76 L.Ed. 201, involving both interstate and intrastate rates on sand, gravel, and similar materials in western Louisiana, this Court found that the facts stated in the opinion were adequately supported by the evidence and were sufficient to warrant the order prescribing higher rates. The record contained evidence as to general freight costs per mile in different States in the territory embracing Louisiana, but no comparison was made of the costs of interstate and intrastate transportation within the State, and there was no evidence of the cost of transportation in the particular part of Louisiana concerned or of the particular commodities on which higher rates were sought. Evidence was introduced to show general freight density in the States in the territory considered, interstate and intrastate combined, and, according to the Commission, 155 I.C.C. 247, 253, about ninety per cent of the movements of the particular commodities involved was intrastate. There was also considerable evidence that bore indirectly on traffic density in these commodities: tonnage moved in each of the States; producers throughout the territory, in Louisiana, and in western Louisiana; total production in western Louisiana; shipments to particular consumers; estimates, based on the Louisiana highway program and population statistics, of probable future consumption. In addition there was the usual general testimony on similarity of conditions, and references to Commission findings in earlier proceedings on the same question. Although the record is, as to the issue we are here concerned with, one of the most extensive in any § 13(4) case that has been before the Court, there is little or no evidence specifically directed to transportation conditions in the southern part of western Louisiana, the area to which the Louisiana Commission had specifically refused to apply the interstate level of rates.
35
Another case in which this Court found that there was substantial evidence was State of Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. 1077, involving intrastate rates on logs. The record contained evidence bearing on the cost of transporting logs in Florida, and indicating that existing intrastate rates did not cover the cost of the service. As to freight in general, there was evidence that costs per gross ton-mile were higher on the carrier's lines in Florida than for the rest of its system, and that density on its lines in Florida, intrastate and interstate combined, was less than for its system as a whole or its system excluding Florida. These comparisons involved the question whether evidence of general freight conditions could be used to justify raising rates on a particular commodity. The case furnished the best evidence on the probability that increased rates would increase revenues because the proposed intrastate rates had actually been in effect for a period before the Court set aside an earlier order of the Commission.
36
In Illinois Commerce Commission v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371, already referred to in connection with the rule that there need not be findings segregating interstate and intrastate expenses, the Court also found that there was substantial evidence. The Commission relied primarily on an extensive cost study of the movement of all commodities in the Chicago Switching District, a study that did not, however, make any separation between interstate and intrastate costs. There was evidence of the physical characteristics of the service: that interstate and intrastate traffic were handled in the same manner and carried on the same trains. On the other hand, it was shown that average intrastate hauls were shorter than average interstate hauls, yet the Commission had set a single rate no matter what the length of haul. In spite of this evidence indicating that at least one factor underlying costs favored intrastate traffic, the Court upheld the Commission's order.
37
State of Mississippi ex rel. Rice v. United States, 307 U.S. 610, 59 S.Ct. 822, 83 L.Ed. 1493, concerned intrastate rates on sand, gravel, fertilizer, and fertilizer materials. This Court affirmed the District Court per curiam, citing cases to the effect that the Commission's orders would be sustained when supported by substantial evidence. The record contained no evidence segregating costs between intrastate and interstate traffic, although one witness testified generally that costs were less in Mississippi than in neighboring States. There was no evidence on traffic density as such, but considerable from which conclusions as to density might be inferred. Thus there was evidence of the tonnage of the commodities involved that had been moved by the carriers, intrastate, interstate, and total, during selected annual periods, and evidence of points of production in Mississippi. The carriers relied on testimony that the same service was rendered interstate and intrastate traffic and the usual general evidence of similarity of conditions. Against this was testimony that the bulk of intrastate movements were single-line, and that, because of extra switching and inspection of cars at switching points, and because of the necessity of keeping interchange records, joint-line movements were more expensive than single-line. Dispute centered principally on whether increased rates would increase revenues. Evidence was introduced to show intensive truck competition, facilitated by the fact that short hauls from wayside gravel pits to all points in the State were possible. Other evidence minimized the seriousness of such competition. The record contained little evidence of conditions surrounding the production and transportation of the commodities in other parts of the South, but the Commission relied to some extent on its investigation into general conditions in earlier proceedings concerned with interstate rates.
38
State of New York v. United States, 342 U.S. 882, 72 S.Ct. 152, 96 L.Ed. 662, affirming, D.C., 98 F.Supp. 855, another per curiam affirmance, raised intrastate commuter fares to the level of interstate commuter fares. A study had been made of the cost of the intrastate commuter service, costs being apportioned between that service and other service on the trains studied principally on the basis of passenger-mile ratios. The results of the study were used by the Commission, however, to show that intrastate fares did not cover the cost of service, rather than to contrast intrastate with comparable interstate costs. Intrastate commuter service was of much heavier volume than interstate, both in number of passengers and passenger miles, but the Commission pointed out that increased costs from such density went far to offset its advantages. Wear and tear on equipment was increased, and since traffic was concentrated at rush hours, additional crews and equipment needed to handle it were idle during the rest of the day. There was evidence that intrastate trains made more stops than interstate trains and used coaches that were older, more crowded, and not air-conditioned. Yet these differences were found not to justify a lower fare.
39
In King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301, the parties raised no question as to the sufficiency of the evidence. The Court observed, however, that evidence supporting the findings appeared in the record and that much of the material that had been before the Commission in its investigations into the interstate rates had also been before it in the § 13 proceedings. 344 U.S. at page 272, 73 S.Ct. at page 269. The record did contain evidence of operating expenses allocated to Florida traffic, interstate and intrastate, but it was admitted that the allocation was simply on the basis of the percentage of revenue derived from such traffic, and that it was impossible accurately to ascertain actual expenses. However, for one carrier, because of special bookkeeping, it was possible to show that actual freight expenses were higher in Florida than for the rest of its system. Statistics were introduced to show that the percentage increase in net railway operating income for Florida and the carriers operating in Florida had been greater than for the Southern District as a whole.
40
As to density, there was evidence that the density of freight traffic in Florida, at least for some carriers, was lower than that for their whole systems or their systems excluding Florida. Against this the State Commission introduced evidence showing that there had been a greater relative increase in tonnage originated in Florida than on the entire inated in Florida than on the entire systems of the three principal carriers serving Florida. There was evidence that intrastate movements were mostly by local trains on branch lines, and the percentage of branch lines in Florida was greater than for the rest of the carriers' systems. Because of overtime wages, shorter hauls, more switching, the necessity of frequently making and breaking up trains, such local trains were shown to be more expensive to operate than through trains. The Court left it to the Commission to weigh the competing claims of all this evidence on the question of similarity of conditions.
41
In recent years the Court has, by per curiam affirmance, disposed of a number of cases involving challenges to § 13(4) orders. In State of Tennessee v. United States, 346 U.S. 891, 74 S.Ct. 222, 98 L.Ed. 394, affirming, D.C., 113 F.Supp. 634, a case involving intrastate rates on coal and wood, the District Court had found that there was substantial evidence. The Commission's report, Tennessee Intrastate Rates and Charges, 286 I.C.C. 41, stated the principal evidence relevant to the finding that intrastate conditions were not more favorable than interstate conditions. The results of a traffic study, separately listing interstate and intrastate terminations of the commodities involved, bore indirectly on density. A greater proportion of intrastate than interstate traffic was handled in costly local trains. A cost study based on waybills showing average load, haul, and rates charged was introduced to show that intrastate rates provided a greater return above cost than rates on interstate movements; the Commission rejected this evidence on the ground that the information in the waybills was unreliable.
42
In Louisiana Public Service Commission v. United States, 348 U.S. 885, 75 S.Ct. 206, 99 L.Ed. 695, affirming, D.C., 125 F.Supp. 180, the District Court had also found that there was substantial evidence. The Commission in its report, Louisiana Intrastate Freight Rates and Charges, 291 I.C.C. 279, relied on evidence that generally intrastate traffic was carried in the same trains with the same crews as interstate traffic and under no more favorable operating conditions, and that in fact considerable intrastate traffic moved in expensive local trains. There was also evidence separately stating, as between intrastate and interstate commerce, the tonnage of the various commodities terminated during a test period.
43
In Illinois Central R. Co. v. Mississippi Public Service Commission, 349 U.S. 908, 75 S.Ct. 599, 99 L.Ed. 1244, affirming Mississippi Public Service Commission v. United States, D.C., 124 F.Supp. 809, the principal question before the District Court had been the sufficiency of the evidence. Among the considerations that that court relied on in setting aside the Commission's order was the fact that the passenger deficit in Mississippi was lower than for the entire systems of the Mississippi carriers, for the rest of the South, or for the country as a whole. It found the evidence too unsubstantial, furthermore, to support the Commission's judgment that, in spite of competition from other forms of transportation, increased rates would increase revenue.
44
From this review of the cases in this Court, and from a consideration of others in the District Courts and before the Commission, certain conclusions emerge that should be decisive in disposing of the case now before us. In the first place, there has been in many cases only the slightest direct evidence of the cost of moving intrastate traffic, and in other cases the record is wholly devoid of such evidence. As is clear from Illinois Commerce Commission v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371, and King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301, such evidence is not required when intrastate and interstate traffic are intimately bound together. The records in many cases contained evidence of factors affecting costs, but, according to the traffic involved and the character of the investigation, what has been deemed an important factor in one case has been passed over in silence in another. Reliance on general testimony concerning similarity of conditions has been almost universal and, in some of the cases considered, such evidence appears to have provided the principal, if not exclusive, support for the Commission's finding.
45
The evidence introduced before the Commission to support a finding of similarity of conditions varies with the purpose and scope of the proceeding. Thus, an investigation under § 13(4) may involve intrastate rates on a single commodity or on all freight traffic; it may involve the rate of a single carrier or all the carriers in the State; it may be confined to rates in a certain part of the State or extend to rates and fares throughout the State. Obviously a single, comprehensive, easily applied formula for testing the evidence required in all these cases cannot be devised without closing one's eyes to the rich and shifting variety of situations presented by the Nation's transportation system, and without unduly confining the Commission in its responsibility to deal with the intermingled interstate and intrastate transportation of a single system.
46
Finally, it is of importance to distinguish § 13 proceedings, such as those in the present case, that accompany or follow regulation of interstate rates on comparable traffic. In these cases, in determining the level at which interstate rates should be set in order to assure a given revenue, the Commission often proceeds on the assumption that intrastate rates will be raised to the same level or proportionately increased. Of course uniformity of rates is not the goal of federal regulation, and the Commission's conclusions in the interstate proceedings do not justify foregoing the inquiry into intrastate rates and conditions required by § 13. But the manner in which the Commission customarily proceeds is strong evidence of what is practically possible in performing the difficult regulatory task imposed by the statute. It should be respected by this Court in prescribing standards for the Commission's guidance. When a § 13 proceeding follows regulation of rates on comparable interstate traffic, furthermore, evidence introduced in the interstate proceedings, whether they are general revenue proceedings or directed to specific rates, will, to a greater or less extent, also bear on conditions surrounding the movement of intrastate traffic, and it may not be unreasonable for the Commission to assume, in the absence of persuasive evidence to the contrary, that the conclusions it has drawn from such evidence about general conditions are equally applicable to a particular State. As was stated in King v. United States, 344 U.S. 254, 272, 73 S.Ct. 259, 269, 97 L.Ed. 301, 'In the absence of any showing that it is not applicable to Florida, the evidence which forms the basis of the Commission's nationwide order becomes the natural basis for its Florida order.'
47
The evidence in the present case.—The present case concerns, with exceptions not now relevant, all Utah intrastate freight rates. It follows a general revenue proceeding raising interstate rates, and seeks to apply the same increase there granted to intrastate traffic.
48
The validity of the Commission's state-wide order was not impaired because as to particular traffic or carriers in the State a rate increase might not be justified. It may be that an increase in rates on certain traffic will decrease revenues, or the operations of one carrier may already be exceptionally profitable. Factors affecting costs may vary throughout the State. In State of New York v. United States, 257 U.S. 591, 42 S.Ct. 239, 66 L.Ed. 385, the fact that evidence indicated that one carrier had a more favorable route with greater density than others did not preclude an order raising passenger fares on a state-wide basis. If general orders are to be possible at all, and § 13(4) necessarily implies them, the Commission must be able to proceed on evidence typical of general conditions, see Georgia Public Service Comm'n v. United States, 283 U.S. 765, 774, 51 S.Ct. 619, 622, 75 L.Ed. 1397, making provision as it did in the present case for the re-examination of specific rates claimed not to fall within the findings. See Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563, 591, 42 S.Ct. 232, 238, 66 L.Ed. 371; Akron C. & Y.R. Co. v. United States (New England Divisions Case), 261 U.S. 184, 196—199, 43 S.Ct. 27, 275—276, 67 L.Ed. 605.
49
The evidence in the present case said to bear on the conditions surrounding the movement of interstate and intrastate traffic included evidence of the following: economic conditions in Utah, the rate of return on the carriers' net property investment, net railway operating income, revenue per ton-mile, freight service ratio, density, operating efficiency, the character of the service rendered interstate and intrastate traffic, and general similarity of operating conditions.
50
There was general testimony from a number of qualified witnesses that interstate and intrastate traffic in Utah moved under substantially similar conditions, were carried on the same trains, handled by the same crews, and accounted for in the same manner, and that generally no better service was given interstate than intrastate traffic. There was evidence that so-called 'piggyback' service was used exclusively for interstate traffic, and that traffic in Utah was more heavily weighted in favor of mine products moving in cheap gondola cars than in neighboring States, but there was no indication that these considerations, insofar as they affected costs, were not in fact taken into account in setting rates on the particular commodities involved.
51
The average rate of return on net property investment for the five Class I carriers serving Utah, and their net railway operating income, were shown to have declined steadily since 1950. Since these figures were not broken down between interstate and intrastate operations within Utah, however, nor between operations in Utah and other States, but instead embraced the carriers' entire systems, the showing of a decline is of no probative value on similarity of conditions surrounding the movement of interstate and intrastate traffic. The decline may be attributable as much to one traffic as to the other. It goes instead to establish the carriers' need for additional revenue from one source or another. The same may be said of the evidence of particular costs entering into the rendering of freight service. There was evidence that wages on the entire systems of the five Utah Class I carriers had risen 45.89% from 1948 to 1953, that they were generally higher in the Western District than in the States further east, and that average unit prices for materials and supplies in that District had risen 24.7% from 1949 to 1954. In none of these statistics were costs attributable to interstate and intrastate traffic segregated and compared.
52
As in most § 13(4) cases, the record here contained numerous statistics showing revenue per ton-mile. Revenue per ton-mile on all freight traffic in Utah, interstate and intrastate, had increased less between 1939 and 1952 than revenue per ton-mile for the Western District and for the country as a whole. On the other hand, the results of a waybill study introduced by the Utah Commission showed that in 1952 the revenue per ton-mile from Utah intrastate shipments was greater than that from interstate shipments that had originated in Utah. But, as the Interstate Commerce Commission pointed out in its report revenue per ton-mile tends to be less on interstate traffic because average hauls are longer. In any event, since differences in revenue per ton-mile are often simply a reflection of the fact that there are differences between interstate and intrastate rates, they are not probative of the relative cost factors affecting interstate and intrastate traffic.
53
I turn now to the evidence that the Court finds, contrary to the Commission, establishes that on the whole conditions surrounding intrastate traffic are substantially more favorable than those surrounding interstate traffic, and require overruling the District Court and setting aside the Commissioner's order. This evidence, according to the Court, so preponderates over the general testimony on similarity of conditions, referred to above, that the Commission was bound to accept it as decisive.
54
There was evidence such as increase in population, automobile registrations, and income payments to individuals that justified a conclusion that economic conditions in Utah had improved relatively more than in the Western District and the United States as a whole. Although this Evidence may be relevant to the density of traffic in Utah as compared with other States, or the density of intrastate and interstate traffic within Utah, it is so remote that it cannot reasonably be argued that it compels a conclusion one way or another.
55
The Court suggests that Utah intrastate transportation conditions must be more favorable because the rate of return on the Denver and Rio Grande Western, with almost half of its operations in Utah, is greater than the rate of return for the Southern Pacific and Union Pacific. For this Court to draw such an inference presupposes a natural law of railroading within the Court's knowledge or to which it can gain ready access. There is nothing in the record to indicate that the higher rate of return for the D&RGW is due to the fact that a substantial part of its traffic is Utah intrastate traffic. It may be due to any one of a number of factors: the railroad as a whole may be more efficiently operated than the UP or the SP; its routes may be more favorably situated or the operations on other parts of its system particularly profitable; the lower rate for the UP and the SP may be due to circumstances present anywhere in their farflung empires.
56
The Court finds that there was no justification for the Commission's conclusion that density figures introduced by petitioners were unreliable. Such a judgment by the Court on the basis of these statistics is indeed puzzling.
57
Exhibit 64 compares, for four Class I carriers in Utah, freight density (ton-miles per mile of main-line track) for 'intrastate' operations with this density for each carrier's system as a whole. In each case the 'intrastate' density is greater than the system density. It is important to understand just what is being compared in this exhibit. As was admitted by petitioners, the 'intrastate' density in the exhibit is not limited to traffic that, under § 1(2)(a) of the Act, 24 Stat. 379, as amended 49 U.S.C. § 1(2)(a), 49 U.S.C.A. § 1(2)(a), moves 'wholly within one State.' Yet it is the cost of moving only such intrastate traffic, traffic wholly within the State, that must be ascertained and compared with the cost of moving interstate traffic, because only this kind of intrastate traffic is subject in the first instance to regulation by the State. Instead, 'intrastate' density in the exhibit includes also that portion of interstate movements that lies within Utah, whether such movements originate or terminate there or bridge the State.
58
The comparison in this exhibit, therefore, is by no means probatively the best when the purpose is to show that the cost of moving one ton one mile on an intrastate journey is less than it would be on an interstate journey. The most persuasive comparison would be between the average density of interstate traffic in the region taken for the purposes of setting the interstate rates and the average density of intrastate traffic that moves wholly within the State. The interstate density properly taken into consideration, because it is the density that affects the interstate rates, is the average density for the entire interstate journey including that part that lies in other States, but not including the intrastate density in those States. There is some, although less, probative value in a comparison between the density of interstate traffic confined to interstate traffic within the State and the density of intrastate traffic. For this comparison to be reliable, density of interstate traffic for the entire region for which the interstate rates have been set must be assumed to be substantially the same as the density of interstate traffic within the State.
59
The comparison in Exhibit 64, between interstate and intrastate density on the carriers' entire systems and interstate and intrastate density in Utah, is of considerably less probative value than these two comparisons. It does not show whether Utah intrastate density is in fact greater or less than interstate density either in Utah or on the carriers' entire systems. It has some evidentiary value, of course, since, if over-all system density is less than over-all density within the State, there are probably factors in the State generating traffic that do not exist in neighboring States. That these factors generate more intrastate than interstate traffic, however, is a matter of speculation, and average regional interstate density may still be higher than intrastate density within Utah. A comparison somewhat similar to that in Exhibit 64, and in fact relied on in the second Florida case, Georgia Pub. Serv. Comm'n v. Atlantic C.L.R. Co., 186 I.C.C. 157, 164, is a comparison between combined interstate and intrastate density within one State and combined interstate and intrastate density on the balance of the carrier's system in surrounding States. It is impossible to tell from such a comparison whether or not region-wide interstate density is less than intrastate density in the particular State involved, although that it is may be a permissible judgment for the Commission to make but hardly for this Court to impose upon it.
60
These distinctions are necessary because the bearing of density on the cost of interstate and intrastate traffic is unlike that of many other factors. Thus road conditions, wages, and cost of fuel in a State are likely to fall with equal effect on intrastate traffic and interstate traffic as it passes through the State. As to these conditions, a comparison between those prevailing in one State and surrounding States is highly relevant. Since interstate rates take into account average conditions throughout the region, if conditions are more favorable in one State, intrastate traffic moving only under those more favorable conditions should not have to pay the same rate as interstate traffic.
61
The Commission itself discounts the importance of the density figures because comparison is made of density on main-line track only and that on branch lines is excluded. However, the Court finds that, since branch-line density is excluded both from Utah and system figures, the omission does not render the evidence unreliable. This is right if, and only if, the proportion of branch line to main line in Utah is the same as for the carriers' systems as a whole. If there is proportionately more low-density branch-line track in Utah, Utah density will be relatively lower. The possibility that such is in fact the case was mentioned at the hearings (R. 294), and petitioners introduced no evidence to supply the deficiency in their exhibit.
62
Thus it is clear that there were good reasons for rejecting the evidence in Exhibit 64,1 but even if the comparison offered were the best, the Commission surely would not be compelled to accept the density evidence as conclusive. Density is only one of a multitude of factors affecting costs, and what is gained by high density may be lost because of some other factor. High density itself, as was shown in State of New York v. United States, 342 U.S. 882, 72 S.Ct. 152, 96 L.Ed. 662 (see 279 I.C.C., at 161), is not always an unmitigated blessing, and low interstate density may be the result of rate discrimination rather than a justification for it.
63
The Court also relies on evidence that the freight service operating ratio of four Class I carriers operating in Utah for 1950—1953 was more favorable for operations described in the exhibit as 'intrastate' than for the carriers' entire systems. The 'intrastate' traffic included in this comparison was the same as that used in the density statistics. Moreover, the Commission itself rejected the evidence because of an even more fundamental criticism of the method used to segregate expenses attributable to intrastate traffic. Since it was impossible in many instances to ascertain actual expenses, allocation had been to a large extent simply on the basis of the number of train miles in the State. The carriers had long attacked this method of allocation as artificial and not reflecting the actual cost of service, and there is no justification for overriding the Commission's judgment on the matter.
64
The upshot is that petitioners produced no evidence of dissimilar conditions that was not open to serious criticism and that the Commission was not justified in rejecting or severely restricting in effect. There remained to support the Commission's finding the general testimony that interstate and intrastate traffic in Utah did in fact move under substantially similar conditions, and also the evidence in the earlier general revenue proceeding to adjust interstate rates that, as we recognized in King v. United States, 344 U.S. 254, 272, 73 S.Ct. 259, 269, 97 L.Ed. 301, becomes the natural basis for the intrastate order in the absence of any showing that it is not applicable. This Court has never before overturned an order of the Commission under § 13(4) on the ground that the evidence was insufficient to sustain a finding of revenue discrimination, although that question has been squarely presented on a number of occasions. The evidence in the present case was as substantial as that in many of these other cases, and, under an interpretation of the Act that respects the practical difficulties facing the Commission, should be enough.
65
The Court objects that there was 'no positive evidence' to support the Commission's finding, but it does not say what evidence on what factors affecting costs, beyond that in the record, was required. Should there have been evidence on length of haul, average loading, cars per train, grade conditions, volume of intrastate traffic handled by local trains, size of crews? This Court cannot say in each case what factors would be significant enough to necessitate evidence, and to require that the record contain evidence negativing all possible factors would be as paralyzing as to require findings to that effect. Once there is evidence of the general nature here introduced, it is for those who contend that intrastate conditions are dissimilar to come forward with convincing evidence showing what specific factors affecting costs are more favorable. Statements in earlier opinions of the Court indicate that such is in fact present law.2 It is the only workable solution. As Mr. Justice Brandeis said in the Akron, C. & Y.R. Co. v. United States (New England Divisions Case), 261 U.S. 184, 197, 43 S.Ct. 270, 275, 67 L.Ed. 605, 'Obviously, Congress intended that a method should be pursued by which the task, which it imposed upon the Commission, could be performed.'
66
Intrastate passenger operations.—This consideration of the findings the Court has required in § 13(4) cases, and the evidence necessary to support them, bears on the far-reaching consequences, not adverted to in the Court's opinion, of holding that our decision in Chicago, Milwaukee, St. P. & P.R. Co. v. State of Illinois, 355 U.S. 300, 78 S.Ct. 304, 2 L.Ed.2d 292, in some manner applies to the present case. It is not clear from the Court's opinion whether on the remand the Commission will be required to make findings on the profitableness of intrastate passenger operations, such as were required in the Milwaukee case for all intrastate operations, or only on the similarity of conditions surrounding intrastate and interstate passenger traffic.
67
It was settled in King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301, that interstate freight traffic could be made to support interstate passenger traffic, and intrastate freight traffic to support intrastate passenger traffic. Left open, because there was no indication in the record that the deficits arising from the two kinds of passenger traffic significantly differed, was the question whether intrastate freight traffic could be made to support an interstate passenger deficit. Such support would be the practical effect if interstate freight rates are set to compensate for an interstate passenger deficit, and intrastate freight rates are raised to the same level although intrastate passenger operations are profitable or result in a smaller loss than interstate passenger operations. The question was presented in Mississippi Public Service Commission v. United States, D.C., 124 F.Supp. 809, where the failure of the Commission to take into account a lower passenger deficit in Mississippi was one ground for the District Court's setting aside the order. Since there were other issues in the case, however, our per curiam affirmance did not necessarily indicate a view on the question. Illinois Central R. Co. v. Mississippi Public Service Commission, 349 U.S. 908, 75 S.Ct. 599, 99 L.Ed. 1244. The precise problem, furthermore, was not clearly settled by the general holding in the Milwaukee case that there should be findings 'which reflect the commuter service deficit in the totality of intrastate revenues * * *,' 355 U.S. 300, 308, 78 S.Ct. 304, 309, 2 L.Ed.2d 292, nor, strictly speaking, must the question be answered at this point in the present case though doubtless it will arise under the Court's disposition on the remand.
68
There is no apparent reason why a lower passenger deficit, like any other favorable circumstance surrounding intrastate transportation, would not justify a lower rate on intrastate freight traffic. If intrastate traffic taken as a whole contributes its fair share to needed revenues and does not, from a revenue standpoint, discriminate against interstate commerce, what justification can there be for a finding of discrimination that is possible only because a segment of intrastate traffic is considered in isolation? Raising rates in this situation may have the effect of compelling intrastate commerce to contribute more than its fair share.
69
It does not necessarily follow that the Commission should be required to make findings, supported by evidence in the record, that the intrastate passenger deficit is not lower than the interstate, or about the profitableness of, or circumstances surrounding, any segment of intrastate operations with which it is not immediately concerned. Indeed, the consequences that follow in the train of such a requirement demonstrate that it exalts formal consistency over sound policy. In the first place, if the Commission must determine the profitableness of intrastate passenger operations, it will of course be compelled to segregate revenues and costs attributable to intrastate and interstate traffic. Yet it is precisely this that in Illinois Commerce Commission v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371, and the King case we said, urged on by the difficulty of accurate allocation, was not required when interstate and intrastate traffic were mingled together.
70
Another consequence of the Court's decision appears to be that every case involving an intrastate rate claimed to result in a revenue discrimination must be broadened into a general inquiry into all intrastate rates and the profitableness of, or circumstances surrounding, all intrastate traffic. The result would be a radical, and in all likelihood unworkable, change in the way the Commission has administered the provisions of § 13(4) for over 35 years. The Commission's Reports are full of cases in which intrastate rates on one commodity or group of commodities, or on traffic in only one part of a State, have been tested for discrimination without reference to the entire intrastate picture. The Wisconsin case itself raised passenger fares without consideration of other intastate operations, and the Chicago Switching case, Illinois Commerce Commission v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371, concerned only segments of Illinois and Indiana intrastate traffic. The possible disruptive effect of requiring the Commission to proceed by giant, state-wide strides, rather than by steps designed to relieve discrimination from a particular segment of intrastate commerce, is alone sufficient to cast doubt on the wisdom of the Court's decision and to require a close scrutiny of the Milwaukee case to determine if the rule there set forth is not in fact confined to the special situation that gave rise to it.3
71
The Milwaukee case involved intrastate fares on commuter service that was for all practical purposes totally separate from the interstate operations of the carrier. There had been no previous proceedings to set the fares on comparable interstate traffic because in fact there was no significant comparable interstate traffic with which the intrastate traffic was mingled. Intrastate fares were not raised to a level of interstate fares that had previously been determined to be reasonable; instead, they were raised to a level that the Commission decided, after considering the intrastate traffic alone, would contribute a fair share to revenues. In such a context a determination of discrimination too easily becomes simply an inquiry into reasonableness, an inquiry the Commission is not empowered to make in respect to intrastate fares. By being compelled to make findings reflecting a broader view of the profitableness of intrastate operations, the Commission is made to give assurance that intrastate commerce has in fact been compared with interstate commerce and discrimination found. A broad comparison between interstate and intrastate operations is necessary because, in this special situation, a narrow comparison is not possible.4
72
It is a very different matter when there is comparable interstate traffic and intrastate rates are raised to the level of rates on that traffic already determined to be reasonable. This was the case in State of New York v. United States, 342 U.S. 882, 72 S.Ct. 152, 96 L.Ed. 662, affirming D.C., 98 F.Supp. 855, also involving intrastate suburban fares, and there was no suggestion that the Commission was bound to look to the totality of intrastate operations. The fact that a comparison of rates on similar traffic is possible gives a greater degree of assurance than was possible in the Milwaukee case that intrastate traffic is not being compelled to contribute more than its fair share to needed revenues, and that it is discrimination rather than simply unreasonableness that the Commission seeks to remedy. In this situation the Commission is justified in considering whether a particular segment of intrastate commerce is contributing its fair share to revenues.
73
Of course, those who contend that intrastate traffic as a whole is not discriminating against interstate traffic may come forward and show, as they may in respect to any claimed dissimilarity of conditions surrounding interstate and intrastate traffic, some favorable aspect of intrastate operations that the Commission should take into account. In the absence of such a showing, however, the Commission should be able to assume that discrimination shown to exist as to the particular segments of intrastate and interstate traffic with which the § 13(4) proceeding is concerned is not offset by other conditions that this Court speculates may affect wholly different segments of intrastate commerce. The record in the present case is devoid of the remotest suggestion that the Utah intrastate passenger deficit is any less than the interstate passenger deficit, and the Commission should not be required to seek out such evidence itself and make findings beyond those it has already made.
74
This is a solution that accommodates imponderables and does not demand precision where the nature of the subject can yield only approximations. It is a solution responsive to the difficult regulatory problems posed by § 13(4). Embedded in it are some of the advantages in simplicity of administration that would follow if this Court had expanded, as it might well have done, the doctrine of discrimination against persons or localities to permit state-wide orders protecting all interstate shippers against discrimination without reference to revenues. At the same time, there remains an opportunity for intrastate shippers or a state commission to show to the Interstate Commerce Commission's satisfaction the existence of specific factors favoring intrastate traffic in general that should not wisely be ignored. It is the solution that seems best designed to achieve the purposes of the Act without interposing insurmountable obstacles to the effective regulation of the national transportation system, the responsibility for which rests, after all, predominantly with the Interstate Commerce Commission.
1
Sec. 13. '(3) Whenever in any investigation under the provisions of this part, or in any investigation instituted upon petition of the carrier concerned, which petition is hereby authorized to be filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by authority of any State, or initiated by the President during the period of Federal control, the Commission, before proceeding to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The Commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this part or part III with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the Commission; and to that end is authorized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the Commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the Commission. The Commission is also authorized to avail itself of the cooperation, services, records, and facilities of such State authorities in the enforcement of any provision of this part or part III.
'(4) Whenever in any such investigation the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.' 41 Stat. 484, as amended, 49 Stat. 543, 54 Stat. 911, 49 U.S.C. § 13(3, 4), 49 U.S.C.A. § 13(3, 4).
2
The increase was accomplished in three separate orders. 280 I.C.C. 179; 281 I.C.C. 557; 284 I.C.C. 589.
3
Appellants challenge the validity of the interstate increases permitted in Ex Parte No. 175. That record, however, was not introduced in this proceeding; moreover, our disposition requires no decision on this phase of the case.
4
See note 1, supra.
5
'Where the conditions under which interstate and intrastate traffic move are found to be substantially the same with respect to all factors bearing on the reasonableness of the rate, and the two classes are shown to be intimately bound together, there is no occasion to deal with the reasonableness of the intrastate rates more specifically, or to separate intrastate and interstate costs and revenues.' Illinois Commerce Commission v. United States, 1934, 292 U.S. 474, 483—484, 54 S.Ct. 783, 787, 78 L.Ed. 1371; King v. United States, supra, 344 U.S. at page 273, 73 S.Ct. at page 269.
1
The record also contains evidence that in 1952 and 1953 density for the Denver and Rio Grande Western was higher on its lines in Utah than on its lines in Colorado or for its system as a whole. Such a comparison, as already pointed out, does not show that Utah intrastate density for the D&RGW is in fact higher than interstate density over the carrier's entire system. Furthermore, the system of the D&RGW is confined almost completely to Utah and Colorado, and there was no showing that the density figures could not be explained on the basis of special conditions in Colorado, rather than by more favorable conditions in Utah compared with the Western District as a whole. The same criticism can be made of the evidence that operating efficiency on the D&RGW—tons per freight car loaded, tons per train, tons per locomotive, etc.—is more favorable in Utah than Colorado.
There was also considerable evidence, taken from actual freight bills, of tonnage terminated in Utah during a four-month test period in 1953—1954, in some instances segregated between interstate and intrastate movements. However, since all interstate movements during the period were admittedly not included, the evidence provides no basis for reliable conclusions about density.
Evidence of the relative volume of interstate and intrastate movements of particular commodities, such as coal, ores, and concentrates, are no necessary indication of over-all freight density, and therefore of little assistance on this question in a proceeding to raise all freight rates. When the § 13(4) proceeding is concerned with rates on certain commodities only, it is for the Commission to decide what density comparisons are significant, whether of over-all freight traffic, movements of the particular commodities, or movements restricted to a particular region. See, e.g., Indianapolis Chamber of Commerce v. Cleveland, C., C. & St. L.R. Co., 60 I.C.C. 67, 74.
2
King v. United States, 344 U.S. 254, 264—265, 73 S.Ct. 259, 265, 97 L.Ed. 301: 'In the instant case, however, there is no showing that the character of operating conditions in Florida intrastate passenger traffic differs substantially from that of interstate passenger operations in the southern territory generally.' United States v. State of Louisiana, 290 U.S. 70, 79, 54 S.Ct. 28, 33, 78 L.Ed. 181: 'It sufficed that the Commission found that Louisiana showed nothing in the circumstances of its agriculture and industry or its traffic conditions so different from the rest of the country as to lead to the conclusion that the intrastate rates, raised to the reasonable general interstate level, would not themselves be reasonable * * *.'
3
A recent report on the 'Problems of the Railroads' of the Subcommittee on Surface Transportation of the Senate Committee on Interstate and Foreign Commerce, issued after extensive hearings on the depressed conditions in the industry, expresses deep concern over the implications of the Milwaukee decision, and specifically proposes legislation to forestall what appear to be the consequences of the present decision:
'From the testimony, it is clear that this opinion of the Supreme Court (in the Milwaukee case) not only places an intolerable burden
under present accounting practices, but in addition presents an almost impossible obstacle because of the problem of segregating intrastate and interstate expenses of rail operation. Further the subcommittee thinks that each service should stand on its own feet, supported by rates that are compensatory.
'Fear has been expressed that this case might be construed as requiring that the finding of 'undue, unreasonable, or unjust discrimination against, or undue burden on, interstate or foreign commerce' stipulated by the act be made only in the light of the overall, statewide totality of a carrier's operating results deriving from the entire body of that carrier's rates applicable within the State, thus precluding such a finding on a showing of only the effect of the particular rate or rates in issue. To protect against such an interpretation of the Milwaukee case it is proposed to provide that the Commission, in determining whether any intrastate rate causes discrimination against, or burden on, interstate commerce, need not consider in totality the overall statewide results of the carrier's operations but need consider only the effect of the particular rate or rates in issue.' Report of the Subcommittee on Surface Transportation of the Senate Committee on Interstate and Foreign Commerce, S.Rep. No. —-, 85th Cong., 2d Sess. 15 (April 30, 1958).
The legislative proposals of the Subcommittee have been embodied in a bill introduced in the Senate on May 8, 1958. S. 3778, 85th Cong., 2d Sess.
4
Are we to assume that the Milwaukee case has, sub silentio, overruled State of Illinois v. United States, 342 U.S. 930, 72 S.Ct. 377, 96 L.Ed. 693, affirming D.C., 101 F.Supp. 36, where the intrastate suburban service was almost wholly distinct from the carriers's other operations?
| 78
|
356 U.S. 571
78 S.Ct. 839
2 L.Ed.2d 983
Vincent CIUCCI, Sr., Petitioner,v.STATE OF ILLINOIS.
No. 157.
Argued March 13, 1958.
Decided May 19, 1958.
Mr. George N. Leighton, Chicago, Ill., for the petitioner.
Mr. William C. Wines, Chicago, Ill., for the respondent.
PER CURIAM.
1
Petitioner was charged in four separate indictments with murdering his wife and three children, all of whom, with bullet wounds in their heads, were found dead in a burning building during the early hours of December 5, 1953. In three successive trials, petitioner was found guilty of the first degree murder of his wife and two of his children. At each of the trials the prosecution introduced into evidence details of all four deaths. Under Illinois law the jury is charged with the responsibility of fixing the penalty for first degree murder from 14 years' imprisonment to death. Ill.Rev.Stat. 1957, c. 38, § 360. At the first two trials, involving the death of the wife and one of the children, the jury fixed the penalty at 20 and 45 years' imprisonment respectively. At the third trial, involving the death of a second child, the penalty was fixed at death. On appeal the Supreme Court of Illinois affirmed the conviction, 8 Ill.2d 619, 137 N.E.2d 40, and we granted certiorari to consider petitioner's claim that this third trial violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. 353 U.S. 982, 77 S.Ct. 1286, 1 L.Ed.2d 1141.
2
It is conceded that under Illinois law each of the murders, although apparently taking place at the same time, constituted a separate crime and it is undisputed that evidence of the entire occurrence was relevant in each of the three prosecutions. In his brief in this Court petitioner has appended a number of articles which had appeared in Chicago newspapers after the first and second trials attributing to the prosecution certain statements expressing extreme dissatisfaction with the prison sentences fixed by the jury and announcing a determined purpose to prosecute petitioner until a death sentence was obtained. Neither these articles nor their subject matter is included in the record certified to this Court from the Supreme Court of Illinois.
3
The five members of the Court who join in this opinion are in agreement that upon the record as it stands no violation of due process has been shown. The State was constitutionally entitled to prosecute these individual offenses singly at separate trials, and to utilize therein all relevant evidence, in the absence of proof establishing that such a course of action entailed fundamental unfairness. Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829; see Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288. Mr. Justice FRANKFURTER and Mr. Justice HARLAN, although believing that the matters set forth in the aforementioned newspaper articles might, if established, require a ruling that fundamental unfairness existed here, concur in the affirmance of the judgment because this material, not being part of the record, and not having been considered by the state courts, may not be considered here.
4
Accordingly, the judgment of the Supreme Court of Illinois is affirmed, with leave to petitioner to institute such further proceedings as may be available to him for the purpose of substantiating the claim that he was deprived of due process.
5
It is so ordered.
6
Affirmed.
7
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.
8
This case presents an instance of the prosecution being allowed to harass the accused with repeated trials and convictions on the same evidence, until it achieves its desired result of a capital verdict.
9
Petitioner's wife and three children were found dead in a burning building. It was later established that death was due both to the fire and to bullet wounds each had received in the head. Petitioner was first tried on an indictment charging that he had murdered his wife. At that trial the evidence was not limited to the wife's death. The deaths of the three children were also introduced, and testimony as to the cause of death of all of the victims was received. This trial was in effect a trial for the murder of all four victims for the gruesome details of each of the four deaths were introduced into evidence. Petitioner was found guilty. Under Illinois law the jury determines the sentence in a murder case between a minimum of 14 years' imprisonment and a maximum of death. Ill.Rev.Stat., 1957, c. 38, § 360. At that first trial the jury fixed the penalty at 20 years' imprisonment.
10
The prosecutor demanded another trial. Accordingly petitioner was next tried on a charge of murdering one of his daughters.
11
At the second trial the same evidence was introduced as in the first trial. Evidence concerning the four deaths once more was used. Once more all the gruesome details of the four crimes were presented to the jury. Once more the accused was tried in form for one murder, in substance for four. This time a different jury again found petitioner guilty and sentenced him to 45 years' imprisonment.
12
The prosecutor was still not satisfied with the result. And so a third trial was had, the one involved here.
13
In this third trial, petitioner was charged with murdering his son. This time petitioner objected before trial that he was being subjected to double jeopardy. He also moved to exclude testimony concerning the other deaths and after verdict he protested that he had been denied a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The trial court overruled those objections. At the trial complete evidence of all of the deaths and their causes was again introduced. Once more the gruesome details of four murders were presented to a jury—the gathering of the family in their home, the fire at 2 a.m., the .22 caliber bullets in the bodies of the four victims, the borrowing by the accused of a .22 rifle, the arrival of the firemen, the autopsies at the morgue. This time a third jury sentenced petitioner to death.
14
In my view the Due Process Clause of the Fourteenth Amendment prevents this effort by a State to obtain the death penalty. No constitutional problem would have arisen if petitioner had been prosecuted in one trial for as many murders as there were victims. But by using the same evidence in multiple trials the State continued its relentless prosecutions until it got the result it wanted. It in effect tried the accused for four murders three consecutive times, massing in each trial the horrible details of each of the four deaths. This is an unseemly and oppressive use of a criminal trial that violates the concept of due process contained in the Fourteenth Amendment, whatever its ultimate scope is taken to be.
15
Mr. Justice BLACK concurs in this dissent on the ground that the Fourteenth Amendment bars a State from placing a defendant twice in jeopardy for the same offense.
| 01
|
356 U.S. 369
78 S.Ct. 819
2 L.Ed.2d 848
Joseph George SHERMAN, Petitioner,v.UNITED STATES of America.
No. 87.
Argued Jan. 16, 1958.
Decided May 19, 1958.
Mr. Henry A. Lowenberg, New York City, for the petitioner.
Mr. James W. Knapp, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The issue before us is whether petitioner's conviction should be set aside on the ground that as a matter of law the defense of entrapment was established. Petitioner was convicted under an indictment charging three sales of narcotics in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174. A previous conviction had been reversed on account of improper instructions as to the issue of entrapment. 2 Cir., 200 F.2d 880. In the second trial, as in the first, petitioner's defense was a claim of entrapment: an agent of the Federal Government induced him to take part in illegal transactions when otherwise he would not have done so.
2
In late August 1951, Kalchinian, a government informer, first met petitioner at a doctor's office where apparently both were being treated to be cured of narcotics addition. Several accidental meetings followed, either at the doctor's office or at the pharmacy where both filled their prescriptions from the doctor. From mere greetings, conversation progressed to a discussion of mutual experiences and problems, including their attempts to overcome addiction to narcotics. Finally Kalchinian asked petitioner if he knew of a good source of narcotics. He asked petitioner to supply him with a source because he was not responding to treatment. From the first, petitioner tried to avoid the issue. Not until after a number of repetitions of the request, predicated on Kalchinian's presumed suffering, did petitioner finally acquiesce. Several times thereafter he obtained a quantity of narcotics which he shared with Kalchinian. Each time petitioner told Kalchinian that the total cost of narcotics he obtained was twenty-five dollars and that Kalchinian owed him fifteen dollars. The informer thus bore the cost of his share of the narcotics plus the taxi and other expenses necessary to obtain the drug. After several such sales Kalchinian informed agents of the Bureau of Narcotics that he had another seller for them. On three occasions during November 1951. Government agents observed petitioner give narcotics to Kalchinian in return for money supplied by the Government.
3
At the trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade. The issue of entrapment went to the jury,1 and a conviction resulted. Petitioner was sentenced to imprisonment for ten years. The Court of Appeals for the Second Circuit affirmed. 240 F.2d 949. We granted certiorari. 353 U.S. 935, 77 S.Ct. 812, 1 L.Ed.2d 758.
4
In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, this Court firmly recognized the defense of entrapment in the federal courts. The intervening years have in no way detracted from the principles underlying that decision. The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' 287 U.S. at page 442, 53 S.Ct. at page 212. The stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.
5
However, the fact that government agents 'merely afford opportunities or facilities for the commission of the offense does not' constitute entrapment. Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials. (Emphasis supplied.) See 287 U.S. at pages 441, 451, 53 S.Ct. at pages 212, 216. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. The principles by which the courts are to make this determination were outlined in Sorrells. On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an 'appropriate and searching inquiry into his own conduct and predisposition' as bearing on his claim of innocence. See 287 U.S. at page 451, 53 S.Ct. at page 216.
6
We conclude from the evidence that entrapment was established as a matter of law. In so holding, we are not choosing between conflicting witnesses, nor judging credibility. Aside from recalling Kalchinian, who was the Government's witness, the defense called no witnesses. We reach our conclusion from the undisputed testimony of the prosecution's witnesses.
7
It is patently clear that petitioner was induced by Kalchinian. The informer himself testified that, believing petitioner to be undergoing a cure for narcotics addiction, he nonetheless sought to persuade petitioner to obtain for him a source of narcotics. In Kalchinian's own words we are told of the accidental, yet recurring, meetings, the ensuing conversations concerning mutual experiences in regard to narcotics addiction, and then of Kalchinian's resort to sympathy. On request was not enough, for Kalchinian tells us that additional ones were necessary to overcome, first, petitioner's refusal, then has evasiveness, and then his hesitancy in order to achieve capitulation. Kalchinian not only procured a source of narcotics but apparently also induced petitioner to return to the habit. Finally, assured of a catch, Kalchinian informed the authorities so that they could close the net. The Government cannot disown Kalchinian and insist it is not responsible for his actions. Although he was not being paid, Kalchinian was an active government informer who had but recently been the instigatory of at least two other prosecutions.2 Undoubtedly the impetus for such achievements was the fact that in 1951 Kalchinian was himself under criminal charges for illegally selling narcotics and had not yet been sentenced.3 It makes to difforence that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement. In his testimony the federal agent in charge of the case admitted that he never bothered to question Kalchinian about the way he had made contact with petitioner. The Government cannot make such use of an informer and then claim dissassociation through ignorance.
8
The Government sought to overcome the defense of entrapment by claiming that petitioner evinced a 'ready complaisance' to accede to Kalchinian's request. Aside from a record of past convictions, which we discuss in the following paragraph, the Government's case is unsupported. There is no evidence that petitioner himself was in the trade. When his apartment was searched after arrest, no narcotics were found. There is no significant evidence that petitioner even made a profit on any sale to Kalchinian.4 The Government's characterization of petitioner's hesitancy to Kalchinian's request as the natural wariness of the criminal cannot fill the evidentiary void.5
9
The Government's additional evidence in the second trial to show that petitioner was ready and willing to sell narcotics should the opportunity present itself was petitioner's record of two past narcotics convictions. In 1942 petitioner was convicted of illegally selling narcotics; in 1946 he was convicted of illegally possessing them. However, a nine-year-old sales conviction and a five-year-old possession conviction are insufficient to prove petitioner had a readiness to sell narcotics at the time Kalchinian approached him, particularly when we must assume from the record he was trying to overcome the narcotics habit at the time.
10
The case at bar illustrates an evil which the defense of entrapment is designed to overcome. The government informer entices someone attempting to avoid narcotics not only into carrying out an illegal sale but also into returning to the habit of use. Selecting the proper time, the informer then tells the government agent. The set-up is accepted by the agent without even a question as to the manner in which the informer encountered the seller. Thus the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted.6 Law enforcement does not require methods such as this.
11
It has been suggested that in overturning this conviction we should reassess the doctrine of entrapment according to principles announced in the separate opinion of Mr. Justice Roberts in Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 217, 77 L.Ed. 413. To do so would be to decide the case on grounds rejected by the majority in Sorrells and, so far as the record shows, not raised here or below by the parties before us. We do not ordinarily decide issues not presented by the parties and there is good reason not to vary that practice in this case.
12
At least two important issues of law enforcement and trial procedure would have to be decided without the benefit of argument by the parties, one party being the Government. Mr. Justice Roberts asserted that although the defendant could claim that the Government had induced him to commit the crime, the Government could not reply by showing that the defendant's criminal conduct was due to his own readiness and not to the persuasion of government agents. The handicap thus placed on the prosecution is obvious.7 Furthermore, it was the position of Mr. Justice Roberts that the factual issue of entrapment—now limited to the question of what the government agents did—should be decided by the judge, not the jury. Not only was this rejected by the Court in Sorrells, but where the issue has been presented to them, the Courts of Appeals have since Sorrells unanimously concluded that unless it can be decided as a matter of law, the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused.8
13
To dispose of this case on the ground suggested would entail both overruling a leading decision of this Court and brushing aside the possibility that we would be creating more problems than we would supposedly be solving.
14
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court with instructions to dismiss the indictment.
15
Reversed and remanded.
16
Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS, Mr. Justice HARLAN, and Mr. Justice BRENNAN join, concurring in the result.
17
Although agreeing with the Court that the undisputed facts show entrapment as a matter of law, I reach this result by a route different from the Court's.
18
The first case in which a federal court clearly recognized and sustained a claim of entrapment by government officers as a defense to an indictment was, apparently, Woo Wai v. United States, 9 Cir., 223 F. 412. Yet the basis of this defense, affording guidance for its application in particular circumstances, is as much in doubt today as it was when the defense was first recognized over forty years ago, although entrapment has been the decisive issue in many prosecutions. The lower courts have continued gropingly to express the feeling of outrage at conduct of law enforcers that brought recognition of the defense in the first instance, but without the formulated basis in reason that it is the first duty of courts to construct for justifying and guiding emotion and instinct.
19
Today's opinion does not promote this judicial desideratum, and fails to give the doctrine of entrapment the solid foundation that the decisions of the lower courts and criticism of learned writers have clearly shown is needed.1 Instead it accepts without re-examination the theory espoused in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, over strong protest by Mr. Justice Roberts, speaking for Brandeis and Stone, JJ., as well as himself. The fact that since the Sorrells case the lower courts have either ignored its theory and continued to rest decision on the narrow facts of each case, or have failed after penetrating effort to define a satisfactory generalization, see, e.g., United States v. Becker, 2 Cir., 62 F.2d 1007 (L. Hand, J.), is proof that the prevailing theory of the Sorrells case ought not to be deemed the last word. In a matter of this kind the Court should not rest on the first attempt at an explanation for what sound instinct counsels. It should not forego re-examination to achieve clarity of thought, because confused and inadequate analysis is too apt gradually to lead to a course of decisions that diverges from the true ends to be pursued.2
20
It is surely sheer fiction to suggest that a conviction cannot be had when a defendant has been entrapped by government officers or informers because 'Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.' In these cases raising claims of entrapment, the only legislative intention that can with any show of reason be extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged. That conduct includes all the elements necessary to constitute criminality. Without compulsion and 'knowingly,' where that is requisite, the defendant has violated the statutory command. If he is to be relieved from the usual punitive consequences, it is on no account because he is innocent of the offense described. In these circumstances, conduct is not less criminal because the result of temptation, whether the tempter is a private person or government agent or informer.
21
The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. As Mr. Justice Holmes said in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (dissenting), in another connection, 'It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. * * * (F)or my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.' Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply 'proper standards for the enforcement of the federal criminal law in the federal courts,' McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819, an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.
22
The formulation of these standards does not in any way conflict with the statute the defendant has violated, or involve the initiation of a judicial policy disregarding or qualifying that framed by Congress. A false choice is put when it is said that either the defendant's conduct does not fall within the statute or he must be convicted. The statute is wholly directed to defining and prohibiting the substantive offense concerned and expresses no purpose, either permissive or prohibitory, regarding the police conduct that will be tolerated in the detection of crime. A statute prohibiting the sale of narcotics is as silent on the question of entrapment as it is on the admissibility of illegally obtained evidence. It is enacted, however, on the basis of certain presumppositions concerning the established legal order and the role of the courts within that system in formulating standards for the administration of criminal justice when Congress itself has not specifically legislated to that end. Specific statutes are to be fitted into an antecedent legal system.
23
It might be thought that it is largely an academic question whether the court's finding a bar to conviction derives from the statute or from a supervisory jurisdiction over the administration of criminal justice; under either theory substantially the same considerations will determine whether the defense of entrapment is sustained. But to look to a statute for guidance in the application of a policy not remotely within the contemplation of Congress at the time of its enactment is to distort analysis. It is to run the risk, furthermore, that the court will shirk the responsibility that is necessarily in its keeping, if Congress is truly silent, to accommodate the dangers of overzealous law enforcement and civilized methods adequate to counter the ingenuity of modern criminals. The reasons that actually underlie the defense of entrapment can too easily be lost sight of in the pursuit of a wholly fictitious congressional intent.
24
The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power. For answer it is wholly irrelevant to ask if the 'intention' to commit the crime originated with the defendant or government officers, or if the criminal conduct was the product of 'the creative activity' of law enforcement officials. Yet in the present case the Court repeats and purports to apply these unrevealing tests. Of course in every case of this kind the intention that the particular crime be committed originates with the police, and without their inducement the crime would not have occurred. But it is perfectly clear from such decisions as the decoy letter cases in this Court, e.g., Grimm v. United States, 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550, where the police in effect simply furnished the opportunity for the commission of the crime, that this is not enough to enable the defendant to escape conviction.
25
The intention referred to, therefore, must be a general intention or predisposition to commit, whenever the opportunity should arise, crimes of the kind solicited, and in proof of such a predisposition evidence has often been admitted to show the defendant's reputation, criminal activities, and prior disposition. The danger of prejudice in such a situation, particularly if the issue of entrapment must be submitted to the jury and disposed of by a general verdict of guilty or innocent, is evident. The defendant must either forego the claim of entrapment or run the substantial risk that, in spite of instructions, the jury will allow a criminal record or bad reputation to weigh in its determination of guilt of the specific offense of which he stands charged. Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No matter what the defendant's past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society. And in the present case it is clear that the Court in fact reverses the conviction because of the conduct of the informer Kalchinian, and not because the Government has failed to draw a convincing picture of petitioner's past criminal conduct. Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition. No more does it very according to the suspicions, reasonable or unreasonable, of the police concerning the defendant's activities. Appeals to sympathy, friendship, the possibility of exorbitant gain, and so forth, can no more be tolerated when directed against a past offender than against an ordinary law-abiding citizen. A contrary view runs afoul of fundamental principles of equality under law, and would espouse the notion that when dealing with the criminal classes anything goes. The possibility that no matter what his past crimes and general disposition the defendant might not have committed the particular crime unless confronted with inordinate inducements, must not be ignored. Past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing his repeated conviction, from which the ordinary citizen is protected. The whole ameliorative hopes of modern penology and prison administration strongly counsel against such a view.
26
This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime. It is as objective a test as the subject matter permits, and will give guidance in regulating police conduct that is lacking when the reasonableness of police suspicions must be judged or the criminal disposition of the defendant retrospectively appraised. It draws directly on the fundamental intuition that led in the first instance to the outlawing of 'entrapment' as a prosecutorial instrument. The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.
27
What police conduct is to be condemned, because likely to induce those not otherwise ready and willing to commit crime, must be picked out from case to case as new situations arise involving different crimes and new methods of detection. The Sorrells case involved persistent solicitation in the face of obvious reluctance, and appeals to sentiments aroused by reminiscences of experiences as companions in arms in the World War. Particularly reprehensible in the present case was the use of repeated requests to overcome petitioner's hesitancy, coupled with appeals to sympathy based on mutual experiences with narcotics addiction. Evidence of the setting in which the inducement took place is of course highly relevant in judging its likely effect, and the court should also consider the nature of the crime involved, its secrecy and difficulty of detection, and the manner in which the particular criminal business is usually carried on.
28
As Mr. Justice Roberts convincingly urged in the Sorrells case, such a judgment, aimed at blocking off areas of impermissible police conduct, is appropriate for the court and not the jury. 'The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention.' 287 U.S. at page 457, 53 S.Ct. at page 218 (separate opinion). Equally important is the consideration that a jury verdict, although it may settle the issue of entrapment in the particular case, cannot give significant guidance for official conduct for the future. Only the court, through the gradual evolution of explicit standards in accumulated precedents, can do this with the degree of certainty that the wise administration of criminal justice demands.
1
The charge to the jury was not in issue here.
2
'Q. And it was your (Kalchinian's) job, was it not, while you were working with these agents to go out and try and induce somebody to sell you narcotics, isn't that true?
'A. No, it wasn't my job at all to do anything of the kind.
'Q. Do you remember this question (asked at the first trial) . . . 'Q. And it was your job while working with these agents to go out and try and induce a person to sell narcotics to you, isn't that correct? A. I would say yes to that.' Do you remember that?
'A. If that is what I said, let it stand just that way.
'Q. So when you testify now that it was not your job you are not telling the truth?
'A. I mean by job that nobody hired me for that. That is what I inferred, otherwise I meant the same thing in my answer to your question.' R. 100.
3
'Q. But you had made a promise, an agreement, though, to cooperate with the Federal Bureau of Narcotics before you received a suspended sentence from the court?
'A. (Kalchinian). I had promised to cooperate in 1951.
'Q. And that was before your sentence?
'A. Yes, that was before my sentence.' R. 99.
Kalchinian received a suspended sentence in 1952 after a statement by the United States Attorney to the Judge that he had been cooperative with the Goivernment. R. 89, 98.
4
At one point Kalchinian did testify that he had previously received the same amount of narcotics at some unspecified lower price. He characterized this other price as 'not quite' the price he paid petitioner. R. 80.
5
It is of interest to note that on the first appeal in this case the Court of Appeals came to the same conclusion as we do as to the evidence discussed so far. See United States v. Sherman, 2 Cir., 200 F.2d 880, 883.
6
Cf. e.g., Lutfy v. United States, 9 Cir., 198 F.2d 760, 34 A.L.R.2d 879; Wall v. United States, 5 Cir., 65 F.2d 993; Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143.
7
In the first appeal of this case Judge Learned Hand stated: 'Indeed, it would seem probable that, if there were no reply (to the claim of inducement), it would be impossible ever to secure convictions of any offences which consist of transactions that are carried on in secret.' United States v. Sherman, 2 Cir., 200 F.2d 880, 882.
8
For example, in the following cases the courts have, in affirming convictions, held that the issue of entrapment had been properly submitted to the jury. United States v. Lindenfeld, 2 Cir., 142 F.2d 829; United States v. Brandenburg, 3 Cir., 162 F.2d 980; Demos v. United States, 5 Cir., 205 F.2d 596; Nero v. United States, 6 Cir., 189 F.2d 515; United States v. Cerone, 7 Cir., 150 F.2d 382; Louie Hung v. United States, 9 Cir., 111 F.2d 325; Ryles v. United States, 10 Cir., 183 F.2d 944; Cratty v. United States, 82 U.S.App.D.C. 236, 163 F.2d 844. And in the following cases the courts have reversed convictions where the issue of entrapment was either not submitted to the jury or was submitted on improper instructions. United States v. Sherman, 2 Cir., 200 F.2d 880; United States v. Sawyer, 3 Cir., 210 F.2d 169; Wall v. United States, 5 Cir., 65 F.2d 993; Lutfy v. United States, 9 Cir., 198 F.2d 760, 33 A.L.R.2d 879; Yep v. United States, 10 Cir., 83 F.2d 41.
1
Excellent discussions of the problem can be found in Mikell, The Doctrine of Entrapment in the Federal Courts, 90 U.Pa.L.Rev. 245; Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1098 1115; Note, Entrapment by Government Officials, 28 Col.L.Rev. 1067.
2
It is of course not a rigid rule of this Court to restrict consideration of a case merely to arguments advanced by counsel. Presumably certiorari was not granted in this case simply to review the evidence under an accepted rule of law. The solution, when an issue of real importance to the administration of criminal justice has not been argued by counsel, is not to perpetuate a bad rule but to set the case down for reargument with a view to re-examining that rule.
| 01
|
356 U.S. 576
78 S.Ct. 842
2 L.Ed.2d 987
Harry SACHER, Petitioner,v.UNITED STATES of America.
No. 828.
May 19, 1958.
Messrs.
Hubert T. Delany, Frank J. Donner and Telford Taylor, for petitioner.
Solicitor General Rankin, Assistant Attorney General Tompkins, Mr. Philip R. Monahan and Doris H. Spangenburg, for the United States.
PER CURIAM.
1
The petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit's is granted. Charged in a three-count indictment for violation of R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, for failure to answer three questions put to him by a subcommittee of the Internal Security Subcommittee of the Senate Committee on the Judiciary, the petitioner, having waived trial by jury, was found guilty on all counts and sentenced to six months' imprisonment and to pay a fine of $1,000. After the sentence was sustained by the Court of Appeals, 99 U.S.App.D.C. 360, 240 F.2d 46, this Court, having granted a petition for certiorari, remanded the case, 354 U.S. 930, 77 S.Ct. 1396, 1 L.Ed.2d 1533, to the Court of Appeals for reconsideration in light of Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. On reargument before the Court of Appeals sitting en banc, a divided court again affirmed the conviction. 102 U.S.App.D.C. 264, 252 F.2d 828.
2
The broad scope of authority vested in Congress to conduct investigations as an incident to the 'legislative Powers' granted by the Constitution is not questioned. See Watkins v. United States, supra, 354 U.S. at page 215, 77 S.Ct. at page 1193. But when Congress seeks to enforce its investigating authority through the criminal process administered by the federal judiciary, the safeguards of criminal justice become operative. The subject matter of inquiry before the subcommittee at which petitioner appeared as a witness concerned the recantation of prior testimony by a witness named Matusow. In the course of the hearing, the questioning of petitioner entered upon a 'brief excursion,' 99 U.S.App.D.C. 360, 367, 240 F.2d 46, 53, into proposed legislation barring Communists from practice at the federal bar, a subject not within the subcommittee's scope of inquiry as authorized by its parent committee. Inasmuch as petitioner's refusal to answer related to questions not clearly pertinent to the subject on which the two-member subcommittee conducting the hearing had been authorized to take testimony, the conditions necessary to sustain a conviction for deliberately refusing to answer questions pertinent to the authorized subject matter of a congressional hearing are wanting. Watkins v. United States, supra. The judgment of the Court of Appeals is therefore reversed and the cause remanded to the District Court with directions to dismiss the indictment.
3
Reversed.
4
Mr. Justice BURTON took no part in the consideration or decision of this case.
5
Mr. Justice HARLAN concurring.
6
In joining the Court's opinion, I am constrained to write these few words with reference to my Brother Clark's suggestion that the Court should hear argument in this case. As the limited scope of the Subcommittee's authority is not in dispute, the controlling issue is whether the pertinency of the questions put to petitioner was of such 'undisputable clarity' as to justify his punishment in a court of law for refusing to answer them. Watkins v. United States, 354 U.S. 178, 214, 77 S.Ct. 1173, 1193. That issue can only be determined by scrutiny of the record, and a full-dress argument could hardly shed further light on the matter. In such circumstances prompt disposition of the case before us certainly constitutes sound judicial administration. For my part, it is abundantly evident that the pertinency of none of the three questions involved can be regarded as undisputably clear, as indeed is evidenced by the different interpretations of the record advanced by the members of this Court and of the Court of Appeals who have considered this issue.
7
Mr. Justice CLARK, with whom Mr. Justice WHITTAKER concurs, dissenting.
8
Petitioner concedes that the subject matter under inquiry, the Matusow recantation, 'was clearly defined by the subcommittee and (he) was specifically notified as to what that subject was at the time he was subpoenaed.'* If any of the three questions which petitioner refused to answer is clearly pertinent to that subject, the judgment must be sustained, since a general sentence was imposed after conviction on three counts, one for each refusal. Claassen v. United States, 1891, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966.
9
The third question, covered by the third count of the indictment, was whether petitioner was or ever had been 'a member of the Lawyers' Section of the Communist Party, U.S.A.' I think it obvious that the 'brief excursion' into proposed legislation barring Communist lawyers from the federal courts did not carry as far as this question, which was vital to a matter in which the Committee properly was interested—petitioner's role in a Communist conspiracy to procure Matusow's recantation. The context of the question clearly relates it to the recantation rather than the proposed legislation. Just prior to asking about membership in the Lawyers' Section of the Party, the Committee asked three times whether petitioner had attended a birthday party for one Alexander Bittelman. Petitioner replied that he did not remember. The Committee already had reports that he was at the party, which numbered 50 high Communists among its guests, and that information was one of the reasons why he was called before the Committee. He then was asked if he had 'any connection with the legal commission or law commission of the Communist Party,' for the Committee also had information that either he or one Nathan Witt probably was the head of a group of important Communists constituting a lawyers' commission to formulate legal strategy for the party. Upon answering that he '(did) not know of any such organization,' he was asked the question at issue, namely, whether he was or had been a member of the Lawyers' Section of the Party. Its relationship to the Matusow recantation is confirmed by the Committee's next question, asking whether petitioner had attended a Communist meeting in 1947 'at the home of Angus Cameron,' publisher of Matusow's autobiography.
10
When the question is viewed in context, it seems so me that pertinency is clearly established. Petitioner is a seasoned lawyer with trial experience. Both questions and answers may go afield in the examination of a witness—a truism to every trial practitioner but that fact cannot license a witness' refusal to answer questions which are relevant.
11
In any event the Government should be given a chance to present oral argument on the pertinency of the question under the third count before petitioner is freed. Opportunity for a hearing is particularly important here because the issue is one that confronts the Committees of the Congress day after day. For these reason I dissent from the summary reversal of petitioner's conviction.
*
The concession appears in petitioner's application for certiorari last year, No. 884, 1956 Term, 354 U.S. 930, 77 S.Ct. 1396, 1 L.Ed.2d 1533, which we granted in connection with our remand in light of Watkins v. United States, 1957, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. Nothing in the present application for certiorari controverts the concession.
| 23
|
356 U.S. 405
78 S.Ct. 875
2 L.Ed.2d 873
UNITED STATES of America, Appellant,v.Romualdo CORES.
No. 455.
Argued March 13, 1958.
Decided May 19, 1958.
Mr. John F. Davis, Washington, D.C., for appellant.
Mr. Clark M. Clifford, Washington, D.C., as amicus curiae, in support of the judgment, by invitation of the Court.
Mr. Justice CLARK delivered the opinion of the Court.
1
The sole issue in this appeal is whether an alien crewman who willfully remains in the United States in excess of the 29 days allowed by his conditional landing permit, in violation of § 252(c) of the Immigration and Nationality Act,1 is guilty of a continuing offense which may be prosecuted in the district where he is found. Discovering that appellee's permit had expired before he entered the district where he was apprehended and where the prosecution was begun, the District Court dismissed the criminal information, holding that a violation of s 252(c) was not a continuing crime. The Government brought direct appeal, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, and we noted probable jurisdiction. 1957, 355 U.S. 866, 78 S.Ct. 123, 2 L.Ed.2d 72. Since we conclude that the District Court was in error, the judgment is reversed and the case is remanded for further proceedings.
2
The information, filed in the United States District Court for the District of Connecticut, charged that appellee entered the United States at Philadelphia on April 27, 1955, and that 29 days later, at the expiration of his conditional landing permit, he 'did wilfully and knowingly remain in the United States, to wit: Bethel, Connecticut,' in violation of § 252(c) of the Immigration and Nationality Act. A plea of guilty was entered, but a government attorney informed the court prior to sentencing that appellee was not in Connecticut at the expiration of his permit as charged in the information, but that in fact he came to Connecticut only after spending about a year in New York. The Judge permitted withdrawal of the guilty plea and dismissed the case. He cited an earlier decision of the same court holding that § 252(c) did not define a continuing crime, United States v. Tavares, No. 9407 Crim., May 6, 1957, and indicated that the information was brought in an improper district since appellee was not in Connecticut at the time his permit expired.2
3
The Constitution makes it clear that determination of proper venue in a criminal case requires determination of whether the crime was committed.3 This principle is reflected in numerous statutory enactments, including Rule 18, Fed.Rules Crim.Proc., which provides that except as otherwise permitted, 'the prosecution shall be had in a district in which the offense was committed * * *.' In ascertaining this locality we are mindful that questions of venue 'raise deep issues of public policy in the light of which legislation must be construed.' United States v. Johnson, 1944, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236. The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place. Provided its language permits, the Act in question should be given that construction which will respect such considerations.
4
Unlike some statutory offenses,4 there is an absence here of any specific provision fixing venue, save the general language of the Act providing for venue 'at any place in the United States at which the violation may occur * * *.'5 In such cases the Court must base its determination on 'the nature of the crime alleged and the location of the act or acts constituting it,' United States v. Anderson, 1946, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529, and if the Congress if found to have created a continuing offense, 'the locality of (the) crime shall extend over the whole area through which force propelled by an offender operates.' United States v. Johnson, supra, 323 U.S. at page 250, 275, 65 S.Ct. at page 250.
5
Section 252(c) punishes '(a)ny alien crewman who willfully remains in the United States in excess of the number of days allowed.' The conduct proscribed is the affirmative act of willfully remaining, and the crucial word 'remains' permits no connotation other than continuing presence. Nor does the section necessarily pertain to any particular locality, such as the place of entry, for the Act broadly extends to willfully remaining 'in the United States.'6 Appellee urges, however, that the offense is completed the moment the permit expires, and that even if the alien remains thereafter, he no longer commits the offense. It is true that remaining at the instant of expiration satisfies the definition of the crime, but it does not exhaust it. See United States v. Kissel, 1910, 218 U.S. 601, 607, 31 S.Ct. 124, 125, 54 L.Ed. 1168. It seems incongruous to say that while the alien 'willfully remains' on the 29th day when his permit expires, he no longer does so on the 30th, though still physically present in the country. Given the element of willfulness, we believe an alien 'remains,' in the contemplation of the statute, until he physically leaves the United States. The crime achieves no finality until such time. Since an offense committed in more than one district 'may be inquired of and prosecuted in any district in which such offense was * * * continued,' 18 U.S.C. § 3237, 18 U.S.C.A. § 3237, venue for § 252(c) lies in any district where the crewman willfully remains after the permit expires. Appellee entered Connecticut and was found there, so that district has venue for the prosecution.
6
The legislative history is not inconsistent with this interpretation of the statute. After a thorough investigation of our immigration laws completed some two years prior to the enactment of § 252(c), the Senate Committee on the Judiciary reported, 'The problems relating to seamen are largely created by those who desert their ships, remain here illegally beyond the time granted them to stay, and become lost in the general populace of the country.' S.Rep. No. 1515, 81st Cong., 2d Sess. 550. The tracing of such persons is complicated by the obscuration worked both by their own movement and by the passage of time. In this atmosphere the Congress sought to establish sanctions for alien crewmen who 'willfully remain,' the Senate Committee having observed that traditional remedies for the problem were inadequate because many crewmen 'do not have the necessary documents to permit deportation.' Ibid. It is hardly likely that the Congress would create the new sanction only to strip it of much of its effectiveness by compelling trial in the district where the crewman was present when his permit expired—a place which months or years later might well be impossible of proof.
7
Moreover, we think it not amiss to point out that this result is entirely in keeping with the policy of relieving the accused, where possible, of the inconvenience incident to prosecution in a district far removed from his residence. See Hyde v. Shine, 1905, 199 U.S. 62, 78, 25 S.Ct. 760, 762, 50 L.Ed. 90; Johnston v. United States, 1956, 351 U.S. 215, 224, 76 S.Ct. 739, 744, 100 L.Ed. 1097 (dissent). Forcing an alien crewman to trial in the district where he was present at the expiration of his permit could entail much hardship. By holding the crime here to be a continuing one we make a valuable tool of justice available to the crewman. Rule 21(b) of the Federal Rules of Criminal Procedure provides for transfer of the proceeding to another district on motion of the defendant if it appears that the offense was committed in more than one district, and 'if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged.' The rule, with its inherent flexibility, would be inapplicable absent characterization of the offense as continuing in nature.
8
Reversed and remanded.
9
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
10
The decision seems to me to be out of harmony with the statutory scheme of venue which Congress designed for immigration cases. We are here concerned with a crime under § 252 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 220, 8 U.S.C. § 1282, 8 U.S.C.A. § 1282; viz. unlawfully remaining in the United States. Sections 275 and 276 describe crimes of unlawful entry. Section 279 gives the District Courts jurisdiction over the trial of both types of crimes; and as to venue it provides:
11
'Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under sections 275 or 276 of this title may be apprehended.'
12
When Congress wanted to lay venue in the district where the accused was 'apprehended,' it said so. It would seem, therefore, that venue may be laid in the district where the alien was 'apprehended' only in case of the crimes of unlawful entry. All other crimes are to be prosecuted in the district where the violation first occurred. It is no answer to say that this crime is different because it was 'continuous.' See In re Snow, 120 U.S. 274, 281, 7 S.Ct. 556, 559, 30 L.Ed. 658. As District Judge Smith said, the distinction drawn by § 279 between venue at the place of violation and venue at the place of apprehension 'would be meaningless if violations such as the one in issue were regarded as continuous.' United States v. Tavares, supra.*
13
Moreover, the crime is completed when the conditional permit expires. All elements of the crime occur then. Nothing more remains to be done. It is then and there, Congress says, that the crime is 'committed' in the sense that that term is employed in Art. III, § 2, cl. 3 of the Constitution and in the Sixth Amendment.
14
I would affirm the judgment of the District Court.
1
66 Stat. 221, 8 U.S.C. § 1282(c), 8 U.S.C.A. § 1282(c). Subsection (a) authorizes immigration officers to grant permits, on certain conditions, allowing alien crewmen to land for periods up to 29 days. Subsection (b) details procedures for revocation of permits. Subsection (c) sets out the criminal penalties involved in this case:
'Any alien crewman who willfully remains in the United States in excess of the number of days allowed in any conditional permit issued under subsection (a) of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500 or shall be imprisoned for not more than six months, or both.'
2
Appellee suggests that the inconsistency in the date of the offense as alleged in the information and as represented by government counsel provides additional reason for upholding the dismissal. This phase of the case, however, is not before us, United States v. Borden Co., 1939, 308 U.S. 188, 206—207, 60 S.Ct. 182, 191—192, 84 L.Ed. 181, so we confine our opinion to the point of statutory construction which clearly prompted the dismissal. Any inconsistency may be asserted by appellee on remand. See Fed.Rules Crim.Proc. 7(e), 18 U.S.C.A.
3
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed * * *.' U.S.Const. Art. III, § 2, cl. 3.
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.' U.S.Const. Amend. VI.
4
See, e.g., 18 U.S.C. § 659, 18 U.S.C.A. § 659 (theft of goods in interstate commerce); 18 U.S.C. § 1073, 18 U.S.C.A. § 1073 (flight to avoid prosecution or giving testimony); 18 U.S.C. § 3236, 18 U.S.C.A. § 3236 (murder or manslaughter); 18 U.S.C. § 3239, 18 U.S.C.A. § 3239 (transmitting or mailing threatening communications); 32 Stat. 847, 34 Stat. 587, 49 U.S.C. § 41(1), 49 U.S.C.A. § 41(1) (certain violations of Interstate Commerce Act). See 4 Barron, Federal Practice and Procedure, § 2061.
5
§ 279, Immigration and Nationality Act, 66 Stat. 230, 8 U.S.C. § 1329, 8 U.S.C.A. § 1329.
6
The offense here is unlike crimes of illegal entry set out in § 275 and § 276 of the Act. 66 Stat. 229, 8 U.S.C. §§ 1325, 1326, 8 U.S.C.A. §§ 1325, 1326. Those offenses are not continuing ones, as 'entry' is limited to a particular locality and hardly suggests continuity. Hence a specific venue provision in § 279 of the Act was required before illegal entry cases could be prosecuted at the place of apprehension. 66 Stat. 230, 8 U.S.C. § 1329, 8 U.S.C.A. § 1329. This reasoning underlay the request for specific legislation by the Immigration and Naturalization Service. See Analysis of S. 3455, 81st Cong., prepared by the General Counsel of the Service, p. 276—2. In contrast to illegal entry, the § 252(c) offense of willfully remaining is continuing in nature. A specific venue provision would be mere surplusage, since prosecutions may be instituted in any district where the offense has been committed, not necessarily the district where the violation first occurred. The absence of such provision, therefore, is without significance.
*
Congress has made its intent equally clear in analogous situations, see, e.g., 18 U.S.C. § 659, 18 U.S.C.A. § 659, where the possession of certain stolen goods, certainly a continuing illegal status similar to remaining, is made a crime. Section 659 provides in pertinent part: 'The offense shall be deemed to have been committed * * * in any district in which the defendant may have taken or been in possession of the said money, baggage, goods, or chattels.'
| 01
|
356 U.S. 590
78 S.Ct. 946
2 L.Ed.2d 996
R. S. RAINWATER, Sr., Sloan Rainwater, Jr., William Rainwater, as Individuals and as Partners, Doing Business as R. S. Rainwater & Sons, et al., Petitioners,v.UNITED STATES of America.
No. 276.
Argued April 2, 1958.
Decided May 26, 1958.
Mr. Leon B. Catlett, Little Rock, Ark., for petitioners.
Mr. George Cochran Doub, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case involves two related suits by the United States to recover damages and forfeitures under the civil provisions of the False Claims Act.1 In each instance the complaint alleged that the defendants had successfully presented false applications for crop loans to the Commodity Credit Corporation, a wholly owned government corporation. The defendants moved to dismiss the complaints, arguing that a claim against Commodity was not a claim 'against the Government of the United States, or any department or officer thereof' as required by the Act. The District Court granted the motions to dismiss, but the Court of Appeals reversed and remanded for trial. 244 F.2d 27. Because of a conflict in the circuits2 we granted certiorari, 355 U.S. 811, 78 S.Ct. 43, 2 L.Ed.2d 29, solely to consider whether false claims against Commodity are covered by the False Claims Act.
2
Commodity is an 'agency and instrumentality of the United States, within the Department of Agriculture, subject to the general supervision and direction of the Secretary of Agriculture.'3 It was created by Congress to support farm prices and to assist in maintaining and distributing adequate supplies of agricultural commodities. Its capital was provided by congressional appropriation. Any impairment of this capital, which at times has been great due to the nature of its activities,4 is replaced out of the public treasury; any gains are returned to that treasury. All of its officers and other personnel are employees of the Department of Agriculture and are compensated as such. Like other government corporations, Commodity is subject to the provisions of the Government Corporation Control Act which provides such close budgetary, auditing and fiscal controls that little more than a corporate name remains to distinguish it from the ordinary government agency.5 In brief, Commodity is simply an administrative device established by Congress for the purpose of carrying out federal farm programs with public funds.
3
In our judgment Commodity is a part of 'the Government of the United States' for purposes of the False Claims Act.6 That Act was originally passed in 1863 after disclosure of widespread fraud against the Government during the War Between the States. It seems quite clear that the objective of Congress was broadly to protect the funds and property of the Government from fraudulent claims, regardless of the particular form, or function, of the government instrumentality upon which such claims were made. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 544—545, 63 S.Ct. 379, 384—385, 87 L.Ed. 443.7 By any ordinary standard the language of the Act is certainly comprehensive enough to achieve this purpose. In reaching our conclusion, we are aware that the civil portion of the Act incorporates, as a test of liability, the provisions of the criminal section as they were set out in § 5438 of the Revised Statutes of 1878,8 and that according to familiar principles the scope of these provisions should be confined to their literal terms. Yet even penal provisions must be 'given their fair meaning in accord with the evident intent of Congress.' United States v. Raynor, 302 U.S. 540, 552, 58 S.Ct. 353, 359, 82 L.Ed. 413.
4
In 1918 Congress amended the criminal provisions of the False Claims Act so that they explicitly prohibited false claims against 'any corporation in which the United States of America is a stockholder.'9 Petitioners contend that this amendment shows that the criminal provisions had not previously covered government corporations. From this they argue—relying on the rule that incorporation of a statute by reference generally does not include subsequent amendments to that statute—that the civil provisions, which have never been amended, also do not cover false claims against such corporations.
5
Despite its surface plausibility this argument cannot withstand analysis. At most, the 1918 amendment is merely an expression of how the 1918 Congress interpreted a statute passed by another Congress more than a half century before. Under these circumstances such interpretation has very little, if any, significance. Cf. Higgins v. Smith, 308 U.S. 473, 479—480, 60 S.Ct. 355, 358—359, 84 L.Ed. 406; United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 199, 67 L.Ed. 358. Aside from this, the language of the 1918 amendment as well as its background indicates that Congress was primarily concerned with protecting certain government corporations, like the United States Shipping Board Emergency Fleet Corporation, chartered under local laws and organized so that private parties could share stock ownership with the United States. See 39 Stat. 731; United States v. Bowman, 260 U.S. 94, 101—102, 43 S.Ct. 39, 42, 67 L.Ed 149. Any expression of congressional opinion regarding that type of corporation is of little value in deciding the applicability of the False Claims Act to a wholly owned and closely controlled government instrumentality like Commodity.
6
None of the cases relied on by petitioner call for a result different from the one we reach. Pierce v. United States, 314 U.S. 306, 62 S.Ct. 237, 86 L.Ed. 226, where the Court refused to apply a statute making criminal the impersonation of an officer of the United States to a person posing as an officer of the Tennessee Valley Authority, concerned another statute enacted for other purposes.10 Moreover, it rested in substantial part on the fact that the TVA Act specifically listed a number of federal criminal statutes as applicable to TVA operations but omitted the false impersonation statute. The cases persenting questions of governmental immunity, e.g., Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784, or intragovernmental organization, e.g., United States ex rel. Skinner & Eddy Corp. v. McCarl, 275 U.S. 1, 48 S.Ct. 12, 72 L.Ed. 131, involved nothing more than a search for congressional purpose with respect to the problems then before the Court.
7
Affirmed.
1
R.S. § 3490 (1878): 'Any person * * * who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight (R.S. § 5438 (1878)) shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act * * *.'
R.S. § 5438 (1878): 'Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent * * * shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.' 31 U.S.C.A. § 231.
2
See United States v. McNinch, 4 Cir., 242 F.2d 359, certiorari granted 355 u.S. 808, 78 S.Ct. 16, 2 L.Ed.2d 28, reversed in part and affirmed in part 356 U.S. 595, 78 S.Ct. 950.
3
See the Commodity Credit Corporation Charter Act, 62 Stat. 1070, as amended, 15 U.S.C. § 714 et seq., 15 U.S.C.A. § 714 et seq.
4
See, e.g., 67 Stat. 222; 70 Stat. 238, 15 U.S.C.A. § 713a 10.
5
59 Stat. 597, as amended, 31 U.S.C. § 841 et seq., 31 U.S.C.A. § 841 et seq.
6
Cf. Cherry Cotton Mills, Inc., v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835; Inland Waterways Corp. v. Young, 309 U.S. 517, 60 S.Ct. 646, 84 L.Ed. 901; United States Shipping Board Emergency Fleet Corp. v. Western Union Telegraph Co., 275 U.S. 415, 48 S.Ct. 198, 72 L.Ed. 345.
7
See Cong.Globe, 37th Cong., 3d Sess. 952—958. Cf. H.R.Rep. No. 2, Part 2, 37th Cong., 2d Sess.
8
Originally Congress provided both criminal and civil sanctions in the same statute. 12 Stat. 696. By the Revised Statutes of 1878 the civil sanctions were codified as § 3490, while the criminal provisions were separately enacted as § 5438. Section 3490 permitted the Government to recover forfeitures and damages for those acts prohibited by § 5438, e.g., submission of false or fraudulent claims 'against the Government of the United States, or any department or officer thereof.' See note 1, supra. The civil provisions as enacted in § 3490 have never been altered.
9
40 Stat. 1015.
10
Also see United States v. Strang, 254 U.S. 491, 41 S.Ct. 165, 65 L.Ed. 368. Compare United States v. Walter, 263 U.S. 15, 18, 44 S.Ct. 10, 11, 68 L.Ed. 137, and United States Shipping Board Emergency Fleet Corp. v. Western Union Telegraph Co., 275 U.S. 415, 48 S.Ct. 198, 72 L.Ed. 345.
| 78
|
356 U.S. 660
78 S.Ct. 955
2 L.Ed.2d 1048
Stanislaw NOWAK, Petitioner,v.UNITED STATES of America.
No. 72.
Argued Jan. 28, 1958.
Decided May 26, 1958.
Mr. Ernest Goodman, Detroit, Mich., for petitioner.
Mr. J. F. Bishop, Washington, D.C., for the United States.
Mr. Justice HARLAN, delivered the opinion of the Court.
1
In 1913, at the age of 10 years, petitioner was brought to the United States as an immigrant from Poland. In June 1938 the United States District Court for the Eastern District of Michigan entered its order admitting him to citizenship. More than 14 years later, in December 1952, the United States brought this suit under § 338(a) of the Nationality Act of 19401 to set aside the naturalization decree, alleging that Nowak had obtained his citizenship both fraudulently and illegally. The Government filed with its complaint an 'affidavit showing good cause,' as required by § 338(a). After a trial the District Court granted the relief requested by the United States on the grounds that Nowak (1) fraudulently obtained citizenship by making a false answer to a question in his Preliminary Form for Petition for Naturalization, filed in July 1937; and (2) illegally obtained citizenship, in that for a period of five years preceding his naturalization he had not been 'attached to the principles of the Constitution of the United States * * *,' as required by § 4 of the Nationality Act of 1906,2 under which he was naturalized. 133 F.Supp. 191. The Court of Appeals affirmed, 238 F.2d 282, and we granted certiorari. 353 U.S. 922, 77 S.Ct. 679, 1 L.Ed.2d 719. For reasons given hereafter we decide that the judgment below must be reversed.
2
1. 'Good Cause' Affidavit.—Petitioner, relying on United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964, contends that the District Court lacked jurisdiction over this proceeding because the Government's affidavit of 'good cause' was defective, in that it was not made by one having personal knowledge of the matters contained therein. This contention must be rejected. The affiant was an attorney of the Immigration and Naturalization Service who swore that the allegations made in his affidavit were based upon facts disclosed by official records of the Naturalization Service to which he had had access. In substance the affidavit set forth the same matters upon which the District Court's later decree of denaturalization was based, and showed with adequate particularity the grounds on which the Government's suit rested. Sworn to as it was by a responsible official of the Naturalization Service, we consider that the affidavit satisfied the purpose of § 338(a) to protect those proceeded against from ill-considered action. See United States v. Zucca, supra, 351 U.S. at pages 99—100, 76 S.Ct. at page 676.
3
2. Fraudulent Procurement.—The finding of fraud here was based on Nowak's answer to Question 28 in the above-mentioned preliminary naturalization form, which read:
4
'28. Are you a believer in anarchy? * * * Do you belong to or are you associated with any organization which teaches or advocates anarchy or the overthrow of existing government in this country? * * *'
5
Nowak placed 'No' after each part of the question. The courts below ruled that he should have answered 'Yes' to the second part because in 1937, when the form was executed, (1) Nowak was a member of the Communist Party; (2) the Party taught 'the overthrow of existing government'; and (3) Nowak was aware of this Party teaching. Accordingly the charge of fraudulent procurement was sustained.
6
Where citizenship is at stake the Government carries the heavy burden of proving its case by "clear, unequivocal, and convincing' evidence which does not leave 'the issue in doubt' * * *.' Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796. 'Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness.' Id., 320 U.S. at pages 122 123, 63 S.Ct. at page 1335. See also Baumgartner v. United States, 322 U.S. 665, 675, 64 S.Ct. 1240, 1245, 88 L.Ed. 1525. And in a case such as this it becomes our duty to scrutinize the record with the utmost care. Cf. Dennis v. United States, 341 U.S. 494, 516, 71 S.Ct. 857, 870, 95 L.Ed. 1137; Yates v. United States, 354 U.S. 298, 328, 77 S.Ct. 1064, 1081, 1 L.Ed.2d 1356.
7
Applying the strict standard required of the Government by Schneiderman, we rule that the charge of fraud was not proved: first, Question 28 on its face was not sufficiently clear to warrant the firm conclusion that when Nowak answered it in 1937 he should have known that it called for disclosure of membership in nonanarchistic organizations advocating violent overthrow of government and, more particularly, membership in the Communist Party; second, even if the question should have been taken as calling for disclosure of membership in such organizations, as the Government claims, the evidence, as we decide below in connection with the charge of illegal procurement, was insufficient to establish that Nowak knew that the Communist Party engaged in such illegal advocacy. We deal with the first of these grounds here.
8
No claim is made that Nowak's answer to the first part of Question 28 was untruthful. The issue is whether, as Nowak claims, the second part of the question could reasonably have been read by him as inquiring solely about membership in an anarchistic organization, or whether, as the Government contends, it unambiguously called for disclosure of membership in an organization which advocates either anarchy or overthrow of existing government.
9
We think that Nowak could reasonably have interpreted Question 28 as a two- pronged inquiry relating simply to anarchy. Its first part refers solely to anarchy. Its second part, which is in direct series with the first, begins with 'anarchy,' and then refers to 'overthrow.' It is true that the two terms are used in the disjunctive, but, having regard to the maxim ejusdem generis, we do not think that the Government's burden can be satisfied simply by parsing the second sentence of the question according to strict rules of syntax. For the two references to 'anarchy' make it not implausible to read the question in its totality as inquiring solely about anarchy. Especially is this so when it is borne in mind that Nowak answered the question in 1937, during a period when communism was much less in the public consciousness than has been the case in more recent years, and when, accordingly, there was less reason for individuals to believe that government questionnaires were seeking information relating to Communist Party membership.3 The fact that the Nationality Act of 1906, under which this preliminary naturalization form was issued, prohibited anarchists, but not Communists, from becoming American citizens, see 34 Stat. 596, 597, 598, accentuates the highly doubtful meaning of the question. We hold the second part of Question 28 too ambiguous to sustain the fraudulent procurement charge based on petitioner's answer to it.
10
3. Illegal Procurement.—As in the Schneiderman case, the Government here undertook to prove that Nowak, during the five years preceding his naturalization, was not 'attached' to the principles of the Constitution by showing that he has been a member of the Communist Party with knowledge that the Party advocated the overthrow of the Government by force and violence. We believe that the Government has adequately proved that Nowak was a member of the Party during the pertinent five-year period. But even assuming that the evidence of the illegal advocacy of the Party was sufficient, see Yates v. United States, supra, 354 U.S. at pages 319—322, 77 S.Ct. at pages 1077—1078, and that, despite the doubts expressed in Schneiderman v. United States, supra, 320 U.S. at pages 136, 154, 63 S.Ct. at pages 1342, 1350, lack of 'attachment' could be proved by this method, we nevertheless hold that the Government cannot prevail on this record. For we are of the opinion that it has not been established that Nowak knew of the Party's illegal advocacy.
11
The fact that Nowak was an active member and functionary in the Party does not of itself suffice to establish this vital link in the Government's chain of proof. See generally Schneiderman v. United States, supra; cf. Yates v. United States, supra, 354 U.S. at pages 329—330, 77 S.Ct. at page 1082. Nor is the Government's burden satisfied on the crucial issue of Nowak's awareness of the illegal aspects of the Party's program by the evidence of his attendance at 'closed' Party meetings, or by the disputed evidence as to his alleged concealment of Party membership. Virtually the only testimony at the trial bearing directly on Nowak's state of mind related to three statements attributed to him by former members of the Communist Party. One testified that at the meeting at which Nowak joined the Party in 1935 he stated that it would be necessary to 'destroy' capitalism in order to set up a workers' government. A second testified that about 1937 Nowak stated at a Party meeting that the Party could not rely entirely on the ballot to gain its objectives, 'but that it would eventually resolve to bullets.' And a third testified that in the summer of 1937, while lecturing at a Party school, Nowak said that if the Party could not gain control of labor unions through elections, 'then it may be necessary to use violence to get it,' and that 'the goal of all this activity was to extend the Soviet system around the face of the earth.'
12
For a number of reasons we cannot regard these fragmentary episodes as providing reliable support for the Government's case. On their face each of the statements attributed to Nowak was equivocal. Read in context, they can be taken as merely the expression of opinions or predictions about future events, rather than as advocacy of violent action for the overthrow of government. See Schneiderman v. United States, supra, 320 U.S. at pages 157—158, 63 S.Ct. at page 1352; cf. Yates v. United States, supra, 354 U.S. at pages 319—322, 77 S.Ct. at pages 1077—1078. The record reveals that in two of these instances Nowak was not even addressing himself to political action, but rather to Party activity designed to strengthen the American labor movement, in which he was a union organizer. At no point does the record show that Nowak himself ever advocated action for violent overthrow, or that he understood that the Party advocated action to that end. In addition, the record leaves us with the distinct impression that the testimony as to these episodes was itself quite uncertain, given as it was from 17 to 19 years after the event. Indeed, some of the testimony was elicited only after persistent prodding by counsel for the Government.4
13
Under the strict standard of proof by which this case must be judged, the record shows at best from the Government's standpoint that Nowak was an active member and functionary of the Communist Party. But this proof does not suffice to make out the Government's case, for Congress in the Nationality Act of 1940 did not make membership or holding office in the Communist Party a ground for loss of citizenship. We conclude that the Government has failed to prove its charges of fraud and lack of 'attachment' against this petitioner by the 'clear, unequivocal, and convincing' evidence which is required in denaturalization cases. We therefore need not consider any of the other contentions pressed by petitioner.
14
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion.
15
Reversed.
16
Mr. Justice BURTON, Mr. Justice CLARK, and Mr. Justice WHITTAKER, dissenting.
17
For dissenting opinion, see 356 U.S. 660, 78 S.Ct. 963.
1
54 Stat. 1137, 1158:
'It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings * * * for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured.' 8 U.S.C.A. § 1451(a).
2
Paragraph 4 of § 4 of the Act, 34 Stat. 596, 598, as amended, 8 U.S.C. (1934 ed.) § 382, provides that no alien may be admitted to citizenship unless immediately preceding his application he has resided continuously within the United States for at least five years and that during this period 'he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.' 8 U.S.C.A. § 1427.
3
No evidence was introduced tending to show that Nowak actually understood Question 28 as calling for disclosure of his membership in the Communist Party. The Government argues that the requisite understanding of the question should be imputed to Nowak, 'an important functionary in the Party, and an intelligent man,' because of the fact that for some period prior to 1937 the deportation and exclusion statutes applied to aliens 'who are anarchists; aliens who believe in or advocate the overthrow by force or violence of the Government of the United States or of all forms of law.' Act of October 16, 1918, 40 Stat. 1012, 8 U.S.C.A. § 1182. The gap in the Government's proof cannot be filled in such tenuous fashion, especially in view of the citizenship provisions of the Nationality Act of 1906 referred to in the text.
4
The testimony of witness Eager provides an example of this: After it was established that in 1937 Eager was a member of the same Communist Party cell as Nowak, which was composed of members of the United Auto Workers, and that they attended several Party meetings together, Eager was asked what Nowak said at those meetings. Eager's reply was, 'He gave an outline of what Party members should do in the plant, and that we would have to be a little more aggressive if we expected to get anywhere at that time. * * * And he said we couldn't depend entirely on ballots in this country; it was only by a militant Communist leadership in the shops, stores and factories and mines that we could expect to have a Soviet America.' (Transcript, pp. 315—316.) During the course of his direct examination Eager was asked several more times about statements Nowak may have made relating to communism either at Party meetings or in private conversation. His answers were always of two types. Sometimes he substantially repeated his first account; for example, '(Nowak) said the Party policy was that members of the Party in the various unions should take an aggressive and militant leadership of the union.' (Transcript, p. 321.) Or else he pleaded that he was not able to remember what Nowak said; for example, 'I can't recall the exact words he said at that meeting, it is so long ago.' (Transcript, p. 322.) After direct examination ended, and after a lengthy cross-examination, counsel for the Government returned to the theme on redirect and asked Eager about any statements of Nowak concerning 'the role that the Communist Party should play in that union.' Eager replied, 'Only to the extent that he stated we should be militant and aggressive and take a leadership in our plants.' (Transcript, p. 375.) A little later Eager was asked substantially the same question. After objection by Nowak's counsel on the ground that the matter had been gone into 'ten times on direct examination,' the District Court recognized that the question had previously been asked, but permitted the witness to answer. Eager said, 'Well, I think that I have answered that question four or five times.' When asked at that point if he could add anything, Eager only then submitted the answer to heavily relied on by the Government here, 'The only thing I can recall him saying one night, at a meeting, that was slightly different, I guess, and yet the same question of militancy and all that, and there was political action, the question was brought up at the meeting and he told us at that time that we couldn't depend too much on the ballot to gain our objectives but that it would eventually resolve to bullets, and it was only by the same militancy of the workers in the plants that we, as leaders, would be able to establish a Soviet America.' (Transcript, p. 379.)
| 12
|
356 U.S. 674
78 S.Ct. 974
2 L.Ed.2d 1060
Edward J. ELLIS, Petitioner,v.UNITED STATES of America.
No. 293, Misc.
Decided May 26, 1958.
Mr. Kingdon Gould, Jr., for petitioner.
Solicitor General Rankin, Acting Assistant Attorney General McLean and Beatrice Rosenberg, for the United States.
PER CURIAM.
1
The petition for writ of certiorari is granted, as is leave to proceed in forma pauperis.
2
The Court of Appeals denied petitioner leave to appeal in forma pauperis a conviction for housebreaking and larceny. 101 U.S.App.D.C., 386, 249 F.2d 478. The Solicitor General concedes that leave to appeal should have been allowed unless petitioner's contentions on the merits were frivolous. The only statutory requirement for the allowance of an indigent's appeal is the applicant's 'good faith.' 28 U.S.C. § 1915, 28 U.S.C.A. § 1915. In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous. Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. The good-faith test must not be converted into a requirement of a preliminary showing of any particular degree of merit. Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, Fed.Rules Crim.Proc. 39(a), 18 U.S.C.A., the request of an indigent for leave to appeal in forma pauperis must be allowed.
3
Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required. If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied. In this case, the Solicitor General concedes, and after examining the record we agree, that the issue presented—probable cause to arrest—is not one that 'can necessarily be characterized as frivolous.' Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for reconsideration in light of this opinion.
| 01
|
356 U.S. 617
78 S.Ct. 923
2 L.Ed.2d 1018
INTERNATIONAL ASSOCIATION of MACHINISTS, an Unincorporated Association; Charles Truax, Individually, etc., et al., Petitioners,v.Marcos GONZALES.
No. 31.
Argued Dec. 12, 1957.
Decided May 26, 1958.
Rehearing Denied June 30, 1958.
See 357 U.S. 944, 78 S.Ct. 1379.
Messrs. Plato E. Papps, Washington, D.C., and Eugene K. Kennedy, Redwood, Cal., for petitioners.
Mr. Lloyd E. McMurray, San Francisco, Cal., for respondents.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Claiming to have been expelled from membership in the International Association of Machinists and its Local No. 68 in violation of his rights under the constitution and by-laws of the unions, respondent, a marine machinist, brought this suit against the International and Local, together with their officers, in a Superior Court in California for restoration of his membership in the unions and for damages due to his illegal expulsion. The case was tried to the court, and, on the basis of the pleadings, evidence, and argument of counsel, detailed findings of fact were made, conclusions of law drawn, and a judgment entered ordering the reinstatement of respondent and awarding him damages for lost wages as well as for physical and mental suffering. The judgment was affirmed by the District Court of Appeal, 142 Cal.App.2d 207, 298 P.2d 92, and the Supreme Court of California denied a petition for hearing. We brought the case here, 352 U.S. 966, 77 S.Ct. 354, 1 L.Ed.2d 321, since it presented another important question concerning the extent to which the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. §§ 141—188, 29 U.S.C.A. §§ 141 188, has excluded the exercise of state power.
2
The crux of the claim sustained by the California court was that under California law membership in a labor union constitutes a contract between the member and the union, the terms of which are governed by the constitution and by-laws of the union, and that state law provides, through mandatory reinstatement and damages, a remedy for breach of such contract through wrongful expulsion. This contractual conception of the relation between a member and his union widely prevails in this country and has recently been adopted by the House of Lords in Bonsor v. Musicians' Union, (1956) A.C. 104. It has been the law of California for at least half a century. See Dingwall v. Amalgamated Ass'n of Street R. Employees, 4 Cal.App. 565, 88 P. 597. Though an unincorporated association, a labor union is for many purposes given the rights and subjected to the obligations of a legal entity. See United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 383—392, 42 S.Ct. 570, 573—576, 66 L.Ed. 975; United States v. White, 322 U.S. 694, 701—703, 64 S.Ct. 1248, 1252—1253, 88 L.Ed. 1542.
3
That the power of California to afford the remedy of reinstatement for the wrongful expulsion of a union member has not been displaced by the Taft-Hartley Act is admitted by petitioners. Quite properly they do not attack so much of the judgment as orders respondent's reinstatement. As Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, could not avoid deciding, the Taft-Hartley Act undoubtedly carries implications of exclusive federal authority. Congress withdrew from the States much that had theretofore rested with them. But the other half of what was pronounced in Garner—that the Act 'leaves much to the states'—is no less important. See 346 U.S. at page 488, 74 S.Ct. at page 164. The statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation. See Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 474-477, 75 S.Ct. 480, 484—486, 99 L.Ed. 546.
4
Since we deal with implications to be drawn from the Taft-Hartley Act for the avoidance of conflicts between enforcement of federal policy by the National Labor Relations Board and the exertion of state power, it might be abstractly justifiable, as a matter of wooden logic, to suggest that an action in a state court by a member of a union for restoration of his membership rights is precluded. In such a suit there may be embedded circumstances that could constitute an unfair labor practice under § 8(b)(2) of the Act. In the judgment of the Board, expulsion from a union, taken in connection with other circumstances established in a particular case, might constitute an attempt to cause an employer to 'discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. * * *' 61 Stat. 141, 29 U.S.C. § 158(b)(2), 29 U.S.C.A. § 158(b)(2). But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b)(1) of the Act states that 'this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.' 61 Stat. 141, 29 U.S.C. § 158(b)(1), 29 U.S.C.A. § 158(b)(1). The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for 'retention of membership therein.' Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights. Such a drastic result, on the remote possibility of some entanglement with the Board's enforcement of the national policy, would require a more compelling indication of congressional will than can be found in the interstices of the Taft-Hartley Act. See United Construction Workers, etc. v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025.
5
Although petitioners do not claim that the state court lacked jurisdiction to order respondent's reinstatement, they do contend that it was without power to fill out this remedy by an award of damages for loss of wages and suffering resulting from the breach of contract. No radiation of the Taft-Hartley Act requires us thus to mutilate the comprehensive relief of equity and reach such an incongruous adjustment of federal-state relations touching the regulation of labor. The National Labor Relations Board could not have given respondent the relief that California gave him according to its local law of contracts and damages. Although, if the unions' conduct constituted an unfair labor practice, the Board might possibly have been empowered to award back pay, in no event could it mulct in damages for mental or physical suffering. And the possibility of partial relief from the Board does not, in such a case as is here presented, deprive a party of available state remedies for all damages suffered. See International Union, United Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932.
6
If, as we held in the Laburnum case, certain state causes of action sounding in tort are not displaced simply because there may be an argumentative coincidence in the facts adducible in the tort action and a plausible proceeding before the National Labor Relations Board, a state remedy for breach of contract also ought not be displaced by such evidentiary coincidence when the possibility of conflict with federal policy is similarly remote. The possibility of conflict from the court's award of damages in the present case is no greater than from its order that respondent be restored to membership. In either case the potential conflict is too contingent, too remotely related to the public interest expressed in the Taft-Hartley, Act, to justify depriving state courts of jurisdiction to vindicate the personal rights of an ousted union member. This is emphasized by the fact that the subject matter of the litigation in the present case, as the parties and the court conceived it, was the breach of a contract governing the relations between respondent and his unions.* The suit did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under § 8(b)(2). This important distinction between the purposes of federal and state regulation has been aptly described: 'Although even these state court decisions may lead to possible conflict between the federal labor board and state courts they do not present potentialities of conflicts in kind or degree which require a hands-off directive to the states. A state court decision requiring restoration of membership requires consideration of and judgment upon matters wholly outside the scope of the National Labor Relations Board's determination with reference to employer discrimination after union ouster from membership. The state court proceedings deal with arbitrariness and misconduct vis-a-vis the individual union members and the union; the Board proceeding, looking principally to the nexus between union action and employer discrimination, examines the ouster from membership in entirely different terms.' Isaacson, Labor Relations Law: Federal versus State Jurisdiction, 42 A.B.A.J. 415, 483.
The judgment is
7
Affirmed.
8
Mr. Justice BLACK took no part in the consideration or decision of this case.
9
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
10
By sustaining a state-court damage award against a labor organization for conduct that was subject to an unfair labor practice proceeding under the Federal Act, this Court sanctions a duplication and conflict of remedies to which I cannot assent. Such a disposition is contrary to the unanimous decision of this Court in Garner v. Teamsters C. & H. Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228.
11
In Garner, we rejected an attempt to secure preventive relief under state law for conduct over which the Board had remedial authority. We held that the necessity for uniformity in the regulation of labor relations subject to the Federal Act forbade recourse to potentially conflicting state remedies. The bases of that decision were clearly set forth:
12
'Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.1
13
'Further, even if we were to assume, with petitioners, that distinctly private rights were enforced by the state authorities, it does not follow that the state and federal authorities may supplement each other in cases of this type. The conflict lies in remedies, not rights. The same picketing may injure both public and private rights. But when two separate remedies are brought to bear on the same activity, a conflict is imminent.'2
14
The two subsequent opinions of this Court that have undertaken to restate the holding in Garner, one of them written by the author of today's majority opinion, confirm its prohibition against duplication of remedies. Weber v. Anheuser-Busch, 348 U.S. 468, 479, 75 S.Ct. 480, 487, 99 L.Ed. 546;3 United Construction Workers etc. v. Laburnum Constr. Corp., 347 U.S. 656, 663, 665, 74 S.Ct. 833, 836, 838, 98 L.Ed. 1025.4 And if elucidating litigation was required to dispel the Delphic nature of that doctrine, the requisite concreteness has been adequately supplied. This Court has consistently turned back efforts to utilize state remedies for conduct subject to proceedings for relief under the Federal Act. District Lodge 34, Lodge 804, International Ass'n of Machinists v. L. P. Cavett Co., 355 U.S. 39, 78 S.Ct. 122, 2 L.Ed.2d 72; Local Union 429, International Brotherhood of Electrical Workers, A. F. of L. v. Farnsworth & Chambers Co., 353 U.S. 969, 77 S.Ct. 1056, 1 L.Ed.2d 1133; Retail Clerks International Ass'n, Local No. 560 v. J. J. Newberry Co., 352 U.S. 987, 77 S.Ct. 386, 1 L.Ed.2d 367; Pocatello Building & Construction Trades Council v. C. H. Elle Constr. Co., 352 U.S. 884, 77 S.Ct. 130, 1 L.Ed.2d 82; Building Trades Council v. Kinard Constr. Co., 346 U.S. 933, 74 S.Ct. 373, 98 L.Ed. 423. With the exception of cases allowing the State to exercise its police power to punish or prevent violence, United Auto, Aircraft and Agricultural Implement Workers of America v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162; Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151, the broad holding of Garner has never been impaired. Certainly United Construction Workers etc. v. Laburnum Constr. Corp., supra, did not have that effect. The Laburnum opinion carefully notes that the Federal Act excludes conflicting state procedures, and emphasizes that 'Congress has neither provided nor suggested any substitute'5 for the state relief there being sustained.6
15
The principles declared in Garner v. Teamsters C. & H. Local Union, supra, were not the product of imperfect consideration or untried hypothesis. They comprise the fundamental doctrines that have guided this Court's pre-emption decisions for over a century. When Congress, acting in a field of dominant federal interest as part of a comprehensive scheme of federal regulation, confers rights and creates remedies with respect to certain conduct, it has expressed its judgment on the desirable scope of regulation, and state action to supplement it is as 'conflicting,' offensive and invalid as state action in derogation. E.g., Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640; Missouri P. R. Co. v. Porter, 273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672; Houston v. Moore, 5 Wheat. 1, 2 1—23, 5 L.Ed. 19. This is as true of a state common-law right of action as it is of state regulatory legislation. Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. As recently as Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601, we had occasion to re-emphasize the vitality of these pre-emption doctrines in a labor case where, due to NLRB inaction, the conduct involved was either subject to state regulation or it was wholly unregulated. We set aside a state-court remedial order directed at activity that had been the subject of unfair labor practice charges with the Board, declaring that: 'the (secession of jurisdiction) proviso to § 10(a) is the exclusive means whereby States may be enabled to act concerning the matters which Congress has entrusted to the National Labor Relations Board.'7
16
That the foregoing principles of preemption apply to the type of dispute involved in this case cannot be doubted. Comment hardly need be made upon the comprehensive nature of the federal labor regulation in the Taft-Hartley Act. One of its declared purposes is 'to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce * * *.'8 The Act deals with the very conduct involved in this case by declaring in § 8(b)(2) that it shall be an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate in regard to hire or tenure of employment against an employee who has been denied union membership on some ground other than failure to tender periodic dues.9 The evidence disclosed the probability of a § 8(b)(2) unfair labor practice in the union's refusal to dispatch Gonzales from its hiring hall after his expulsion from membership and his inability thereafter to obtain employment. If a causal relation between the nondispatch and the refusal to hire is an essential element of § 8(b)(2),10 there was ample evidence to satisfy that requirement. A few months after Gonzales' expulsion, the union signed a multiemployer collective bargaining agreement with a hiring-hall provision. One witness testified that there was no material difference between hiring procedures before and after the date of that agreement.11 There were other indications to the same effect.12 In any event, since the uncontested facts disclose the probability of a § 8(b)(2) unfair labor practice, the existence of the same must for pre-emption purposes be assumed. As we said in Weber v. Anheuser-Busch, supra, 348 U.S. at page 478, 75 S.Ct. at page 486, 'The point is rather that the Board, and not the state court, is empowered to pass upon such issues in the first instance.'
17
Assuming that the union conduct involved constituted a § 8(b)(2) unfair labor practice,13 the existence of a conflict of remedies in this case cannot be denied. Section 10(c) of the Act empowers the Board to redress such conduct by requiring the responsible party to reimburse the worker for the pay he has lost. Relying upon the identical conduct on which the Board would premise its backpay award,14 the state court has required of the union precisely what the Board would require: that Gonzales be made whole for his lost wages. Such a duplication and conflict of remedies is the very thing this Court condemned in Garner.
18
The further recovery of $2,500 damages for 'mental suffering, humilation and distress' serves to aggravate the evil. When Congress proscribed union-inspired job discriminations and provided for a recovery of lost wages by the injured party, it created all the relief it thought necessary to accomplish its purpose. Any additional redress under state law for the same conduct cannot avoid disturbing this delicate balance of rights and remedies. The right of action for emotional disturbance, like the punitive recovery the plaintiff sought unsuccessfully in this case, is a particularly unwelcome addition to the scheme of federal remedies because of the random nature of any assessment of damages. Without a reliable gauge to which to relate their verdict, a jury may fix an amount in response to those 'local procedures and attitudes toward labor controversies' from which the Garner case sought to isolate national labor regulation. The prospect of such recoveries will inevitably exercise a regulatory effect on labor relations.
19
The state and federal courts that have considered the permissibility of damage actions for the victims of job discrimination lend their weight to the foregoing conclusion. While most sustain the State's power to reinstate members wrongfully ousted from the union, they are unanimous in denying the State's power to award damages for the employer discriminations that result from nonmembership.15
20
The legislative history and structure of the Federal Act lend further support to a conclusion of pre-emption. While s 8(b)(2) and the other provisions defining unfair labor practices on the part of labor organizations were first introduced in the Taft-Hartley Act, similar conduct by an employer had been an unfair labor practice under § 8(3) of the Wagner Act, 49 Stat. 452. Committee reports dealing with that provision leave no doubt that the Congress was prescribing a complete code of federal labor regulation that did not contemplate actions in the state court for the same conduct.
21
'The Board is empowered, according to the procedure provided in section 10, to prevent any person from engaging in any unfair labor practice listed in section 8 'affecting commerce', as that term is defined in section 2(7). This power is vested exclusively in the Board and is not to be affected by any other means of adjustment or prevention.
22
'The most frequent form of affirmative action required in cases of this type is specifically provided for, i.e., the reinstatement of employees with or without back pay, as the circumstances dictate. No private right of action is contemplated.'16 (Emphasis supplied.) There is nothing in the Taft-Hartley amendments that detracts in the slightest from this unequivocal declaration that private rights of action are not contemplated within the scheme of remedies Congress has chosen to prescribe in the regulation of labor relations.17 It is consistent with every indication of legislative intent. As the Act originally passed the House, § 12 created a private right of action in favor of persons injured by certain unfair labor practices.18 The Senate rejected that approach, and the Section was deleted by the Conference.
23
Special considerations prompted adoption of a Senate amendment creating an action for damages sustained from one unfair labor practice, the secondary boycott.19 Aside from the obvious argument that the express inclusion of one private action in the scheme of remedies provided by the Act indicates that Congress did not contemplate others, the content of § 301 furnishes another distinguishing feature. The right of action is federal in origin, assuring the uniformity of substantive law so essential to matters having an impact on national labor regulation.20 The right of action that the majority sanctions here, on the other hands, is a creature of state law and may be expected to vary in content and effect according to the locality in which it is asserted. Free to operate as what Senator Taft characterized 'a tremendous deterrent'21 to the unfair labor practice for which it gives compensation, this damage recovery constitutes a state-created and state-administered addition to the structure of national labor regulation that cannot claim even the virtue of uniformity.
24
Since the majority's decision on the permissibility of a state-court damage award is at war with the policies of the Federal Act and contrary to the decisions of this Court, it is not surprising that the bulk of its opinion is concerned with the comforting irrelevancy of the State's conceded power to reinstate the wrongfully expelled. But it will not do to assert that the 'possibility of conflict with federal policy' is as 'remote' in the case of damages as with reinstatement. As we have seen, the Board has no power to order the restoration of union membership rights, while its power to require the payment of back pay is well recognized and often exercised. If a state court may duplicate the latter relief, and award exemplary or pain and suffering damages as well, employees will be deterred from resorting to the curative machinery of the Federal Act. The majority apparently blinks at that result in order that the state court may 'fill out this remedy.' To avoid 'multilat(ing)' the state equity court's conventional powers of relief, the majority reaches a decision that will frustrate the remedial pattern of the Federal Act. How different that is from Guss v. Utah Labor Relations Board, supra, where the remedial authority of a State was denied in its entirety because Congress had 'expressed its judgment in favor of uniformity.'
25
The majority draws satisfaction from the fact that this was a suit for breach of contract, not an attempt to regulate or remedy union conduct designed to bring about an employer discrimination. But the presence or absence of pre-emption is a consequence of the effect of state action on the aims of federal legislation, not a game that is played with labels or an exercise in artful pleading. In a preemption case decided upon what now seem to be discarded principles,22 the author of today's majority opinion declared: 'Controlling and therefore superseding federal power cannot be curtailed by the State even though the ground of intervention be different than that on which federal supremacy has been exercised.' Weber v. Anheuser-Busch, supra, 348 U.S. at page 480, 75 S.Ct. at page 487. I would adhere to the view of pre-emption expressed by that case and by Garner v. Teamsters C. & H. Local Union, supra, and reverse the judgment below.
*
'In determining the question of whether the exclusive jurisdiction to grant damages in a case of this kind lies in the Labor Relations Board, it is first necessary to determine the character of the pleadings and issues in this case. The petition alleged a breach of contract between the union and plaintiff, one of its members. * * * It took the form of a petition for writ of mandate because damages alone would not be adequate to restore to petitioner the things of value he had lost by reason of the breach. No charge of 'unfair labor practices' appears in the petition. The answer to the petition denied its allegations and challenged the jurisdiction of the court, but said nothing about unfair labor practices. The evidence adduced at the trial showed that plaintiff, because of his loss of membership, was unable to obtain employment and was thereby damaged. However, this damage was not charged nor treated as the result of an unfair labor practice but as a result of the breach of contract. Thus the question of unfair labor practice was not raised nor was any finding on the subject requested of, or made by, the court.' 142 Cal.App.2d 207, 217, 298 P.2d 92, 99.
1
346 U.S., at page 490, 74 S.Ct. at page 166.
2
346 U.S. at pages 498—499, 74 S.Ct. at page 170.
3
'In Garner the emphasis was not on two conflicting labor statutes but rather on two similar remedies, one state and one federal, brought to bear on precisely the same conduct.'
4
'In the Garner case, Congress had provided a federal administrative remedy, supplemented by judicial procedure for its enforcement, with which the state injunctive procedure conflicted. * * * The care we took in the Garner case to demonstrate the existing conflict between state and federal administrative remedies in that case was, itself, a recognition that if no conflict had existed, the state procedure would have survived.'
And see Guss v. Utah Labor Relations Board, 353 U.S. 1, 6, 77 S.Ct. 598, 600, 1 L.Ed.2d 601: 'The National Act expressly deals with the conduct charged to appellant which was the basis of the state tribunals' actions. Therefore, if the National Board had not declined jurisdiction, state action would have been precluded by our decision in Garner v. Teamsters Union, * * *.'
5
347 U.S. at page 663, 74 S.Ct. at page 837.
6
Speaking of the Laburnum case in Weber v. Anheuser-Busch, 348 U.S. 468, 477, 75 S.Ct. 480, 486, 99 L.Ed. 546, the Court stated that 'this Court sustained the state judgment on the theory that there was no compensatory relief under the federal Act and no federal administrative relief with which the state remedy conflicted.'
7
353 U.S. at page 9, 77 S.Ct. at page 602.
8
29 U.S.C. § 141, 29 U.S.C.A. § 141.
9
29 U.S.C. § 158(b)(2), 29 U.S.C.A. § 158(b)(2).
10
But cf. International Union of Operating Engineers, Local No. 12, 113 N.L.R.B. 655, 662—663, enforcement granted National Labor Relations Board v. International Union of Operators, etc., 9 Cir., 237 F.2d 670.
11
Reply Brief for Petitioner, p. 4; R. 73—74, 134.
12
The state appellate court concluded that 'employers of the type of labor provided by members of this organization only hire through the union hiring hall.' 142 Cal.App.2d at pages 207, 214, 298 P.2d at pages 92, 97. The opening statement for Gonzales in the trial court declared that 'everytime he applies for a job, he is told to go to the hall to get a clearance * * *.' R. 36. Gonzales' testimony on that subject was excluded as hearsay. R. 60 61.
13
It is unnecessary to consider whether a § 8(b)(1)(A) violation was also involved.
14
The cause of action under state law arose when the union denied Gonzales the benefits of membership by refusing dispatch. Subsequent employer refusals to hire merely established the damages. With the unfair labor practice, on the other hand, employer refusal or failure to hire is an essential element of the wrongful conduct. In either case Gonzales is required to prove the same union and employer conduct to qualify for compensation.
15
Born v. Laube, 9 Cir., 213 F.2d 407, rehearing denied 9 Cir., 214 F.2d 349; McNish v. American Brass Co., 139 Conn. 44, 89 A.2d 566; Morse v. Local Union No. 1058 Carpenters and Joiners, 78 Idaho 405, 304 P.2d 1097; Sterling v. Local 438, Liberty Ass'n of Steam and Power Pipe Fitters, 207 Md. 132, 113 A.2d 389; Real v. Curran, 285 App.Div. 552, 138 N.Y.S.2d 809; Mahoney v. Sailors' Union of the Pacific, 45 Wash.2d 453, 275 P.2d 440.
16
H.R.Rep. No. 1147 on S.1958, 74th Cong., 1st Sess. 23—24; H.R.Rep. No. 972 on S.1958, 74th Cong., 1st Sess. 21; H.R.Rep. No. 969 on H.R. 7978, 74th Cong., 1st Sess. 21.
17
The new Act deleted the provision in § 10(a) that the Board's power to prevent unfair labor practices was 'exclusive,' but the Committee reports make abundantly clear that the deletion was only made to avoid conflict with the new provisions authorizing a federal-court injunction against unfair labor practices (§§ 10(j) and (l), 29 U.S.C. § 160(j) and (l), 29 U.S.C.A. § 160(j, l)), and the provision making unions suable in the federal courts (§ 301, 29 U.S.C. § 185, 29 U.S.C.A. § 185). H.R.Conf.Rep. No. 510, on H.R. 3020, 80th Cong., 1st Sess. 52. Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 167 F.2d 183.
18
H.R. 3020, 80th Cong., 1st Sess.; H.R.Rep. No. 245 on H.R. 3020, 80th Cong., 1st Sess. 43—44.
19
§ 303, Labor Management Relations Act of 1947, 29 U.S.C. § 187, 29 U.S.C.A. § 187. An examination of the Committee reports and debates concerning this provision reveals that the additional relief was a product of congressional concern that, for this type of conduct, the Board's ordinary cease-and-desist order was 'a weak and uncertain remedy.' Corrective action was entirely in the discretion of the Board, and the delay involved in setting its processes in motion could work a great hardship on the victims of the boycott. S.Rep. No. 105 on S. 1126, Supp. Views, 80th Cong., 1st Sess. 54—55; 93 Cong.Rec. 4835—4838. The Senate rejected a proposal for injunctive relief in the state courts (93 Cong.Rec. 4847), but created this federal right of action for damages. Senator Taft, the author of the amendment, voiced its two objectives: it would effect restitution for the injured parties (93 Cong.Rec. 4844, 4858), and 'the threat of a suit for damages is a tremendous deterrent to the institution of secondary boycotts and jurisdictional strikes' (93 Cong.Rec. 4858).
20
'By this provision (§ 303), the Act assures uniformity, otherwise lacking, in rights of recovery in the state courts * * *.' United Construction Workers, etc. v. Laburnum Constr. Corp., 347 U.S. 656, 665—666, 74 S.Ct. 833, 838, 98 L.Ed. 1025.
21
93 Cong.Rec. 4858.
22
Compare the characterization of the Laburnum case in Weber v. Anheuser-Busch, supra, with the proportions that case has assumed in today's decision.
Then: 'United Construction Workers, etc. v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025, was an action for damages based on violent conduct, which the state court found to be a common-law tort. While assuming that an unfair labor practice under the Taft-Hartley Act was involved, this Court sustained the state judgment on the theory that there was no compensatory relief under the federal Act and no federal administrative relief with which the state remedy conflicted.' 348 U.S. at page 477, 75 S.Ct. at page 486.
Now: 'If, as we held in the Laburnum case, certain state causes of action sounding in tort are not displaced simply because there may be an argumentative coincidence in the facts adducible in the tort action and a plausible proceeding before the National Labor Relations Board, a state remedy for breach of contract also ought not be displaced by such evidentiary coincidence when the possibility of conflict with federal policy is similarly remote.' Ante, 356 U.S. 621, 78 S.Ct. 925.
| 910
|
356 U.S. 584
78 S.Ct. 970
2 L.Ed.2d 991
Freddie EUBANKS, Petitioner,v.STATE OF LOUISIANA.
No. 550.
Argued April 30 and May 1, 1958.
Decided May 26, 1958.
Mr. Herbert J. Garon, New Orleans, La., for petitioner.
Mr. M. E. Culligan, New Orleans, La., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
In an unbroken line of cases stretching back almost 80 years this Court has held that a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race.1 Our only concern here is with the application of this established principle to the facts disclosed by the record now before us.
2
The petitioner, a young Negro, was indicted by an all-white grand jury in the Parish of Orleans, Louisiana, for murder of a white woman. He moved to quash the indictment on the ground that Negroes had been systematically excluded from grand juries in the parish, including the grand jury which returned the indictment against him. After a hearing, his motion was overruled, and he was tried, convicted and sentenced to death. The Louisiana Supreme Court affirmed, holding that the record disclosed no discriminatory exclusion of Negroes from his grand jury, 232 La. 289, 94 So.2d 262. We granted certiorari, 355 U.S. 812, 78 S.Ct. 68, 2 L.Ed.2d 30.
3
The method by which grand juries are selected in the parish is not controverted. A jury commission is required to select, 'impartially, from the citizens of the Parish of Orleans having the qualifications requisite to register as voters, the names of not less than seven hundred and fifty persons competent * * * to serve as jurors.'2 Twice each year the Commissioners draw the names of 75 persons from this group. The list of 75 is then submitted to one of the six judges of the local criminal court who, in rotation, choose a new grand jury of 12 every six months.3 Obviously the judges have broad discretion in selecting from the list provided by the Commission. State v. Dorsey, 207 La. 928, 22 So.2d 273. Several of them interview a substantial number of prospective jurors before making their choice. Others, including the judge who chose the jury that indicted petitioner, testified that they usually selected on the basis of personal knowledge or reputation in the community. Petitioner does not challenge this system of choosing grand jurors, as such, but he does contend that it has been administered by the local judges so that members of the Negro race have been systematically excluded from grand jury service.
4
Although Negroes comprise about one-third of the population of the parish, the uncontradicted testimony of various witnesses established that only one Negro had been picked for grand jury duty within memory. And this lone exception apparently resulted from the mistaken impression that the juror was white. From 1936, when the Commission first began to include Negroes in the pool of potential jurors, until 1954, when petitioner was indicted, 36 grand juries were selected in the parish. Six or more Negroes were included in each list submitted to the local judges. Yet out of the 432 jurors selected only the single Negro was chosen. Undisputed testimony also proved that a substantial number of the large Negro population in the parish were educated, registered to vote and possessed the qualifications required for jury service, all of which is emphasized by the fact that since 1936 the Commission has regularly selected Negroes for the grand jury panel. Indeed, Negroes have served on the federal grand jury in the parish for many years.
5
In Patton v. State of Mississippi, 332 U.S. 463, 469, 68 S.Ct. 184, 187, 92 L.Ed. 76, this Court declared, in a unanimous opinion, that 'When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.' This is essentially the situation here. True, the judges now serving on the local court testified generally that they had not discriminated against Negroes in choosing grand juries, and had only tried to pick the best available jurors. But as Chief Justice Hughes said for the Court in Norris v. State of Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 584, 79 L.Ed. 1074, 'If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the (Equal Protection Clause) adopted with special reference to their protection—would be but a vain and illustory requirement.' Compare Reece v. State of Georgia, 350 U.S. 85, 88, 76 S.Ct. 167, 169, 100 L.Ed. 77; Hernandez v. State of Texas, 347 U.S. 475, 481, 74 S.Ct. 667, 671, 98 L.Ed. 866. This is particularly true here where several of the parish judges apparently have never even interviewed a Negro in selecting grand jurors. We are reluctantly forced to conclude that the uniform and long-continued exclusion of Negroes from grand juries shown by this record cannot be attributed to chance, to accident, or to the fact that no sufficiently qualified Negroes have ever been included in the lists submitted to the various local judges. It seems clear to us that Negroes have been consistently barred from jury service because of their race.
6
It may well be, as one of the parish judges recently stated, that 'the selection of grand juries in this community throughout the years has been controlled by a tradition and the general thinking of the community as a whole is under the influence of that tradition.'4 But local tradition cannot justify failure to comply with the constitutional mandate requiring equal protection of the laws.
7
'A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for (the State) may indict and try him again by the procedure which conforms to constitutional requirements.5 But no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty.' Hill v. State of Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559.
8
The judgment of the Louisiana Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
9
It is so ordered.
10
Reversed and remanded with directions.
1
Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Hale v. Commonwealth of Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050; Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77.
2
LSA—Rev.Stat.1950, Tit. 15, § 194.
3
Id., § 196.
4
Louisiana v. Dowels, Crim. Dist. Ct. No. 139—324, Oct. 1952 (unreported opinion). In that case the trial judge quashed an indictment because Negroes had been systematically and intentionally excluded from parish grand juries.
'Our situation in Orleans seems to be particularly vulnerable to the theory of the United States Supreme Court 'that chance and accident alone can hardly explain the continuous omission of negroes from grand juries over a long period of time' because we have five and in the last four years, six courts, selecting grand juries and the record shows that notwithstanding the number of courts that select grand juries, and regardless of which court selects a grand jury, or when that court selects a grand jury, or how that court selects a grand jury, or how often one court or all courts have selected a grand jury, or over what period of time any court or all courts continue to select grand juries, the omission of negroes is consistent, constant and the same.
'While this court is conscious of its fallibility, it is firm in its opinion that this record in the Supreme Court of Louisiana or of the United States, would support no other ruling except a ruling quashing the indictment herein because of intentional and systematic exclusion of negroes from grand juries in Orleans Parish because of race and color and in violation of the Fourteenth Amendment, inclusive of the grand jury that returned the indictment in this case, because that grand jury is not differentiated from the pattern of jury selection that consistently eliminated colored persons from grand juries.'
So far as appears this is the only instance in the parish where an indictment has been annulled because of racial discrimination.
5
For example in Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, a Negro's conviction was reversed because members of his race had been discriminatorily excluded from the grand jury which indicted him. On remand another grand jury, this time composed in part of Negroes, was impaneled and returned a new indictment. The defendant was then tried and convicted by a petit jury which included a Negro. See State v. Pierre, 198 La. 619, 3 So.2d 895.
| 12
|
356 U.S. 595
78 S.Ct. 950
2 L.Ed.2d 1001
UNITED STATES of America, Petitioner,v.Howard A. McNINCH, Doing Business as Home Comfort Co., Rosalie McNinch and Garis P. Zeigler, et al.
No. 146.
Argued April 1, 1958.
Decided May 26, 1958.
Mr. George Cochran Doub, Washington, D.C., for petitioner.
Messrs. A. C. Epps, Richmond, Va., and Edwin P. Gardner, Columbia, S.C., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case was argued with Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, also decided today. In involves three separate actions by the Government to recover damages and forfeitures under the False Claims Act.1 These actions—which will be referred to, after the principal defendant in each instance, as Cato, Toepleman and McNinch—were initially brought in different Federal District Courts but on appeal were disposed of by the Court of Appeals in a single opinion. 242 F.2d 359.2
2
In Cato and Toepleman the District Court found the defendants had submitted false claims for crop support loans to the Commodity Credit Corporation, and entered judgment in favor of the Government for the forfeitures provided by the False Claims Act. The Court of Appeals reversed on the ground that a false claim against Commodity was not a claim 'against the Government of the United States, or any department or officer thereof' within the meaning of that Act. The sole question before us, so far as these two actions are concerned, is whether the Court of Appeals erred in so deciding. For the reasons set forth in Rainwater we hold that it did.
3
McNinch raises different questions concerning alleged false claims against the Federal Housing Administration. By statute the FHA is authorized to insure qualified banks and other private lending institutions against a substantial portion of any losses sustained by them in lending money for the repair or alteration of homes.3 After a lending institution has been approved by the FHA that agency promises to insure, upon payment of a specified premium, any home improvement loan made by the institution. A borrower desiring to obtain an insured loan applies directly to the private lender, which has final authority to decide whether the loan should be made. If a loan is granted, the lender reports the details to the FHA which automatically insures the loan as soon as the required premium is paid.
4
The Government's complaint in McNinth charged the defendants with causing a qualified bank to present a number of false applications for credit insurance to the FHA.4 The defendants moved to dismiss the complaint, asserting that it failed to state a cause of action. The District Court granted the motion, holding that an application for credit insurance was not a 'claim' within the meaning of the False Claims Act. The Court of Appeals affirmed on that same basis as well as on the alternative ground that a false claim against the FHA was not a claim 'against the Government of the United States, or any department or officer thereof.' 1. In our judgment the Court of Appeals quite plainly erred in holding that the FHA was not part of the 'Government of the United States' for purposes of the False Claims Act. The FHA is an unincorporated agency in the Executive Department created by the President pursuant to congressional authorization. Its head, the Federal Housing Commissioner, is appointed by the President with the Senate's consent, and the powers of the agency are vested in him. The agency is responsible for the administration of a number of federal housing programs and operates with funds originally appropriated by Congress. In short, the FHA is about as much a part of the Government as any agency can be.
5
2. Although the problem is not easy, we believe the courts below were correct in holding that a lending institution's application for credit insurance under the FHA program is not a 'claim' as that term is used in the False Claims Act. We acknowledge the force in the Government's argument that literally such an application could be regarded as a claim, in the sense that the applicant asserts a right or privilege to draw upon the Government's credit. But it must be kept in mind, as we explained in Rainwater, that in determining the meaning of the words 'claim against the Government' we are actually construing the provisions of a criminal statute.5 Such provisions must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 542, 63 S.Ct. 379, 383, 87 L.Ed. 443; United States v. Wiltberger, 5 Wheat. 76, 95 96, 5 L.Ed. 37.
6
In normal usage or understanding an application for credit insurance would hardly be thought of as a 'claim against the government.' As the Court of Appeals for the Third Circuit said in this same context, 'the conception of a claim against the government normally connotes a demand for money or for some transfer of public property.' United States v. Tieger, 234 F.2d 589, 591. In agreeing to insure a home improvement loan the FHA disburses no funds nor does it otherwise suffer immediate financial detriment. It simply contracts, for a premium, to reimburse the lending institution in the event of future default, in any.6
7
The False Claims Act was originally adopted following a series of sensational congressional investigations into the sale of provisions and munitions to the War Department. Testimony before the Congress painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war.7 Congress wanted to stop this plundering of the public treasury.8 At the same time it is equally clear that the False Claims Act was not designed to reach every kind of fraud practiced on the Government. From the language of that Act, read as a whole in the light of normal usage, and the available legislative history we are led to the conclusion that an application for credit insurance does not fairly come within the scope that Congress intended the Act to have.9 This question has now been considered by the Courts of Appeals for the Third, Fourth, and Fifth Circuits, as well as by District Courts in those circuits, and all have reached the same conclusion.10
8
The judgment of the Court of Appeals is affirmed in McNinch and reversed in Cato and Toepleman and the cause is remanded for further proceedings not inconsistent with this opinion.
9
It is so ordered.
10
Affirmed in part and reversed in part and cause remanded.
11
Mr. Justice DOUGLAS, concurring in part and dissenting in part.
12
I agree with the Court as respects the false claims made against the Commodity Credit Corporation. I disagree as to the claims against the Federal Housing Administration. The allegations are that McNinch and others, having contracted to make alterations and improvements in various homes, presented to a South Carolina bank several fraudulent loan applications. The applications were accompanied by fictitious credit reports and misrepresented the financial eligibility of the homeowners. These loan applications were made with the intent that they be accepted by the Federal Housing Administration for insurance.1
13
These are the allegations, which for present purposes we must assume are correct.
14
The South Carolina bank had been approved by FHA as a lending institution. The bank approved the requested loans and applied to FHA for insurance. FHA insured the loans. Thereupon the proceeds of the loans were deposited to the accounts of these respondents in the South Carolina bank.
15
The statute, R.S. §§ 3490, 5438, 31 U.S.C. § 231, 31 U.S.C.A. § 231, covers anyone who fraudulently 'makes or causes to be made, or presents or causes to be presented, for payment or approval * * * any claim' against the United States. No claim has been tendered against the United States for 'payment.' But a claim has been presented for 'approval' in the meaning of the Act. For the United States has been induced by fraudulent representations to insure these loans. One who has the endorsement of the United States on his paper has acquired property of substantial value. It is a property right of value because it represents a claim against the United States. It is of course contingent until a default occurs. But when fraudulent, it represents an effort to 'cheat the United States' (United States ex rel. Marcus v. Hess, 317 U.S. 537, 544, 63 S.Ct. 379, 384, 87 L.Ed. 443) to the extent that the United States underwrites the losses on the loans. The fact that precise damages are not shown is not fatal, as Rex Trailer Co. v. United States, 350 U.S. 148, 153, 76 S.Ct. 219, 222, 100 L.Ed. 149, holds.
16
This cheating of the United States is as real, as substantial, and as damaging as those specific abuses against which the managers of this legislation railed when it was before the Congress.2 We do not have to stretch the law to include this type of 'claim,' as this form of insurance is a well-recognized property interest. See Fidelity & Deposit Co. of Maryland v. Arenz, 290 U.S. 66, 54 S.Ct. 16, 78 L.Ed. 176. The obtaining of credit risk insurance from the Government by fraudulent means is a form of plundering as flagrant as the presentation for 'payment or approval' of any other type of claim against the Treasury. As Judge Rives said in his dissent in United States v. Cochran, 5 Cir., 235 F.2d 131, 135, 'Inducing the Government to pledge its credit by a false and fraudulent claim' is as much within the Act as 'inducing it to part with its money or property.'
1
R.S. §§ 3490, 5438 (1878), 31 U.S.C.A. § 231, which are set out in note 1, Rainwater v. United States, 356 U.S. at page 590, 78 S.Ct. at page 947.
2
In Cato the suit was filed in the Eastern District of Virginia. The defendants were Cato Brothers, Inc., a Virginia corporation, and Wilfred Cato, William Cato and Magie Stone, all directors and officers of the corporation. Toepleman was brought in the Eastern District of North Carolina. Named as defendants were Frederick Toepleman and Garland Greenway, as individuals and partners. After trial, the District Court exonerated Greenway and he is no longer involved. In McNinch the action was instituted in the Eastern District of South Carolina. The defendants were Howard McNinch, Rosalie McNinch and Garis Zeigler.
3
In general see 48 Stat. 1246, as amended, 12 U.S.C. § 1701 et seq., 12 U.S.C.A. § 1701 et seq.; 24 CFR §§ 200.2—200.3, 201.1 201.16.
4
In somewhat greater detail the complaint made the following assertions: The defendants Howard and Rosalie McNinch were officers of an unincorporated home construction business and the defendant Zeigler was one of their salesmen. The defendants presented several applications for FHA-insured loans to a qualified bank. The loans were sought on behalf of homeowners for the purpose of financing residential repairs and improvements which the business had contracted to make. The applications contained statements misrepresenting the financial eligibility of the homeowners and were accompanied by fictitious credit reports. The bank, relying on this false information, granted the loans which in turn were routinely insured by the FHA.
5
See note 8, Rainwater v. United States, 356 U.S. at page 592, 78 S.Ct. at page 948, and the text at that point.
6
Since there has been no default here, we need express no view as to whether a lending institution's demand for reimbursement on a defaulted loan originally procured by a fraudulent application would be a 'claim' covered by the False Claims Act.
7
See, e.g., H.R.Rep. No. 2, Part 2, 37th Cong., 2d Sess.
8
Cong.Globe, 37th Cong., 3d Sess. 952—958.
9
The manager of the bill in the Senate stated its objective as follows:
'I will simply say to the Senate that this bill has been prepared at the urgent solicitation of the officers who are connected with the administration of the War Department and Treasury Department. The country, as we know, has been full of complaints respecting the frauds and corruptions practiced in obtaining pay from the Government during the present war; and it is said, and earnestly urged upon our attention, that further legislation is pressingly necessary to prevent this great evil; and I suppose there can be no doubt that these complaints are, in the main, well founded. From the attention I have been able to give the subject, I am satisfied that more stringent provisions are required for the purpose of punishing and preventing these frauds; and with a view to apply a more speedy and vigorous remedy in cases of this kind the present bill has been prepared.' (Emphasis added.) Cong.Globe, 37th Cong., 3d Sess. 952.
Apparently there were no committee reports nor any record of the proceedings in the House.
10
See United States v. Tieger, 3 Cir., 234 F.2d 589, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237; United States v. Cochran, 5 Cir., 235 F.2d 131, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237.
Although offered in a somewhat different context the statement of the Court in United States v. Cohn, 270 U.S. 339, 345 346, 46 S.Ct. 251, 252—253, 70 L.Ed. 616, also has relevancy here:
'While the word 'claim' may sometimes be used in the broad juridical sense of 'a demand of some matter as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty,' Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, 615, 10 L.Ed. 1060, it is clear, in the light of the entire context, that in the present statute, the provision relating to the payment or approval of a 'claim upon or against' the Government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the Government, based upon the Government's own liability to the claimant.'
1
The Federal Housing Commissioner is empowered to insure qualified lending institutions against losses sustained as a result of loans made by them for the purpose of financing alterations, repairs, and improvements upon or in connection with real property, 48 Stat. 1246, as amended, 12 U.S.C. § 1703(a), 12 U.S.C.A. § 1703(a). Under the Regulations (24 CFR §§ 200.2—200.3) a lending institution is first approved by FHA to grant loans eligible for insurance and is given a contract of insurance under which the FHA in general agrees to indemnify the insured against losses sustained by it up to an aggregate amount equal to 10% of the total sums advanced by the institution in eligible loans and reported to FHA for insurance. A borrower desiring to obtain a loan makes application to the lending institution, either directly or through contractors, on an FHA form which provides for the disclosure of certain information, 24 CFR § 200.3(a). Within 31 days after the loan is made, the lending institution must report the details of the loan transaction to the FHA on an agency form provided for that purpose, 24 CFR § 200.3(c). After the details of the transaction have been reported to it, FHA computes the insurance premium which will be due and payable by the lending institution, records the transaction, and acknowledges the loan for insurance. Ibid.
2
Cong.Globe, 37th Cong., 3d Sess. 952 (1863); and see H.R.Rep. No. 2, 37th Cong., 2d Sess.
| 78
|
356 U.S. 670
78 S.Ct. 960
2 L.Ed.2d 1056
Rebecca MAISENBERG, Petitioner,v.UNITED STATES of America.
No. 76.
Argued Jan. 28, 1958.
Decided May 26, 1958.
Mr. Ernest Goodman, Detroit, Mich., for petitioner.
Mr. J. F. Bishop, Washington, D.C., for the United States.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This is a companion case to No. 72, Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955. Maisenberg was brought to this country from Russia in 1912, at the age of 11. She was admitted to citizenship in the United States District Court for the Eastern District of Michigan in January 1938. In March 1953, in the same court, the United States brought this suit under § 340(a) of the Immigration and Nationality Act of 19521 to set aside the naturalization decree, alleging in its complaint that Maisenberg's citizenship was obtained 'by concealment of a material fact (and) willful misrepresentation.' After a trial the District Court, in an unreported opinion, granted the relief requested by the Government. The Court of Appeals affirmed, 238 F.2d 282, and we granted certiorari. 353 U.S. 922, 77 S.Ct. 680, 1 L.Ed.2d 719.
2
Although the findings of the District Court do not clearly disclose the grounds for decision, Maisenberg seems to have been denaturalized because she was found to have made misrepresentations in (1) answering falsely 'No' to the second part of Question 28 in her Preliminary Form for Petition for Naturalization, filed in June 1937;2 and (2) stating that for a period of five years preceding her naturalization she had been 'attached to the principles of the Constitution of the United States * * *.' The District Court also sustained the sufficiency of the Government's affidavit of 'good cause,' which was not signed by an individual having personal knowledge of the facts on which the proceedings were based, but by an attorney of the Immigration and Naturalization Service who relied on official records of the Service.
3
For the reasons stated in Nowak v. United States, supra, we hold that (1) the Government's timely filed affidavit of good cause was sufficient; and (2) a finding of misrepresentation cannot be predicated on Maisenberg's negative answer to the second part of Question 28.
4
We also are of opinion that the Government has failed to prove by 'clear, unequivocal, and convincing' evidence, Schneiderman v. United States, 320 U.S. 118, 125, 158, 63 S.Ct. 1333, 1336, 1352, 87 L.Ed. 1796, that Maisenberg was not 'attached to the principles of the Constitution.'3 As in Nowak, the Government has attempted to prove its case indirectly by showing that Maisenberg was a member of the Communist Party during the five years preceding her naturalization and that she knew that the Party was illegally advocating the violent overthrow of the United States. We think that the Government has adequately proved that Maisenberg was a member of the Party during the pertinent five-year period. But, even making the same assumptions on behalf of the Government that were made in Nowak—that it was adequately shown that the Party in 1938 advocated violent action for the overthrow of the Government and that lack of 'attachment' could be proved by this method—the Government still cannot prevail. For we do not believe that it has carried the burden of proving that Maisenberg was aware of that alleged tenet of the Party.
5
Apart from introducing evidence that Maisenberg was an active member and functionary of the Communist Party, and that she had attended various 'closed' Party meetings, the Government presented several witnesses who testified to a number of sporadic statements by Maisenberg (or by others in her presence) between 1930 and 1937 which are claimed to show that she was aware of the purpose of the Party 'to overthrow the government by force' and to establish 'the dictatorship of the proletariat.' For much the same reasons given in Nowak, we regard this evidence as inadequate to establish the Government's case. In each of the several episodes described by the witnesses the statements attributed to Maisenberg can well be taken as merely the expression of abstract predictory opinions; all of them were of a highly equivocal nature; and the faltering character of much of this testimony as to events of many years before casts the gravest doubt upon its reliability. There is no evidence in the record that Maisenberg herself ever advocated revolutionary action or that she was aware that the Party proposed to take such action. Cf. Yates v. United States, 354 U.S. 298, 319 322, 77 S.Ct. 1064, 1077—1078, 1 L.Ed.2d 1356. As we said in Nowak, such proof falls short of the 'clear, unequivocal, and convincing' evidence needed to support a decree of denaturalization. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion.
6
Reversed.
7
Mr. Justice BURTON, Mr. Justice CLARK and Mr. Justice WHITTAKER, dissenting.
8
For dissenting opinion see 356 U.S. 660, 78 S.Ct. 963.
1
66 Stat. 260, 8 U.S.C. § 1451(a), 8 U.S.C.A. § 1451(a):
'It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings * * * for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation * * *.'
2
As in the form completed by Nowak, Question 28 read:
'28. Are you a believer in anarchy? * * * Do you belong to or are you associated with any organization which teaches or advocates anarchy or the overthrow of existing government in this country? * * *'
3
In view of our decision that, as an objective matter, petitioner has not been shown to have lacked attachment to the principles of the Constitution in 1938, we need not reach the further question under the 1952 Act whether the Government has adequately proved that petitioner misrepresented her attachment or concealed a lack of attachment. See note 1, supra.
| 12
|
356 U.S. 634
78 S.Ct. 932
2 L.Ed.2d 1030
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), an Unincorporated Labor Organization, and Michael Volk, an Individual, Petitioners,v.Paul RUSSELL.
No. 21.
Argued Dec. 11, 12, 1957.
Decided May 26, 1958.
Rehearing Denied June 30, 1958.
See 357 U.S. 944, 78 S.Ct. 1379.
Mr. J. R. Goldthwaite, Jr., Atlanta, Ga., for petitioners.
Mr. Norman W. Harris, Decatur, Ala., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
The issue before us is whether a state court, in 1952, had jurisdiction to entertain an action by an employee, who worked in an industry affecting interstate commerce, against a union and its agent, for malicious interference with such employee's lawful occupation. In United Construction Workers v. Laburnum Corp., 347 U.S. 656, 657, 74 S.Ct. 833, 834, 98 L.Ed. 1025, we held that Congress had not 'given the National Labor Relations Board such exclusive jurisdiction over the subject matter of a common-law tort action for damages as to preclude an appropriate state court from hearing and determining its issues where such conduct constitutes an unfair labor practice' under the Labor Management Relations Act, 1947, or the National Labor Relations Act, as amended.1 For the reasons hereafter stated, we uphold the jurisdiction of the state courts in this case as we did in the Laburnum case.
2
This action was instituted in the Circuit Court of Morgan County, Alabama, in 1952, by Paul S. Russell, the respondent, against the petitioners, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, an unincorporated labor organization, here called the union, and its agent, Volk, together with other parties not now in the case. Russell was a maintenance electrician employed by Calumet and Hecla Consolidated Copper Company (Wolverine Tube Division) in Decatur, Alabama, at $1.75 an hour and earned approximately $100 a week. The union was the bargaining agent for certain employees of that Division but Russell was not a member of the union nor had he applied for such membership.
3
The allegations of his amended complaint may be summarized as follows: The union, on behalf of the employees it represented, called a strike to commence July 18, 1951. To prevent Russell and other hourly paid employees from entering the plant during the strike, and to thus make the strike effective, petitioners maintained a picket line from July 18 to September 24, 1951. This line was located along and in the public street which was the only means of ingress and egress to the plant. The line consisted of persons standing along the street or walking in a compact circle across the entire traveled portion of the street. Such pickets, on July 18, by force of numbers, threats of bodily harm to Russell and of damage to his property, prevented him from reaching the plant gates. At least one striker took hold of Russell's automobile. Some of the pickets stood or walked in front of his automobile in such a manner as to block the street and make it impossible for him, and others similarly situated, to enter the plant. The amended complaint also contained a second count to the same general effect but alleging that petitioners unlawfully conspired with other persons to do the acts above described.
4
The amended complaint further alleged that petitioners willfully and maliciously caused Russell to lose time from his work from July 18 to August 22, 1951, and to lose the earnings which he would have received had he and others not been prevented from going to and from the plant. Russell, accordingly, claimed compensatory damages for his loss of earnings and for his mental anguish, plus punitive damages, in the total sum of $50,000.
5
Petitioners filed a plea to the jurisdiction. They claimed that the National Labor Relations Board had jurisdiction of the controversy to the exclusion of the state court. The trial court overruled Russell's demurrer to the plea. However, the Supreme Court of Alabama reversed the trial court and upheld the jurisdiction of that court, even though the amended complaint charged a violation of § 8(b)(1)(A) of the Federal Act.2 258 Ala. 615, 64 So.2d 384.
6
On remand, petitioners' plea to the jurisdiction was again filed but this time Russell's demurrer to it was sustained. The case went to trial before a jury and resulted in a general verdict and a judgment for Russell in the amount of $10,000, including punitive damages. On appeal, the Supreme Court of Alabama reaffirmed the Circuit Court's jurisdiction. It also affirmed the judgment for Russell on the merits, holding that Russell had proved the tort of wrongful interference with a lawful occupation. 264 Ala. 456, 88 So.2d 175. Because of the importance of the jurisdictional issue, we granted certiorari. 352 U.S. 915, 77 S.Ct. 213, 1 L.Ed.2d 121.
7
There was much conflict in the testimony as to what took place in connection with the picketing but those conflicts were resolved by the jury in favor of Russell.3 Accepting a view of the evidence most favorable to him, the jury was entitled to conclude that petitioners did, by mass picketing and threats of violence, prevent him from entering the plant and from engaging in his employment from July 18 to August 22. The jury could have found that work would have been available within the plant if Russell, and others desiring entry, had not been excluded by the force, or threats of force, of the strikers.4 This leaves no significant issue of fact for decision here. The principal issue of law is whether the state court had jurisdiction to entertain Russell's amended complaint or whether that jurisdiction had been pre-empted by Congress and vested exclusively in the National Labor Relations Board.
8
At the outset, we note that the union's activity in this case clearly was not protected by federal law. Indeed the strike was conducted in such a manner that it could have been enjoined by Alabama courts. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; United Auto, Aircraft and Agr. Implement Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162.
9
In the Laburnum case, supra, the union, with intimidation and threats of violence, demanded recognition to which it was not entitled. In that manner, the union prevented the employer from using its regular employees and forced it to abandon a construction contract with a consequent loss of profits. The employer filed a tort action in a Virginia court and received a judgment for about $30,000 compensatory damages, plus $100,000 punitive damages. On petition for certiorari, we upheld the state court's jurisdiction and affirmed its judgment. We assumed that the conduct of the union constituted a violation of § 8(b)(1)(A) of the Federal Act. Nevertheless, we held that the Federal Act did not expressly or impliedly deprive the employer of its common-law right of action in tort for damages.
10
This case is similar to Laburnum in many respects. In each, a state court awarded compensatory and punitive damages against a union for conduct which was a tort and also assumed to be an unfair labor practice. The situations are comparable except that, in the instant case, the Board is authorized, under § 10(c) of the Federal Act, to award back pay to employees under certain circumstances. We assume, for the purpose of argument, that the Board would have had authority to award back pay to Russell.5 Petitioners assert that the possibility of partial relief distinguishes the instant case from Laburnum. It is our view that Congress has not made such a distinction and that is has not, in either case, deprived a victim of the kind of conduct here involved of common-law rights of action for all damages suffered.
11
Section 10(c) of the Federal Act, upon which petitioners must rely, gives limited authority to the Board to award back pay to employees. The material provisions are the following:
12
'If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him * * *.' 61 Stat. 147, 29 U.S.C. § 160(c), 29 U.S.C.A. § 160(c).
13
If an award of damages by a state court for conduct such as is involved in the present case is not otherwise prohibited by the Federal Acts, it certainly is not prohibited by the provisions of § 10(c). This section is far from being an express grant of exclusive jurisdiction superseding common-law actions, by either an employer or an employee, to recover damages caused by the tortious conduct of a union. To make an award, the Board must first be convinced that the award would 'effectuate the policies' of the Act. 'The remedy of back pay, it must be remembered, is entrusted to the Baord's discretion; it is not mechanically compelled by the Act.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 198, 61 S.Ct. 845, 854. The power to order affirmative relief under s 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct. United Construction Workers v. Laburnum Corp., 347 U.S. 656, 666 667, 74 S.Ct. 833, 838—839. In Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 543, 63 S.Ct. 1214, 1220, in speaking of the Board's power to grant affirmative relief, we said:
14
'The instant reimbursement order (which directs reimbursement by an employer of dues checked off for a dominated union) is not a redress for a private wrong. Like a back pay order, it does restore to the employees in some measure what was taken from them because of the Company's unfair labor practices. In this, both these types of monetary awards somewhat resemble compensation for private injury, but it must be constantly remembered that both are remedies created by statute—the one explicitly and the other implicitly in the concept of effectuation of the policies of the Act—which are designed to aid in achieving the elimination of industrial conflict. They vindicate public, not private, rights. Cf. Agwilines, Inc. v. National Labor Relations Board, 5 Cir., 87 F.2d 146, 150, 151; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271. For this reason it is erroneous to characterize this reimbursement order as penal or as the adjudication of a mass tort. It is equally wrong to fetter the Board's discretion by compelling it to observe conventional common law or chancery principles in fashioning such an order, or to force it to inquire into the amount of damages actually sustained. Whether and to what extent such matters should be considered is a complex problem for the Board to decide in the light of its administrative experience and knowledge.' In Laburnum, in distinguishing Garner v. Teamsters, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, we said:
15
'To the extent that Congress prescribed preventive procedure against unfair labor practices, that case recognized that the Act excluded conflicting state procedure to the same end. To the extent, however, that Congress has not prescribed procedure for dealing with the consequences of tortious conduct already committed, there is no ground for concluding that existing criminal penalties or liabilities for tortious conduct have been eliminated. The care we took in the Garner case to demonstrate the existing conflict between state and federal administrative remedies in that case was, itself, a recognition that if no conflict had existed, the state procedure would have survived.' 347 U.S. at page 665, 74 S.Ct. at page 838.
16
In this case there is a possibility that both the Board and the state courts have jurisdiction to award lost pay. However, that possibility does not create the kind of 'conflict' of remedies referred to in Laburnum. Our cases which hold that state jurisdiction is pre-empted are distinguishable. In them we have been concerned lest one forum would enjoin, as illegal, conduct which the other forum would find legal, or that the state courts would restrict the exercise of rights guaranteed by the Federal Acts.6
17
In the instant case, there would be no 'conflict' even if one forum awarded back pay and the other did not. There is nothing inconsistent in holding that an employee may recover lost wages as damages in a tort action under state law, and also holding that the award of such damages is not necessary to effectuate the purposes of the Federal Act.
18
In order to effectuate the policies of the Act, Congress has allowed the Board, in its discretion, to award back pay. Such awards may incidently provide some compensatory relief to victims of unfair labor practices. This does not mean that Congress necessarily intended this discretionary relief to constitute an exclusive pattern of money damages for private injuries. Nor do we think that the Alabama tort remedy, as applied in this case, altered rights and duties affirmatively established by Congress.
19
To the extent that a back-pay award may provide relief for victims of an unfair labor practice, it is a partial alternative to a suit in the state courts for loss of earnings. If the employee's commonlaw rights of action against a union tortfeasor are to be cut off, that would in effect grant to unions a substantial immunity from the consequences of mass picketing or coercion such as was employed during the strike in the present case.
20
The situation may be illustrated by supposing, in the instant case, that Russell's car had been turned over resulting in damage to the car and personal injury to him. Under state law presumably he could have recovered for medical expenses, pain and suffering and property damages. Such items of recovery are beyond the scope of present Board remedial orders. Following the reasoning adopted by us in the Laburnum case, we believe that state jurisdiction to award damages for these items is not pre-empted. Cf. International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S,.ct. 923. Nor can we see any difference, significant for present purposes, between tort damages to recover medical expenses and tort damages to recover lost wages. We conclude that an employee's right to recover, in the state courts, all damages caused him by this kind of tortious conduct cannot fairly be said to be pre-empted without a clearer declaration of congressional policy than we find here. Of course, Russell could not collect duplicate compensation for lost pay from the state courts and the Board.
21
Punitive damages constitute a well-settled form of relief under the law of Alabama when there is a willful and malicious wrong. Penney v. Warren, 217 Ala. 120, 115 So. 16. To the extent that such relief is penal in its nature, it is all the more clearly not granted to the Board by the Federal Acts. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 10—12, 61 S.Ct. 77, 78—79, 85 L.Ed. 6. The power to impose punitive sanctions is within the jurisdiction of the state courts but not within that of the Board. In Laburnum we approved a judgment that included $100,000 in punitive damages. For the exercise of the police power of a State over such a case as this, see also, Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; Auto, Aircraft and Agr. Implement Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, 274, note 12, 76 S.Ct. 794, 799, 100 L.Ed. 1162.
22
Accordingly, the judgment for the Supreme Court of Alabama is affirmed.
23
Affirmed.
24
Mr. Justice BLACK took no part in the consideration or decision of this case.
25
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
26
The issue in this case is whether the Taft-Hartley Act has pre-empted a State's power to assess compensatory and punitive damages against a union for denying a worker access to a plant during an economic strike—conduct that the Federal Act subjects to correction as an unfair labor practice under § 8(b)(1) (A). If Congress had specifically provided that the States were without power to award damages under such circumstances, or if it had expressly sanctioned such redress in the state courts, our course of action would be clear. Because Congress did not in specific words make its will manifest, International Union, etc. v. Wisconsin Employment Relations Board, 336 U.S. 245, 252, 69 S.Ct. 516, 520, 93 L.Ed. 651, we must be guided by regulation that Congress has established. what is consistent with the scheme of
27
It is clear from the legislative history of the Taft-Hartley Act that is subjecting certain conduct to regulation as an unfair labor practice Congress has no intention of impairing a State's traditional powers to punish or in some instances prevent that same conduct when it was offensive to what a leading case termed 'such traditionally local matters as public safety and order and the use of streets and highways.' Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154. Both proponents and critics of the measure conceded that certain unfair labor practices would include acts 'constituting violation of the law of the State,'1 'illegal under State Law,'2 'punishable under State and local police law,'3 or acts of such nature that 'the main remedy for such conditions is prosecution under State law and better local law enforcement.'4 It was this role of state law that the lawmakers referred to when they conceded that there would be 'two remedies'5 for a violent unfair labor practice. For example, when Senator Taft was explaining to the Senate the import of the § 8(b)(1)(A) unfair labor practice, he responded in this manner to a suggestion that it would 'result in duplication of some of the State laws':
28
'I may say further that one of the arguments has suggested that in case this provision covered violence it duplicated State law. I wish to point out that the provisions agreed to by the committee covering unfair labor practices on the part of labor unions also might duplicate to some extent that State law. Secondary boycotts, jurisdictional strikes, and so forth, may involve some violation of State law respecting violence which may be criminal, and so to some extent the measure may be duplicating the remedy existing under State law. But that, in my opinion, in no valid argument.'6 (Emphasis added.)
29
This frequent reference to a State's continuing power to prescribe criminal punishments for conduct defined as an unfair labor practice by the Federal Act is in sharp contrast to the absence of any reference to a State's power to award damages for that conduct.
30
In the absence of a reliable indication of congressional intent, the Court should be guided by principles that lead to a result consistent with the legislative will. It is clear that the States may not take action that fetters the exercise of rights protected by the Federal Act, Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, or constitutes a counterpart to its regulatory scheme, International Union of United Automobile Workers v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978, or duplicates its remedies, Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. The Court must determine whether the state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581. If the state action would frustrate the policies expressed or implied in the Federal Act, then it must fall. The state action here—a judgment requiring a certified bargaining representative to pay punitive and compensatory damages to a nonstriker who lost wages when striking union members denied him access to the plant must be tested against that standard.
31
Petitioners do not deny the State's power to award damages against individuals or against a union for physical injuries inflicted in the course of conduct regulated under the Federal Act.7 The majority's illustration involving facts of that sort is therefore beside the point. But the power to award damages for personal injuries does not necessarily imply a like power for other forms of monetary loss. The unprovoked infliction of personal injuries during a period of labor unrest is neither to be expected nor to be justified, but economic loss inevitably attends work stoppages. Furthermore, damages for personal injuries may be assessed without regard to the merits of the labor controversy, but in order to determine the cause and fix the responsibility for economic loss a court must consider the whole background and status of the dispute. As a consequence, precedents or examples involving personal injuries are inapposite when the problem is whether a state court may award damages for economic loss sustained from conduct regulated by the Federal Act.
32
The majority assumes for the purpose of argument that the Board had authority to compensate for the loss of wages involved here. If so, then the remedy the state court has afforded duplicates the remedy provided in the Federal Act and is subject to the objections voiced in my dissent in International Association of Machinists v. Gonzales, 356 U.S. 623, 78 S.Ct. 926. But I find it unnecessary to rely upon any particular construction of the Board's remedial authority under § 10(c) of the Act. In my view, this is a case in which the State is without power to assess damages whether or not like relief is available under the Federal Act. Even if we assume that the Board had no authority to award respondent back pay in the circumstances of this case, the existence of such a gap in the remedial scheme of federal legislation is no license for the States to fashion correctives. Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601. The Federal Act represents an attempt to balance the competing interests of employee, union and management. By providing additional remedies the States may upset that balance as effectively as by frustrating or duplicating existing ones.
33
State-court damage awards such as those in the instant case should be reversed because of the impact they will have on the purposes and objectives of the Federal Act. The first objection is the want of uniformity this introduces into labor regulation. Unquestionably the Federal Act sought to create a uniform scheme of national labor regulation. By approving a state-court damage award for conduct regulated by the Taft-Hartley Act, the majority assures that the consequences of violating the Federal Act will vary from State to State with the availability and constituent elements of a given right of action and the procedures and rules of evidence essential to its vindication. The matter of punitive damages is an example, though by no means the only one. Several States have outlawed or severely restricted such recoveries.8 Those States where the recovery is still available entertain wide differences of opinion of the end sought to be served by the exaction and the conditions and terms on which it is to be imposed.9
34
The multitude of tribunals that take part in imposing damages also has an unfavorable effect upon the uniformity the Act sought to achieve. Especially is this so when the plaintiff is seeking punitive or other damages for which the measure of recovery is vague or nonexistent. Differing attitudes toward labor organizations will inevitably be given expression in verdicts returned by jurors in various localities. The provincialism this will engender in labor regulation is in direct opposition to the care Congress took in providing a single body of nationwide jurisdiction to administer its code of labor regulation. Because of these inescapable differences in the content and application of the various state laws, the majority's decision assures that the consequences of engaging in an unfair labor practice will vary from State to State. That is inconsistent with a basic purpose of the Federal Act.
35
The scant attention the majority pays to the large proportion of punitive damages in plaintiff's judgment10 cannot disguise the serious problem posed by that recovery.11 The element of deterrence inherent in the imposition or availability of punitive damages for conduct that is an unfair labor practice ordinarily makes such a recovery repugnant to the Federal Act. The prospect of such liability on the part of a union for the action of its members in the course of concerted activities will inevitably influence the conduct of labor disputes. There is a very real prospect of staggering punitive damages accumulated through successive actions by parties injured by members who have succumbed to the emotion that frequently accompanies concerted activities during labor unrest. This threat could render even those activities protected by the Federal Act too risky to undertake. Must we assume that the employer who resorts to a lockout is also subject to a succession of punitive recoveries at the hands of his employees? By its deterrent effect the imposition or availability of punitive damages serves a regulatory purpose paralleling that of the Federal Act. It is precisely such an influence on the sensitive area of labor relations that the preemption doctrines are designed to avoid.
36
There are other vices in the punitive recovery. A principal purpose of the Wagner and Taft-Hartley Acts is to promote industrial peace.12 Consistent with that aim Congress created tribunals, procedures and remedies calculated to bring labor disputes to a speedy conclusion. Because the availability of a state damage action discourages resort to the curative features of the pertinent federal labor law, it conflicts with the aims of that legislation. In a case such as the present one, for example, the plaintiff is unlikely to seek a cease-and-desist order, which would quickly terminate the § 8(b)(1)(A) unfair labor practice, if he is assured compensatory damages and has the prospect of a lucrative punitive recovery as well.
37
In Alabama, as in many other jurisdictions, the theory of punitive damages is at variance with the curative aims of the Federal Act. The jury in this case was instructed that if it found that the defendant was 'actuated by ill-will' it might award 'smart money' (punitive damages) 'for the purpose of making the defendant smart * * *.'13 The parties to labor controversies have enough devices for making one another 'smart' without this Court putting its stamp of approval upon another. I can conceive of nothing more disruptive of congenial labor relations than arming employee, union and management with the potential for 'smarting' one another with exemplary damages. Even without the punitive element, a damage action has an unfavorable effect on the climate of labor relations. Each new step in the proceedings rekindles the animosity. Until final judgment the action is a constant source of friction between the parties. In the present case, for example, it has been nearly six years since the complaint was filed. The numerous other actions awaiting outcome of this case portend more years of bitterness before the courts can conclude what a Board cease-and-desist order might have settled in a week. As the dissent warned in United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 671, 74 S.Ct. 833, 841, a state-court damage action for conduct that constitutes an unfair labor practice 'drags on and on in the courts, keeping old wounds open, and robbing the administrative remedy of the healing effects it was intended to have.'
38
The majority places its principal reliance upon United Constr. Workers v. Laburnum Constr. Corp., supra. I joined in that decision, but my understanding of the case differs from that of the majority here. That case was an action by an employer against a stranger union for damages for interference with contractual relations. While engaged in construction work on certain mining properties the plaintiff employer had used AFL laborers pursuant to its collective bargaining contract. A field representative of the United Construction Workers, an affiliate of the United Mine Workers, informed plaintiff's foreman that he was working in 'Mine Workers territory,' and demanded that his union be recognized as the sole bargaining agent for the employees. Otherwise, he threatened, the United Construction Workers would 'close down' all of the work. At t he time of this ultimatum not a single worker in Laburnum's employ belonged to the stranger union. Plaintiff refused. A few days later the union representative appeared at the job site with a 'rough, boisterous crowd' variously estimated from 40 to 150 men. Some were drunk. Some carried guns and knives. Plaintiff's employees were informed that they would have to join the United Construction Workers or 'we will kick you out of here.' A few workers yielded to the mob. Those who refused were subjected to a course of threats and intimidation until they were afraid to proceed with their work. As a consequence, the employer was compelled to discontinue his work on the contract and it was lost. The employer sued the United Construction Workers for the profits lost by this interference, recovering compensatory and punitive damages.14 This Court affirmed.
39
There are at least three crucial differences between this case and Laburnum. First, in this case the plaintiff is seeking damages for an interference with his right to work during a strike. Since the right to refrain from concerted activities is protected by § 7 of the Act, a § 8(b)(1)(A) unfair labor practice is inherent in the wrong of which plaintiff complains, and the Federal Act offers machinery to correct it. The § 8(b)(1)(A) unfair labor practice in Laburnum, on the other hand, was involved only fortuitously. Damages were awarded for interference with the contractual relationship between the employer and the parties for whom the construction work was being performed. The means defendants chose to effect that interference happened to constitute an unfair labor practice, but the same tort might have been committed by a variety of means in no way offensive to the Federal Act. Laburnum simply holds that a tortfeasor should not be allowed to immunize himself from liability for a wrong having no relation to federal law simply because the means he adopts to effect the wrong transgress a comprehensive code of federal regulation. The availability of state-court damage relief may discourage the employer from invoking the remedies of the Federal Act on behalf of his employees.15 But that effect may be tolerated since the employer's interest is at most derivative, and there will be nothing to dissuade the employees, who are more directly concerned, from using the federal machinery to correct the interference with their protected activity.
40
Second, the defendant in this case is the certified bargaining agent of employees at the plant where plaintiff is employed, and the wrong involved was committed in the course of picketing incident to an economic strike to enforce wage demands. Thus, the controversy grows out of what might be called an ordinary labor dispute. Continued relations may be expected between the parties to this litigation. The defendant in Laburnum, on the other hand, was a total stranger to the employer's collective bargaining contract, and could claim the membership of not a single worker. There was no prospect of a continuing relationship between the parties to the suit, and no need for concern over the climate of labor relations that an action might impair. The defendant was attempting to coerce Laburnum's employees, either by direct threats or employer pressures, to join its ranks. Such predatory forays are disfavored when undertaken by peaceful picketing, and even more so when unions engage in the crude violence used in Laburnum.
41
Finally, the effect of punitive damages in cases such as the present one is entirely different from that which results from the recovery sanctioned in Laburnum. Since the wrong in Laburnum was committed against an employer, the damages exacted there were probably the extent of the defendant's liability for that particular conduct. Where it is employees who have been wronged, however, there may be dozens of actions for the same conduct, each with its own demand for punitive damages. In the instant case, for example, Russell is only one of thirty employees who have filed suits against the union for the same conduct, all of them claiming substantial punitive damages.16 Whatever the law in other States, Alabama seems to hold to the view that evidence of a previous punitive recovery is inadmissible as a defense in a subsequent action claiming punitive damages for the same conduct.17 Thus, the defendant union may be held for a whole series of punitive as well as compensatory recoveries. The damages claimed in the pending actions total $1,500,000, and to the prospect of liability for a fraction of that amount may be added the certainty of large legal expenses entailed in defending the suits. By reason of vicarious liability for its members' ill-advised conduct on the picket lines, the union is to be subjected to a series of judgments that may and probably will reduce it to bankruptcy, or at the very least deprive it of the means necessary to perform its role as bargaining agent of the employees it represents. To approve that risk is to exact a result Laburnum does not require.
42
From the foregoing I conclude that the Laburnum case, to which the majority attributes such extravagant proportions, is not controlling here. In my judgment, the effect of allowing the state courts to award compensation and fix penalties for this and similar conduct will upset the pattern of rights and remedies established by Congress and will frustrate the very policies the Federal Act seeks to implement. The prospect of that result impels me to dissent.
1
61 Stat. 136, 29 U.S.C. § 141, 29 U.S.C.A. § 141.
2
We assume, for the purposes of this case, that the union's conduct did violate § 8(b)(1)(A) which provides:
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.' 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A), 29 U.S.C.A. § 158(b)(1)(A).
3
Among the instructions given to the jury were the following requested by petitioners:
'5. I charge you that unless you are reasonably satisfied from the evidence in this case that the proximate cause of (respondent's) inability to work at the Decatur plant of Calumet and Hecla Consolidated Copper Company (Wolverine Tube Division) during the period from July 18, 1951 to August 22, 1951, was that a picket line was conducted by the (petitioners) in a manner which by force and violence, or threats of force and violence prevented (respondent) from entering the plant, and unless you are also reasonably satisfied from the evidence that work would have been available to (respondent) in the plant during said period, except for picketing in such manner, you should not return a verdict for the (respondent).
'6. I charge you that unless you are reasonably satisfied from the evidence that the acts complained of by (respondent) occurred, and that the (respondent) suffered a loss of wages as the natural and proximate result of said acts, you should return your verdict for the (petitioners).'
In its main charge to the jury, the trial court included the following statement:
'If, in this case, after considering all the evidence and under the instructions I have given you, you are reasonably satisfied that at the time complained of and in doing the acts charged, the (petitioners) * * * actuated by malice and actuated by ill-will, committed the unlawful and wrongful acts alleged, you, in addition to the actual damages, if any, may give damages for the sake of example and by way of punishing the (petitioners) or for the purpose of making the (petitioners) smart, not exceeding in all the amount claimed in the complaint.
'In order to authorize the fixing of such damages, you must be reasonably satisfied from the evidence that there was present willfulness or wantonness and a reckless disregard of the rights of the other person.'
4
On the evidence before it, the jury was entitled to find that about 400 of the employees who had attended union meetings on July 17 were in front of the plant gates at 8 o'clock the following morning. A crowd of between 1,500 and 2,000 people, including the above 400, was near the plant gates when the first shift was due to report for work at 8 a.m. Between 700 and 800 automobiles were parked along the street which led to and ended at the plant. A picket line of 25 to 30 strikers, carrying signs and walking about three feet apart, moved in a circle extending completely across the street. Adjacent to the street at that point, there was a group of about 150 people, some of whom changed places with those in the circle. On the other side of the street, there was another group of about 50 people. Many members of the first shift came, bringing their lunches, in expection of working that day as usual. Russell was one of these and he tried to reach the plant gates. Because of the crowd, he proceeded slowly to within 20 or 30 feet of the picket line. There he felt a drag on his car and stopped. While thus stopped, the regional director of the union came to him and said, 'If you are salaried, you can go on in. If you are hourly, this is as far as you can go.' Russell nevertheless edged toward the entrance until someone near the picket line called out, 'He's going to try to go through.' Another yelled, 'Looks like we're going to have to turn him over to get rid of him,' and several yelled, 'Turn him over.' No one actually attempted to turn over Russell's car but the picket line effectively blocked his further progress. He remained there for more than an hour and a half. From time to time, he tried to ease his car forward but, when he did so, the pickets would stop walking and turn their signs toward his car, some of them touching the car. When he became convinced that he could not get through the picket line without running over somebody or getting turned over, he went home. The plant's offices were open and salaried employees worked there throughout the strike. Russell and other hourly employees necessary to operate the plant were prevented from reaching the company gates in the manner described. During the next five weeks he kept in touch with the unchanged situation at the plant entrance, and set about securing signatures to a petition of enough employees, who wished to resume work, to operate the plant. After obtaining over 200 signatures, the petition was presented to the company on or about August 18. On August 20, the company advertised in a local newspaper that on August 22 the plant would resume operations. All employees were requested to report to work at 8 a.m. on August 22. At that time, about 70 state highway patrol officers and 20 local police officers were at the gates and convoyed into the plant about 230 hourly paid employees reporting for work. Russell was among them and he was immediately put to work. Thereafter, he had no difficulty in entering the plant.
There also was evidence that on August 20 the company sought to run its switch engine out of the yard to bring in cars containing copper ingots. The engine, however, was met by strikers some of whom stood in its path. One pulled out the engine's ignition key and threw it away. Others in the crowd cut the engine's fan belts, air hoses and spark plug wires, removed the distributor head and disabled the brakes. The engine was then rolled back into the plant yard by the crew without its mission having been accomplished. There is no evidence that Russell was present on this occasion.
5
The Board has held that it can award back pay where a union has wrongfully caused a termination in the employee status, but not in a case such as this when a union merely interferes with access to work by one who remains at all times an employee. In re United Furniture Workers of America, CIO, 84 N.L.R.B. 563, 565. That view was acknowledged in Progressive Mine Workers v. National Labor Relations Board, 7 Cir., 187 F.2d 298, 306—307, and has been adhered to by the Board in subsequent cases. E.g., Local 983, 115 N.L.R.B. 1123. Petitioners contend that the Board's above interpretation of its own power conflicts with the rationale of Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, and Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568. See also, In re United Mine Workers, 92 N.L.R.B. 916, 920 (dissenting opinion); United Electrical, Radio and Machine Workers, 95 N.L.R.B. 391, 392, n. 3. As the decision of this question is not essential in the instant case, we do not pass upon it.
6
See, e.g., San Diego Bldg. Trades Council v. Garmon, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618 (involving state injunction of peaceful picketing); Amalagamated Meat Cutters, etc. v. Fairlawn Meats, Inc., 353 U.S. 20, 23, 77 S.Ct. 604, 605, 1 L.Ed.2d 613 (same); United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 75, 76 S.Ct. 559, 566, 100 L.Ed. 941 (same); Garner v. Teamsters, etc., Union, 346 U.S. 485, 498—500, 74 S.Ct. 161, 169—171, 98 L.Ed. 228 (same); Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 475—476, 479—481, 75 S.Ct. 480, 485, 487—488, 99 L.Ed. 546 (involving state injunction of a strike and peaceful picketing); Amalgamated Ass'n of Street, Elec. R. & Motor Coach Employees, etc. (Bus Employees) v. Wisconsin Board, 340 U.S. 383, 394—395, 398—399, 71 S.Ct. 359, 365, 367—368, 95 L.Ed. 364 (involving state statute restricting right to strike of, and compelling arbitration by, public utility employees); International Union of United Automobile Workers v. O'Brien, 339 U.S. 454, 456—459, 70 S.Ct. 781, 782—783, 94 L.Ed. 978 (involving state statute restricting right to strike by requiring, as a condition precedent, a strike vote resulting in an affirmative majority); La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 24—26, 69 S.Ct. 379, 382—383, 93 L.Ed. 463 (involving state certification of the appropriate unit for collective bargaining); Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 773—776, 67 S.Ct. 1026, 1029 1031, 91 L.Ed. 1234 (same); Hill v. Florida ex rel. Watson, 325 U.S. 538, 541—543, 65 S.Ct. 1373, 1374—1375, 89 L.Ed. 1782 (involving state statute restricting eligibility to be a labor representative).
1
93 Cong.Rec. 4024.
2
S.Rep.No. 105 on S. 1126, Supp.Views, 80th Cong., 1st Sess. 50.
3
93 Cong.Rec. 4019.
4
93 Cong.Rec. 4432.
5
E.g., 93 Cong.Rec. 4024.
6
93 Cong.Rec. 4437.
7
See Hall v. Walters, 226 S.C. 430, 85 S.E.2d 729, certiorari denied 349 U.S. 953, 75 S.Ct. 881, 99 L.Ed. 1277; McDaniel v. Textile Workers, 36 Tenn.App. 236, 254 S.W.2d 1.
8
Louisiana, Massachusetts, Nebraska, and Washington allow no such recovery. Indiana forbids it when the conduct is also punishable criminally. Connecticut limits the recovery to the expenses of litigation. McCormick, Damages, § 78. Note, 70 Harv.L.Rev. 517.
9
Some States regard the damages as extra compensation for injured feelings. In most jurisdictions the recovery is calculated to punish and deter rather than compensate, though some States permit the jury to consider the plaintiff's costs of litigation. In most state courts a principal must answer if the wrongful conduct was within the general scope of the agent's authority. This list of differences is not exhaustive. McCormick, §§ 78—85. Note, 70 Harv.L.Rev. 517.
10
Plaintiff's wages were approximately $100 per week and he was out of work five weeks. Therefore, about $9,500 of his $10,000 verdict represents punitive damages and damages for 'mental pain and anguish.'
11
Republic Steel Corp. v. N.L.R.B., 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, is not authority for the majority's holding on punitive damages. That case held that the Board overstepped the remedial authority conferred by § 10(c) of the Wagner Act when it required an employer to reimburse the Work Projects Administration for wages paid wrongfully discharged employees subsequently employed on WPA projects. The Court said this payment was in the nature of a penalty and concluded that the Act conferred no authority on the Board to exact such a penalty. There was no question of preemption and no discussion directed at whether an award of punitive damages by a State would be consistent with the Federal Act.
12
29 U.S.C. §§ 141, 151, 29 U.S.C.A. §§ 141, 151.
13
R. 632.
14
194 Va. 872, 75 S.E.2d 694.
15
It is clear that the employer in Laburnum could have invoked the investigative and preventive machinery of the Board. An unfair labor practice charge may be filed by 'any person.' 29 CFR, 1955 Cum.Supp. § 102.9. Local Union No. 25 v. New York, New Haven & H.R. Co., 350 U.S. 155, 160, 76 S.Ct. 227, 230, 100 L.Ed. 166.
16
Petitioner has supplied the Court with the following list of those cases. All are held in abeyance pending decision of the instant case. Unless otherwise noted each action is in the Circuit Court of Morgan County, Alabama. The amount shown is the total damages asked, which is composed of a relatively insubstantial loss-of-wages claim and a balance of punitive damages. Petitioners' Appendices, pp. 7a—9a.
1. Burl McLemore v. United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, et al., No. 6150, $50,000. Verdict and judgment of $8,000. New trial granted because of improper argument of plaintiff's counsel. 264 Ala. 538, 88 So.2d 170.
2. James W. Thompson v. Same, No. 6151, $50,000. Appeal from $10,000 verdict and judgment pending in Supreme Court of Alabama.
3. N. A. Palmer v. Same, No. 6152, $50,000. Appeal from $18,450 verdict and judgment pending in Supreme Court of Alabama.
4. Lloyd E. McAbee v. Same, No. 6153, $50,000.
5. Tommie F. Breeding v. Same, No. 6154, $50,000.
6. David G. Puckett v. Same, No. 6155, $50,000.
7. Comer T. Junkins v. Same, No. 6156, $50,000.
8. Joseph E. Richardson v. Same, No. 6157, $50,000.
9. Cois E. Woodard v. Same, No. 6158, $50,000.
10. Millard E. Green v. Same, No. 6159, $50,000.
11. James C. Hughes v. Same, No. 6160, $50,000.
12. James C. Dillehay v. Same, No. 6161, $50,000.
13. James T. Kirby v. Same, No. 6162, $50,000.
14. Cloyce Frost v. Same, No. 6163, $50,000.
15. E. L. Thompson, Jr. v. Same, No. 6164, $50,000.
16. J. A. Glasscock, Jr. v. Same, No. 6165, $50,000.
17. Hoyt T. Penn v. Same, No. 6166, $50,000.
18. Spencer Weinman v. Same, No. 6167, $50,000.
19. Joseph J. Hightower v. Same, No. 6168, $50,000.
20. A. A. Kilpatrick v. Same, No. 6169, $50,000.
21. Charles E. Kirk v. Same, No. 6170, $50,000.
22. Richard W. Penn v. Same, No. 6171, $50,000.
23. Robert C. Russell v. Same, No. 6172, $50,000.
24. T. H. Abercrombie v. Same, No. 6173, $50,000.
25. James H. Tanner v. Same, No. 6174, $50,000.
26. Charles E. Carroll v. Same, No. 6175, $50,000.
27. Ordell T. Garvey v. Same, No. 6176, $50,000.
28. A. R. Barran v. Same, No. 6177, $50,000.
29. Russell L. Woodard v. Same, No. 6178, $50,000.
17
Alabama Power Co. v. Goodwin, 210 Ala. 657, 99 So. 158. That was an action by a passenger against a streetcar company for injuries sustained in a collision. As a defense to a count for punitive damages, the defendant sought to show that punitive damages had already been awarded against it in another suit growing out of the same collision. The court held that the evidence was properly excluded, for 'in its civil aspects the single act or omission forms as many distinct and unrelated wrongs as there are individuals injured by it.' 210 Ala. at pages 658 659, 99 So. at page 160. While conceding the logical relevancy of a previous recovery, the court felt that the rule of exclusion was the better rule since it would prevent the introduction of such collateral issues as whether and to what extent punitive damages had been included in a previous verdict. This rule of exclusion was applied in Southern R. Co. v. Sherrill, 232 Ala. 184, 167 So. 731. Cf. McCormick, Damages, § 82, and 2 Sutherland, Damages, § 402 (4th ed., 1916), discussing the majority rule that evidence of prior criminal punishment is inadmissible in an action for punitive damages for the same misfeasance.
| 910
|
356 U.S. 604
78 S.Ct. 963
2 L.Ed.2d 1008
Aida S. KOVACS, Petitioner,v.George A. BREWER, Sr.
No. 200.
Argued April 3, 1958.
Decided May 26, 1958.
Mr. Louis Haimoff, New York City, for petitioner.
No appearance for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
On January 17, 1951, a New York court granted George Brewer, Jr., a decree of divorce from his wife, now Aida Kovacs. Custody of their five-year-old daughter, Jane, was awarded to George Brewer, Sr., the paternal grandfather, pending discharge of Brewer, Jr., from the Navy. As contemplated by the decree, the grandfather removed the child to his home in North Carolina where she has since resided. In November 1954 the mother asked the New York divorce court to modify its decree and award her custody of the child. Although the father and grandfather presented affidavits through counsel challenging the mother's claim, the court granted custody to her. In modifying its decree the court apparently relied, in part, on findings that the grandfather was ill with heart trouble and diabetes and that the living accommodations which he was able to provide for the child were not as suitable as those then offered by the mother.
2
The grandfather refused to surrender the child, but the mother took no steps to enforce her custody award until February 1956—14 months after the decree had been modified. At that time she brought the present action in a North Carolina state court to secure the child.1 She offered a certified copy of the New York decree and asserted that it was 'entitled to full faith and credit in the courts of North Carolina except as to matters showing changed circumstances since the date of such decree.' The father and grandfather again challenged her right to the child. They presented numerous affidavits attesting to facts which they argued demonstrated that the child's best interests would be served by leaving her in North Carolina with the grandparents. Many of these facts and been presented to the New York court at the time the divorce decree was modified, but new evidence was also offered concerning the child's surroundings, her school and church experiences and her life in general, particularly with reference to the period that had elapsed between the time when the divorce court modified its decree and the date of the North Carolina proceedings.2
3
After hearing the case on affidavits, stipulations and the pleadings, the trial court made numerous findings. Among other things, it determined that for more than a year immediately preceding the hearing the grandfather had required no medical care for heart or diabetic ailments and was able to work and to properly care for his granddaughter. The court also found that a 17-year-old stepson, who had been residing in the grandfather's home at the time the New York decree was modified, had moved from the home thus leaving more space for the remaining occupants and giving the grandfather a better opportunity to provide for the grandchild. On the basis of these and other findings the trial court concluded that it was 'not bound by or required to give effect to the decree of the Court of the State of New York made in 1954' and that the welfare of the child demanded that she remain under the grandfather's custody in the environment to which she had become accustomed.
4
On appeal the North Carolina Supreme Court approved the trial court's findings, and without specifying any particular reason upheld its 'conclusion of law.' The court then went on to declare, seemingly as an alternative ground of decision, that the New York decree was not binding because the divorce court had no jurisdiction to modify its original custody award after the child had become a resident and domiciliary of North Carolina. 245 N.C. 630, 97 S.E.2d 96. We granted certiorari to consider the claim that the North Carolina courts had failed to give full faith and credit to the judicial proceedings of another State. 355 U.S. 810, 78 S.Ct. 27, 2 L.Ed.2d 28.
5
In this Court the petitioner, Mrs. Kovacs, contends (1) that the New York divorce court had jurisdiction to modify its decree by awarding her custody of the child, (2) that in any event the question of jurisdiction was res judicata in the North Carolina courts because both the father and grandfather had appeared in the New York proceeding, and (3) that the North Carolina courts failed to give the custody decree, as modified, the faith and credit required by the Federal Constitution and statute.3 She argues that the North Carolina courts were obligated to give the custody decree the same effect as it had in New York, a question which we reserved in New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615 616, 67 S.Ct. 903, 906—907, 91 L.Ed. 1133. As presented, the case obviously raises difficult and important questions of constitutional law, questions which we should postpone deciding as long as a reasonable alternative exists.4
6
Whatever effect the Full Faith and Credit Clause may have with respect to custody decrees, it is clear, as the Court stated in Halvey, 'that the State of the forum has at least as much lee-way to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.' 330 U.S. at page 615, 67 S.Ct. at page 906. Petitioner concedes that a custody decree is not res judicata in New York if changed circumstances call for a different arrangement to protect the child's health and welfare.5 In the courts below the question of changed circumstances was raised in the pleadings, considerable evidence was introduced on that issue, and the trial court made a number of findings which demonstrated that the facts material to the proper custody of the child were no longer the same in 1956 as in 1954 when the New York decree was modified. And though it is not clear from the opinion of the North Carolina Supreme Court, it may be, particularly in view of this background, that it intended to decide the case, at least alternatively, on that basis. Under all the circumstances we think it advisable to remand to the North Carolina courts for clarification, and, if they have not already decided, so they may have an opportunity to determine the issue of changed circumstances. Cf. State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; Spector Motor Co. v. McLaughlin, 323 U.S. 101 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. If those courts properly find that changed conditions make it to the child's best interest for the grandfather to have custody, decision of the constitutional questions now before us would be unnecessary. Those questions we explicitly reserve without expressly or impliedly indicating any views about them.
7
The judgment of the Supreme Court of North Carolina is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.
8
It is so ordered.
9
Judgment vacated and cause remanded with directions.
10
Mr. Justice FRANKFURTER, dissenting.
11
At stake in this case is the welfare of a child. More immediately the question before us is what restriction, if any, does the Constitution of the United States impose on a state court when it is determining the custody of a child before it. The contest here for the child's custody is between her mother and her grandparents: a mother whom a New York court, in divorce proceedings while the child was present in New York, did not find to be a suitable custodian, and the grandparents, living in North Carolina, to whom the New York court decreed the custody of the child and with whom the child, now twelve years of age, has lived happily for the last six and one-half years. A second New York decree, rendered while the child was in North Carolina, awarded her custody to the mother. A North Carolina court, after a full hearing, with all the relevant parties, including the child, before it, has found that the child's welfare precludes severance of the child's custody from the grandparents.
12
The facts are these: Petitioner and George Brewer, Jr., son of respondent, were married in New York City in 1945. A child, Jane Elizabeth, was born to them in 1946. In 1950 Brewer, Jr., instituted a divorce action against petitioner in New York, and on January 17, 1951, the New York court granted him a divorce. Finding that 'the best interests of the child' so required, that court awarded custody of Jane Elizabeth to respondent until Brewer, Jr., should be discharged from the Navy, at which time he might assume sole custody. The child was at that time both domiciled and resident in New York. After the decree was rendered petitioner went into hiding with the child. Respondent secured control of the child by writ of habeas corpus after she was found in September 1951 and took her to his home in North Carolina, where the child has been living with respondent and his wife until the present time. Brewer, Jr., the child's father and respondent's son, is still in the Navy.
13
In 1954, after having married one Kovacs, petitioner applied to the New York court for a modification of the divorce decree so that custody of the child be awarded to her. In December 1954 the New York court, through a judge other than the one who had rendered the original decree, awarded to petitioner custody of the child, who was not before the court but in North Carolina, on the ground that '(t)he accommodations and surround(ing)s of the mother are acceptable for the welfare of the infant and would be more desirable for an eight year old girl, whose bringing up belongs to her mother.'
14
Respondent refused to deliver the child to petitioner as directed by the New York decree. In February 1956 petitioner brought this suit in a North Carolina court, seeking to have respondent compelled to surrender custody of the child to petitioner and to have custody awarded to petitioner by the court. After a full hearing on the merits of the question of the child's proper custody, at which petitioner, respondent, Brewer, Jr., and the child were present, the North Carolina court denied the relief requested by petitioner; it determined that it was not required to give effect to the 1954 New York decree and awarded custody of the child to respodnent.* The Supreme Court of North Carolina affirmed, 245 N.C. 630, 97 S.E.2d 96, holding that since the child was not before the New York court when it rendered the 1954 decree, that decree was without extraterritorial effect.
15
While there is substantial accord among the courts as to the practical out-come of cases involving the extraterritorial effect of custody decrees, there has been no little confusion and lack of clarity in the language they have employed in justifying those results. The uncritical reliance of courts, in dealing with the problem raised by this case, upon such concepts as 'change of circumstances' has led one learned commentator to remark that 'words have been the chief trouble-makers in this field.' Stansbury, Custody and Maintenance Law Across State Lines, 10 Law & Contemp. Prob. 819, 826. Although the question presented here is a narrow one, it is of a kind that confronts state courts with great frequency: does the Federal Constitution require North Carolina to give effect to the second New York decree, awarding custody of the child to the petitioner? The evident implication of the Court's opinion today is that, unless 'circumstances have changed' since the latter decree, it must be given full faith and credit.
16
It was the purpose of the Full Faith and Credit Clause to preclude dissatisfied litigants from taking advantage of the federal character of the Nation by relitigating in one State issues that had been duly decided in another. The clause was thus designed to promote a major policy of the law: that there be certainty and finality and an end to harassing litigation. But when courts are confronted with the responsibility of determining the proper custody of children, a more important consideration asserts itself to which regard for curbing litigious strife is subordinated—namely, the welfare of the child. That, in the familiar phrase used by the Supreme Court of North Carolina in this case, 'is the polar star by which the courts must be guided in awarding custody.' 245 N.C. at page 635, 97 S.E.2d at pages 100—101. When the care and protection of the minors within their borders falls to States they must be free to do 'what is best for the interest of the child,' Finlay v. Finlay, 1925, 240 N.Y. 429, 433, 148 N.E. 624, 626, 40 A.L.R. 937 (per Cardozo, J.); see Queen v. Gyngall, (1893) 2 Q.B. 232, 241 ('The Court is placed in a position * * * to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child').
17
Because the child's welfare is the controlling guide in a custody determination, a custody decree is of an essentially transitory nature. The passage of even a relatively short period of time may work great changes, although difficult of ascertainment, in the needs of a developing child. Subtle, almost imperceptible, changes in the fitness and adaptability of custodians to provide for such needs may develop with corresponding rapidity. A court that is called upon to determine to whom and under what circumstances custody of an infant will be granted cannot, if it is to perform its function responsibly, be bound by a prior decree of another court, irrespective of whether 'changes in circumstances' are objectively provable. To say this is not to say that a court should pay no attention to a prior decree or to the status quo established by it. These are, of course, among the relevant and even important circumstances that a court should consider when exercising a judgment on what the welfare of a child before it requires. See People ex rel. Allen v. Allen, 1887, 105 N.Y. 628, 11 N.E. 143, 144 (Illinois custody decree was 'a fact or circumstance bearing upon the discretion to be exercised without dictating or controlling it').
18
In short, both the underlying purpose of the Full Faith and Credit Clause and the nature of the decrees militate strongly against a constitutionally enforced requirement of respect to foreign custody decrees. New York itself, the State for whose decree full faith and credit is here demanded, has rejected the applicability of that requirement to custody decrees. See, e.g., Bachman v. Mejias, 1956, 1 N.Y.2d 575, 580, 154 N.Y.S.2d 903, 906, 136 N.E.2d 866, 868 ('The full faith and credit clause does not apply to custody decrees'); People ex rel. Herzog v. Morgan, 1942, 287 N.Y. 317, 320, 39 N.E.2d 255, 256; People ex rel. Allen v. Allen, supra; Hicks v. Bridges, 1956, 2 A.D.2d 335, 339, 155 N.Y.S.2d 746, 751; People ex rel. Kniffin v. Knight, 1945, 184 Misc. 545, 550, 56 N.Y.S.2d 108, 113. And writers on the subject have observed a marked tendency among other state courts to arrive at this same conclusion, although often spelling out their judgments in traditional terms. See Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Mich.L.Rev. 345; Stansbury, supra.
19
This case vividly illustrates the evil of requiring one court, which may be peculiarly well-situated for making the delicate determination of what is in the child's best interests, to defer to a prior foreign decree, which may well be the result of a superficial or abstract judgment on what the child's welfare requires. In this case, the New York decree was rendered in a proceeding at which the child was not present—indeed, was not even within the State—by a judge who, so far as the record shows, had never seen her. Whatever force such a decree might have in New York, the Federal Constitution at all events does not require its blind acceptance elsewhere. The minimum nexus between court and child that must exist before the court's award of the child's custody should carry and authority is that the court should have been in a position adequately to inform itself regarding the needs and desires of the child, of what is in the child's best interests. And the very least that should be expected in order that the investigation be responsibly thorough and enlightening is that the child be physically within the jurisdiction of the court and so available as a source for arriving at Solomon's judgment. See Stumberg, The Status of Children in the Conflict of Laws, 8 U. of Chi.L.Rev. 42, 56, 58, 62. To dispense with this requirement is seriously to undermine the conscientious efforts that most state courts expend to carry out their functions in child custody cases in a responsible way.
20
Whatever may be the Court's formal disavowal, a federal question can be found for review here only if the Court requires, however implicitly, that North Carolina give full faith and credit to the second New York decree. For if the Supreme Court of North Carolina is obliged to find that 'circumstances have changed' since the second New York decree in order not to be bound by it, it must be that that decree has legal significance under the Full Faith and Credit Clause. The State Supreme Court has already declared unqualifiedly—not as an 'alternative ground' but as a necessary disposition of a constitutional claim—that it is not bound by the New York decree. But now the North Carolina decree is allowed to stand only if the highest court of that State will shelter its basis for leaving the custody of this child to the grandparents, under whose nurturing care she has been all these years, by labeling the factors that have led to this determination as 'changed circumstances' from what the absentee court had found. Inevitably this is to open the door wide to evasion of the Full Faith and Credit Clause after finding in it a command regarding custody decrees that it does not carry. The Supreme Court of Errors of Connecticut pointed out almost fifty years ago that, '(a)s a finding of changed conditions is one easily made when a court is so inclined, and plausible grounds therefor can quite generally be found, it follows that the recognition extraterritorially which custody orders will receive or can command is liable to be more theoretical than of great practical consequence.' Morrill v. Morrill, 1910, 83 Conn. 479, 492—493, 77 A. 1, 6. See also Stumberg, Principles of Conflict of Laws (2d ed.), 328—329.
21
This Court should indeed be rigorous in avoiding constitutional issues where a reasonable alternative exists. But a constitutional issue cannot be, and is not, avoided when a ruling is made that necessarily—and not the less because it does so impliedly—includes it. To what end must the Supreme Court of North Carolina justify its determination that the child should remain with her grandfather, by finding that there has been a change from the conditions under which the New York decree was rendered, unless in default of such a justification that court must be held to have disregarded its constitutional duty to give full faith and credit to the New York decree? If this construction as to the extraterritorial enforceability of the in absentia New York decree is not the necessarily implied meaning of today's decision, it can mean only that this Court is enforcing the local North Carolina law of conflicts as to the respect to be paid the nprior New York decree.
22
To be sure, there are situations where the Court properly disavows passing on a constitutional question because it is not clear whether it is here. If a state court judgment rests on an unclear admixture of federal and state grounds and therefore does not of itself disclose the required federal question as a basis for this Court's jurisdiction, the ambiguity may be removed by remanding the case to the state court for a clarifying opinion or an appropriate certificate. But surely it cannot be said of the decision under review, as was true in State of Minnesota v. National Tea Co., 309 U.S. 551, 555, 60 S.Ct. 676, 678, 84 L.Ed. 920, that 'there is considerable uncertainty as to the precise grounds for the decision (of the state court).' Any uncertainty is here interpolated; the North Carolina opinion carries no ambiguity. When this case goes back to the North Carolina Supreme Court, that court, with entire respect for this Court's action, accepting the Court's formal disavowal, may say it rightfully exercised its jurisdiction under local law in not being concerned with 'changed circumstances' relating to the absentee New York decree of 1954, because the North Carolina court, with the child before it, on its view of controlling North Carolina law, need justify its custodial decree only by considering whether the child's interests require a change in its custody from the present propitious circumstances. And this for the reason that the Court purports not to suggest to the North Carolina court its duty under the United States Constitution to respect the New York decree of 1954 unless there be a finding that the circumstances on which that decree was based have changed.
23
I would affirm the judgment of the Supreme Court of North Carolina.
1
Under North Carolina law 'custody of children of parents who have been divorced outside of North Carolina * * * may be determined in a special proceeding instituted by either of said parents * * *.' N.C.Gen.Stat.Ann., 1950, § 50—13.
2
Unlike the situation in the New York modification proceeding, the child, father and grandfather were all present before the North Carolina court.
3
Art. IV, § 1, declares: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' By statute Congress has provided that judgments 'shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.' 28 U.S.C. § 1738, 28 U.S.C.A. § 1738.
4
This approach is reinforced here by the fact that neither the father nor the grandfather appeared or submitted a brief in this Court in support of their right to custody.
5
There is some indication that in New York a local custody decree may be modified whenever the best interest of the child demands, whether there have been changed circumstances or not. See, e.g., 6A Gilbert-Bliss' N.Y.Civ.Prac., 1944, § 1170. Cf. Bachman v. Majias, 1 N.Y.2d 575, 580, 154 N.Y.S.2d 903, 906, 136 N.E.2d 866, 868; Sutera v. Sutera, 1 A.D.2d 356, 358, 150 N.Y.S.2d 448, 451, 452.
*
Among the many relevant circumstances the court canvassed at the hearing were the age, health, religious activities, and community interests of respondent; the suitability of his residence from the standpoint of size, location, appearance, and equipment; the training and interests of respondent's wife; the child's religious and scholastic record, associations, and health; and the educational and recreational facilities available to the child. On the basis of the evidence, the court made the following findings of fact, among others:
'13. That the petitioner, Aida Kovacs, is not a fit and proper person to have the care, custody and control of the minor, Jane Elizabeth Brewer.
'14. That George A. Brewer, Sr. is a man of excellent character, good habits and conduct, and is a fit and suitable person to have the care, custody and control of the minor, Jane Elizabeth Brewer.
'15. That the welfare, interest and development of the child will be materially promoted by allowing her to remain in the custody of George A. Brewer, Sr. and in the environment to which she has become accustomed and upon which in a measure she depends.'
| 89
|
356 U.S. 691
78 S.Ct. 976
2 L.Ed.2d 1087
Frank BONETTI, Petitioner,v.William P. ROGERS, Attorney General of the United States, et al.
No. 94.
Argued April 7, 1958.
Decided June 2, 1958.
Mr. Joseph Forer, Washington, D.C., for petitioner.
Mr. Roger Fisher, Washington, D.C., for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
This is a deportation case. It presents a narrow and vexing problem of statutory construction. The principal question here is which, if less than all, of several entries of this country by the alien petitioner was 'the time of entering the United States,' within the meaning of § 4(a) of the Anarchist Act of October 16, 1918,1 as amended by § 22 of the Internal Security Act of 1950. 64 Stat. 1008.
2
The facts are clear and undisputed. Petitioner, an alien who was born in France of Italian parentage, was admitted to the United States for permanent residence on November 1, 1923, at the age of 15. He became a member of the Communist Party of the United States at Los Angeles in 1932 and remained a member to the end of 1936, when he voluntarily ceased paying dues and left the Party. He never rejoined it. On June 28, 1937, he departed the United States—abandoning all rights of residence here—and went to Spain to fight with the Spanish Republican Army.2 He fought in that army for one year, was wounded in action and suffered the loss of his left foot. On September 19, 1938, he came to the United States as a new or 'quota immigrant,' and applied for admission for permanent residence. He was detained at Ellis Island. A hearing was held by a Board of Special Inquiry on the issue of his admissibility. At that hearing he freely admitted that he had been a member of the Communist Party of the United States at Los Angeles, California, from 1932 to 1936, and had voluntarily left the United States on June 28, 1937, to go to Spain and fight in the Spanish Republican Army. The Board ordered him excluded, but its order was reversed on an administrative appeal, and on October 8, 1938, he was admitted to the United States 'for permanent residence as a quota immigrant.' He has since continuously resided in the United States (California), except for a one-day visit to Tiajuana, Mexico, in September 1939. '(A)t the time of entering the United States' on October 8, 1938, he was not, and has not since been, a member of the Communist Party.
3
In October 1951, proceedings were instituted to deport him under §§ 1 and 4(a) of the Anarchist Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, as an 'alien who had been a member of the Communist Party of the United States after entry into the United States.' After a hearing, disclosing the facts above recited, the hearing officer ordered him deported, and the Board of Immigration Appeals affirmed.
4
Petitioner then brought this action in the United States District Court for the District of Columbia against respondent, praying that the order of deportation be set aside. Respondent moved for summary judgment. The district judge sustained the motion and dismissed the complaint. On appeal the Court of Appeals, finding that after petitioner's first admission for permanent residence on November 1, 1923, he admittedly had been a member of the Communist Party of the United States from 1932 through 1936, affirmed the judgment. 99 U.S.App.D.C. 386, 240 F.2d 624. We granted certiorari. 355 U.S. 901, 78 S.Ct. 328, 2 L.Ed.2d 258.
5
The parties agree that petitioner's past Communist Party membership did not make him excludable 'at the time of entering the United States' on October 8, 1938, nor when, after his one-day visit to Mexico, he re-entered in September 1939.3
6
Section 1 of the Anarchist Act of October 16, 1918,4 as amended by § 22 of the Internal Security Act of 1950,5 deals with the subject of exclusion of aliens from admission and provides, in pertinent part, as follows:
7
'(Sec. 1) That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
8
'(1) * * *;
9
'(2) Aliens who, at any time, shall be or shall have been, members of any of the following classes:
10
'(A) * * *;
11
'(B) * * *;
12
'(C) Aliens who are members of * * * the Communist Party of the United States * * *.
13
'(H) * * *.' (Emphasis added.)
14
Section 4(a) of the Anarchist Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, deals with the subject of deportation and, in pertinent part, provides:
15
'Any alien who was at the time of entering the United States, or has been at any time thereafter * * * a member of any one of the classes of aliens enumerated in section 1(2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.'6 (Emphasis added.)
16
The sense of the two amended sections, as applied to this case, is this: Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of the Communist Party of the United States shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917.
17
Petitioner contends that it was his entry of October 8, 1938, made after the administrative adjudication of that date that he was admissible 'as a quota immigrant for permanent residence'—not his entry of November 1, 1923—that constitutes 'the time of entering the United States,' within the meaning of § 4(a); and inasmuch as he was not then, and has not since been, a member of the Communist Party he is not deportable under that section. Respondent, on the other hand, contends that § 4(a) applies to any 'entry into the United States' by petitioner, including that of November 1, 1923, and that inasmuch as he was a member of the Communist Party of the United States from 1932 to 1936 before departing from, and abandoning all rights to reside in, the United States on June 28, 1937, he is deportable under that section as an alien who has been, after entering the United States, a member of the Communist Party.
18
To decide the question presented it is necessary to examine and construe the statutes involved. It seems plain that the reference in § 4(a) to the 'classes of aliens enumerated in section 1(2)' incorporates only the classes enumerated in subsections (A) through (H),7 and that the only one of those classes which is applicable here is class '(C),' namely, 'Aliens who are members of * * * the Communist Party of the United States.' (Emphasis added.) There being no question about the fact that petitioner was not a member of the Communist Party at the time of entering the United States on October 8, 1938, or at any time thereafter, the question is whether that entry—as affected, if at all, by his re-entry as a returning resident alien after his one-day trip to Mexico in September 1939—or the one of November 1, 1923, constituted 'the time of (his) entering the United States,' within the meaning of § 4(a), as amended by § 22 of the Internal Security Act of 1950. If it was the latter he is deportable, but if the former he is not.
19
It is obvious that Congress in enacting these statutes did not contemplate the novel factual situation that confronts us, and that these statutes are, to say the least, ambiguous upon the question we must now decide. Our study of the problem, in the light of the facts of this case, has brought us to these conclusions: The first phrase of § 4(a)—'Any alien who was at the time of entering the United States'—necessarily refers to 'the time' of petitioner's adjudicated lawful admission, as affected, if at all, by his re-entry as a returning resident alien after his one-day trip to Mexico in September 1939, under which he claims the right to remain. The next phrase—' or has been at any time thereafter'—necessarily refers to all times subsequent to such lawful admission. Thus the two phrases, when read together, refer to the particular time the alien was lawfully permitted to make the entry under which he claims the status and right of lawful presence that is sought to be annulled by his deportation, and to any time subsequent thereto. Inasmuch as petitioner claims no right of lawful presence under his entry of November 1, 1923, and respondent does not by the deportation order here seek to annul any right of presence acquired under that entry, we must hold that petitioner's entry of October 8, 1938—as affected, if at all, by his returning from Mexico in September 1939—constituted 'the time of entering the United States,' within the meaning of § 4(a). Since petitioner was not a member of the Communist Party 'at the time of entering the United States' on October 8, 1938, and has not been a member 'at any time thereafter,' including, of course, the time of his returning entry from Mexico in September 1939, he is not deportable under § 4(a), as amended by § 22 of the Internal Security Act of 1950.
20
In a different context this Court has said that the word entry 'includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one.' United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298.8 While that holding is quite correct, it is not here apposite or controlling, for the question here is not whether petitioner's coming to the United States in 1923 constituted an entry. Admittedly it did. Rather, our question is whether it was that entry, or the adjudicated lawful entry of October 8, 1938, as affected, if at all, by petitioner's re-entry as a returning resident alien in September 1939, which constituted the time of petitioner's entry upon which his present status depends. In the novel circumstances here we think it evident that it could not be his entry of November 1, 1923, since petitioner had abandoned all rights of residence under that entry. Volpe did not involve any question of abandonment.
21
Of course, if petitioner had become a member of the Communist Party after the entry of October 8, 1938, or the re-entry of September 1939, he would have been deportable under § 4(a). Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. But it is admitted that he was not a member of that party at those times or 'at any time thereafter.' Likewise, if he had applied for entry after June 27, 1952, he would be excludable under § 212(a)(28)(C)(iv) of the Immigration and Nationality Act of 1952. 66 Stat. 182, 8 U.S.C. § 1182(a)(28)(C)(iv), 8 U.S.C.A. § 1182(a)(28)(C)(iv).
22
The Government argues that the construction which we adopt would enable a resident alien, who after lawfully entering the United States for permanent residence became a member of the Communist Party, to avoid deportation for that cause simply by quitting the party and thereafter stepping across the border and returning. While a resident alien who leaves the country for any period, however brief, does make a new entry on his return, he is then subject nevertheless to all current exclusionary laws, one of which, at present, excludes from admission any alien who has ever been a member of the Communist Party. Section 212(a)(28)(C)(iv) of the Immigration and Nationality Act of 1952, supra. If he enters when excludable, he is deportable, even though he would not have been subject to deportation if he had not left the country.9 Hence, our construction of the statutes here involved does not enable an alien resident to evade the deportation laws by leaving the country and returning after a brief period, for if at the time of his return he is with an excluded class he would be excludable, or, if he nevertheless enters, he would be deportable. It is admitted that when petitioner returned from Mexico after his one-day trip in September 1939 he was not excludable under then current exclusionary laws. That entry, being lawful, can only support our conclusion in this case.
23
Though §§ 1 and 4(a) of the Anarchist Act of 1918, as amended by the Internal Security Act of 1950, are quite ambiguous in their application to the question here presented, we believe that our interpretation of them is the only fair and reasonable construction that their cloudy provisions will permit under the rare and novel facts of this case. 'When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts * * * against the imposition of a harsher punishment.' Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905. And we cannot 'assume that Congress meant to trench on (an alien's) freedom beyond that which is required by the narrowest of several possible meanings of the words used.' Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433. Cf. Barber v. Gonzales, 347 U.S. 637, 642—643, 74 S.Ct. 822, 825, 826, 98 L.Ed. 1009; Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17.
24
As applied to the circumstances of this case, we hold that the phrase in § 4(a), 'Any alien who was at the time of entering the United States, or has been at any time thereafter,' refers to the time the alien was lawfully permitted to make the entry and re-entry under which he acquired the status and right of lawful presence that is sought to be annulled by his deportation. Petitioner's entry of October 8, 1938, as affected, if at all, by his subsequent entry in September 1939 as a returning resident alien, constituted 'the time of entering the United States' within the meaning of § 4(a). Inasmuch as petitioner was not on October 8, 1938, or at any time thereafter—including September 1939—a member of the Communist Party, he is not deportable under §§ 1 and 4(a) of the Anarchist Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, and the judgment must be reversed for that reason.
25
Reversed.
26
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN concur, dissenting.
27
Petitioner entered the United States in 1923, being admitted for permanent residence at that time. From 1932 to 1936 he was a member of the Communist Party. In 1937 he voluntarily left the country to fight in the Spanish Civil War. A year later, in 1938, he returned and again was admitted. At that time our law did not exclude members or past members of the Communist Party.
28
In 1950 the Congress passed the Internal Security Act, § 22 of which required the Attorney General to deport all aliens who were Communist Party members 'at the time of entering the United States, or * * * at any time thereafter.' 64 Stat. 1008. As early as the Alien Registration Act of 1940, 54 Stat. 670, 673, the Congress had provided, as explained by the Senate Committee on the Judiciary, 'that any alien who has been a member of (a proscribed class) at any time after his admission to the United States (for no matter how short a time or how far in the past so long as it was after the date of entry), shall be deported.' S.Rep. No. 1796, 76th Cong., 3d Sess. 3. In enacting § 22 of the Act of 1950, the Congress stated, 'The purpose * * * is to strengthen the provisions of existing law with respect to the exclusion and deportation of subversive aliens.' S.Rep. No. 2230, 81st Cong., 2d Sess. 5. This report further declared, '(T)he conclusion is inescapable that * * * the Communist movement in the United States is an alien movement. * * * The severance of this connection and the destruction of the life line of communism becomes * * * an immigration problem.' Id., at 16. Additional classes of aliens were made deportable 'at any time after entry, whether or not membership in the class has ceased.' Id., at 23. The construction of the section as applying to membership after any entry—including the first as well as the last seems to be demanded by this legislative history. See also 84 Cong.Rec. 10448—10449 (remarks of Representative Hobbs), 86 Cong.Rec. 8343 (remarks of Senator Connally). That the Act applies retroactively to all aliens regardless of the time of their entry is admitted. See Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. The simple test, therefore, is whether the alien was at any time a member of the Communist Party upon or after coming to the United States, regardless of how many entries he may have made. Petitioner was a Party member subsequent to his arrival in 1923, so the language 'at any time thereafter' clearly makes the section applicable to him.
29
But today the Court, in effect, writes the word 'last' into the statute. The result is that an alien who has been a member of the Communist Party in the United States is deportable only if 'at the time of last entering the United States, or * * * at any time thereafter,' he was a member. This cripples the effectiveness of the Act, permitting aliens to escape deportation solely because they happen to leave and then re-enter the country. It is conceded by the Court that had petitioner remained here he would have been deportable. Hence, the construction of the Court restricts the literal sense of the 1950 Act to aliens who have continuously remained in the United States.
30
This innovation is contrary to decades of uninterrupted administrative interpretation and practice, and also to prior cases of this Court. The Immigration and Naturalization Service has always construed 'entry' as meaning any coming of an alien from a foreign country to the United States.1 The Congress recognized this interpretation when considering the Immigration and Nationality Act of 1952. H.R.Rep. No. 1365, 82d Cong., 2d Sess. 32; S.Rep. No. 1137, 82d Cong., 2d Sess. 4.2 The Court, however, side-steps this authority by saying that 'the novel circumstances here' preclude our consideration of the 1923 entry because 'petitioner had abandoned all rights of residence under that entry.' But that is not the question. True, petitioner makes no claim under the 1923 entry and the 1938 admission is not dependent on the former but was a regular 'quota immigrant' entry. Nevertheless, petitioner is an alien who entered and 'thereafter' was a member of the Communist Party while in the United States. Any number of additional entries—in 1938 or otherwise—cannot wipe out that fact.
31
In United States ex rel. Volpe v. Smith, 1933, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, the question was whether an alien's criminal conviction had occurred 'prior to entry' within the meaning of § 19 of the Immigration Act of 1917. 39 Stat. 889. The alien contended that 'entry' should be construed as meaning, in effect, 'first entry,' but the argument was rejected. The Court said, 'An examination of the Immigration Act of 1917, we think, reveals nothing sufficient to indicate that Congress did not intend the word 'entry' * * * should have its ordinary meaning.' 289 U.S. at page 425, 53 S.Ct. at page 667. See also United States ex rel. Claussen v. Day, 1929, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758. Petitioner here makes the converse argument that the word 'entering' should be modified to read 'last entering.' I would not so amend the statute in disregard of the long and uniform judicial, legislative, and administrative history whereby 'entry' has acquired a definitive, technical gloss, to wit, its ordinary meaning and nothing more or less. Therefore, I would affirm the judgment of the Court of Appeals.
1
40 Stat. 1012, as amended, 41 Stat. 1008, 54 Stat. 673, 8 U.S.C. § 137, now 8 U.S.C.A. §§ 1182(a)(27—29), 1251(a)(6).
2
He stated that he did so because he felt that Franco was a tool of Mussolini and Hitler, and if the Rome-Berlin Axis was not stopped 'they would go on from country to country until a world war would start.'
3
The statutory provision for exclusion from admission solely by reason of membership in the Communist Party was first enacted in the Internal Security Act of 1950 (64 Stat. 1006), and therefore, petitioner was not excludable from admission, on the ground of past membership in the Communist Party, at the time he entered the United States on October 8, 1938, or at the time he re-entered, after a one-day visit to Tiajuana, Mexico, in September 1939.
4
See Note 1.
5
64 Stat. 1008.
6
Although both §§ 1 and 4(a) were repealed by § 403(a)(16) of the Immigration and Nationality Act of June 27, 1952 (66 Stat. 163, 279), those sections nevertheless apply to this case under the saving clause (§ 405(a)) of the 1952 Act, 8 U.S.C.A. § 1101 note, since the order of deportation involved here was issued prior to the effective date of the 1952 Act.
7
Cf. Berrebi v. Crossman, 5 Cir., 208 F.2d 498, and Klig v. Brownell (dissenting opinion), 100 U.S.App.D.C. 294, 299, 300, 244 F.2d 742, 747—748 (certiorari granted, 355 U.S. 809, 78 S.Ct. 15, 2 L.Ed.2d 28; judgment of the Court of Appeals vacated and case remanded to the District Court with directions to dismiss the cause as moot, sub nom. Klig v. Rogers, 355 U.S. 605, 78 S.Ct. 532, 2 L.Ed.2d 525).
8
Cf. Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967; United States ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215.
9
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956; United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298; United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; United States ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; Lapina v. Williams, 232 U.S. 78, 34 S.Ct. 196, 58 L.Ed. 515; Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967; Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068.
1
For a comprehensive review of administrative action with regard to re-entry of resident aliens, see Lowenstein, The Alien and the Immigration Law, 206—213.
2
Although the Act of 1952 is not directly involved here, it is significant that the meaning of 'entry' was codified in § 101(a)(13) as 'any coming of an alien into the United States, from a foreign port or place or from an outlying possession * * *.' 66 Stat. 167, 8 U.S.C. § 1101(a)(13), 8 U.S.C.A. § 1101(a) (13).
| 12
|
356 U.S. 677
78 S.Ct. 983
2 L.Ed.2d 1077
UNITED STATES of America, Appellant,v.The PROCTER & GAMBLE COMPANY et al.
No. 51.
Argued April 28, 1958.
Decided June 2, 1958.
Mr. Robert A. Bicks, Washington, D.C., for the appellant.
Mr. Mathias F. Correa, New York City, for appellee Colgate-Palmolive co.
Mr. Kenneth C. Royall, New York City, for appellee Proctor & Gamble Co.
Mr. Abe Fortas, Washington, D.C., for appellee Lever Brothers Co.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a civil suit brought under § 4 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 4, 15 U.S.C.A. § 4, to enjoin alleged violations of § 1 and § 2 of the Act, 15 U.S.C.A. §§ 1, 2. The civil suit was filed on the heels of a grand jury investigation in which no indictment was returned. The Government is using the grand jury transcript to prepare the civil case for trial; and appellees, who are defendants in that suit, desire the same privilege. They moved for discovery and production of the minutes under the Rules of Civil Procedure, 28 U.S.C.A.1 The District Court granted the motion, ruling that appellees had shown 'good cause' as required by Rule 34.2 It rested on the ground that the Government was using the transcript in preparation for trial, that it would be useful to appellees in their preparation, that only in this way could appellees get the information. These reasons, the court held, outweighed the reasons behind the policy for maintaining secrecy of the grand jury proceedings. D.C., 19 F.R.D. 122, 128.
2
The District Court entered orders directing the Government to produce the transcript in 30 days and to permit appellees to inspect and copy it. The Government, adamant in its refusal to obey, filed a motion in the District Court requesting that those orders be amended to provide that, if production were not made, the court would dismiss the complaint. Alternatively, the Government moved the District Court to stay the order pending the filing of an appeal and an application for extraordinary writ. Appellees did not oppose the motion; and the District Court entered an amended order providing that, unless the Government released the transcript by August 24, 1956, 'the Court will enter an order dismissing the complaint.'3 As the Government persisted in its refusal, the District Court entered judgment of dismissal. The case is here by way of appeal, 32 Stat. 823, as amended, 62 Stat. 869, 989, 15 U.S.C. § 29, 15 U.S.C.A. § 29. We postponed the question of jurisdiction to argument on the merits. 352 U.S. 997, 77 S.Ct. 556.
3
First. The orders of dismissal were final orders, ending the case.4 See United States v. Wallace & Tiernan Co., 336 U.S. 793, 69 S.Ct. 824, 93 L.Ed. 1042.
4
Appellees urge that this appeal may not be maintained because dismissal of the complaint was solicited by the Government. They invoke the familiar rule that a plaintiff who has voluntarily dismissed his complaint may not sue out a writ of error. See Evans v. Phillips, 4 Wheat. 73, 4 L.Ed. 516; United States v. Babbitt, 104 U.S. 767, 26 L.Ed. 921. The rule has no application here. The Government at all times opposed the production orders. It might of course have tested their validity in other ways, for example, by the route of civil contempt. Yet it is understandable why a more conventional way of getting review of the adverse ruling might be sought and any unseemly conflict with the District Court avoided. When the Government proposed dismissal for failure to obey, it had lost on the merits and was only seeking an expeditious review. This case is therefore like Thomsen v. Cayser, 243 U.S. 66, 37 S.Ct. 353, 61 L.Ed. 597, where the losing party got the lower court to dismiss the complaint rather than remand for a new trial, so that it could get review in this Court. The court, in denying the motion to dismiss, said
5
'The plaintiffs did not consent to a judgment against them, but only that, if there was to be such a judgment, it should be final in form instead of interlocutory, so that they might come to this court without further delay.' Id., 243 U.S. at page 83, 37 S.Ct. at page 358.
6
Second. On the merits we have concluded that 'good cause,' as used in Rule 34, was not established. The Government as a litigant is, of course, subject to the rules of discovery. At the same time, we start with a long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.5 See United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546; Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. The reasons are varied.6 One is to encourage all witnesses to step forward and testify freely without fear or retaliation. The witnesses in antitrust suits may be employees or even officers of potential defendants, or their customers, their competitors, their suppliers. The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow. This 'indispensable secrecy of grand jury proceedings,' United States v. Johnson, supra, 319 U.S. at page 513, 63 S.Ct. at page 1238, must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity.
7
No such showing was made here. The relevancy and usefulness of the testimony sought were, of course, sufficiently established. If the grand jury transcript were made available, discovery through depositions, which might involve delay and substantial costs, would be avoided. Yet these showings fall short of proof that without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done. Modern instruments of discovery serve a useful purpose, as we noted in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. They together with pretrial procedures make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. Id., 329 U.S. at page 501, 67 S.Ct. at page 388. Only strong public policies weigh against disclosure. They were present in Hickman v. Taylor, supra, for there the information sought was in the trial notes of the opposing lawyer. They are present here because of the policy of secrecy of grand jury proceedings. We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.7 Those are cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly. We only hold that no compelling necessity has been shown for the wholesale discovery and production of a grand jury transcript under Rule 34. We hold that a much more particularized, more discrete showing of need is necessary to establish 'good cause.' The court made no such particularized finding of need in case of any one witness. It ordered that the entire transcript be delivered over to the appellees. It undoubtedly was influenced by the fact that this type of case is complex, long drawn out, and expensive to prosecute and defend. It also seemed to have been influenced by the fact that the prosecution was using criminal procedures to elicit evidence in a civil case. If the prosecution were using that device, it would be flouting the policy of the law. For in these Sherman Act cases Congress has guarded against in camera proceedings by providing that 'the taking of depositions * * * shall be open to the public' and that no order excluding the public shall be valid. 37 Stat. 731, 15 U.S.C. § 30, 15 U.S.C.A. § 30.
8
We cannot condemn the Government for any such practice in this case. There is no finding that the grand jury proceeding was used as a shortcut to goals otherwise barred or more difficult to reach. It is true that no indictment was returned in the present case. But that is no reflection on the integrity of the prosecution. For all we know, the trails that looked fresh at the start faded along the way. What seemed at the beginning to be a case with a criminal cast apparently took on a different character as the events and transactions were disclosed. The fact that a criminal case failed does not mean that the evidence obtained could not be used in a civil case. It is only when the criminal procedure is subverted that 'good cause' for wholesale discovery and production of a grand jury transcript would be warranted. No such showing was made here.
9
Reversed.
10
Mr. Justice WHITTAKER, concurring.
11
Believing that appellees did not make a sufficient showing of such exceptional and particularized need for the grand jury minutes as justified wholesale invasion of their secrecy in the circumstances of this case, I concur in the Court's decision, but desire to add a word.
12
Although a 'no ture bill' was voted by the grand jury in this case—and, hence, the Government's attorneys, agents and investigators were then through with the grand jury proceedings, if they wree conducted for lawful purposes—the Government admits that it has used the grand jury minutes and transcripts in its preparation, and that it intends to use them in its prosecution, of this civil case. Appellees suggest, principally on the basis that no indictment was prepared, presented to or asked of the grand jury, that the Government's purpose in conducting the grand jury investigation was to obtain, ex parte, direct or derivative evidence for its use in this civil suit which then was contemplated. But the District Court made no finding of such a fact. However, it is obvious that such could be, and probnably has often been, the real purpose of grand jury investigations in like cases. The grand jury minutes and transcripts are not the property of the Government's attorneys, agents or investigators, nor are they entitled to possession of them in such a case. Instead those documents are records of the court. And it seems clear that where, as here, a 'no true bill' has been voted, their secrecy, which the law wisely provides, may be as fully violated by disclosure to and use by the government counsel, agents and investigators as by the defendants' counsel in such a civil suit.
13
In order to maintain the secrecy of grand jury proceedings; to eliminate the temptation to conduct grant jury investigations as a means of ex parte procurement of direct or derivative evidence for use in a contemplated civil suit; and to eliminate, so far as possible, fundamental unfairness and inequality by permitting the Government's attorneys, agents and investigators to possess and use such materials while denying like possession and use by attorneys for the defendants in such a case, I would adopt a rule requiring that the grand jury minutes and transcripts and all copies thereof and memoranda made therefrom, in cases where a 'no true bill' has been voted, be promptly upon return sealed and impounded with the clerk of the court, subject to inspection by any party to such a civil suit only upon order of the court made, after notice and hearingUpon a showing of such exceptional and particularized need as is necessary to establish 'good cause,' in the circumstances, under Rule 34. Surely such an order may still be made by the trial court in this case.
14
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting.
15
The Court reverses the judgment below without so much as adverting to what seems to me the real and only question in the case: Did the District Court abuse its discretion by ordering the Government to furnish the appellees with the transcript of the grand jury proceedings? I do not believe this question can be avoided or obscured by casting the issue in terms of whether the appellees made an adequate showing of 'good cause' under Rule 34 for the discovery which they sought and gained. What constitutes 'good cause' under Rule 34 necessarily turns on the facts and circumstances of each particular case, and in the last analysis rests within the sound discretion of the trial court. 4 Moore's Federal Practice (2d ed. 1950) § 34.08.
16
Viewing the matter in this light, I do not think it can be said that the lower court was guilty of an abuse of discretion. A cursory statement of the setting in which appellees were accorded access to the grand jury transcript should suffice to make this clear. By any standards this antitrust litigation was of great magnitude and complexity. In 1956, when discovery was ordered, the litigation had been pending for over three years, and despite the assiduous efforts of the court to bring the issues within manageable compass, the case seems still to have been far removed from a posture where trial was in sight. The discovery order was the subject of elaborate briefing and oral argument, during the course of which the court found itself handicapped by the refusal of the Government to indicate the exact use it had made, and intended to make, of the grand jury transcript in connection with its preparation and trial of the case.1
17
In granting discovery the District Court wrote a reasoned opinion in which it found: (1) that the Government had filed its complaint in this civil suit following an eighteen-month grand jury investigation, which had ended some four years before the discovery order without an indictment being returned;2 (2) that the Government had made continuing use of the grand jury transcript in its preparation of the civil case; (3) that 'the ends of justice' required that appellees be given reciprocal access to such transcript in aid of the preparation of their defense;3 and (4) that disclosure would not in the circumstances violate the traditional reasons for safeguarding the secrecy of grand jury proceedings.4
18
The following quotation from the District Court's opinion reveals its alert and sensitive concern over unnecessary disclosure of grand jury proceedings:
19
'I realize there is a strong caveat against the needless intrusion upon the indispensable secrecy of grand jury proceedings. The reasons therefor were indelibly impressed upon we when I served as Assistant Prosecutor of my home county for ten years where I spent the greater part of the time presenting cases to the grand jury. I realize further that a strong and positive showing should be required of persons seeking to break the seal of secrecy, which never should be done except in extreme instances to prevent clear injustice or an abuse of judicial processes. Which policy should be served here to bring about justice—the policy requiring secrecy, or the policy permitting disclosure for discovery purposes only in the interest of justice? I believe the requirement of secrecy in this case can be safely waived and the minutes of the grand jury divulged within the limits prescribed by the law, and that the failure to do so would be an abuse of discretion and not in the furtherance of justice. Under Rule 6(e) of the Federal Rules of Criminal Procedure our courts have, by way of interpretation, extended their jurisdiction so as to remove 'the veil of secrecy' around ground jury proceedings where, in the court's discretion, the furtherance of justice requires it. If it can be done on the criminal side, I can see no compelling reason why it cannot be safely done on the civil side in this case. I would not grant these motions if I thought they were prejudicial to the public interest, useless or unnecessary, would not reveal the information sought, or defendants already possessed all the necessary information or could obtain it by pursuing a different remedy.' The findings of the District Court as to what the procedural situation in this complicated case fairly required, made as they were by a judge who had been in charge of this case from the beginning, should not be disturbed by this Court any more lightly than findings made after a trial on the merits. Cf. United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150; United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978.
20
The Court recognizes that had the Government's grand jury investigation been instituted solely in aid of a civil suit—that is without any thought of obtaining an indictment—the appellees would then have been entitled to see the entire grand jury transcript. Although it may be true that no finding has been made here of such misuse of the grand jury process, I am unable to see why the case where a grand jury investigation has aborted and the Government thereafter uses the transcript solely in aid of its civil case should be treated differently. The only distinction relates to the Government's motive in instituting the grand jury proceedings. For in both instances the effect on the litigation is precisely the same, and in both instances the Government's conduct disrespects the policy underlying 37 Stat. 731, 15 U.S.C. § 30, 15 U.S.C.A. § 30,5 requiring the testimony of witnesses in government Sherman Act equity suits to be taken in public. In neither type of case should the Court undertake to lay down a fixed rule concerning disclosure of grand jury transcripts, but instead should leave the matter to the sound discretion of the trial judge, to be dealt with by him in light of the particular circumstances of each case.
21
I fully subscribe to the view that the strong public policy of preserving the secrecy of grand jury proceedings should prevent the general disclosure of a grand jury transcript except in the rarest cases. But the inflexible rule announced today, which allows that policy to be overcome only in instances where it can be shown that the Government has 'subverted' the grand jury process in the manner suggested by the Court, seems to me an unwise and unnecessary curbing of trial judges in the efficient and fair handling of the difficult problems presented by a unique type of litigation. See the Prettyman Report on Procedure in Anti-Trust and other Protracted Cases, 13 F.R.D. 62, which has been adopted by the Judicial Conference of the United States. This is particularly so in cases like the one before us, where the grand jury's functions have long since ended. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233—234, 60 S.Ct. 811, 849; 8 Wigmore, Evidence (3d ed. 1940), § 2362. Here as elsewhere in the realm of discretionary power appellate review should be the safeguard against abuse in particular instances, rather than the a priori imposition of rigid restrictions upon trial judges which leave them powerless to act in appropriate cases. Under the facts shown by this record, I am unable to say that the District Court abused its discretion in ordering the grand jury transcript to be made available to the appellees.
1
Appellee, Colgate-Palmolive Co., moved under Rule 6(e) of the Rules of Criminal Procedure, 18 U.S.C.A., note 5, infra.
2
Rule 34 provides in part:
'Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, * * * not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control * * *.'
3
Rule 37(b)(2) provides:
'If any party * * * refuses to obey * * * an order made under Rule 34 to produce any document or other thing for inspection, copying, or photographing * * *, the court may make such orders in regard to the refusal as are just, and among others the following:
'(i) An order that * * * the contents of the paper * * * or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
'(ii) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony * * *;
'(iii) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
'(iv) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders * * *.'
4
Rule 41(b) provides in part:
'Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'
While Rule 41(b) covers motions to dismiss made by defendants, the portion quoted shows that it is not restricted to that situation.
5
Rule 6(e) of the Rules of Criminal Procedure provides in part:
'Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule.'
6
In United States v. Rose, 3 Cir., 215 F.2d 617, 628—629, those reasons were summarized as follows:
'(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.'
7
See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129. Cf. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.
1
The following is taken from the District Court's opinion:
'* * * during the oral argument of these motions the court asked Mr. McDowell, plaintiff's attorney, the following questions:
"Mr. McDowell, do you object to submitting a detailed affidavit stating exactly (a) what use, if any, plaintiff has made in the past of the grand jury transcripts while preparing for the trial of this case; (b) what use, if any, plaintiff intends to make of the transcripts during its future preparation for the trial; (c) what use, if any, plaintiff intends to make of the transcripts during the trial.'
'He wished to confer with his superiors in the Department of Justice before deciding if he would answer the questions. The court awaited candid answers—but in vain. For Mr. McDowell wrote:
"The questions which you put to me at the hearing on December 12th relating to the use by the government of transcripts of grand jury testimony have been given serious consideration within the Department of Justice. I am instructed respectfully to inform you that we do not wish to add to the statement which I made at the hearing.'
'His 'statement' at the hearing did not answer the questions. Because the plaintiff arbitrarily has refused to answer the court's questions relating to any use of these transcripts, the court has been denied helpful information and as a result has been forced to seek its answers elsewhere.' (19 F.R.D. 124.)
2
In response to questions put at oral argument, government counsel informed us that the Government had not requested the grand jury to return an indictment.
3
In the Appendix to its opinion, which reviews some of the prior proceedings, the District Court refers to the following comment made by it at an earlier stage of the case:
"One of my concerns is that since plaintiff has been preparing its case for probably three years, or longer, how long must we wait for defendants to prepare their case? The sooner defendants are informed of plaintiff's factual contentions, the sooner defense preparation can commence—and not before, obviously."
4
See United States v. Rose, 3 Cir., 215 F.2d 617, 628—629, quoted from in footnote 6 of the Court's opinion.
5
'(In) the taking of depositions of witnesses for use in any suit in equity brought by the United States under the (Sherman Act), and in the hearings before any examiner or special master appointed to take testimony therein, the proceedings shall be open to the public as freely as are trials in open court; and no order excluding the public from attendance on any such proceedings shall be valid or enforceable.'
| 89
|
357 U.S. 17
78 S.Ct. 1039
2 L.Ed.2d 1109
UNITED STATES of America, Petitioner,v.C. M. DOW.
No. 102.
Argued March 5, 1958.
Decided June 9, 1958.
Mr. Perry W. Morton, Washington, D.C., for petitioner.
Mr. L. Keith Simmer, Houston, Tex., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The issue in this case arises out of a condemnation proceeding in which the United States acquired an easement pursuant to its power of eminent domain. The principal question presented is whether the claim to 'just compensation' vested in the owners of the land at the time the United States entered into possession of the easement pursuant to court order in 1943 or whether such claim vested in the respondent, Dow, who acquired the land in 1945, at the time the United States filed a declaration of taking in 1946, under the Declaration of Taking Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C. §§ 258a—258e, 40 U.S.C.A. §§ 258a—258e.
2
In March 1943 the United States instituted a condemnation proceeding in the District Court for the Southern District of Texas to acquire a right-of-way for a pipe line over certain lands in Harris County, Texas, owned by the estate and heirs of John F. Garrett and James Bute. Among the lands condemned was Parcel 1, a narrow strip of some 2.7 acres out of a 617-acre tract, the property involved in the present suit. The Government proceeded under various statutes, including the Act of August 1, 1888, 25 Stat. 357, 40 U.S.C. § 257, 40 U.S.C.A. § 257, and Title II of the Second War Powers Act of March 27, 1942, 56 Stat. 176, 177. As requested in the petition, the District Court ordered the United States into the 'immediate possession' of this strip. Within the next ten days the United States entered into physical possession and began laying the pipe line through the tract. The line was completed in 1943 and has been in continuous use since that time.
3
In November 1945 the 617-acre tract was conveyed to Dow by a general warranty deed which specifically excepted the pipe-line right-of-way as being subject to the condemnation proceedings. In May 1946 the Government filed a declaration of taking, under the Declaration of Taking Act, covering this pipe-line strip. Estimated compensation was deposited in court any judgment on the declaration of taking was entered. A few months later the Government amended its petition to name additional parties, including Dow, who were alleged to be asserting an interest in the land. The question of compensation was referred to commissioners under the Texas practice, which at that time was applicable to federal condemnation proceedings. See United States v. Miller, 317 U.S. 369, 379—380, 63 S.Ct. 276, 282—283, 87 L.Ed. 336. After a hearing, at which Dow appeared, the commissioners, in 1948, awarded $4,450 for imposition of the pipe-line easement.
4
After a lengthy unexplained delay in the proceedings, the Government in May 1955 filed a motion for summary judgment against Dow. In March 1956 the District Court granted this motion and dismissed Dow as a party. The District Court found as a fact that Dow's grantors had intended to convey to him 'all their right, title and interest in the said Parcel No. 1 or in the award to be made for the same.' It then went on to rule that under the Assignment of Claims Act, 31 U.S.C. § 203, 31 U.S.C.A. § 203, this was a prohibited assignment of a claim against the United States, and that the deed was therefore ineffective to convey to Dow the compensation award. The Court of Appeals reversed, holding that no assignment was involved because no claim to compensation against the United States 'arose and vested' until the filing of the declaration of taking in 1946, and that, because Dow by that time had become owner of the land, he was entitled to the award. 238 F.2d 898. Because the question presented bears importantly on rights resulting from federal condemnation proceedings, we granted the Government's petition for certiorari. 353 U.S. 972, 77 S.Ct. 1057, 1 L.Ed.2d 1135.
5
It is well established, as the Court of Appeals recognized, that the Assignment of Claims Act prohibits the voluntary assignment of a compensation claim against the Government for the taking of property. United States v. Shannon, 342 U.S. 288, 72 S.Ct. 281, 96 L.Ed. 321. In view of the express finding of the District Court that Dow's grantors intended to convey to him their right to the condemnation award, we think that the transfer of the claim in this case must be considered to have been such a voluntary assignment, rather than, as Dow argues, an assignment taking effect by operation of law, and thus not within the Act's prohibition. Cf. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 373—376, 70 S.Ct. 207, 211—213, 94 L.Ed. 171; see 23 Tracts of Land v. United States, 6 Cir., 177 F.2d 967, 970. We would not be justified in relaxing the rigor of the Act, especially in view of the fact that under its very terms the way was left open for the parties to accomplish a transfer of the award by valid means.* Accordingly, Dow can prevail only if the 'taking' occurred while he was the owner. For it is undisputed that '(since) compensation is due at the time of taking, the owner at that time, not the owner at an earlier or later date, receives the payment.' Danforth v. United States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240; cf. United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789. We hold, contrary to the Court of Appeals, that the 'taking' did not occur in 1946 when the Government filed its declaration of taking, but rather when the United States entered into possession of the land in 1943. It follows that the landowners in 1943 were entitled to receive the compensation award and that Dow is not entitled to recover in this action.
6
Broadly speaking, the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings. Under the first method—physical seizure—no condemnation proceedings are instituted, and the property owner is provided a remedy under the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, 28 U.S.C.A. §§ 1346(a)(2), 1491, to recover just compensation. See Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed. 637. Under the second procedure the Government may either employ statutes which require it to pay over the judicially determined compensation before it can enter upon the land, Act of August 1, 1888, 25 Stat. 357, 40 U.S.C. § 257, 40 U.S.C.A. § 257; Act of August 18, 1890, 26 Stat. 316, 50 U.S.C. § 171, 50 U.S.C.A. § 171,1 or proceed under other statutes which enable it to take immediate possession upon order of court before the amount of just compensation has been ascertained. Act of July 18, 1918, 40 Stat. 904, 911, 33 U.S.C. § 594, 33 U.S.C.A. § 594; Title II of the Second War Powers Act of March 27, 1942, 56 Stat. 176, 177 (employed by the Government in the present case).
7
Although in both classes of 'taking' cases—condemnation any physical seizure—title to the property passes to the Government only when the owner receives compensation, see Albert Hanson Lumber Co. v. United States, 261 U.S. 581, 587, 43 S.Ct. 442, 444, 67 L.Ed. 809, or when the compensation is deposited into court pursuant to the Taking Act, see 78 S.Ct. 1045, infra, the passage of title does not necessarily determine the date of 'taking.' The usual rule is that if the United States has entered into possession of the property prior to the acquisition of title, it is the former event which constitutes the act of taking. It is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued and the Government's obligation to pay interest accrues. See United States v. Lynah, 188 U.S. 445, 470—471, 23 S.Ct. 349, 357, 47 L.Ed. 539; United States v. Rogers, 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566; Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664. The owner at the time the Government takes possession 'rather than the owner at an earlier or later date, is the one who has the claim and is to receive payment.' 23 Tracts of Land v. United States, supra, 177 F.2d at page 970.
8
Had the Government not subsequently filed a declaration of taking in this case, there is no reason to believe that these ordinary rules would not have been applicable; the owners of the parcel when the Government entered into possession in 1943 would then have been entitled to compensation. No suggestion to the contrary has been made by Dow. Instead, Dow contends that although there was an entry into possession in 1943 which was an appropriation of the property sufficient to amount to a 'taking,' the subsequent filing of a declaration of taking vitiated the effect of the earlier entry, and rendered the filing date the time of the taking. We think that this contention is founded on a mistaken view of the Declaration of Taking Act and must be rejected.
9
Section 1 of the Declaration of Taking Act provides: 'Upon the filing said declaration of taking (prior to judgment in a condemnation proceeding) and of the deposit in the court * * * of the estimated compensation * * * title * * * shall vest in the United States * * * and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation * * * shall vest in the persons entitled thereto * * *.' Although it has been recognized that the 'exact effect of these provisions is not entirely clear,' Catlin v. United States, 324 U.S. 229, 240, 65 S.Ct. 631, 637, 89 L.Ed. 911, past cases in this Court have established certain unchallenged principles pertinent to the present controversy. The Taking Act does not bestow independent authority to condemn lands for public use. On the contrary, it provides a proceeding 'ancillary or incidental to suits brought under other statutes,' Catlin v. United States, supra, 324 U.S. at page 240, 65 S.Ct. at page 637. Such a proceeding can be instituted either at the commencement of the condemnation suit under the 'other statutes' or, as in this case, after such a suit has been commenced and either before or after the Government has taken possession. In both situations the Taking Act enables the United States to acquire title simply by depositing funds 'for or on account' of the just compensation to be awarded the owners, rather than by making payment pursuant to a court order. In those cases where the Government has not yet entered into possession, the filing of the declaration enables it to enter immediately and relieves it of the burden of interest from the time of filing to the date of judgment in the eminent domain proceedings. See United States v. Miller, supra, 317 U.S. at pages 380—381, 63 S.Ct. at pages 283—284.
10
The scheme of the Taking Act makes it plain that when the Government files a declaration before it has entered into possession of the property the filing constitutes the 'taking.' But neither the language nor the history of the Act provides a reliable indication as to the intention of Congress in cases, such as the one before us, where a declaration is filed after the Government has taken possession. Nevertheless, a number of considerations have led us to the view that in such cases the date of 'taking' is the date on which the Government entered and appropriated the property to public use.
11
In the first place, to adopt the solution urged by Dow would be to undermine policies determining the other incidents of the Government's obligation to provide just compensation. As already noted, in cases where there has been an entry into possession before the filing of a declaration of taking, such entry has been considered the time of 'taking' for purposes of valuing the property and fixing the date on which the Government's obligation to pay interest begins to run. To rule that the date of 'taking' is the time of filing would confront us with a Hobson's choice. On the one hand, it would certainly be bizarre to hold that there were two different 'takings' of the same property, with some incidents of the taking determined as of one date and some as of the other. On the other hand, to rule that for all purposes the time of taking is the time of filing would open the door to anomalous results. For example, if the value of the property changed between the time the Government took possession and the time of filing, payment as of the latter date would not be an accurate reflection of the value of what the property owner gave up and the Government acquired. In the graphic language of Chief Justice Shaw: 'If a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensation with one hand, whilst they apply the axe with the other.' Parks v. City of Boston, 15 Pick., Mass., 198, 208. See also Anderson v. United States, 5 Cir., 179 F.2d 281. Similarly, because interest for delay in payment would not begin to accrue until payment of compensation is due, the Government would be absolved of interest until it chose to file a declaration of taking, even though it had already been in possession, to the exclusion of the property owner, for some time. Cf. Seaboard Air Line R. Co. v. United States, supra.
12
There is another reason why we cannot regard the time of filing as the time of the 'taking' in cases where the Government has already entered into possession. Because of the uncertainty when, if ever, a declaration would be filed after the Government's entry, manipulations might be encouraged which could operate to the disadvantage of either the landowner or the United States. The Government tells us that the declaration of taking procedure may be invoked 'solely in the discretion of the administrative officer.' It would thus lie within the power of such an officer to reduce the 'just' compensation due the property owner by staying his hand until a market situation favorable to the Government had developed. Conversely, landowners might be in a position to increase unduly the Government's liability. For instance, if a single tract of land were worth more than the sum of its component parcels, cf. United States v. Runner, 10 Cir., 174 F.2d 651, owners of adjacent condemned properties could consolidate their holdings after the Government's entry solely for the purpose of obtaining a larger award.
13
We cannot attribute to Congress the intention to promulgate a rule which would open the door to such obvious incongruities and undesirable possibilities.
14
We are not persuaded by any of the countervailing considerations put forward by Dow. It is claimed that much needed certainty would ensue in condemnation matters were the Court to hold that the Government's filing under the Taking Act invariably established the date of the 'taking' of this property. But certainty is not lacking under the rule advocated by the Government, which fixes the 'taking' at the time of the entry into physical possession—a fact readily ascertainable whether or not the Government makes use of condemnation proceedings, and whether or not it ever files a declaration of taking.
15
It is also argued that a property owner might be prejudiced under the Government's view because the project could be abandoned and the condemnation proceedings discontinued before title passed to the Government. But the possibility of such an abandonment exists whenever the Government enters into possession of property without filing a declaration of taking and without otherwise providing compensation for acquisition of the title. In any event, such an abandonment does not prejudice the property owner. It merely results in an alteration in the property interest taken from full ownership to one of temporary use and occupation. O'Connor v. United States, 9 Cir., 155 F.2d 425; Moody v. Wickard, 78 U.S.App.D.C. 80, 136 F.2d 801; cf. Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 660, 10 S.Ct. 965, 972, 34 L.Ed. 295. In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily. See Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765; United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311.
16
Nor can we accept the suggestion that in cases like the present one the total compensation should be divided between the first and second owners of the property, the former taking that portion of the award attributable to the Government's use of the property until the passage of title, and the latter receiving the balance. Cf. United States v. 40,379 Square Feet of Land, D.C., 58 F.Supp. 246. To require the Government to deal with more than one party, particularly when division of the condemnation award would entail a complex apportionment, might severely impede the orderly progress of condemnation proceedings and would conflict with the policies underlying the Anti-Assignment Act. See Hobbs v. McLean, 117 U.S. 567, 576, 6 S.Ct. 870, 874, 29 L.Ed. 940; United States v. Aetna Casualty & Surety Co., supra.
17
Dow relies on Danforth v. United States, supra, and United States v. Dickinson, supra, but neither case is in point on the issue before us. In Danforth the Court rejected the landowner's claim for interest on the ground, inter alia, that the construction of a set-back levee near his land did not amount to a 'taking' because the Government by such action had not yet appropriated the property to its use. The expressly limited holding in Dickinson was that the statute of limitations did not bar an action under the Tucker Act for a taking by flooding when it was uncertain at what stage in the flooding operation the land had become appropriated to public use. In the present case there is no dispute over the fact that the United States appropriated Parcel 1 on the date that it entered into physical possession under order of the District Court.
18
Finally, we see no merit in the suggestion that it is inequitable to deny Dow recovery in this action. Dow took his deed with full notice of the condemnation proceeding brought by the United States. There were readily available contractual means by which he could have protected himself vis-a -vis his grantors against the contingency that his claim against the United States would be subsequently invalidated by the Anti-Assignment Act. And whatever may be the equities between the former owners and Dow, or between the Government and the former owners, whose claim to compensation Dow asserts may be barred by the statute of limitations, such equities cannot serve to prevent the application of the correct rule of law as between the Government and Dow in this case. Cf. McKenzie v. Irving Trust Co., 323 U.S. 365, 369, 65 S.Ct. 405, 407, 89 L.Ed. 305.
19
Reversed.
*
The Assignment of Claims Act provides that assignments of claims which it would otherwise nullify are nevertheless valid if 'they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof * * *.'
1
Now 10 U.S.C.A. § 2663.
| 34
|
357 U.S. 28
78 S.Ct. 1033
2 L.Ed.2d 1119
The COLONY, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE.
No. 306.
Argued April 3, 1958.
Decided June 9, 1958.
Mr. A. Robert Doll, Louisville, Ky., for petitioner.
Mr. Joseph F. Goetten, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The sole question in this case is whether assessments by the Commissioner of two asserted tax deficiencies were barred by the three-year statute of limitations provided in the Internal Revenue Code of 1939.
2
Under the 1939 Code the general statute of limitations governing the assessment of federal income tax deficiencies is fixed at three years from the date on which the taxpayer filed his return, § 275(a), 53 Stat. 86, 26 U.S.C.A. § 275(a), except in cases involving a fraudulent return or failure to file a return, where a tax may be assessed at any time. § 276(a), 53 Stat. 87. A special five-year period of limitations is provided when a taxpayer, even though acting in good faith, 'omits from gross income an amount properly includible therein which is in excess of 25 per centum of the amount of gross income stated in the return * * *.' § 275(c), 53 Stat. 86. In either case the period of limitation may be extended by a written waiver executed by the taxpayer within the statutory or any extended period of limitation. § 276(b), 53 Stat. 87.1
3
The Commissioner assessed deficiencies in the taxpayer's income taxes for each of the fiscal years ending October 31, 1946, and 1947, within the extended period provided in waivers which were executed by the taxpayer more than three but less than five years after the returns were filed. There was no claim that the taxpayer had inaccurately reported its gross receipts. Instead, the deficiencies were based upon the Commissioner's determination that the taxpayer had understated the gross profits on the sales of certain lots of land for residential purposes as a result of having overstated the 'basis' of such lots by erroneously including in their cost certain unallowable items of development expense. There was no claim that the returns were fraudulent.
4
The Tax Court sustained the Commissioner. It held that substantial portions of the development costs were properly disallowed, and that these errors by the taxpayer had resulted in the understatement of the taxpayer's total gross income by 77.2% and 30.7%, respectively, of the amounts reported for the taxable years 1946 and 1947. In addition, the Tax Court held that in these circumstances the five-year period of limitation provided for in § 275(c) was applicable. It took the view that the statutory language, 'omits from gross income an amount properly includible therein,' embraced not merely the omission from a return of an item of income received by or accruing to a taxpayer, but also an understatement of gross income resulting from a taxpayer's miscalculation of profits through the erroneous inclusion of an excessive item of cost. 26 T.C. 30. On the taxpayer's appeal to the Court of Appeals the only question raised was whether the three-year or the five-year statute of limitations governed the assessment of these deficiencies. Adhering to its earlier decision in Reis v. Commissioner, 6 Cir., 142 F.2d 900, the Court of Appeals affirmed. 6 Cir., 244 F.2d 75. We granted certiorari because this decision conflicted with rulings in other Courts of Appeals on the same issue,2 and because the question as to the proper scope of § 275(c), although resolved for the future by § 6501(e)(1)(A) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6501(e)(1)(A), 78 S.Ct. 1037, 1038, infra, remains one of substantial importance in the administration of the income tax laws for earlier taxable years. 355 U.S. 811, 78 S.Ct. 51, 2 L.Ed.2d 29.
5
In determining the correct interpretation of § 275(c) we start with the critical statutory language, 'omits from gross income an amount properly includible therein.' The Commissioner states that the draftsman's use of the word 'amount' (instead of, for example, 'item') suggests a concentration on the quantitative aspect of the error—that is, whether or not gross income was understated by as much as 25%. This view is somewhat reinforced if, in reading the above-quoted phrase, one touches lightly on the word 'omits' and bears down hard on the words 'gross income,' for where a cost item is overstated, as in the case before us, gross income is affected to the same degree as when a gross-receipt item of the same amount is completely omitted from a tax return.
6
On the other hand, the taxpayer contends that the Commissioner's reading fails to take full account of the word 'omits,' which Congress selected when it could have chosen another verb such as 'reduces' or 'understates,' either of which would have pointed significantly in the Commissioner's direction. The taxpayer also points out that normally 'statutory words are presumed to be used in their ordinary and usual sense, and with the meaning commonly attributable to them.' De Ganay v. Lederer, 250 U.S. 376, 381, 39 S.Ct. 524, 525, 63 L.Ed. 1042. 'Omit' is defined in Webster's New International Dictionary (2d ed. 1939) as 'to leave out or unmentioned; not to insert, include, or name,' and the Court of Appeals for the Sixth Circuit has elsewhere similarly defined the word. Ewald v. Commissioner, 141 F.2d 750, 753. Relying on this definition, the taxpayer says that the statute is limited to situations in which specific receipts or accruals of income items are left out of the computation of gross income. For reasons stated below we agree with the taxpayer's position.
7
Although we are inclined to think that the statute on its face lends itself more plausibly to the taxpayer's interpretation, it cannot be said that the language is unambiguous. In these circumstances we turn to the legislative history of § 275(c). We find in that history persuasive evidence that Congress was addressing itself to the specific situation where a taxpayer actually omitted some income receipt or accrual in his computation of gross income, and not more generally to errors in that computation arising from other causes.
8
Section 275(c) first appeared in the Revenue Act of 1934. 48 Stat. 680. As introduced in the House the bill simply added the gross-income provision to § 276 of the Revenue Act of 1932, 47 Stat. 169, relating to fraudulent returns and cases where no return had been filed, and carried with it no period of limitations. The intended coverage of the proposed provision was stated in a Report of a House Ways and Means Subcommittee as follows:
9
'Section 276 provides for the assessment of the tax without regard to the statute of limitations in case of a failure to file a return or in case of a false or fraudulent return with intent to evade tax.
10
'Your subcommittee is of the opinion that the limitation period on assessment should also not apply to certain cases where the taxpayer has understated his gross income on his return by a large amount, even though fraud with intent to evade tax cannot be established. It is, therefore, recommended that the statute of limitations shall not apply where the taxpayer has failed to disclose in his return an amount of gross income in excess of 25 percent of the amount of the gross income stated in the return. The Government should not be penalized when a taxpayer is so negligent as to leave out items of such magnitude from his return.' Hearings before the House Committee on Ways and Means, 73d Cong., 2d Sess., p. 139.
11
This purpose of the proposal was related to the full Committee in the following colloquy between Congressman Cooper of Tennessee, speaking for the Subcommittee, and Mr. Roswell Magill, representing the Treasury:
12
'Mr. Cooper. What we really had in mind was just this kind of a situation: Assume that a taxpayer left out, say, a million dollars; he just forgot it. We felt that whenever we found that he did that we ought to get the money on it, the tax on it.
13
'Mr. Magill. I will not argue against you on that score.
14
'Mr. Cooper. In other words, if a man is so negligent and so forgetful, or whatever the reason is, that he overlooks an item amounting to as much as 25 percent of his gross income, that we simply ought to have the opportunity of getting the tax on that amount of money.' House Hearings, supra, p. 149.
15
The full Committee revealed the same attitude in its report:
16
'It is not believed that taxpayers who are so negligent as to leave out of their returns items of such magnitude should be accorded the privilege of pleading the bar of the statute.' H.R.Rep. No. 704, 73d Cong., 2d Sess., p. 35.
17
The Senate Finance Committee approved of the intended coverage and language of the bill, except that it believed the statute of limitations should not be kept open indefinitely in the case of an honest but negligent taxpayer. Its report stated:
18
'* * * Your committee is in general accord with the policy expressed in this section of the House bill. However, it is believed that in the case of a taxpayer who makes an honest mistake, it would be unfair to keep the statute open indefinitely. For instance, a case might arise where a taxpayer failed to report a dividend because he was erroneously advised by the officers of the corporation that it was paid out of capital or he might report as income for one year an item of income which properly belonged in another year. Accordingly, your committee has provided for a 5-year statute in such cases.' S.Rep. No. 558, 73d Cong., 2d Sess., pp. 43—44.
19
Except for embodying the five-year period of limitation, § 275(c), as passed, reflects no change in the original basic objective underlying its enactment.
20
As rebutting these persuasive indications that Congress merely had in mind failures to report particular income receipts and accruals, and did not intend the five-year limitation to apply whenever gross income was understated, the Commissioner stresses the occasional use of the phrase 'understates gross income' in the legislative materials. The force of this contention is much diluted, however, when it is observed that wherever this general language is found its intended meaning is immediately illuminated by the use of such phrases as 'failed to disclose' or 'to leave out' items of income. See Uptegrove Lumber Co. v. Commissioner, 3 Cir., 204 F.2d 570, 572.
21
The Commissioner also suggests that in enacting § 275(c) Congress was primarily concerned with providing for a longer period of limitations where returns contained relatively large errors adversely affecting the Treasury, and that effect can be given this purpose only by adopting the Government's broad construction of the statute. But this theory does not persuade us. For if the mere size of the error had been the principal concern of Congress, one might have expected to find the statute cast in terms of errors in the total tax due or in total taxable net income. We have been unable to find any solid support for the Government's theory in the legislative history. Instead, as the excerpts set out above illustrate, this history shows to our satisfaction that the Congress intended an exception to the usual three-year statute of limitations only in the restricted type of situation already described.
22
We think that in enacting § 275(c) Congress manifested no broader purpose than to give the Commissioner an additional two years to investigate tax returns in cases where, because of a taxpayer's omission to report some taxable item, the Commissioner is at a special disadvantage in detecting errors. In such instances the return on its face provides no clue to the existence of the omitted item. On the other hand, when, as here, the understatement of a tax arises from an error in reporting an item disclosed on the face of the return the Commissioner is at no such disadvantage. And this would seem to be so whether the error be one affecting 'gross income' or one, such as overstated deductions, affecting other parts of the return. To accept the Commissioner's interpretation and to impose a five-year limitation when such errors affect 'gross income,' but a three-year limitation when they do not, not only would be to read § 275(c) more broadly than is justified by the evident reason for its enactment, but also to create a patent incongruity in the tax law. See Uptegrove Lumber Co. v. Commissioner, supra, 204 F.2d at page 573.
23
Finally, our construction of § 275(c) accords with the interpretations in the more recent decisions of four different Courts of Appeals. See note 2, supra. The force of the reasoning in these opinions was recognized by the Court of Appeals in the present case, which indicated that it might have agreed with those courts had the matter been res nova in its circuit. 244 F.2d at page 76. And without doing more than noting the speculative debate between the parties as to whether Congress manifested an intention to clarify or to change the 1939 Code, we observe that the conclusion we reach is in harmony with the unambiguous language of § 6501(e)(1)(A) of the Internal Revenue Code of 1954.3
24
We hold that both tax assessments before us were barred by the statute of limitations.
25
Reversed.
26
The CHIEF JUSTICE and Mr. Justice BLACK would follow the interpretation consistently given § 275(c) by the Tax Court for many years and affirm the judgment of the Court of Appeals in this case. See cases cited in Note 2 of the Court's opinion.
1
The pertinent provisions of the 1939 Code are:
§ 275. Period of limitation upon assessment and collection.
'Except as provided in section 276—
'(a) General rule. The amount of income taxes imposed by this chapter shall be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period.
'(c) Omission from gross income. If the taxpayer omits from gross income an amount properly includible therein which is in excess of 25 per centum of the amount of gross income stated in the return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within 5 years after the return was filed.'
§ 276. Same—exceptions.
'(a) False return or no return. In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.
'(b) Waiver. Where before the expiration of the time prescribed in section 275 for the assessment of the tax, both the Commissioner and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.'
2
In conflict with this case are decisions in four different Courts of Appeals. Uptegrove Lumber Co. v. Commissioner, 3 Cir., 204 F.2d 570; Deakman-Wells Co. v. Commissioner, 3 Cir., 213 F.2d 894; Slaff v. Commissioner, 9 Cir., 220 F.2d 65; Davis v. Hightower, 5 Cir., 230 F.2d 549; Goodenow v. Commissioner, 8 Cir., 238 F.2d 20. The Court of Claims has also held to the contrary of the present case. Lazarus v. United States, 142 F.Supp. 897, 136 Ct.Cl. 283.
Three Courts of Appeals decisions antedating Uptegrove Lumber Co. v. Commissioner, supra, provided support for the Government's construction of § 275(c). Foster's Estate v. Commissioner, 5 Cir., 131 F.2d 405; Ketcham v. Commissioner, 2 Cir., 142 F.2d 996; O'Bryan v. Commissioner, 9 Cir., 148 F.2d 456. But neither Foster's Estate nor O'Bryan can be regarded as the controlling authority within their respective circuits in view of the more recent decisions in Davis v. Hightower, supra, and Slaff v. Commissioner, supra. Ketcham is distinguishable on its facts.
The Sixth Circuit has consistently maintained its current position. The Tax Court has also regularly upheld the Commissioner. E.g., American Liberty Oil Co. v. Commissioner, 1 T.C. 386; Estate of Gibbs v. Commissioner, 21 T.C. 443.
3
'§ 6501. Limitations on assessment and collection.
'(e) Omission from gross income.—Except as otherwise provided in subsection (c)—
'(1) Income taxes.—In the case of any tax imposed by subtitle A—
'(A) General rule.—If the taxpayer omits from gross income an amount properly includible therein which is in excess of 25 percent of the amount of gross income stated in the return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within 6 years after the return was filed. For purposes of this subparagraph—
'(i) In the case of a trade or business, the term 'gross income' means the total of the amounts received or accrued from the sale of goods or services (if such amounts are required to be shown on the return) prior to diminution by the cost of such sales or services; and
'(ii) In determining the amount omitted from gross income, there shall not be taken into account any amount which is omitted from gross income stated in the return if such amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the Secretary or his delegate of the nature and amount of such item.' 68A Stat. 803, 804, 805.
| 1112
|
357 U.S. 10
78 S.Ct. 1029
2 L.Ed.2d 1103
D. B. LEWIS, President, Lewis Food Company, Henry Mello, Maynard (Mac) Folden, et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD.
No. 684.
Argued May 21, 1958.
Decided June 9, 1958.
Mr. Ray L. Johnson, Jr., Des Moines, Iowa, for petitioners.
Mr. Norton J. Come, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a companion case to National Labor Relations Board v. Duval Jewelry Co., 357 U.S. 1, 78 S.Ct. 1024. While the latter was a representation proceeding under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the present case is an unfair labor practice proceeding. It was commenced on the issuance of a complaint charging violations of § 8 of the Act, 61 Stat. 136, 140, 29 U.S.C. § 158, 29 U.S.C.A. § 158, both by petitioner-employer and by petitioner-union. Subpoenas duces tecum and ad testificandum were issued by the Regional Director under the seal of the Board and the facsimile signature of a member. On the day of the hearing petitioners all moved that the subpoenas be revoked. One ground was that they had not been properly issued. Another was that they were issued at the request of the General Counsel of the Board who, it was alleged, was not a 'party' to the proceeding within the meaning of the Act.1 The motions, which were addressed to the Board, were referred to the trial examiner over objection of petitioners. He denied them. Petitioners refused to appear in response to the subpoenas; and the hearing was continued until they could be enforced. Thereafter the present suit was instituted in the District Court for their enforcement. The District Court denied enforcement on the authority of National Labor Relations Board v. Pesante, D.C., 119 F.Supp. 444. The Court of Appeals reversed. 9 Cir., 249 F.2d 832. The case is here on a writ of certiorari. 355 U.S. 929, 78 S.Ct. 413, 2 L.Ed.2d 413.
2
1. Delegation of authority over the revocation of subpoenas. The express authority of the Board to revoke extends only to subpoenas 'requiring the production of any evidence,' not to subpoenas requiring the attendance and testimony of witnesses.2 So the argument that Congress has disallowed delegation extends only to the subpoenas duces tecum. What we have said in National Labor Relations Board v. Duval Jewelry Co., supra, disposes of the argument that the Board has no authority to delegate to a trial examiner the power to rule on motions to revoke those subpoenas3 reserving to itself the final decision in the matter.4 The provisions of those Rules being substantially the same in this type of case as in the representation cases, the results in the two cases should be the same. We therefore find it unnecessary to consider the argument pressed on us that § 7(b) of the Administrative Procedure Act,5 60 Stat. 237, 241, 5 U.S.C. § 1006, 5 U.S.C.A. s 1006, grants a power withheld by the National Labor Relations Act. The power to make the revocation procedure applicable to subpoenas ad testificandum seems clear from the authority of the Board contained in § 6 of the Act 'to make * * * such rules and regulations as may be necessary to carry out the provisions of this Act.'
3
2. Issuance of subpoenas by the Regional Director.—The Act makes clear6 that the issuance of subpoenas is mandatory. 'The Board, or any member thereof, shall upon application of any party * * * forthwith issue * * * subpenas * * *.' The only function remaining is ministerial.7 Consequently the Board supplies blank subpoenas bearing its seal and the facsimile signature of a Board member to its regional offices and trial examiners. Upon application of a proper party the subordinate official automatically issues the subpoena to the applicant. There is here involved no delegation of any act entailing the exercise of discretion, as in Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895. The agents issuing the subpoenas perform ministerial acts only. We cannot read the Act to mean that these burdensome details should be performed by Board members in faraway Washington, D.C. The command of the Act is to issue the subpoena 'forthwith' on 'application of any party.' Identification of the party hardly rises to the dignity of the discretionary act which is confided solely to the agency heads. This has been the consistent view of the law in the lower courts;8 and we think it is the correct one.
4
3. The General Counsel of the Board as a 'party.'—The Act does not define the term 'party'; but it does make clear that the role of the General Counsel is a major one. By § 3(d) of the Act he is given 'final authority' respecting the investigation of charges, the issuance of complaints, and the prosecution of complaints before the Board.9 The General Counsel is, indeed, indispensable to the prosecution of the case. He vindicates the public interest, performing functions previously performed by the Board itself.10 See National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 352, 60 S.Ct. 569, 571, 84 L.Ed. 799. Plainly the issuance of subpoenas may often be essential to the performance of that role. To relegate him to a lesser role than that of a 'party' is to overlook the critical role he performs in enforcement of the Act.
5
Affirmed.
1
Section 11(1) of the Act provides:
'For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10—
'(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application. Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required. Any member of the Board, or any agent or agency designated by the Board for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing.'
2
See § 11(1), supra, note 1.
3
Section 102.31(b) of the Board's Rules and Regulations, 29 CFR, 1958 Cum. Pocket Supp., provides:
'Any person subpenaed, if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the subpena upon him, petition in writing to revoke the subpena. All petitions to revoke subpenas shall be served upon the party at whose request the subpena was issued. Such petition to revoke, if made prior to the hearing, shall be filed with the regional director and the regional director shall refer the petition to the trial examiner or the Board for ruling. Petitions to revoke subpenas filed during the hearing shall be filed with the trial examiner. Notice of the filing of petitions to revoke shall be promptly given by the regional director or the trial examiner, as the case may be, to the party at whose request the subpena was issued. The trial examiner or the Board, as the case may be, shall revoke the subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpena does not describe with sufficient particularity the evidence whose production is required. The trial examiner or the Board, as the case may be, shall make a simple statement of procedural or other grounds for the ruling on the petition to revoke. The petition to revoke, any answer filed thereto, and any ruling thereon, shall not become part of the official record except upon the request of the party aggrieved by the ruling.'
4
Section 102.26 of the Rules provides:
'All motions, rulings, and orders shall become part of the record, except that rulings on motions to revoke subpenas shall become a part of the record only upon the request of the party aggrieved thereby, as provided in § 102.31. Unless expressly authorized by the rules and regulations, rulings by the regional director and by the trial examiner on motions, by the trial examiner on objections, and orders in connection therewith, shall not be appealed directly to the Board except by special permission of the Board, but shall be considered by the Board in reviewing the record, if exception to the ruling or order is included in the statement of exceptions filed with the Board, pursuant to § 102.46. Requests to the Board for special permission to appeal from such rulings of the regional director or the trial examiner shall be filed promptly, in writing, and shall briefly state the grounds relied on. The moving party shall immediately serve a copy thereof on each other party.'
5
Section 7(b) provides:
'In hearings which section 4 or 5 requires to be conducted pursuant to this section—
'Officers presiding at hearings shall have authority, subject to the published rules of the agency and within its powers, to (1) administer oaths and affirmations, (2) issue subpenas authorized by law, (3) rule upon offers of proof and receive relevant evidence, (4) take or cause depositions to be taken whenever the ends of justice would be served thereby, (5) regulate the course of the hearing, (6) hold conferences for the settlement or simplification of the issues by consent of the parties, (7) dispose of procedural requests or similar matters, (8) make decisions or recommend decisions in conformity with section 8, and (9) take any other action authorized by agency rule consistent with this Act.'
It should be noted that representation proceedings such as were involved in National Labor Relations Board v. Duval Jewelry Co., supra, are excepted from some of the requirements of the Administrative Procedure Act. See § 4, 5 U.S.C.A. § 1003.
6
See § 11(1), supra, note 1.
7
Section 11(1) was rewritten by the Taft-Hartley Act, 61 Stat. 136, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq. Senator Taft said concerning it, 93 Cong.Rec. 6445:
'Section 11 authorizes the Board to conduct hearings and investigations and to subpena witnesses. This section was not changed in the Senate amendment and was modified by the conferees in only one respect. The Board is required upon application of any party to issue a subpena as a matter of course. A procedure is established whereby the person subpenaed may move to quash the subpena if the evidence requested thereby does not relate to any matter under investigation or does not describe with sufficient particularity the evidence required.' (Italics added.)
8
See National Labor Relations Board v. John S. Barnes Corp., 7 Cir., 178 F.2d 156; Edwards v. National Labor Relations Board, 5 Cir., 189 F.2d 970; Jackson Packing Co. v. National Labor Relations Board, 5 Cir., 204 F.2d 842; National Labor Relations Board v. Gunaca, D.C., 135 F.Supp. 790, affirmed 7 Cir., 230 F.2d 542.
9
Section 3(d) reads as follows:
'There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than trial examiners and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.'
10
Section 3(d) of the Act effected an important change over the earlier Wagner Act. It was designed to separate the prosecuting from the adjudicating function, to place the former in the General Counsel, and to make him an independent official appointed by the President and confirmed by the Senate for a term of years. See H.R.Rep. No. 245, 80th Cong., 1st Sess. 26; H.R.Rep. No. 510, 80th Cong., 1st Sess. 37; statement of Senator Taft, 93 Cong.Rec. 6859.
| 89
|
357 U.S. 1
78 S.Ct. 1024
2 L.Ed.2d 1097
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.DUVAL JEWELRY COMPANY OF MIAMI, Inc., Duval Jewelry Company, Jenkins and Sons, Inc., et al.
No. 234.
Argued May 20, 1958.
Decided June 9, 1958.
Mr. Norton J. Come, Washington, D.C., for petitioner.
Mr. Theo. Hamilton, Jacksonville, Fla., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This controversy grows out of an effort of a union to obtain a representation election1 among the employees of respondent, Duval Jewelry Co., a retail store. The latter moved to dismiss on the ground that its interstate operations were inadequate to meet the jurisdictional tests of the Act. Five subpoenas duces tecum and one subpoena ad testificandum were issued.2 The persons to whom the subpoenas were directed moved before both the Board and the hearing officer to revoke the subpoenas.3 The Board refused to entertain the motions to revoke on the grounds that those motions, under its Rules and Regulations,4 require an initial ruling by the hearing officer. That officer after granting an opportunity for a hearing denied the motions to revoke. That ruling was not appealed; and respondents refused to comply with the subpoenas. Thereupon the Board instituted this proceeding in the District Court for enforcement of them.5
2
The District Court quashed the subpoenas holding them unreasonable and oppressive. It also held they had been invalidly issued. 141 F.Supp. 860. The Court of Appeals reversed the District Court on the subpoena ad testificandum; and no question concerning it is before us. But it upheld the District Court as respects the subpoenas duces tecum, on the ground that the Board alone could rule on motions to revoke subpoenas duces tecum in representation proceedings. 5 Cir., 243 F.2d 427. The case is here on a writ of certiorari, 355 U.S. 809, 78 S.Ct. 34, 2 L.Ed.2d 28, which we granted because of a conflict among the Circuits. See, e.g., National Labor Relations Board v. Lewis, 9 Cir., 249 F.2d 832, 833, 836—837; National Labor Relations Board v. Gunaca, D.C., 135 F.Supp. 790, affirmed 7 Cir., 230 F.2d 542.
3
There is a degree of delegation of authority in connection with a motion to revoke a subpoena duces tecum. The Board's Rules and Regulations provide that a motion to revoke is first heard by the regional director or by the hearing officer.6 But the ruling of that subordinate official is not final. Machinery is provided in the Rules for an appeal from that ruling to the Board.7 We are advised that in practice the aggrieved party asks the Board for leave to appeal, stating the grounds relied upon. The Board in deciding whether to grant the appeal considers the merits. If no substantial question has been raised, leave to appeal is denied. If a substantial question is presented, leave to appeal is granted. Sometimes when leave to appeal is granted, action is forthwith taken on the merits, the ruling of the hearing officer being reversed or modified.8 Or where an immediate ruling by the Board on a motion to revoke is not required, the Board defers its ruling until the entire case is transferred to it in normal course.9
4
Section 11(1) of the Act, as noted,10 gives a person served with a subpoena duces tecum the right to 'petition the Board to revoke'; and that section provides that 'the Board shall revoke * * * such subpena if in its opinion' the statutory requirements are not satisfied. The limited nature of the delegated authority distinguishes the case from Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, and Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375, where the person endowed with the power to issue subpoenas delegated the function to another. While there is delegation here, the ultimate decision on a motion to revoke is reserved to the Board, not to a subordinate. All that the Board has delegated is the preliminary ruling on the motion to revoke. It retains the final decision on the merits. One who is aggrieved by the ruling of the regional director or hearing officer can get the Board's ruling. The fact that special permission of the Board is required for the appeal11 is not important. Motion for leave to appeal is the method of showing that a substantial question is raised concerning the validity of the subordinate's ruling. If the Board denies leave, it has decided that no substantial question is presented. We think that no more is required of it under the statutory system embodied iin § 11. No matter how strict or stubborn the statutory requirement may be, the law does not 'preclude practicable administrative procedure in obtaining the aid of assistants in the department.' See Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288; Eagles v. U.S. ex rel. Samuels, 329 U.S. 304, 315, 316, 67 S.Ct. 313, 319, 91 L.Ed. 308. It is not of help to say that on some matters the Board has original jurisdiction, on others appellate jurisdiction. We are dealing with a matter on which the Board has the final say. As in the case of many other matters coming before hearing examiners, it merely delegates the right to make a preliminary ruling. Much of the work of the Board necessarily has to be done through agents. Section 5 of the Act provides that 'The Board may, by one or more of its members or by such agents or agencies as it may designate, prosecute any inquiry necessary to its functions in any part of the United States.' 29 U.S.C.A. § 155. As we have seen12 hearings on these representation cases 'may be conducted by an officer or employee of the regional office.' Certainly preliminary rulings on subpoena questions are as much in the purview of a hearing officer as his rulings on evidence and the myriad of questions daily presented to him. He does not, of course, have the final word. Ultimate decision on the merits of all the issues coming before him is left to the Board. That is true of motions to revoke subpoenas duces tecum, as well as other issues of law and fact. That degree of delegation seems to us wholly permissible under this statutory system. We need not go further and consider the legality of the more complete type of delegation to which most of the argument in the case has been directed.
5
The judgment is reversed and the cause is remanded to the Court of Appeals for proceedings in conformity with this opinion.
6
Reversed.
7
Mr. Justice WHITTAKER, concurring.
8
I concur in the Court's decision, but desire briefly to state my reasons.
9
Although in a strict legal sense the Board has not delegated its duty under § 11(1) to rule upon motions to revoke subpoenas duces tecum, but has, by § 102.58(c) of its Rules and Regulations, merely given to its regional directors, hearing officers or examiners the task of making preliminary or interim rulings on such motions—recognizing, in § 102.57(c) of its Rules and Regulations, its statutory duty finally to rule upon such motions either upon an immediate, though discretionary, interlocutory appeal or upon review of the completed record in the course of its decision of the whole proceeding—yet, as a practical matter, neither such discretionary appeal nor review of the completed record affords any certainty of the protection specified by Congress, in § 11(1), to be given by the Board against an improper or oppressive subpoena duces tecum. For, notwithstanding its duty under § 11(1), the Board, under § 102.57(c) of its Rules and Regulations, may refuse to allow such interlocutory appeal and, hence, refuse to rule upon the motion to revoke in advance of the time fixed by such subpoena for compliance. It is obvious that, after the illegal or oppressive subpoena has been enforced, the Board on its review of the completed record can no more relieve the consummated oppression than it can unring a bell. But, as the Court's opinion points out, Congress has provided, in § 11(2), that the Board's subpoenas may be enforced only by a United States District Court, and thus an effective means exists to revoke an illegal or oppressive subpoena duces tecum before the damage has been done. For this practical reason I accept the legalisms of the Board's nondelegation argument and concur in the decision of the Court.
1
Section 9(c)(1) of the National Labor Relations Act as amended, 61 Stat. 136, 29 U.S.C. § 159, 29 U.S.C.A. § 159, provides in part:
'Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—
'the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.'
2
Section 11(1) of the Act provides in part:
'For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10—
'(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application.' 29 U.S.C.A. § 161(1).
Section 102.58(c) of the Board's Rules and Regulations, 29 CFR, 1958 Cum. Pocket Supp., § 102.58(c), provides:
'Applications for subpenas may be filed in writing by any party, with the regional director if made prior to hearing, or with the hearing officer if made at the hearing. Applications for subpenas may be made ex parte. The regional director or the hearing officer, as the case may be, shall forthwith grant the subpenas requested. Any person subpenaed, if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the subpena, petition in writing to revoke the subpena. Such petition shall be filed with the regional director who may either rule upon it or refer it for ruling to the hearing officer: Provided, however, That if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the hearing officer. Notice of the filing of petitions to revoke shall be promptly given by the regional director or hearing officer, as the case may be, to the party at whose request the subpena was issued. The regional director or the hearing officer, as the case may be, shall revoke the subpena if, in his opinion, the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpena does not describe with sufficient particularity the evidence whose production is required. The regional director or the hearing officer, as the case may be, shall make a simple statement of procedural or other grounds for his ruling. The petition to revoke, any answer filed thereto, and any ruling thereon, shall not become part of the record except upon the request of the party aggrieved by the ruling. Persons compelled to submit data or evidence are entitled to retain or, on payment of lawfully prescribed costs, to procure, copies or transcripts of the data or evidence submitted by them.'
For the counterpart of this regulation in unfair labor practice cases see § 102.31.
The subpoenas in the instant case were issued by the regional director upon application of the Board's attorney assigned to the case. These subpoenas contained the seal of the Board and the facsimile signature of a Board member. See § 102.31(a) of the Board's Rules and Regulations.
3
Section 11(1) of the Act contains the following provision respecting the revocation of subpoenas:
'Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose productions is required.'
4
See § 102.58(c), supra, note 2.
5
Section 11(2) of the Act provides:
'In case of contumacy or refusal to obey a subpena issued to any person, any district court of the United States or the United States courts of any Territory or possession (or the District Court of the United States for the District of Columbia), within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Board shall have jurisdiction to issue to such person an order requiring such person to appear before the Board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof.'
6
See § 102.58(c), supra, note 2.
7
Section 102.57(c) provides:
'All motions, rulings, and orders shall become a part of the record, except that rulings on motions to revoke subpenas shall become a part of the record only upon the request of the party aggrieved, as provided in § 102.58(c). Unless expressly authorized by the rules and regulations in this part, rulings by the regional director and by the hearing officer shall not be appealed directly to the Board except by special permission of the Board, but shall be considered by the Board when it reviews the entire record. Requests to the Board for special permission to appeal from such rulings of the regional director or the hearing officer shall be filed promptly, in writing, and shall briefly state the grounds relied on. The moving party shall immediately serve a copy thereof on each other party.' (Italics added.)
The foregoing regulation applies in representation proceedings. For its counterpart in unfair labor practice cases see § 102.26.
8
The Board has submitted the following statistics:
'An analysis of the Board's records for the three-year period May 1, 1955, through April 30, 1958, reveals that there were thirteen requests for permission to appeal specially from rulings by hearing officers and trial examiners on petitions to revoke subpenas; that five of these requests were granted by the Board; and that on four of these appeals the hearing officer or trial examiner was reversed and the subpenas revoked, and that on one appeal the hearing officer or trial examiner was sustained.'
9
The note 2, supra. In Hertner Electric Co., 115 N.L.R.B. 820, 821—822; Jamestown Sterling Corp., 106 N.L.R.B. 466, 469; International Furniture Co., 106 N.L.R.B. 127, 128, n. 2; Bell Aircraft Corp., 98 N.L.R.B. 1277, 1282, n. 4; Burnup & Sims, Inc., 95 N.L.R.B. 1130, n. 1; Morrison Turning Co., 83 N.L.R.B. 687, 688, the Board decided the cases on the merits and also reviewed the decisions of the hearing officer or trial examiner to either revoke or refuse to revoke a subpoena.
10
See note 3, supra.
11
See note 7, supra.
12
See § 9(c)(1), supra, note 1.
| 89
|
357 U.S. 51
78 S.Ct. 1054
2 L.Ed.2d 1135
UNITED STATES of America, Petitioner,v.Molly G. BESS. Molly G. BESS, Petitioner, v. UNITED STATES of America.
Nos. 395, 410.
Argued April 7, 1958.
Decided June 9, 1958.
Mr. John F. Davis, Washington, D.C., for the United States.
Mr. Morris J. Oppenheim, Newark, N.J., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The United States filed this civil action in the District Court for the District of New Jersey to recover, in equity, from the beneficiary of life insurance policies the amount of federal income taxes owed by the insured at the time of his death.
2
Herman Bess died a resident of Monmouth County, New Jersey, on June 29, 1950. His wife, Molly G. Bess, was the beneficiary of eight insurance policies on his life from which she received $63,576.95 in proceeds. The cash surrender value of these policies at his death was $3,362.53. Seven of the policies were issued to Mr. Bess from 1934 to 1937 and the eighth, a group policy, in 1950. He retained the right until death to change the beneficiary, to draw down or borrow against the cash surrender value and to assign the policies, except that under the group insurance policy he retained only the right to change the beneficiary. Mr. Bess paid all premiums and it is conceded that none was paid in fraud of his creditors.
3
The federal income taxes were owing for the several years from 1945 to 1949. The assets of Mr. Bess' estate were applied to payment of the amounts owing for 1948 and 1949, but a total of $8,874.57 remained owing for 1945, 1946 and 1947 when the estate was adjudged insolvent by the Monmouth County Court in 1952. The amounts owing were $4,159.31 for 1945, $3,789.32 for 1946, and $925.94 for 1947.
4
The District Court held Mrs. Bess liable for the total taxes owing of $8,874.57. 134 F.Supp. 467. The Court of Appeals for the Third Circuit reduced the judgment to the amount of the total cash surrender value of the policies of $3,362.53. 243 F.2d 675. We granted certiorari on the Government's petition and Mrs. Bess' cross-petition, 355 U.S. 861, 78 S.Ct. 98, 2 L.Ed.2d 67, and set the case for argument with Commissioner v. Stern, 357 U.S. 39, 78 S.Ct. 1047. The Government seeks in No. 395 the reinstatement of the District Court's judgment in the full amount of the taxes owing. Mrs. Bess seeks in No. 410 the reversal of the Court of Appeals judgment in the amount of the cash surrender value.
I.
5
As in Commissioner v. Stern, the Government argues that Mrs. Bess, as beneficiary of her husband's life-insurance policies, is liable for his unpaid federal income taxes.1 We held today in the Stern case that recovery of unpaid federal income taxes from a beneficiary of insurance, in the absence of a lien, can be sustained only to the extent that state law imposes such liability in favor of other creditors of the insured. Under New Jersey law the beneficiary of a policy of life insurance is entitled to its proceeds against all creditors except to the extent of the amount of any premiums for the insurance paid in fraud of creditors. N.J.Stat.Ann., 1939, § 17:34—29; Slurszberg v. Prudential Ins. Co., 15 N.J.Misc. 423, 192 A. 451; Middlesex County Welfare Board v. Motolinsky, 134 N.J.Eq. 323, 35 A.2d 463. If in the instant case no lien were involved, our holding in Commissioner v. Stern would require an affirmance in No. 395 and a reversal in No. 410, since it is conceded that Mr. Bess did not pay any premiums in fraud of his creditors.
II.
6
However, the Government contends that it is also seeking in this action to enforce, as to the 1945 and 1946 deficiencies, liens perfected under § 3670 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3670 against the property of Mr. Bess in his lifetime. Section 3670 provides that 'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.' 53 Stat. 448. On July 30, 1948, and again on August 9, 1948, before Mr. Bess died, notice and demand were made upon him for payment of the deficiencies formally consented to by him as owing for 1945 and 1946. He made periodic payments on the amount owing for 1945, reducing that amount from $11,514 to $4,713.59 before his death. This balance was further reduced to $4,159.31 by a payment of $554.28 from his estate pursuant to an order of the Monmouth County Court. However, no payment on account of the $3,789.32 owing for 1946 was made either in his lifetime or after his death.
7
First. As to the tax lien theory, Mrs. Bess contends that the Government did not assert this basis for recovery before the District Court and therefore should not be heard to assert that theory in this Court. But the essential facts pertinent to a decision on the merits of the tax lien theory were stipulated in the District Court. Moreover, the issue was fully briefed and argued both in the Court of Appeals and in this Court. We therefore see no basis for any inference of prejudice in the circumstances, and accordingly proceed to a determination of the question.
8
Second. Mrs. Bess argues that in any event no lien attached to any property of Mr. Bess since a lien does not attach under § 3670 unless and until the delinquent taxpayer 'neglects or refuses to pay the same after demand.' She urges that the facts stipulated as to the payments on account of 1945 taxes made by Mr. Bess in his lifetime prove that he did not neglect or refuse to pay taxes after demand. Since, in the view we take of this case, the liability of Mrs. Bess is limited to the cash surrender value of $3,362.53, it suffices that whatever may be the case as to the 1945 taxes the requisite neglect or refusal was plainly established as to the 1946 delinquency of $3,789.32, for it is admitted that Mr. Bess neither paid nor attempted to pay anything on account of those taxes.
9
Third. We must now decide whether Mr. Bess possessed in his lifetime, within the meaning of § 3670, any 'property' or 'rights to property' in the insurance policies to which the perfected lien for the 1946 taxes might attach. Since § 3670 creates no property rights but merely attaches consequences, federally defined, to rights created under state law, Fidelity & Deposit Co. v. New York City Housing Authority, 2 Cir., 241 F.2d 142, 144, we must look first to Mr. Bess' right in the policies as defined by state law.
10
(a) It is not questioned that the rights of the insured are measured by the policy contract as enforced by New Jersey law. Manifestly the insured could not enjoy the possession of the proceeds in his lifetime. His right to change the beneficiary, even to designate his estate to receive the proceeds, gives him no right to receive the proceeds while he lives. Cf. Rowen v. Commissioner, 2 Cir., 215 F.2d 641, 644. It would be anomalous to view as 'property' subject to lien proceeds never within the insured's reach to enjoy, and which are reducible to possession by another only upon the insured's death when his right to change the beneficiary comes to an end. We therefore do not believe that Mr. Bess had 'property' or 'rights to property' in the proceeds, within the meaning of § 3670, to which the federal tax lien might attach. Cannon v. Nicholas, 10 Cir., 80 F.2d 934; see United States v. Burgo, 3 Cir., 175 F.2d 196. This conclusion is in harmony with the decision in Everett v. Judson, 228 U.S. 474, 33 S.Ct. 568, 57 L.Ed. 927, that the cash surrender value of a policy on the life of a bankrupt is the extent of the property which is vested in the trustee under § 70a of the Bankruptcy Act, 11 U.S.C.A. § 110.
11
(b) The cash surrender value of the policy, however, stands on a different footing. The insured has the right under the policy contract to compel the insurer to pay him this sum upon surrender of the policy. This right may be borrowed against, assigned or pledged. Slurszberg v. Prudential Ins. Co., supra. Thus Mr. Bess 'possessed just prior to his death, a chose in action in the amount stated (i.e., the cash surrender value) which he could have collected from the insurance companies in accordance with the terms of the policies.' 243 F.2d 675, 678. It is therefore clear that Mr. Bess had 'property' or 'rights to property,' within the meaning of § 3670, in the cash surrender value. United States v. Hoper, 7 Cir., 242 F.2d 468; Knox v. Great West Life Assurance Co., 6 Cir., 212 F.2d 784; United States v. Royce Shoe Co., D.C., 137 F.Supp. 786; Smith v. Donnelly, D.C., 65 F.Supp. 415; United States v. Aetna Life Ins. Co., D.C., 46 F.Supp. 30.
12
But it is contended that under state law the insured's property right represented by the cash surrender value is not subject to creditors' liens, whether asserted by a private creditor, Slurszberg v. Prudential Ins. Co., supra, or by a state agency, Middlesex County Welfare Board v. Motolinsky, supra. However, once it has been determined that state law creates sufficient interests in the insured to satisfy the requirements of § 3670, state law is inoperative to prevent the attachment of liens created by federal statutes in favor of the United States. Such state laws 'are not laws for the United States * * * unless they have been made such by Congress itself.' Fink v. O'Neil, 106 U.S. 272, 276, 1 S.Ct. 325, 328, 27 L.Ed. 196; cf. Commissioner v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670.2 The provisions of the Internal Revenue Act creating liens upon taxpayer's property for unpaid income taxes, unlike § 6 of the Bankruptcy Act, 30 Stat. 548, as amended, 11 U.S.C. § 24, 11 U.S.C.A. § 24, do not specifically provide for recognition of such state laws. The fact that in § 3691, 26 U.S.C.A. § 3691, Congress provided specific exemptions from distraint is evidence that Congress did not intend to recognize further exemptions which would prevent attachment of liens under § 3670. Knox v. Great West Life Assurance Co., supra; United States v. Heffron, 9 Cir., 158 F.2d 657; Shambaugh v. Scofield, 5 Cir., 132 F.2d 345; Smith v. Donnelly, supra.
13
Fourth. The transfer of property subsequent to the attachment of the lien does not affect the lien, for 'it is of the very nature and essence of a lien, that no matter into whose hands the property goes, it passes cum onere * * *.' Burton v. Smith, 13 Pet. 464, 483, 10 L.Ed. 248; see Michigan v. United States, 317 U.S. 338, 340, 63 S.Ct. 302, 87 L.Ed. 312. The question therefore is whether the cash surrender values with the lien attached were transferred to Mrs. Bess as beneficiary when Mr. Bess died.
14
It is argued that the right to receive the cash surrender value expires with the death of the insured and that thus no property of his passes to the beneficiary. The contention is that the beneficiary receives the proceeds of the policies as performance by the insurance company of a separate promise to pay upon the death of the insured. It is said to follow that 'there is no logical escape from holding that the 'surrender value' comes to an end on the insured's death, if we dispose of the controversy in accordance with the ordinary rules governing contracts.' United States v. Behrens, 2 Cir., 230 F.2d 504, 506—507. This is to say that the cash surrender value is no part of the proceeds, but represents merely the right of the insured to cancel the policy and thereupon receive back from the insurer the amount accumulated from premiums paid in the past and held to cover the risk to be incurred in the future.3 Therefore it is said that the property represented by the cash surrender value disappears on the insured's death and no lien can survive in any part of the proceeds.
15
But the courts have long recognized that the surplus of the paid premiums accumulated to make up the cash surrender value should be treated for some purposes as though in fact a 'fund' held by the insurer for the benefit of the insured. Judge Addison Brown stated in In re McKinney, 15 F. 535, 537:
16
'Though this excess of premiums paid is legally the sole property of the company, still in practical effect, though not in law, it is moneys of the assured deposited with the company in advance to make up the deficiency in later premiums * * *. So long as the policy remains in force the company has not practically any beneficial interest in it, except as its custodian, with the obligation to maintain it unimpaired and suitably invested for the benefit of the insured. This is the practical, though not the legal, relation of the company to this fund.'
17
This view was approved in Hiscock v. Mertens, 205 U.S. 202, 211, 27 S.Ct. 488, 491, 51 L.Ed. 771, and Burlingham v. Crouse, 228 U.S. 459, 469, 33 S.Ct. 564, 566, 57 L.Ed. 920. See also United States v. Behrens, supra, 230 F.2d at page 507. Thus in economic reality the insurer pays the beneficiary the insured's 'fund,' plus another amount sufficient to perform the insurer's promise to pay the proceeds on the insured's death. Rowen v. Commissioner, supra, 215 F.2d at page 647. Therefore we hold that, for purposes of § 3670, there was a transfer of property from the insured to Mrs. Bess, and that the lien attached to the property before his death followed the property into her hands.
18
Affirmed.
19
The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice WHITTAKER concur in the opinion of the Court insofar as it holds that the United States had a valid lien against the cash surrender value of the insurance policies involved here which was enforceable against the beneficiary, Mrs. Bess. They would also affirm the judgment of the Court of Appeals on the basis of the dissenting opinion of Mr. Justice BLACK in Commissioner v. Stern, 357 U.S. 47, 78 S.Ct. 1052.
20
Mr. Justice HARLAN, whom Mr. Justice BURTON joins, concurring in part and dissenting in part.
21
Insofar as the Government's action here rests on a theory of liability in equity for debts of another person, I agree with the Court that Mrs. Bess' liability is to be determined by reference to state law and that consequently the Government cannot prevail on this basis since state law here imposes no liability. I think, however, that the Government fares no better by asserting a right to the cash surrender values of the policies by virtue of the statutory lien created by § 3670 of the Internal Revenue Code of 1939.
22
In my view the correct analysis of the surrender-value issue has been given in a Second Circuit case, United States v. Behrens, 230 F.2d 504, which also involved the enforcement of federal tax liens asserted under § 3670. There Judge Learned Hand, although he felt constrained to apply the principles of an earlier Second Circuit case, Rowen v. Commissioner,* 215 F.2d 641, 644, and thereby held for the Government, observed in speaking for himself and Judge Medina:
23
'Considered strictly upon the basis of the legal rights created, the lien on the 'surrender values' came to an end with Behrens's death. The obligation of an insurer in a policy of life insurance is made up of a number of promises, of which one is to pay to the beneficiary the amount of the insurance—the 'proceeds'—and another is to pay the 'surrender value' to the insured upon his demand. The performances of these promises are not only separate, but inconsistent with each other: the payment of the 'surrender value' cancels the promise to pay the 'proceeds' and the promise to pay the 'proceeds' assumes that the insured has not demanded and received the 'surrender value.' The premiums when paid become the property of the insurer and the insured has no interest in them, although it is true that in New York, as in most states, a life insurance company's finances are regulated by statute in much detail in order to protect policyholders. * * * It follows from what we have said that there is no logical escape from holding that the 'surrender value' comes to an end on the insured's death, if we dispose of the controversy in accordance with the ordinary rules governing contracts.' 230 F.2d at pages 506—507.
24
Agreeing with this reasoning, I believe that although the cash surrender values of life insurance policies were here properly considered property of a taxpayer to which federal tax liens attached during the taxpayer's life, these values cannot be deemed to exist after the taxpayer's death. It follows that the lien terminated at the time of death. The 'fund' theory of surrender values referred to in the cases cited in the Court's opinion has in my view no application when it comes to determining the specific reach of a lien under § 3670. Accordingly, I would affirm the judgment of the Court of Appeals insofar as it denied the Government relief with respect to the proceeds of these policies above their surrender values, and reverse it insofar as it held the petitioner-respondent Bess liable to the extent of the surrender values.
1
The proceeding against Mrs. Bess was not by the summary method authorized by § 311 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 311, but by the alternative method of a proceeding in equity in the District Court, Leighton v. United States, 289 U.S. 506, 53 S.Ct. 719, 77 L.Ed. 1350. The courts below erred in applying § 311 in this case. As we held in Commissioner v. Stern, 357 U.S. 39, 78 S.Ct. 1047, § 311 is a purely procedural statute and has no bearing upon the liability of Mrs. Bess.
2
Once a federal tax lien attaches to the insured's interest, of course, the Government, in a proper action joining the appropriate parties, can enforce the lien in the insured's lifetime and thereby recover the cash surrender value. Knox v. Great West Life Assurance Co., 6 Cir., 212 F.2d 784; Kyle v. McGuirk, 3 Cir., 82 F.2d 212; Smith v. Donnelly, D.C., 65 F.Supp. 415. See also Cannon v. Nicholas, 10 Cir., 80 F.2d 934; United States v. Royce Shoe Co., D.C., 137 F.Supp. 786. Compare United States v. Metropolitan Life Ins. Co., 2 Cir., 130 F.2d 149; United States v. Gilmore, D.C., 147 F.Supp. 902.
3
'In the level premium system of life insurance the net level premium must be higher than the monetary value of the annual risk during the early police years, and the excess must be accumulated with interest to provide funds for payment of claims after the age is reached where the value of the annual risk exceeds the net level premium in the annual premium being paid. It is the necessary accumulation of these funds that makes possible nonforfeiture benefits. On surrender of a policy the insurer, being relieved of the obligation to provide death benefits during future years where the annual value of the risk exceeds the annual net level premium, no longer needs to retain the surrendering policyholder's contributions to the funds previously accumulated for such purpose. Since the surrendering policyholder made a contribution to these funds during the period from date of issue to date of surrender, he is equitably entitled to a return equal to the prorata share of the funds actually accumulated from premiums paid by his group of policyholders and no longer needed to assure solvency of the company for the protection of continuing policyholders.' Krueger and Waggoner, The Life Insurance Policy Contract (1953 ed.), 194. (Footnote omitted; emphasis added.)
*
In the Rowen case, when a member of the Court of Appeals for the Second Circuit, I subscribed to a holding that one in the position of the petitioner in Commissioner v. Stern, 357 U.S. 39, 78 S.Ct. 1047, should be deemed a '* * * transferee of property of a taxpayer * * *' within the meaning of § 311(a) of the Internal Revenue Code of 1939 insofar as cash surrender values of life insurance policies were concerned. Further reflection however has led me to question the analysis in the Rowen decision on this score. In any event I do not view that decision, which was concerned with the interpretation to be accorded § 311, as necessarily having application to a case involving a federal tax lien.
| 1112
|
357 U.S. 39
78 S.Ct. 1047
2 L.Ed.2d 1126
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Jean F. STERN.
No. 311.
Argued April 7, 1958.
Decided June 9, 1958.
Mr. John F. Davis, Washington, D.C., for petitioner.
Mr. Walter E. Barton, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondent petitioned the Tax Court for redetermination of the liability assessed against her for her deceased husband's unpaid income tax deficiencies. The Tax Court held that, as beneficiary of proceeds of her husband's life insurance exceeding the amount of the deficiencies, the respondent was liable for the full amount of the deficiencies. The Court of Appeals reversed, 242 F.2d 322, holding that the respondent was not liable even to the extent of the amount of the cash surrender values of the policies, which was less than the amount of the deficiencies. We granted certiorari. 355 U.S. 810, 78 S.Ct. 53, 2 L.Ed.2d 29.
2
Dr. Milton J. Stern died a resident of Lexington, Kentucky, on June 12, 1949. Nearly six years later the Tax Court held that Dr. Stern had been deficient in his income taxes for the years 1944 through 1947 and was liable for the amount, including interest and penalties, of $32,777.51. Because the assets of the estate were insufficient to meet this liability, the Commissioner proceeded under § 311 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 311(a)(1), (f)1 against respondent, Dr. Stern's widow, as the beneficiary of life insurance policies held by him. The proceeds and the cash surrender value of these policies at Dr. Stern's death totaled $47,282.02 and $27,259.68 respectively. The right to change the beneficiary and to draw down the cash surrender value of each policy had been retained until death by Dr. Stern. There were no findings that Dr. Stern paid any premiums with intent to defraud his creditors or that he was insolvent at any time prior to this death.
3
The Court of Appeals rested its decision upon two grounds: (1) that the respondent beneficiary was not a transferee within the meaning of § 311, Tyson v. Commissioner, 6 Cir., 212 F.2d 16; and (2) that in any event Kentucky statutes, Ky.R.S., 1948, §§ 297.140, 297.150, limit the beneficiary's liability to creditors of the deceased insured to the amount of the premiums paid by the insured in fraud of creditors, and consequently there was no liability since there was no evidence that Dr. Stern paid any premium in fraud of his creditors. Without intimating any view as to the correctness of the first holding of the Court of Appeals we find it unnecessary to decide whether the respondent was a transferee within the meaning of § 3112 because we hold that the Kentucky statutes govern the question of the beneficiary's liability and create no liability of the respondent to the Government in the circumstances of this case.
4
First. Section 311(a) provides that 'The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax * * * imposed upon the taxpayer by this chapter' shall be 'assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this chapter * * *.' The decisions of the Court of Appeals and the Tax Court have been in conflict on the question whether the substantive liability enforced under § 311 is to be determined by state or federal law. Compare, e.g., Rowen v. Commissioner, 2 Cir., 215 F.2d 641, and Botz v. Helvering, 8 Cir., 134 F.2d 538, with United States v. Bess, 3 Cir., 243 F.2d 675, and Stoumen v. Commissioner, 27 T.C. 1014. This Court has expressly left the question open. Phillips v. Commissioner, 283 U.S. 589, 602, 51 S.Ct. 608, 613, 75 L.Ed. 1289.
5
The courts have repeatedly recognized that § 311 neither creates nor defines a substantive liability but provides merely a new procedure by which the Government may collect taxes. Phillips v. Commissioner, supra; Hatch v. Morosco Holding Co., 2 Cir., 50 F.2d 138; Liquidators of Exchange National Bank v. United States, 5 Cir., 65 F.2d 316; Harwood v. Eaton, 2 Cir., 68 F.2d 12; Weil v. Commissioner, 2 Cir., 91 F.2d 944; Tooley v. Commissioner, 9 Cir., 121 F.2d 350.3 Prior to the enactment of § 280 of the Revenue Act of 1926, 44 Stat. 9, 61, the predecessor of § 311, the rights of the Government as creditor, enforceable only by bringing a bill in equity or an action at law, depended upon state statutes or legal theories developed by the courts for the protection of private creditors, as in cases where the debtor had transferred his property to another. Phillips v. Commissioner, supra, 283 U.S. at page 592, note 2, 51 S.Ct. at page 610, 75 L.Ed. 1289; cf. Pierce v. United States, 255 U.S. 398, 41 S.Ct. 365, 65 L.Ed. 697; Hospes v. Northwestern Mfg. & Car Co., 48 Minn. 174, 50 N.W. 1117, 15 L.R.A. 470. This procedure proved unduly cumbersome, however, in comparison with the summary administrative remedy allowed against the taxpayer himself, Rev.Stat. § 3187, as amended by the Revenue Act of 1924, 43 Stat. 343, 26 U.S.C.A. §§ 3690, 3691. The predecessor section of § 311 was designed 'to provide for the enforcement of such liability to the Government by the procedure provided in the act for the enforcement of tax deficiencies.' S.Rep. No. 52, 69th Cong., 1st Sess. 30. 'Without in any way changing the extent of such liability of the transferee under existing law, * * * (this section) enforces such liability * * * in the same manner as liability for a tax deficiency is enforced; that is, notice by the commissioner to the transferee and opportunity either to pay and sue for refund or else to proceed before the Board of Tax Appeals, with review by the courts. Such a proceeding is in lieu of the present equity proceeding * * *.' H.R.Conf.Rep. No. 356, 69th Cong., 1st Sess. 43 44. Therefore, since § 311 is purely a procedural statute we must look to other sources for definition of the substantive liability. Since no federal statute defines such liability, we are left with a choice between federal decisional law and state law for its definition.
6
Second. The Government urges that, to further 'uniformity of liability,' we reject the applicability of Kentucky law in favor of having the federal courts fashion governing rules. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. But a federal decisional law in this field displacing state statutes as determinative of liability would be a sharp break with the past. Federal courts, in cases where the Government seeks to collect unpaid taxes from persons other than the defaulting taxpayer, have applied state statutes, Hutton v. Commissioner, 9 Cir., 59 F.2d 66; Weil v. Commissioner, supra; United States v. Goldblatt, 7 Cir., 128 F.2d 576; Botz v. Helvering, supra, and the Government itself has urged reliance upon such statutes in similar cases, G.C.M. 2514, VI—2 Cum.Bull. 99; G.C.M. 3491, VII—1 Cum.Bull. 147. The Congress was aware of the use of state statutes when the enactment of the predecessor section to § 311 was under consideration, for the Congress in disclaiming any intention 'to define or change existing liability,' S.Rep. No. 52, 69th Cong., 1st Sess. 30, identified 'existing liability' as liability ensuing '(b)y reason of the trust fund doctrine and various State statutory provisions * * *.' H.R.Conf.Rep. No. 356, supra, at 43.
7
It is true that, in addition to reliance upon state statutes, the Government invoked principles judicially developed for the protection of private creditors, in cases where the debtor had transferred his property to another and been left insolvent. Cf. Pierce v. United States, supra; Hospes v. Northwestern Mfg. & Car Co., supra. In such cases the federal courts applied a 'general law' which did not distinguish between federal and state decisional law. But the fact remains that the varying definitions of liability under state statutes resulted in an absence of uniformity of liability. Yet Congress, with knowledge that this was 'existing law' at the time the predecessor section to § 311 was enacted, has refrained from disturbing the prevailing practice. Uniformity is not always the federal policy. Under § 70 of the Bankruptcy Act, for instance, state law is applied to determine what property of the bankrupt has been transferred in fraud of creditors. 30 Stat. 565, as amended, 11 U.S.C. § 110, 11 U.S.C.A. § 110. What is a good transfer in one jurisdiction might not be so in another.
8
Since Congress has not manifested a desire for uniformity of liability, we think that the creation of a federal decisional law would be inappropriate in these cases. In diversity cases, the federal courts must now apply state decisional law in defining state-created rights, obligations, and liabilities. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. They would, of course, do so in diversity actions brought by private creditors. Since the federal courts no longer formulate a body of federal decisional law for the larger field of creditors' rights in diversity cases, any such effort for the small field of actions by the Government as a creditor would be necessarily episodic. That effort is plainly not justified when there exists a flexible body of pertinent state law continuously being adapted to changing circumstances affecting all creditors. Accordingly we hold that, until Congress speaks to the contrary, the existence and extent of liability should be determined by state law.
9
Third. The Court of Appeals held in this case that under the applicable Kentucky law the beneficiary of a life insurance policy is not liable to the insured's creditors, at least where, as here, the premiums have not been paid in fraud of creditors, Ky.R.S., 1948, §§ 297.140, 297.150,4 and that therefore no liability of the respondent exists under state law to any creditor, including the Government. The parties do not contest this construction of local law.
10
The Government, however, argues in its brief, 'Just as in the situation where a tax lien has attached it is held that state law may not destroy that lien, so here, where a tax liability is imposed by Congress, the state may not provide exemptions.' We agree that state law may not destroy a tax lien which has attached in the insured's lifetime. We held today in United States v. Bess, 357 U.S. 51, 78 S.Ct. 1054, that a New Jersey statute, similar to the Kentucky statutes, could not defeat the attachment in the insured's lifetime of a federal tax lien under § 3670, 26 U.S.C.A. against the cash surrender value of the policy, or prevent enforcement of the lien out of the proceeds received by the beneficiary on the insured's death. We might also agree that a State may not provide exemptions from a tax liability imposed by Congress. The fallacy in the Government's argument is in the premise that Congress has imposed a tax liability against the beneficiary. We have concluded that Congress has not seen fit to define that liability and that none exists except such as is imposed by state law. Thus there is no problem here of giving effect to state exemption provisions when federal law imposes such liability. The Government's substantive rights in this case are precisely those which other creditors would have under Kentucky law. The respondent is not liable to the Government because Kentucky law imposes no liability against respondent in favor of Dr. Stern's other creditors.
11
Affirmed.
12
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice WHITTAKER join, dissenting.
13
We are concerned here with a suit against the United States to determine the liability of a party for federal income taxes. In my judgment it is a mistake to look to state law to decide that liability. The laws of the several States are bound to vary widely with respect to the responsibility of transferees for the obligations of their transferors. Therefore application of state law leads to the anomalous result that transferees will be liable for federal taxes in one State but not in another even though they stand in precisely the same position. I believe that such uneven application of what this Court has characterized as 'a nationwide scheme of taxation,' Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199, is thoroughly unwise and is not required by the Constitution, by Act of Congress, or by any compelling practical considerations.
14
In my view, liability for federal taxes should be determined by uniform principles of federal law, in the absence of the plainest congressional mandate to the contrary.* Where as here Congress has provided no standards which define the liability of a transferee for the taxes of his transferor the federal courts themselves should fashion a uniform body of controlling rules which fairly implement the collection of government revenues. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; United States v. Standard Rice Co., 323 U.S. 106, 65 S.Ct. 145, 89 L.Ed. 104; United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067; Priebe & Sons, Inc., v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32; Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. It can hardly be denied that uniformity in the imposition and collection of federal taxes has always been regarded as extremely desirable in this country. Indeed those who framed the Constitution deemed it so important that they expressly required that 'all Duties, Imposts and Excises (levied by Congress) shall be uniform throughout the United States.' Art. I, § 8. Cf. Art. I, §§ 2, 9. Taxpayers should be treated equally without regard to the fortuity of residence; and the additional complication and inconvenience in the administration of an already complex federal tax system which is certain to follow an attempt to apply the differing laws of 48 States to transferee liability ought to be avoided, if at all possible.
15
Here, Congress has never directed that the tax liability of a transferee be determined by state law. The legislative history of § 280 of the Revenue Act of 1926 certainly falls far short of a congressional mandate to that effect. Prior to that Act the federal courts had applied general principles of equity to determine the liability of transferees for federal taxes, without regard to state law, except for a few instances where state statutes apparently were more favorable to the Commissioner. Both Senate and House Committees emphasized that § 280 was simply a procedural provision not affecting the substantive liability of a transferee as it had been previously developed by the federal courts. S.Rep. No. 52, 69th Cong., 1st Sess. 30; H.R.Conf.Rep. No. 356, 69th Cong., 1st Sess. 43—44. And the House Conference Committee went on to express the hope that the newly created Board of Tax Appeals would gradually fashion a uniform body of principles to govern transferee liability. H.R.Conf.Rep. No. 356, supra, at 44. All this is hardly consistent with the notion that state law was to be decisive; if anything, it indicates precisely the contrary. It might be added that the Tax Court, measuring up to the expectations of the House Committee, has persistently endeavored to develop consistent standards to determine transferee liability despite the opposition of several Courts of Appeals. See, e.g., Muller v. Commissioner, 10 T.C. 678; Leary v. Commissioner, 18 T.C. 139; Bales v. Commissioner, 22 T.C. 355; Stoumen v. Commissioner, 27 T.C. 1014.
16
I would hold, as a matter of federal law, that where a transferee receives property from a taxpayer who is left with insufficient assets to pay his federal taxes the transferee is liable for those taxes to the extent he has not given fair consideration for the property received. This has been the rule applied by those courts which have heretofore determined transferee liability on the basis of federal law. See, e.g., Pearlman v. Commissioner, 3 Cir., 153 F.2d 560; Updike v. United States, 8 Cir., 8 F.2d 913; Stoumen v. Commissioner, 27 T.C. 1014. Such a rule has long-standing antecedents in the federal courts which may be traced back, in part, at least as far as the noted decision by Justice Story in Wood v. Drummer, 30 Fed.Cas. page 435, No. 17,944. It would operate to prevent tax evasion, and yet not impose an unfair burden on transferees.
17
Turning to the present case, I agree with the Court in United States v. Bess, 357 U.S. 51, 78 S.Ct. 1054, that the cash surrender values of insurance policies, but not the proceeds, are property of the insured for purposes of the federal tax laws which pass to the beneficiary of the policy upon the insured's death. Here it appears that the insured had insufficient assets at the time of his death to satisfy his unpaid income taxes. Therefore I would hold the beneficiary of his policies, Mrs. Stern, responsible for the unpaid taxes to the extent of the cash surrender value of those policies just before he died.
1
Section 311 provides:
'(a) Method of collection. The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this chapter (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds):
'(1) Transferees. The liability, at law or in equity, of a transferee of property of a taxpayer, in respect to the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this chapter.
'(f) Definition of 'transferee'. As used in this section, the term 'transferee' includes heir, legatee, devisee, and distributee.' 53 Stat. 90, 91.
2
The Court of Appeals in this case followed its own prior decision in Tyson v. Commissioner, 6 Cir., 212 F.2d 16, in holding that Mrs. Stern as beneficiary was not a 'transferee' of any part of the proceeds within the meaning of § 311. Other Courts of Appeals have held that the beneficiary is a transferee only to the extent of the cash surrender value existing at the time of the insured's death. Rowen v. Commissioner, 2 Cir., 215 F.2d 641; United States v. Bess, 3 Cir., 243 F.2d 675. The Tax Court, on the other hand, has held that the beneficiary is the transferee of the entire proceeds. Stoumen v. Commissioner, 27 T.C. 1014.
3
The Government argues that since § 311 and § 900 were originally enacted as correlative provisions of the Revenue Act of 1926 a substantive liability is imposed upon the beneficiary for both unpaid income and estate taxes of the decedent. But the 1939 Code 'contains no provision in respect to income tax collection comparable to Section 827(b) of the Code (26 U.S.C.A. § 827(b)) which expressly imposes liability for the estate tax on a 'beneficiary, who receives * * * property included in the gross estate under section (811(f), 26 U.S.C.A. § 811(f))." Rowen v. Commissioner, 2 Cir., 215 F.2d 641, 646.
4
Kentucky Revised Statutes provided:
'297.140 Life insurance for benefit of a married woman; premiums paid in fraud of creditors. (1) A policy of insurance on the life of any person expressed to be for the benefit of, or duly assigned, transferred or made payable to, any married woman, or to any person in trust for her, or for her benefit, by whomsoever such transfer may be made, shall inure to her separate use and benefit and that of her children, independently of her husband or his creditors or any other person effecting or transferring the policy or his creditors.
'(2) A married woman may, without consent of her husband, contract, pay for, take out and hold a policy of insurance upon the life or health of her husband or children, or against loss by his or their disablement by accident. The premiums paid on the policy shall be held to have been her separate estate, and the policy shall inure to her separate use and benefit and that of her children, free from any claim of her husband or others.
'(3) If the premium on any policy mentioned in this section is paid by any person with intent to defraud his creditors, an amount equal to the premium so paid, with interest thereon, shall inure to the benefit of the creditors, subject to the statute of limitations.
'297.150 Life insurance for benefit of another; premiums paid in fraud of creditors. (1) When a policy of insurance is effected by any person on his own life or on another life in favor of some person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than the person effecting the insurance or his legal representatives, shall be entitled to its proceeds against the creditors and representatives of the person effecting the same.
'(2) Subject to the statute of limitations, the amount of any premiums for such insurance paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy, but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless, before such payment, the company received written notice by or in behalf of some creditor, with specification of the amount claimed, claiming to recover for certain premiums paid in fraud of creditors.'
*
'(A)s we have often had occasion to point out, the revenue laws are to be construed in the light of their general purpose to establish a nationwide scheme of taxation uniform in its application. Hence their provisions are not to be taken as subject to state control or limitation unless the language or necessary implication of the section involved makes its application dependent on state law.' United States v. Pelzer, 312 U.S. 399, 402—403, 61 S.Ct. 659, 661, 85 L.Ed. 913.
Of course state law must be consulted to determine what property rights and interests a taxpayer actually has. But once these rights and interests are thus established, their consequence for purposes of federal taxation is a matter of federal law. Watson v. Commissioner, 345 U.S. 544, 73 S.Ct. 848, 97 L.Ed. 1232; Morgan v. Commissioner, 309 U.S. 78, 60 S.Ct. 424, 84 L.Ed. 585; Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199.
| 1112
|
357 U.S. 93
78 S.Ct. 1011
2 L.Ed.2d 1186
LOCAL 1976, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A.F.L. et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL NO. 886, AFL-CIO. LOCAL 850, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
Nos. 127, 273, 324.
Argued March 11, 12, 1958.
Decided June 16, 1958.
Mr. Arthur Garrett Los Angeles, Cal., for the petitioners Local 1976 et al.
Mr. Dominick L. Manoli, Washington, D.C., for the N.L.R.B.
Mr. Louis P. Poulton, Pasadena, Md., for petitioner Local 850.
Mr. Herbert S. Thatcher, Washington, D.C., for Local 886.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
These cases involve so-called 'hot cargo' provisions in collective bargaining agreements. More particularly, they raise the question whether such a provision is a defense to a charge against a union of an unfair labor practice under § 8(b)(4)(A) of the National Labor Relations Act, as amended, 61 Stat. 136, 141, 29 U.S.C. § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A).
2
No. 127 arises out of a labor dispute between carpenter unions and an employer engaged in the building construction trade in Southern California. The Sand Door and Plywood Company is the exclusive distributor in Southern California of doors manufactured by the Paine Lumber Company of Oshkosh, Wisconsin. Watson and Dreps are millwork contractors who purchase doors from Sand. Havstad and Jensen are general contractors who were, at the time of the dispute involved, engaged in the construction of a hospital in Los Ageles. Havstad and Jensen are parties to a master labor agreement negotiated with the United Brotherhood of Carpenters and Joiners of America on behalf of its affiliated district councils and locals, including petitioner unions. This agreement, comprehensively regulating the labor relations of Havstad and Jensen and its carpenter employees, includes a provision that, 'workmen shall not be required to handle non-union material.'
3
In August 1954 doors manufactured by Paine and purchased by Sand were delivered to the hospital construction site by Watson and Dreps. On the morning of August 17, Fleisher, business agent of petitioner Local 1976, came to the construction site and notified Steinert, Havstad and Jensen's foreman, that the doors were nonunion and could not be hung. Steinert therefore ordered employees to cease handling the doors. When Nicholson, Havstad and Jensen's general superintendent, appeared on the job and asked Fleisher why the workers had been prevented from handling the doors, he stated that they had been stopped until it could be determined whether the doors were union or nonunion. Subsequent negotiations between officers of Sand and the union failed to produce an agreement that would permit the doors to be installed.
4
On the basis of charges filed by Sand and a complaint duly issued, the National Labor Relations Board found that petitioners had induced and encouraged employees to engage in a strike or concerted refusal to handle Paine's doors in order to force Havstad and Jensen and Sand to cease doing business with Paine, all in violation of § 8(b)(4)(A). 113 N.L.R.B. 1210. The Court of Appeals for the Ninth Circuit enforced the Board's cease-and-desist order, 241 F.2d 147, and we granted certiorari, 355 U.S. 808, 78 S.Ct. 13, 2 L.Ed.2d 27. The sole question tendered by the petition for certiorari concerned the relation between the hot cargo provision in the collective bargaining agreement and the charge of an unfair labor practice proscribed by § 8(b)(4)(A).1
5
Nos. 273 and 324 arise out of a labor dispute in Oklahoma City in which certain unions are said to have induced the employees of five common carriers to cease handling the goods of another employer in violation of § 8(b)(4)(A). American Iron and Machine Works was engaged in a controversy with Local 850 of the International Association of Machinists, the bargaining representative of its production and maintenance employees, and a strike had been called at the company's plants. Picketing at the plants prevented the carriers that normally served American Iron from making pickup and deliveries, so American Iron hauled freight in its own trucks to the loading platforms of the carriers. The Machinists followed the trucks to the carriers' platforms and picketed them there, without making it clear that their dispute was only with American Iron. In addition, there was evidence that they expressly requested employees of some of the carriers not to handle American Iron freight. Teamsters Union Local 886, representative of the carriers' employees, instructed the employees to cease handling the freight. All the carriers except one expressly ordered their employees to move American Iron freight, but nevertheless they refused to do so. The Teamsters' contract with the carriers contained a provision that, 'Members of the Union shall not be allowed to handle or haul freight to or from an unfair company, provided, this is not a violation of the Labor Management Relations Act of 1947.'
6
On the basis of charges filed by American Iron, the Board issued complaints against the unions and found that both the Machinists and Teamsters, by their appeals or instructions to the carriers' employees, had violated § 8(b)(4)(A), notwithstanding the hot cargo provision in the collective bargaining agreement. 115 N.L.R.B. 800. The Court of Appeals for the District of Columbia Circuit set aside the order as to the Teamsters because of the hot cargo provision (No. 273), but enforced the order against the Machinists (No. 324). 101 U.S.App.D.C. 80, 247 F.2d 71. We granted certiorari in all three cases because of conflicts among the circuits as to the meaning of § 8(b)(4)(A), and because of the importance of the problem in the administration of the National Labor Relations Act, and ordered them consolidated for argument. 355 U.S. 808, 78 S.Ct. 42, 56, 2 L.Ed. 27.2
7
Section 8(b)(4)(A) provides that, 'It shall be an unfair labor practice for a labor organization or its agents * * * (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *.'
8
Whatever may have been said in Congress preceding the passage of the Taft-Hartley Act concerning the evil of all forms of 'secondary boycotts' and the desirability of outlawing them, it is clear that no such sweeping prohibition was in fact enacted in § 8(b)(4)(A). The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct directed to specific objectives. It forbids a union to induce employees to strike against or to refuse to handle goods for their employer when an object is to force him or another person to cease doing business with some third party. Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person. Thus, much that might argumentatively be found to fall within the broad and somewhat vague concept of secondary boycott is not in terms prohibited. A boycott voluntarily engaged in by a secondary employer for his own business reasons, perhaps because the unionization of other employers will protect his competitive position or because he identifies his own interests with those of his employees and their union, is not covered by the statute. Likewise, a union is free to approach an employer to persuade him to engage in a boycott, so long as it refrains from the specifically prohibited means of coercion through inducement of employees.
9
From these considerations of what is not prohibited by the statute, the true scope and limits of the legislative purpose emerge. The primary employer, with whom the union is principally at odds, has no absolute assurance that he will be free from the consequences of a secondary boycott. Nor have other employers or persons who deal with either the primary employer or the secondary employer and who may be injuriously affected by the restrictions on commerce that flow from secondary boycotts. Nor has the general public. We do not read the words 'other person' in the phrase 'forcing or requiring * * * any employer or other person' to extend protection from the effects of a secondary boycott to such other person when the secondary employer himself, the employer of the employees involved, consents to the boycott. When he does consent it cannot appropriately be said that there is a strike or concerted refusal to handle goods on the part of the employees. Congress has not seen fit to protect these other persons or the general public by any wholesale condemnation of secondary boycotts, since if the secondary employer agrees to the boycott, or it is brought about by means other than those proscribed in § 8(b)(4)(A), there is no unfair labor practice.
10
It is relevant to recall that the Taft-Hartley Act was, to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests. This is relevant in that it counsels wariness in finding by construction a broad policy against secondary boycotts as such when, from the words of the statute itself, it is clear that those interested in just such a condemnation were unable to secure its embodiment in enacted law. The problem raised by these cases affords a striking illustration of the importance of the truism that it is the business of Congress to declare policy and not this Court's. The judicial function is confined to applying what Congress has enacted after ascertaining what it is that Congress has enacted. But such ascertainment, that is, construing legislation, is nothing like a mechanical endeavor. It could not be accomplished by the subtlest of modern 'brain' machines. Because of the infirmities of language and the limited scope of science in legislative drafting, inevitably there enters into the construction of statutes the play of judicial judgment within the limits of the relevant legislative materials. Most relevant, of course, is the very language in which Congress has expressed its policy and from which the Court must extract the meaning most appropriate. Of course § 8(b)(4)(A), like the entire Taft-Hartley Act, was designed to protect the public interest, but not in the sense that the public was to be shielded from secondary boycotts no matter how brought about. Congress' purpose was more narrowly conceived. It aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice of unions to widen that conflict: the coercion of neutral employers, themselves not concerned with a primary labor dispute, through the inducement of their employees to engage in strikes or concerted refusals to handle goods. In the light of the purpose of the statute as thus defined the cases now before the Court must be judged.
11
The question is whether a hot cargo provision, such as is found in the collective bargaining agreements in these cases, can be a defense to a charge of an unfair labor practice under § 8(b)(4)(A) when, in the absence of such a provision, the union conduct would unquestionably be a violation. This question has had a checkered career in the decisions of the National Labor Relations Board since it first came before that tribunal some nine years ago. In the Conway's Express case, in re International Brotherhood of Teamsters, 1949, 87 N.L.R.B. 972, affirmed sub nom. Rabouin v. National Labor Relations Board, 2 Cir., 195 F.2d 906, the Board (Members Houston, Murdock, and Gray) found that there was nothing in a hot cargo provision as such repugnant to the policy of the statute, and that the union had not violated § 8(b)(4)(A) when, pursuant to the provision, it had instructed employees not to handle goods, and the employers had apparently acquiesced. Chairman Herzog concurred in the finding that § 8(b)(4)(A) had not been violated on the facts of the particular case, but was of the opinion that the hot cargo provision did not license the union itself to take action to induce the employees to refuse to handle goods. 87 N.L.R.B. at page 983 note 33. Member Reynolds dissented on the ground that a hot cargo provision was in conflict with the policy of the statute and could not be invoked as a defense to a charge of a violation of § 8(b)(4)(A). In the Pittsburgh Plate Glass case, Chauffeurs Union, 1953, 105 N.L.R.B. 740, where the union had also induced employees not to handle goods and the employers had acquiesced in the enforcement of the hot cargo provisions, the Board without dissent (Memebers Houston, Murdock, Styles and Peterson; Chairman Herzog took no part) adhered to the Conway decision. Since 'the employers in this proceeding consented to the 'unfair goods' provision of the contracts, their employees' failure to handle these goods was not a strike or concerted refusal to work under Section 8(b)(4)(A).' 105 N.L.R.B. at page 744.
12
In the McAllister case, International Brotherhood of Teamsters, 1954, 110 N.L.R.B. 1769, the Board took a different position. Members Rodgers and Beeson were of the view that § 8(b)(4)(A) prohibited all secondary boycotts and had been enacted as much for the protection of the primary employer and the public as the secondary employers, and that a contract between the secondary employers and the union was ineffective to waive the protection granted these other interests. They called for overruling the Conway case and a declaration that a hot cargo provision is no defense to a charge under § 8(b)(4)(A). Chairman Farmer concurred in finding a violation of the statute, on the ground that the case was distinguishable from the Conway and Pittsburgh Plate Glass decisions in that the employers had not acquiesced in the employees' failure to handle the goods. He found nothing contrary to the statute in the execution of a hot cargo provision and mutual adherence to it by employer and union, but only in the inducement of employees to refuse to handle goods in the face of express instructions to do so. Members Murdock and Peterson dissented on the ground that since the employers had by the hot cargo provision consented in advance to the boycott, there was no strike or concerted refusal to handle goods within the meaning of the statute, apparently even assuming that the employers had instructed their employees to handle the goods.
13
Still further mutations in the position of the Board and the views of the individual members took place in the Sand Door case, Local 1976, United Brotherhood of Carpenters, 1955, 113 N.L.R.B. 1210, now here as No. 127. Chairman Farmer and Member Leedom maintained that, although hot cargo clauses are not themselves in conflict with the statute, any direct appeal by a union to the employees of a secondary employer to induce them to refuse to handle goods, and in this manner to assert their rights under the contract, violates § 8(b)(4)(A). The importance of the fact that, evidently, the employer in the case before the Board had not acquiesced in the stoppage was not made clear. Member Rodgers concurred in the result on the basis of the principal opinion in the McAllister case and his view that hot cargo clauses as such violate the policy of the statute. Members Murdock and Peterson, dissenting, adhered to the views they had expressed in McAllister. See also Local 11, United Brotherhood of Carpenters (General Millwork Corp.), 113 N.L.R.B. 1084, 1086—1087, and Members Murdock and Peterson dissenting at pages 1088—1090, affirmed sub nom. National Labor Relations Board v. Local 11, United Brotherhood of Carpenters, 6 Cir., 242 F.2d 932.
14
In the American Iron case, General Drivers Union, 1956, 115 N.L.R.B. 800, now here as Nos. 273 and 324, Members Leedom and Bean relied on the principal opinion in the Sand Door case, making it clear that any direct appeal to the employees was forbidden whether or not the employer acquiesced in the boycott. Member Rodgers concurred on the basis of his previous opinions. Members Murdock and Peterson dissented, noting that since there was a violation of the statute even if the employer acquiesced, the Conway doctrine had at last been clearly repudiated. See also Milk Drivers Union (Crowley's Milk Co.), 1956, 116 N.L.R.B. 1408, orders reversed and enforcement denied sub nom. Milk Drivers & Dairy Emp. Local Union, etc., v. National Labor Relations Board, 2 Cir., 245 F.2d 817.
15
In a decision handed down after the granting of certiorari in the cases now before the Court, Truck Drivers Union (Genuine Parts Co.), 1957, 119 N.L.R.B. 399, two members of the Board, Chairman Leedom and Member Jenkins, rested on a broader ground than that taken in the principal opinion in the Sand Door and American Iron cases: when the secondary employer is a common carrier subject to the Interstate Commerce Act, 24 Stat. 379, as amended by Act of Aug. 9, 1935, 49 Stat. 543, amended, 49 U.S.C. §§ 301—327, 49 U.S.C.A. §§ 301—327, a hot cargo clause is invalid at its inception and cannot be recognized by the Board as having any force or effect. It is also strongly suggested in the opinion filed by these members that it would be desirable to establish such a rule in respect to all employers, and that the mere existence of a hot cargo clause should be deemed prima facie evidence of inducement in violation of § 8(b)(4) (A). Member Rodgers concurred on the basis of his earlier opinions, without considering the implications of the Interstate Commerce Act. Member Bean concurred solely on the basis of the Sand Door case. Member Murdock dissented, objecting particularly to what he conceived to be the extreme suggestion that the mere existence of a hot cargo provision should be deemed prima facie evidence of a violation of § 8(b)(4)(A), and pointing out that a majority of the Board appears to have abandoned the theory of the Sand Door and American Iron cases even before this Court could review them.
16
The argument that a hot cargo clause is a defense to a charge of a violation of § 8(b)(4)(A) may be thus stated. The employer has by contract voluntarily agreed that his employees shall not handle the goods. Because of this consent, even if it is sought to be withdrawn at the time of an actual work stoppage and boycott, it cannot be said, in the light of the statutory purpose, either that there is a 'strike or a concerted refusal' on the part of the employees, or that there is a 'forcing or requiring' of the employer. Only if consideration is confined to the circumstances immediately surrounding the boycott, in disregard of the broader history of the labor relations of the parties, is it possible to say that the employer is coerced into engaging in the boycott. If the purpose of the statute is to protect neutrals from certain union pressures to involve them involuntarily in the labor disputes of others, protection should not extend to an employer who has agreed to a hot cargo provision, for such an employer is not in fact involuntarily involved in the dispute. This must at least be so when the employer takes no steps at the time of the boycott to repudiate the contract and to order his employees to handle the goods. The union does no more than inform the employees of their contractual rights and urge them to take the only action effective to enforce them.
17
The Board in the present cases has rejected the argument as not comporting with the legislative purpose to be drawn from the statute, projected onto the practical realities of labor relations. We agree, duly heedful of the strength of the argument to the contrary. There is nothing in the legislative history to show that Congress directly considered the relation between hot cargo provisions and the prohibitions of § 8(b)(4)(A). Nevertheless, it seems most probable that the freedom of choice for the employer contemplated by § 8(b)(4) (A) is a freedom of choice at the time the question whether to boycott or not arises in a concrete situation calling for the exercise of judgment on a particular matter of labor and business policy. Such a choice, free from the prohibited presures—whether to refuse to deal with another or to maintain normal business relations on the ground that the labor dispute is no concern of his—must as a matter of federal policy be available to the secondary employer notwithstanding any private agreement entered into between the parties. See National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 364, 60 S.Ct. 569, 577, 84 L.Ed. 799. This is so because by the employer's intelligent exercise of such a choice under the impact of a concrete situation when judgment is most responsible, and not merely at the time a collective bargaining agreement is drawn up covering a multitude of subjects, often in a general and abstract manner, Congress may rightly be assumed to have hoped that the scope of industrial conflict and the economic effects of the primary dispute might be effectively limited.
18
Certainly the language of the statute does not counter such an interpretation. The employees' action may be described as a 'strike or concerted refusal,' and there is a 'forcing or requiring' of the employer, even though there is a hot cargo provision. The realities of coercion are not altered simply because it is said that the employer is forced to carry out a prior engagement rather than forced now to cease doing business with another. A more important consideration, and one peculiarly within the cognizance of the Board because of its closeness to and familiarity with the practicalities of the collective bargaining process, is the possibility that the contractual provision itself may well not have been the result of choice on the employer's part free from the kind of coercion Congress has condemned. It may have been forced upon him by strikes that, if used to bring about a boycott when the union is engaged in a dispute with some primary employer, would clearly be prohibited by the Act. Thus, to allow the union to invoke the provision to justify conduct that in the absence of such a provision would be a violation of the statute might give it the means to transmit to the moment of boycott, through the contract, the very pressures from which Congress has determined to relieve secondary employers.
19
Thus inducements of employees that are prohibited under § 8(b)(4)(A) in the absence of a hot cargo provision are likewise prohibited when there is such a provision. The Board has concluded that a union may not, on the assumption that the employer will respect his contractual obligation, order its members to cease handling goods, and that any direct appeal to the employees to engage in a strike or concerted refusal to handle goods is proscribed. This conclusion was reached only after considerable experience with the difficulty of determining whether an employer has in fact acquiesced in a boycott, whether he did or did not order his employees to handle the goods, and the significance of an employer's silence. Of course if an employer does intend to observe the contract, and does truly sanction and support the boycott, there is no violation of § 8(b)(4)(A). A voluntary employer boycott does not become prohibited activity simply because a hot cargo clause exists. But there remains the question whether the employer has in fact truly sanctioned and supported the boycott, and whether he has exercised the choice contemplated by the statute. The potentiality of coercion in a situation where the union is free to approach the employees and induce them to enforce their contractual rights by self-help is very great. Faced with a concerted work stoppage already in progress, an employer may find it substantially more difficult than he otherwise would to decide that business should go on as usual and that his employees must handle the goods. His 'acquiescence' in the boycott may be anything but free. In order to give effect to the statutory policy, it is not unreasonable to insist, as the Board has done, that even when there is a contractual provision the union must not appeal to the employees or induce them not to handle the goods. Such a rule expresses practical judgment on the effect of union conduct in the framework of actual labor disputes and what is necessary to preserve to the employer the freedom of choice that Congress has decreed. On such a matter the judgment of the Board must be given great weight, and we ought not set against it our estimate of the revelant factors.
20
There is no occasion to consider the invalidity of hot cargo provisions as such. The sole concern of the Board in the present cases was whether the contractual provision could be used by the unions as a defense to a charge of inducing employees to strike or refuse to handle goods for objectives proscribed by § 8(b)(4)(A). As we have said, it cannot be so used. But the Board has no general commission to police collective bargaining agreements and strike down contractual provisions in which there is no element of an unfair labor practice. Certainly the voluntary observance of a hot cargo provision by an employer does not constitute a violation of § 8(b)(4)(A), and its mere execution is not, contrary to the suggestion of two members of the Board in the Genuine Parts case, Truck Drivers Union, 119 N.L.R.B. 399, prima facie evidence of prohibited inducement of employees. It does not necessarily follow from the fact that the unions cannot invoke the contractual provision in the manner in which they sought to do so in the present cases that it may not, in some totally different context not now before the Court, still have legal radiations affecting the relations between the parties. All we need now say is that the contract cannot be enforced by the means specifically prohibited in § 8(b)(4) (A).
21
In Nos. 273 and 324, the Board in its brief suggests that we should go further and find that the contract provisions in these cases are invalid as such because the secondary employers are common carriers subject the Interstate Commerce Act, 24 Stat. 379, as amended by Act of Aug. 9, 1935, 49 Stat. 543, amended, 49 U.S.C. §§ 301—327, 49 U.S.C.A. §§ 301—327. In the recent Genuine Parts case, already referred to, Truck Drivers Union, 119 N.L.R.B. 399, two members of the Board in fact took this position, stating that when common carriers are involved hot cargo clauses are 'invalid at their inception and can be given no operative cognizance so far as the administration of this (the Labor Management Relations) Act is concerned.' This is true, it is said, because by entering a contract not to handle the goods the carrier violates its obligations under the Interstate Commerce Act to provide nondiscriminatory service and to observe just and reasonable practices. See Act of Aug. 9, 1935, § 216, 49 Stat. 558, amended, 49 U.S.C. § 316, 49 U.S.C.A. § 316. The carrier's consent to boycott is therefore void, and it follows that it is likewise void for all purposes concerned with the Labor Management Relations Act. Since the Genuine Parts decision was handed down, the Interstate Commerce Commission has in fact ruled, in Galveston Truck Line Corp. v. Ada Motor Lines, Inc., 73 M.C.C. 617 (Dec. 16, 1957), that the carriers there involved were not relieved from their obligations under the Interstate Commerce Act by a hot cargo clause.
22
It is significant to note the limitations that the Commission was careful to draw about its decision in the Galveston case. It was not concerned to determine, as an abstract matter, the legality of hot cargo clauses, but only to enforce whatever duty was imposed on the carriers by the Interstate Commerce Act and their certificates. The Commission recognized that it had no general authority to police such contracts, and its sole concern was to determine whether a hot cargo provision could be a defense to a cargo that the carriers had violated some specific statutory duty. It is the Commission that in the first instance must determine whether, because of certain compelling considerations, a carrier is relieved of its usual statutory duty, and necessarily it makes this determination in the context of the particular situation presented by the case before it. Other agencies of government, in interpreting and administering the provisions of statutes specifically entrusted to them for enforcement, must be cautious not to complicate the Commission's administration of its own act by assuming as a fixed and universal rule what the Commission itself may prefer to develop in a more cautious and pragmatic manner through case-by-case adjudication.
23
But it is said that the Board is not enforcing the Interstate Commerce Act or interfering with the Commission's administration of that statute, but simply interpreting the prohibitions of its own statute in a way consistent with the carrier's obligations under the Interstate Commerce Act. Because of that Act a carrier cannot effectively consent not to handle the goods of a shipper. Since the cannot effectively consent, there is, under § 8(b)(4)(A), a 'strike or concerted refusal,' and a 'forcing or requiring' of the carrier to cease handling goods just as much as if no hot cargo clause existed. But the fact that the carrier's consent is not effective to relieve him from certain obligations under the Interstate Commerce Act does not necessarily mean that it is ineffective for all purposes, nor should a determination under one statute be mechanically carried over in the interpretation of another statute involving significantly different considerations and legislative purposes. Whether a carrier has without justification failed to provide reasonable and nondiscriminatory service is a question of defining the carrier's duty in the framework of the national transportation policy. Whether there is a 'strike or concerted refusal,' or a 'forcing or requiring' of an employer to cease handling goods is a matter of the federal policy governing labor relations. The Board is not concerned with whether the carrier has performed its obligations to the shipper, but whether the union has performed its obligation not to induce employees in the manner proscribed by § 8(b)(4)(A). Common factors may emerge in the adjudication of these questions, but they are, nevertheless, distinct questions involving independent considerations. This is made clear by a situation in which the carrier has freely agreed with the union to engage in a boycott. He may have failed in his obligations under the Interstate Commerce Act, but there clearly is no violation of § 8(b)(4)(A); there has been no prohibited inducement of employees.
24
The case is not like that in Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246, where the Board was admonished not to apply the policies of its statute so single-mindedly as to ignore other equally important congressional objectives. A specific remedy ordered by the Board reinstatement of employees who had engaged in a strike—worked directly to weaken the effectiveness of a statutory prohibition against mutiny by members of the crew of a vessel. Presumed illegality under the mutiny statute was not used to establish a violation of the labor statute. It was relied on to establish an abuse of discretion in giving a remedy. Much less was there any suggestion that the Board should abandon an independent inquiry into the requirements of its own statute and mechanically accept standards elaborated by another agency under a different statute for wholly different purposes.
25
The unions in Nos. 273 and 324 violated § 8(b)(4)(A) for the reasons set forth in the first part of this opinion, and not as a consequence of prohibitions in the Interstate Commerce Act.
26
The judgments in Nos. 127 and 324 are affirmed. The judgment in No. 273 is reversed and the cause remanded to the Court of Appeals with instructions to grant enforcement of the order of the Board.
27
Nos. 127 and 324—Affirmed.
28
No. 273—Reversed and remanded.
29
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
30
The Court concedes that the voluntary observance of a hot cargo provision by an employer does not constitute a violation of § 8(b)(4)(A) of the National Labor Relations Act,1 61 Stat. 136, 140, 29 U.S.C. § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A). I fail to see, therefore, why enforcement of a provision in a collective bargaining agreement outlawing work in nonunion goods violates the Act.
31
The provision of the collective bargaining agreement in the Carpenters case is typical of those in issue here:
32
'Workmen shall not be required to handle non-union material.'
33
That provision was bargained for like every other clause in the collective agreement. It was agreed to by the employer. How important it may have been to the parties—how high or low in their scale of values—we do not know. But on these records it was the product of bargaining, not of coercion. The Court concedes that its inclusion in the contracts may not be called 'forcing or requiring' the employer to cease handling other products within the meaning of the Act. Enforcing the collective bargaining agreement—standing by its terms is not one of the coercive practices at which the Act was aimed. Enforcement of these agreements is conducive to peace. Disregard of collective agreements—the flouting of them—is disruptive. That was the philosophy of the Conway's Express decision of the Labor Board, 87 N.L.R.B. 972, affirmed sub nom. Rabouin v. National Labor Relations Board, 2 Cir., 195 F.2d 906; and I think it squares with the Act.
34
The present decision is capricious. The boycott is lawful if the employer agrees to abide by this collective bargaining agreement. It is unlawful if the employer reneges.
35
The hostile attitude of labor against patronizing or handling 'unfair' goods goes deep into our history. It is not peculiarly American, though it has found expression in various forms in our history2 from the refusal of Americans to buy British tea, to the refusal of Abolitionists to buy slave-made products, to the refusal of unions to work on convictmade or on other nonunion goods. Unions have adhered to the practice because of their principle of mutual aid and protection. Section 7 of the Act, 29 U.S.C.A. § 157, indeed, recognizes that principle in its guarantee that 'Employees shall have the right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection.' We noticed in Apex Hosiery Co. v. Leader, 310 U.S. 469, 503, 60 S.Ct. 982, 997, 84 L.Ed. 1311, that the elimination of 'competition from non-union made goods' was a legitimate labor objective.
36
The reason an employer may also agree to that phase of union policies, the reason he may acquiesce in the inclusion of such a clause in a particular collective agreement, may only be surmised. Perhaps he sees eye to eye with the union. Perhaps he receives important concessions in exchange for his assistance to the union.
37
Certain it is that where he voluntarily agrees to the 'unfair' goods clause he is not forced or coerced in the statutory sense. What Judge Clark said in Milk Drivers & Dairy Employees, etc., v. National Labor Relations Board, 2 Cir., 245 F.2d 817, 822, has not yet been answered:
38
'In the absence of a prior agreement, work to be done by employees is determined unilaterally by the employer; but where a collective agreement specifies the work to be done, that agreement defines the normal work of the employees and a 'strike' or 'refusal' must be a refusal to do that normal work. The employer obviously cannot impose additional work on the employees contrary to the agreement and then charge that their refusal to perform it constitutes an unfair practice. We see no difference in this respect between tasks exempted by the agreement because they are offensive to health or safety and tasks exempted because their performance is contrary to the interests of organized labor and, in this case, the local itself.'
39
We act today more like a Committee of the Congress than the Court. We strain to outlaw bargaining contracts long accepted, long used.3 Perhaps these particular provisions have evils in them that should be declared contrary to the public interest. They are, however, so much a part of the very fabric of collective bargaining that we should leave this policy-making to Congress and not rush in to undo what a century or more of experience has imbedded into labormanagement agreements. I have not found a word of legislative history which even intimates that these 'unfair' goods provisions of collective bargaining agreements are unlawful.
1
We therefore find it unnecessary to consider other contentions now made by petitioners on issues resolved against them by both the Board and the Court of Appeals: (1) Whether Steinert, when he instructed the employees to stop handling the doors, acted as a representative of Havstad and Jensen, the employer, or in his capacity as a member of the union, bound to enforce its rules. (2) Whether there was substantial evidence to support the Board's conclusion that the union conduct was not primary activity outside the scope of § 8(b)(4)(A). See Irvine v. People of State of California, 347 U.S. 128, 129—130, 74 S.Ct. 381, 98 L.Ed. 561; Rule 23(c) of the Revised Rules of the Supreme Court of the United States, 28 U.S.C.A.
2
Certain contentions of the unions in Nos. 273 and 324 can be quickly disposed of. The controversy was not rendered moot simply because, after the filing of the charges and before the complaint issued, picketing had ceased and the Machinists had entered into a collective bargaining agreement containing a no-strike clause. We cannot say that there was no danger of recurrent violation, see United States v. W. T. Grant Co., 345 U.S. 629, 632—633, 73 S.Ct. 894, 897, 97 L.Ed. 1303, and that the Board was not justified in concluding that, under all the circumstances, it was desirable to add the sanction of its order to whatever agreement the parties had reached. The Machinists' contention that their activity was only legitimate primary activity is foreclosed by the Board's contrary finding on the basis of conflicting evidence.
1
That provision of the Act reads as follows:
'It shall be an unfair labor practice for a labor organization or its agents—
'(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; * * *.'
2
See Millis and Montgomery, Organized Labor (1945), 581 et seq.; Wolman, The Boycott in American Trade Unions (1916), cc. II, III.
3
'Sympathetic support by members of one union for organized workers in other plants or in other trades and industries often finds expression in union agreements. Any union looks upon nonunion conditions of work as a threat to its own union working standards. Consequently it is often provided in agreements that the employer may not require employees to work on material coming from or destined for manufacturers not operating under union agreements. Other agreements limit the prohibition to material coming from employers who have been declared 'unfair' to organized labor by an affiliated union. This reduces considerably the list of restricted manufacturers, since many employers who do not deal with organized labor have never been declared 'unfair' by unions having nominal jurisdiction. Another alternative merely prohibits work on materials coming from or destined for manufacturers whose employees are on strike. Agreements covering factory production workers may require that all building repairs and maintenance work as well as all hauling of goods and materials into and away from the employer's premises must be done by union workers.' Union Agreement Provisions. U.S. Dept. of Labor, H.R.Doc.No.723, 77th Cong., 2d Sess. 32. And see Collective Bargaining Provisions, U.S. Dept of Labor, H.R.Doc.No.282, 81st Cong., 1st Sess. 37; Strikes and Lockouts (Preliminary Draft) U.S. Dept. of Labor, February 1947, pp. 28—32; Strikes and Lockouts. Bureau of National Affairs, 1956, 77:351.
| 67
|
357 U.S. 217
78 S.Ct. 1358
2 L.Ed.2d 1361
Ernest TRIPLETT, petitioner,v.STATE OF IOWA.
No. 547.
Supreme Court of the United States
June 16, 1958
Mr. Thomas O. Tacy (Mr. Herbert S. French, on the brief), for petitioner.
Mr. Freeman H. Forrest, Asst.Atty. Gen. of Iowa (Mr. Norman A. Erbe, Atty.Gen., on the brief), for respondent.
On writ of certiorari to the Supreme Court of Iowa.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
| 89
|
357 U.S. 185
78 S.Ct. 1072
2 L.Ed.2d 1246
LENG MAY MA, Petitioner,v.Bruce G. BARBER, District Director, Immigration and Naturalization Service, San Francisco District.
No. 105.
Argued May 20, 1958.
Decided June 16, 1958.
Mr. Joseph S. Hertogs, San Francisco, Cal., for the petitioner.
Mr. Leonard B. Sand, Washington, D.C., for the respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a habeas corpus case involving § 243(h) of the Immigration and Nationality Act, which authorizes the Attorney General 'to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persection. * * *'1 Claiming to be an alien 'within the United States' by reason of her parole in this country while her admissibility was being determined, petitioner contends that she is eligible to receive the benefactions of § 243(h). The Attorney General contends that the section is applicable only to aliens who, in contemplation of law, have entered the United States. He argues that petitioner has never enjoyed that status because she eventually was found ineligible for entry and ordered excluded. The District Court denied a writ of habeas corpus, and the Court of Appeals affirmed. 9 Cir., 241 F.2d 85. We granted certiorari. 1957, 353 U.S. 981, 77 S.Ct. 1283, 1 L.Ed.2d 1141. We conclude that petitioner's parole did not alter her status as an excluded alien or otherwise bring her 'within the United States' in the meaning of § 243(h).
2
Petitioner is a native of China who arrived in this country in May 1951 claiming United States citizenship on the ground that her father was a United States citizen. Pending determination of her claim, she at first was held in custody, but later, in August 1952, was released on parole. Some three months thereafter, having failed to establish her claim of citizenship, she was ordered excluded, and the Board of Immigration Appeals affirmed. She surrendered for deportation in January 1954, and thereafter applied for a stay of deportation under § 243(h) in which she alleged that her pending deportation to China would subject her to physical persecution and probable death at the hands of the existing government. Her petition for writ of habeas corpus followed administrative notification of her ineligibility for relief under that section. Petitioner does not challenge the validity of her exclusion order or the proceedings culminating therein. She merely contends that by virtue of her physical presence as a parolee she is 'within the United States,' and hence covered by § 243(h). The question, therefore, is wholly one of statutory construction.
3
It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely 'on the threshold of initial entry.' Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956. See Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576. The distinction was carefully preserved in Title II of the Immigration and Nationality Act. Chapter 42 subjects those seeking admission to 'exclusion proceedings' to determine whether they 'shall be allowed to enter or shall be excluded and deported.' 66 Stat. 200, 8 U.S.C. § 1226(a), 8 U.S.C.A. § 1226(a). On the other hand, Chapter 53 concerns itself with aliens who have already entered the United States and are subject to 'expulsion,' as distinguished from 'exclusion,' if they fall within certain 'general classes of deportable aliens.' 66 Stat. 204, 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. Proceedings for expulsion under Chapter 5 are commonly referred to as 'deportation proceedings.' Parenthetically, the word 'deportation' appears also in Chapter 4 to refer to the return of excluded aliens from the country, but its use there reflects none of the technical gloss accompanying its use as a word of art in Chapter 5.
4
For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States. Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 215, 73 S.Ct. 625, 630; United States v. Ju Toy, 1905, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040; Nishimura Ekiu v. United States, 1892, 142 U.S. 651, 661, 12 S.Ct. 336, 339, 35 L.Ed. 1146. It seems quite clear that an alien so confined would not be 'within the United States' for purposes of § 243(h). This, in fact, was conceded by respondents in the companion case, Rogers v. Quan, 357 U.S. 193 78 S.Ct. 1076. Our question is whether the granting of temporary parole somehow effects a change in the alien's legal status. In § 212(d)(5) of the Act, generally a codification of the administrative practice pursuant to which petitioner was paroled,4 the Congress specifically provided that parole 'shall not be regarded as an admission of the alien,' and that after the return to custody the alien's case 'shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.'5 (Emphasis added.) Petitioner's concept of the effect of parole certainly finds no support in this statutory language.
5
This Court previously has had occasion to define the legal status of excluded aliens on parole. In Kaplan v. Tod, 1925, 267 U.S. 228, 45 S.Ct. 257, 258, 69 L.Ed. 585, an excluded alien was paroled to a private Immigrant Aid Society pending deportation. The questions posed were whether the alien was 'dwelling in the United States' within the meaning of a naturalization statute, and whether she had 'entered or (was) found in the United States' for purpose of limitations. Mr. Justice Holmes disposed of the problem by explicitly equating parole with detention:
6
'The appellant could not lawfully have landed in the United States * * *, and until she legally landed 'could not have dwelt within the United States.' Zartarian v. Billings, 204 U.S. 170, 175, 27 S.Ct. 182, 183, 51 L.Ed. 428. Moreover while she was at Ellis Island she was to be regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared. United States v. Ju Toy, 198 U.S. 253, 263, 25 S.Ct. 644, (646), 49 L.Ed. 1040. When her prison bounds were enlarged by committing her to the custody of the Hebrew Society, the nature of her stay within the territory was not changed. She was still in theory of law at the boundary line and had gained no foothold in the United State.' 267 U.S. at page 230, 45 S.Ct. at page 257.
7
We find no evidence that the Congress, in enacting § 243(h) in 1952, intended to depart from this interpretation.
8
The context in which § 243(h) appears in the Act persuasively indicates the scope of its provisions. As we have observed, Title II of the Act preserves the distinction between exclusion proceedings and deportation (expulsion) proceedings, Chapter 4 dealing with the former and Chapter 5 with the latter. Within the two chapters are enumerated separate administrative procedures for exclusion and expulsion, separate provisions for removal and transportation, and—most significantly—separate provisions for stays of deportation. Section 243(h), under which petitioner claims relief, was inserted by the Congress not among Chapter 4's 'Provisions Relating to Entry and Exclusion,' but squarely within Chapter 5—a strikingly inappropriate place if, as petitioner claims, it was intended to apply to excluded aliens.
9
The parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted. It was never intended to affect an alien's status, and to hold that petitioner's parole placed her legally 'within the United States' is inconsistent with the congressional mandate, the administrative concept of parole, and the decisions of this Court. Physical detention of aliens is now the exception, not the rule, and is generally employed only as to security risks or those likely to abscond. See Annual Reports, Immigration and Naturalization Service, 1955, pp. 5—6; 1956, pp. 5 6. Certainly this policy reflects the humane qualities of an enlightened civilization. The acceptance of petitioner's position in this case, however, with its inherent suggestion of an altered parole status, would be quite likely to prompt some curtailment of current parole policy—an intention we are reluctant to impute to the Congress.
10
Affirmed.
11
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
12
The statutory provision in controversy is contained in § 243(h) of the Immigration and Nationality Act of 1952, 66 Stat. 212, 214, 8 U.S.C. § 1253(h), 8 U.S.C.A. § 1253(h), which reads:
13
'The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.'
14
The alien who is physically present in this country is about to be sent to Communist China—a country which the Immigration and Naturalization Service itself has told us is inhospitable to refugees.*
15
The question for us is not whether she should or should not be returned to China. It is whether the Attorney General has discretion to withhold her deportation if in his opinion she would be 'subject to physical persecution' were she returned to that country.
16
This alien is not in custody at our border. She is here on parole. The authority to parole is contained in § 212(d)(5) of the Act—the Attorney General may 'in his discretion' parole an alien 'into the United States.' How an alien can be paroled 'into the United States' and yet not be 'within the United States' remains a mystery.
17
Of course if we had the problem of Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585, different considerations would come into play. There an alien on parole sought to have her years here used to gain herself citizenship. Alternatively, she argued that the statute had run on her deportation since her parole was an 'entry.'
18
No such enlargement of the prerogatives of a parolee is sought here. This alien seeks not citizenship, not residence, but only the shelter of a provision of the law designed to protect such refugees from the fate of 'physical persecution.' She only requests that she be eligible to be considered by the Attorney General as a beneficiary of this humane provision of our law. Only a hostile reading can deny her that respite.
19
I would not read the law narrowly to make it the duty of our officials to send this alien and the others in the companion case to what may be persecution or death. Technicalities need not enmesh us. The spirit of the law provides the true guide. It makes plain, I think, that this case is one of those where the Attorney General is authorized to save a human being from persecution in a Communist land.
1
Section 243(h): 'The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.' 66 Stat. 214, 8 U.S.C. § 1253(h), 8 U.S.C.A. § 1253(h).
2
66 Stat. 195—204, 8 U.S.C. §§ 1221—1230, 8 U.S.C.A. §§ 1221—1230.
3
66 Stat. 204—219, 8 U.S.C. §§ 1251—1260, 8 U.S.C.A. §§ 1251—1260.
4
See Analysis of S. 716, 82d Cong., General Counsel, Immigration and Naturalization Service, pp. 39—42.
5
Section 212(d)(5): 'The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.' 66 Stat. 188, 8 U.S.C. § 1182(d)(5), 8 U.S.C.A. § 1182(d)(5).
*
The Immigration and Naturalization Service announced on October 31, 1956, a policy of granting stays of deportation for those headed back to Red China. In that connection it stated:
'Official notice may be taken that the China mainland is under the control of a de facto Communist government. As in other Communist states, this government operates as totalitarian dictatorship, suppressing personal liberties and imposing arbitrary restraints on the people when necessary to maintain its authority or secure its objectives. Its methods for imposing its will include persecution of individuals and groups by way of economic sanctions, corporal punishment, incarceration, and execution.
'While it can be accepted as a general proposition that the Peiping government at times engages in these forms of persecution to further its authoritarian ends, no reliable information has yet been made available to this Service to indicate whether such persecution is directed indiscriminately against the populace as a whole or whether it is employed on a selective basis against particular elements. It is not known to what extent or to what degree such factors as personal political beliefs or religious views, in themselves, are noticed or acted upon by the Communist authorities. Another unknown factor is whether prior presence in the United States has any bearing on the kind of treatment accorded by the Communist authorities to a Chinese national upon his return to the mainland, despite the fact that there is evidence indicating strong and continued efforts on the part of these same authorities to persuade their overseas nationals to re-establish themselves and their residence within Communist China. These and other specific considerations bearing on the question of physical persecution as practiced on the China mainland today are matters which await further inquiry and to which an answer may be provided through the collation of intelligence material being gathered by other agencies of the United States government.' In re Lee Sung, No. A—7921505.
| 12
|
357 U.S. 144
78 S.Ct. 1127
2 L.Ed.2d 1221
Weldon Bruce DAYTON, Appellant,v.John Foster DULLES.
No. 621.
Argued April 10, 1958.
Decided June 16, 1958.
Mr. Harry I. Rand, Washington, D.C., for petitioner.
Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, a native-born citizen, is a physicist who has been connected with various federal projects and who has been associated as a teacher with several of our universities. In March 1954 he applied for a passport to enable him to travel to India in order to accept a position as research physicist at the Tata Institute of Fundamental Research, affiliated with the University of Bombay. In April 1954 the Director of the Passport Office advised him that his application was denied because the Department of State 'feels that it would be contrary to the best interest of the United States to provide you passport facilities at this time.'
2
Petitioner conferred with an officer of the Passport Office and as a result of that conversation executed an affidavit1 which covered the wide range of matters inquired into and which stated in part:
3
'I am not now and I have never been a member of the Communist Party.
4
'With the possible exception of a casual and brief association with the work of the Joint Anti-Fascist Refugee Committee for a few months in 1941 and 1942 (all as related below); I am not now and have never been a member of any of the organizations designated on the Attorney General's list (which I have carefully examined).
5
'I am not now engaged and I have never engaged in any activities which, so far as I know or at any time knew, support or supported the Communist movement.
6
'I wish to go abroad for the sole purpose of engaging in experimental research in physics at the Tata Institute of Fundamental Research in Bombay. I am not going abroad to engage in any activities which, so far as I know or can imagine, will in any way advance the Communist movement.'
7
The Director of the Passport Office wrote petitioner's lawyer in reply that the Department had given careful consideration to the affidavit and added, 'in view of certain factors of Mr. Dayton's case which I am not at liberty to discuss with him, the Department must adhere to its previous decision that it would be contrary to the best interests of the United States to provide Mr. Dayton with passport facilities at this time.' Later the Director wrote again, saying:
8
'In arriving at its decision to refuse passport facilities to Mr. Dayton, the Department took into consideration his connection with the Science for Victory Committee and his association at that time with various communists. However, the determining factor in the case was Mr. Dayton's association with persons suspected of being part of the Rosenberg espionage ring and his alleged presence at an apartment in New York which was allegedly used for microfilming material obtained for the use of a foreign government.'
9
Thereupon petitioner, pursuant to the Passport Regulations of the Secretary of State, as amended, 22 CFR § 51.1 et seq., filed a petition of appeal, with the Board of Passport Appeals.2 He also requested, pursuant to the Regulations,3 information from the Board of particulars concerning three items: (1) petitioner's alleged 'association with various communists'; (2) his 'association with persons suspected of being part of the Rosenberg espionage ring'; and (3) his 'alleged presence at an apartment in New York which was allegedly used for microfilming material obtained for the use of a foreign government.' The Board's reply contained some, but very little, of the information requested; and it stated:
10
'The file contains information indicating that the applicant was present at 65 Morton Street, New York City in the summer of 1949 (July or August) and at Apartment 61, 65 Morton Street, New York City, during the month of January 1950. The applicant's relationship, if any (past or present), with the following-named persons is considered pertinent to the Board's review and consideration of the case: Marcel Scherer, Rose Segure, Sandra Collins, Frank Collins, Bernard Peters, Kurt Fritz, Karl Sitte, Louis S. Weiss, Alfred Sarant, and William Perl.'
11
A hearing was held4 at which witnesses for petitioner and for the State Department testified. Pursuant to the Regulations5 the Board announced, over petitioner's protest, that it would consider 'a confidential file composed of investigative reports from Government agencies' which petitioner would not be allowed to examine.6 Later petitioner was advised by the Acting Secretary of State that the Board had submitted its recommendation and that the Secretary, after 'a review of the entire record and on the basis of all the evidence, including that contained in confidential reports of investigation,' had denied the application. The denial was rested specifically upon § 51.135 of the Regulations.7
12
Petitioner then brought suit in the District Court for declaratory relief. The District Court entered summary judgment for the Secretary. 146 F.Supp. 876. The Court of Appeals reversed, 99 U.S.App.D.C. 47, 237 F.2d 43, and remanded the case to the Secretary for reconsideration in the light of its earlier decision in Boudin v. Dulles, 98 U.S.App.D.C. 305, 235 F.2d 532.
13
On remand the Secretary without further hearing denied the application under § 51.135(c),8 saying that 'the issuance of a passport would be contrary to the national interest.' The Secretary at this time filed a document called 'Decision and Findings' which is reproduced as an Appendix to this opinion.
14
The District Court again granted summary judgment for the Secretary, 146 F.Supp. 876; and the Court of Appeals affirmed by a divided vote, 102 U.S.App.D.C. 372, 254 F.2d 71. The case is here on a petition for a writ of certiorari. 355 U.S. 911, 78 S.Ct. 343, 2 L.Ed.2d 272.
15
The question most discussed in the briefs and on oral argument is whether the hearing accorded petitioner satisfied the requirements of due process. A majority of the Court thinks we need not reach that constitutional question, since on their face these findings show only a denial of a passport for reasons which we have today held to be impermissible. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113. Whether there are undisclosed grounds adequate to sustain the Secretary's action is not here for decision.
16
Reversed.
Appendix to Opinion of the Court.
17
Decision and Findings of the Secretary of State in the Case of Weldon Bruce Dayton
18
I have examined the files of the Department of State concerning the passport application of Weldon Bruce Dayton, including the proceedings in the Passport Office and before the Board of Passport Appeals, including confidential security information, and have found and concluded as follows:
I.
19
a. I find that applicant was active in the Science for Victory Committee while at the University of California during 1943—44, serving as Chairman of the organization during much of that period. As Chairman he associated with Frank and Sandra Collins, and Rose Segure, who had been instrumental in organizing the said organization. This finding is based on information contained in the open record, including applicant's own statements.
20
b. Confidential information contained in the files of the Department of State, constituting a part of the record considered by the Passport Office, the Board of Passport Appeals, and myself, indicates that the above-named organization was conceived and organized by Communist Party officials as a front for propaganda and espionage activities; and that Frank and Sandra Collins and Rose Segure were members of the Communist Party at the time of their association with applicant and the Science for Victory Committee.
II.
21
a. I find that during the period 1946—1950, at Ithaca, New York, applicant maintained a close association and relationship with one Alfred Sarant. At applicant's invitation, Sarant and his wife lived in applicant's home for a period of eight months in 1947—1948, pending the completion of the Sarant home next door to applicant's home. Thereafter Dayton and Sarant were neighbors until July, 1950. On approximately July 18, 1950, Sarant became the subject of intensive interrogation by the Federal Bureau of Investigation. Approximately a week after the interrogation had begun Sarant departed from Ithaca and subsequently entered Mexico with applicant's wife. This finding is based on information contained in the open record, including applicant's own statements.
22
b. Confidential information contained in the files of the Department of State, constituting a part of the record considered by the Passport Office, the Board of Passport Appeals, and myself, establishes with respect to Alfred Sarant that he was an active member of the Communist Party; that he admitted said membership during the years 1943 and 1944; and that he was involved in the espionage apparatus of Julius Rosenberg.
III.
23
a. I find that the applicant was present during 1949 and 1950, on more than one occasion, in the apartment building at 65 Morton Street, New York City, in which Alfred Sarant was lessee of apartment 6—I. This finding is based on information contained in the open record.
24
b. Confidential information contained in the files of the Department of State, constituting a part of the record considered by the Passport Office, the Board of Passport Appeals, and myself, indicates that Sarant's apartment at 65 Morton Street, New York City, was used by Julius Rosenberg and other members of his spy ring for the microfilming of classified United States Government documents which were ultimately transferred to a foreign power.
IV.
25
a. I find that since 1938 the applicant, an experienced physicist, has maintained a close association and relationship with one Bernard Peters; that Peters was responsible for the applicant's offer of employment at the Tata Institute of Fundamental Research, Bombay, India; and that one of the primary stated purposes of the applicant's proposed travel abroad is to work in close collaboration with Peters at the Tata Institute. This finding is based on information contained in the open record, including applicant's own statements.
26
b. Confidential information contained in the files of the Department of State, constituting a part of the record considered by the Passport Office, the Board of Passport Appeals, and myself, indicates that Bernard Peters, who recently renounced his American citizenship, has held membership in the Communist Party outside of the United States; has engaged in numerous Communist activities both in this country and abroad; and is suspected of being a Communist espionage agent.
V.
27
I have reason to believe, on the balance of all the evidence, that the applicant is going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement. I have reached this conclusion on the basis of the foregoing findings together with the confidential information relating thereto, as well as other confidential information contained in the files of the Department of State, the disclosure of which might prejudice the conduct of United States foreign relations. I have also taken into consideration the serious doubts as to applicant's general credibility raised by the applicant's denial in the face of convincing contrary evidence, including the oral testimony of three apparently disinterested witnesses of ever having been present at 65 Morton Street. The passport application of Weldon Bruce Dayton is therefore denied under Section 51.135(c) of the Passport Regulations (22 CFR § 51.135(c)), and because the issuance of a passport would be contrary to the national interest.
VI.
28
The confidential information referred to in paragraphs I(b), II(b), III(b) and IV(b) above relates to the internal security of the United States. The substance of this confidential information was disclosed to the applicant during the consideration of his passport application. To disclose publicly the sources and details of this information would, in my judgment, be detrimental to our national interest by compromising investigative sources and methods and seriously interfering with the ability of this Department and the Executive Branch to obtain reliable information affecting our internal security. Moreover, it would have an adverse effect upon our ability to obtain and utilize information from sources abroad and interfere with our established relationships in the security and intelligence area; and might, with respect to information referred to in paragraph V, prejudice the interest of United States foreign relations.
29
Date: October 4, 1956.
30
Mr. Justice CLARK, with whom Mr. Justice BURTON, Mr. Justice HARLAN and Mr. Justice WHITTAKER concur, dissenting.
31
On the grounds stated in my dissent to Kent v. Dulles, 78 S.Ct. 1120, 1121, also decided this day, I think the Secretary of State is authorized to deny a passport to an applicant who is going abroad with the purpose of engaging in activities that would advance the Communist cause. Because the majority does not consider any of the constitutional issues raised by petitioner, it would be inappropriate for me, as a dissenter, to consider them at this time. Cf. Peters v. Hobby, 1955, 349 U.S. 331, 353—357, 75 S.Ct. 790, 801—803, 99 L.Ed. 1129. Accordingly, I would affirm on the question of authority without reaching any constitutional issue.
1
The Passport Regulations of the Secretary of State, as amended, 22 CFR § 51.142, provide:
'At any stage of the proceedings in the Passport Division or before the Board, if it is deemed necessary, the applicant may be required, as a part of his application, to subscribe, under oath or affirmation, to a statement with respect to present or past membership in the Communist Party. If applicant states that he is a Communist, refusal of a passport in his case will be without further proceedings.'
2
§ 51.138. 'In the event of a decision adverse to the applicant, he shall be entitled to appeal his case to the Board of Passport Appeals provided for in § 51.139.'
§ 51.139. 'There is hereby established within the Department of State a Board of Passport Appeals, hereinafter referred to as the Board, composed of not less than three officers of the Department to be designated by the Secretary of State. The Board shall act on all appeals under § 51.138. The Board shall adopt and make public its own rules of procedure, to be approved by the Secretary, which shall provide that its duties in any case may be performed by a panel of not less than three members acting by majority determination. The rules shall accord applicant the right to a hearing and to be represented by counsel, and shall accord applicant and each witness the right to inspect the transcript of his own testimony.'
3
§ 51.162. 'The purposes of the hearing is to permit applicant to present all information relevant and material to the decision in his case. Applicant may, at the time of filing his petition, address a request in writing to the Board for such additional information or explanation as may be necessary to the preparation of his case. In conformity with the relevant laws and regulations, the Board shall pass promptly and finally upon all such requests and shall advice applicant of its decision. The Board shall take whatever action it deems necessary to insure the applicant of a full and fair consideration of his case.'
4
Section 51.163 of the Regulations provides:
'The Passport file and any other pertinent Government files shall be considered as part of the evidence in each case without testimony or other formality as to admissibility. Such files may not be examined by the applicant, except the applicant may examine his application or any paper which he has submitted in connection with his application or appeal. The applicant may appear and testify in his own behalf, be represented by counsel subject to the provisions of § 51.161, present witnesses and offer other evidence in his own behalf. The applicant and all witnesses may be cross-examined by any member of the Board or its counsel. If any witness whom the applicant wishes to call is unable to appear personally, the Board may, in its discretion, accept an affidavit by him or order evidence to be taken by deposition. Such depositions may be taken before any person designated by the Board and such designee is hereby authorized to administer oaths or affirmations for the purpose of the depositions. The Board shall conduct the hearing proceedings in such manner as to protect from disclosure information affecting the national security or tending to disclose or compromise investigative sources or methods.'
5
Supra, note 4.
6
The Regulations in providing for that contingency state:
§ 51.170. 'In determining whether there is a preponderance of evidence supporting the denial of a passport the Board shall consider the entire record, including the transcript of the hearing and such confidential information as it may have in its possession. The Board shall take into consideration the inability of the applicant to meet information of which he has not been advised, specifically or in detail, or to attack the credibility of confidential informants.'
7
That section provides:
'In order to promote the national interest by assuring that persons who support the world Communist movement of which the Communist Party is an integral unit may not, through use of United States passports, further the purposes of that movement, no passport, except one limited for direct and immediate return to the United States, shall be issued to:
'(a) Persons who are members of the Communist Party or who have recently terminated such membership under such circumstances as to warrant the conclusion—not otherwise rebutted by the evidence—that they continue to act in furtherance of the interests and under the discipline of the Communist Party;
'(b) Persons, regardless of the formal state of their affiliation with the Communist Party, who engage in activities which support the Communist movement under such circumstances as to warrant the conclusion—not otherwise rebutted by the evidence that they have engaged in such activities as a result of direction, domination, or control exercised over them by the Communist movement;
'(c) Persons, regardless of the formal state of their affiliation with the Communist Party, as to whom there is reason to believe, on the balance of all the evidence, that they are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement.'
8
Supra, note 7.
| 23
|
357 U.S. 116
78 S.Ct. 1113
2 L.Ed.2d 1204
Rockwell KENT and Walter Briehl, Petitioners,v.John Foster DULLES, Secretary of State.
No. 481.
Argued April 10, 1958.
Decided June 16, 1958.
Mr. Leonard B. Boudin, New York City, for petitioners.
Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case concerns two applications for passports, denied by the Secretary of State. One was by Rockwell Kent who desired to visit England and attend a meeting of an organization known as the 'World Council of Peace' in Helsinki, Finland. The Director of the Passport Office informed Kent that issuance of a passport was precluded by § 51.135 of the Regulations promulgated by the Secretary of State on two grounds:1 (1) that he was a Communist and (2) that he had had 'a consistent and prolonged adherence to the Communist Party line.' The letter of denial specified in some detail the facts on which those conclusions were based. Kent was also advised of his right to an informal hearing under § 51.137 of the Regulations. But he was also told that whether or not a hearing was requested it would be necessary, before a passport would be issued, to submit an affidavit as to whether he was then or ever had been a Communist.2 Kent did not ask for a hearing but filed a new passport application listing several European countries he desired to visit. When advised that a hearing was still available to him, his attorney replied that Kent took the position that the requirement of an affidavit concerning Communist Party membership 'is unlawful and that for that reason and as a matter of conscience,' he would not supply one. He did, however, have a hearing at which the principal evidence against him was from his book It's Me O Lord, which Kent agreed was accurate. He again refused to submit the affidavit, maintaining that any matters unrelated to the question of his citizenship were irrelevant to the Department's consideration of his application. The Department advised him that no further consideration of his application would be given until he satisfied the requirements of the Regulations.
2
Thereupon Kent sued in the District Court for declaratory relief. The District Court granted summary judgment for respondent. On appeal the case of Kent was heard with that of Dr. Walter Briehl, a psychiatrist. When Briehl applied for a passport, the Director of the Passport Office asked him to supply the affidavit covering membership in the Communist Party. Briehl, like Kent, refused. The Director then tentatively disapproved the application on the following grounds:
3
'In your case it has been alleged that you were a Communist. Specifically it is alleged that you were a member of the Los Angeles County Communist Party; that you were a member of the Bookshop Association, St. Louis, Missouri; that you held Communist Party meetings; that in 1936 and 1941 you contributed articles to the Communist Publication 'Social Work Today'; that in 1939, 1940 and 1941 you were a sponsor to raise funds for veterans of the Abraham Lincoln Brigade in calling on the President of the United States by a petition to defend the rights of the Communist Party and its members; that you contributed to the Civil Rights Congress bail fund to be used in raising bail on behalf of convicted Communist leaders in New York City; that you were a member of the Hollywood Arts, Sciences and Professions Council and a contact of the Los Angeles Committee for Protection of Foreign Born and a contact of the Freedom Stage, Incorporated.'
4
The Director advised Briehl of his right to a hearing but stated that whether or not a hearing was held, an affidavit concerning membership in the Communist Party would be necessary. Briehl asked for a hearing and one was held. At that hearing he raised three objections: (1) that his 'political affiliations' were irrelevant to his right to a passport; (2) that 'every American citizen has the right to travel regardless of politics'; and (3) that the burden was on the Department to prove illegal activities by Briehl. Briehl persisted in his refusal to supply the affidavit. Because of that refusal Briehl was advised that the Board of Passport Appeals could not under the Regulations entertain an appeal.
5
Briehl filed his complaint in the District Court which held that his case was indistinguishable from Kent's and dismissed the complaint.
6
The Court of Appeals heard the two cases en banc and affirmed the District Court by a divided vote. 101 U.S.App.D.C. 278, 248 F.2d 600; 101 U.S.App.D.C. 239, 248 F.2d 561. The cases are here on writ of certiorari. 355 U.S. 881, 78 S.Ct. 149, 2 L.Ed. 111.
7
The Court first noted the function that the passport performed in American law in the case of Urtetiqui v. D'Arbel, 9 Pet. 692, 699, 9 L.Ed. 276, decided in 1835:
8
'There is no law of the United States, in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effect. It is understood, as matter of practice, that some evidence of citizenship is required, by the secretary of state, before issuing a passport. This, however, is entirely discretionary with him. No inquiry is instituted by him to ascertain the fact of citizenship, or any proceedings had, that will in any manner bear the character of a judicial inquiry. It is a document, which, from its nature and object, is addressed to foreign power; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognized, in foreign countries, as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact.'
9
A passport not only is of great value—indeed necessary abroad; it is also an aid in establishing citizenship for purposes of re-entry into the United States. See Browder v. United States, 312 U.S. 335, 339, 61 S.Ct. 599, 602, 85 L.Ed. 862; 3 Moore, International Law Digest (1906), § 512. But throughout most of our history—until indeed quite recently—a passport, though a great convenience in foreign travel, was not a legal requirement for leaving or entering the United States. See Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17. Apart from minor exceptions to be noted, it was first3 made a requirement by § 215 of the Act of June 27, 1952, 66 Stat. 190, 8 U.S.C. § 1185, 8 U.S.C.A. § 1185, which states that, after a prescribed proclamation by the President, it is 'unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.'4 And the Proclamation necessary to make the restrictions of this Act applicable and in force has been made.5
10
Prior to 1952 there were numerous laws enacted by Congress regulating passports and many decisions, rulings, and regulations by the Executive Department concerning them. Thus in 1803 Congress made it unlawful for an official knowingly to issue a passport to an alien certifying that he is a citizen. 2 Stat. 205. In 1815, just prior to the termination of the War of 1812, it made it illegal for a citizen to 'cross the frontier' into enemy territory, to board vessels of the enemy on waters of the United States or to visit any of his camps within the limits of the United States, 'without a passport first obtained' from the Secretary of State or other designated official. 3 Stat. 199—200. The Secretary of State took similar steps during the Civil War. See Dept. of State, The American Passport (1898), 50. In 1850 Congress ratified a treaty with Switzerland requiring passports from citizens of the two nations. 11 Stat. 587, 589—590. Finally in 1856 Congress enacted what remains today as our basic passport statute. Prior to that time various federal officials, state and local officials, and notaries public had undertaken to issue either certificates of citizenship or other documents in the nature of letters of introduction to foreign officials requesting treatment according to the usages of international law. By the Act of August 18, 1856, 11 Stat. 52, 60—61, 22 U.S.C. § 211a, 22 U.S.C.A. § 211a, Congress put an end to those practices.6 This provision, as codified by the Act of July 3, 1926, 44 Stat., Part 2, 887, reads,
11
'The Secretary of State may grant and issue passports * * * under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.'
12
Thus for most of our history a passport was not a condition to entry or exit.
13
It is true that, at intervals, a passport has been required for travel. Mention has already been made of the restrictions imposed during the War of 1812 and during the Civil War. A like restriction, which was the forerunner of that contained in the 1952 Act, was imposed by Congress in 1918.
14
The Act of May 22, 1918, 40 Stat. 559, made it unlawful, while a Presidential Proclamation was in force, for a citizen to leave or enter the United States 'unless he bears a valid passport.' See H.R.Rep. No. 485, 65th Cong., 2d Sess. That statute was invoked by Presidential Proclamation No. 1473 on August 8, 1918, 40 Stat. 1829, which continued in effect until March 3, 1921. 41 Stat. 1359.
15
The 1918 Act was effective only in wartime. It was amended in 1941 so that it could be invoked in the then-existing emergency. 55 Stat. 252. See S.Rep. No. 444, 77th Cong., 1st Sess. It was invoked by Presidential Proclamation. Proc. No. 2523, November 14, 1941, 55 Stat. 1696. That emergency continued until April 28, 1952. Proc. No. 2974, 66 Stat. C31, 50 U.S.C.A.Appendix, note preceding section 1. Congress extended the statutory provisions until April 1, 1953. 66 Stat. 54, 57, 96, 137, 330, 333. It was during this extension period that the Secretary of State issued the Regulations here complained of.7
16
Under the 1926 Act and its predecessor a large body of precedents grew up which repeat over and again that the issuance of passports is 'a discretionary act' on the part of the Secretary of State. The scholars,8 the courts,9 the Chief Executive,10 and the Attorneys General,11 all so said. This long-continued executive construction should be enough, it is said, to warrant the inference that Congress had adopted it. See Allen v. Grand Central Aircraft Co., 347 U.S. 535, 544—545, 74 S.Ct. 745, 750—751, 98 L.Ed. 933; United States v. Allen-Bradley Co., 352 U.S. 306, 310, 77 S.Ct. 343, 345, 1 L.Ed.2d 347. But the key to that problem, as we shall see, is in the manner in which the Secretary's discretion was exercised, not in the bare fact that he had discretion.
17
The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Carta.12 Chafee, Three Human Rights in the Constitution of 1787 (1956), 171—181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandall v. State of Nevada, 6 Wall. 35, 44, 18 L.Ed. 744; Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186; Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119. 'Our nation,' wrote Chafee, 'has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.' Id., at 197.
18
Freedom of movement also has large social values. As Chafee put it:
19
'Foreign correspondents and lecturers on public affairs need first-hand information. Scientists and scholars gain greatly from consultations with colleagues in other countries. Students equip themselves for more fruitful careers in the United States by instruction in foreign universities.13 Then there are reasons close to the core of personal life marriage, reuniting families, spending hours with old friends. Finally, travel abroad enables American citizens to understand that people like themselves live in Europe and helps them to be well-informed on public issues. An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our government or by a few correspondents of American newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways direct contact with other countries contributes to sounder decisions at home.' Id., at 195—196. And see Vestal, Freedom of Movement, 41 Iowa L.Rev. 6, 13—14.
20
Freedom to travel is, indeed, an important aspect of the citizen's 'liberty.' We need not decide the extent to which it can be curtailed. We are first concerned with the extent, if any, to which Congress has authorized its curtailment.
21
The difficulty is that while the power of the Secretary of State over the issuance of passports is expressed in broad terms, it was apparently long exercised quite narrowly. So far as material here, the cases of refusal of passports generally fell into two categories. First, questions pertinent to the citizenship of the applicant and his allegiance to the United States had to be resolved by the Secretary, for the command of Congress was that 'No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.' 32 Stat. 386, 22 U.S.C. § 212, 22 U.S.C.A. § 212. Second, was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States. See 3 Moore, International Law Digest (1906), § 512; 3 Hackworth, Digest of International Law (1942), § 268; 2 Hyde, International Law (2d rev. ed.), § 401.
22
The grounds for refusal asserted here do not relate to citizenship or allegiance on the one hand or to criminal or unlawful conduct on the other. Yet, so far as relevant here, those two are the only ones which it could fairly be argued were adopted by Congress in light of prior administrative practice. One can find in the records of the State Department rulings of subordinates covering a wider range of activities than the two indicated. But as respects Communists these are scattered rulings and not consistently of one pattern. We can say with assurance that whatever may have been the practice after 1926, at the time the Act of July 3, 1926, was adopted, the administrative practice, so far as relevant here, had jelled only around the two categories mentioned. We, therefore, hesitate to impute to Congress, when in 1952 it made a passport necessary for foreign travel and left its issuance to the discretion of the Secretary of State, a purpose to give him unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose.
23
More restrictive regulations were applied in 1918 and in 1941 as war measures. We are not compelled to equate this present problem of statutory construction with problems that may arise under the war power. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153.
24
In a case of comparable magnitude, Korematsu v. United States, 323 U.S. 214, 218, 65 S.Ct. 193, 195, 89 L.Ed. 194, we allowed the Government in time of war to exclude citizens from their homes and restrict their freedom of movement only on a showing of 'the gravest imminent danger to the public safety.' There the Congress and the Chief Executive moved in coordinated action; and, as we said, the Nation was then at war. No such condition presently exists. No such showing of extremity, no such showing of joint action by the Chief Executive and the Congress to curtail a constitutional right of the citizen has been made here.
25
Since we start with an exercise by an American citizen of an activity included in constitutional protection, we will not readily infer that Congress gave the Secretary of State unbridled discretion to grant or withhold it. If we were dealing with political questions entrusted to the Chief Executive by the Constitution we would have a different case. But there is more involved here. In part, of course, the issuance of the passport carries some implication of intention to extend the bearer diplomatic protection, though it does no more than 'request all whom it may concern to permit safely and freely to pass, and in case of need to give all lawful aid and protection' to this citizen of the United States. But that function of the passport is subordinate. Its crucial function today is control over exit. And, as we have seen, the right of exit is a personal right included within the word 'liberty' as used in the Fifth Amendment. If that 'liberty' is to be regulated, it must be pursuant to the lawmaking functions of the Congress. Youngstown Sheet & Tube Co. v. Sawyer, supra. And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests. See Panama Refining Co. v. Ryan, 293 U.S. 388, 420—430, 55 S.Ct. 241, 248 252, 79 L.Ed. 446. Cf. Cantwell v. State of Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904. 84 L.Ed. 1213; Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267. Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them. See Ex Parte Endo, 323 U.S. 283, 301—302, 65 S.Ct. 208, 218, 89 L.Ed. 243. Cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586; United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 97 L.Ed. 770. We hesitate to find in this broad generalized power an authority to trench so heavily on the rights of the citizen.
26
Thus we do not reach the question of constitutionality. We only conclude that § 1185 and § 211a do not delegate to the Secretary the kind of authority exercised here. We deal with beliefs, with associations, with ideological matters. We must remember that we are dealing here with citizens who have neither been accused of crimes nor found guilty. They are being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations. They do not seek to escape the law nor to violate it. They may or may not be Communists. But assuming they are, the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective.14 It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs or associations.
27
To repeat, we deal here with a constitutional right of the citizen, a right which we must assume Congress will be faithful to respect. We would be faced with important constitutional questions were we to hold that Congress by § 1185 and § 211a had given the Secretary authority to withhold passports to citizens because of their beliefs or associations. Congress has made no such provision in explicit terms; and absent one, the Secretary may not employ that standard to restrict the citizens' right of free movement.
28
Reversed.
29
Mr. Justice CLARK, with whom Mr. Justice BURTON, Mr. Justice HARLAN, and Mr. Justice WHITTAKER concur, dissenting.
30
On August 28, 1952, acting under authority vested by Executive Order No. 7856, 22 CFR § 51.77, the Secretary of State issued the regulations in question, § 51.142 of which provides that a passport applicant may be required to make a statement under oath 'with respect to present or past membership in the Communist Party.' 22 CFR § 51.142. Since 1917, the Congress has required that every passport application 'contain a true recital of each and every matter of fact which may be required by * * * any rules' of the Secretary of State, and that requirement must be satisfied '(b)efore a passport is issued to any person.' 40 Stat. 227, 22 U.S.C. § 213, 22 U.S.C.A. § 213. In the context of that background, the Secretary asked for, and petitioners refused to file, affidavits stating whether they then were or ever had been members of the Communist Party. Thereupon the Secretary refused to further consider petitioners' applications until such time as they filed the required affidavits.
31
The Secretary's action clearly must be held authorized by Congress if the requested information is relevant to any ground upon which the Secretary might properly refuse to issue a passport. The Court purports today to preclude the existence of such a ground by holding that the Secretary has not been authorized to deny a passport to a Communist whose travel abroad would be inimical to our national security.
32
In thus construing the authority of the Secretary, the Court recognizes that all during our history he has had discretion to grant or withhold passports. That power, first exercised without benefit of statute, was made the subject of specific legislative authority in 1856 when the Congress consolidated all power over passports in the hands of the Secretary. 11 Stat. 60—61. In 1874 the statutory language, 'shall be authorized to grant and issue,' was changed to 'may grant and issue.' 1874 R.S. § 4075. In slightly modified form, the Secretary's power has come through several re-enactments, e.g., 44 Stat., Part 1, p. 657 in 1926, to its present-day embodiment in 44 Stat., Part 2, p. 887, 22 U.S.C. § 211a, 22 U.S.C.A. § 211a.
33
This discretionary authority, which we proviously acknowledged in Perkins v. Elg, 1939, 307 U.S. 325, 349—350, 59 S.Ct. 884, 896, 83 L.Ed. 1320, was exercised both in times of peace and in periods of war. During was and other periods of national emergency, however, the importance of the Secretary's passport power was tremendously magnified by a succession of 'travel-control statutes' making possession of a passport a legal necessity to leaving or entering this country. The first of these was enacted in 1815 just prior to the end of the War of 1812, when it was made illegal for any citizen to 'cross the frontier' into enemy territory without a passport. 3 Stat. 199. After the same result was accomplished during the Civil War without congressional sanction, 3 Moore, International Law Digest, 1015—1021, World War I prompted passage in 1918 of the second travel-control statute, 40 Stat. 559. The 1918 statute, directly antecedent to presently controlling legislation, provided that in time of war and upon public proclamation by the President that the public safety required additional travel restrictions, no citizen could depart from or enter into the country without a passport. Shortly thereafter, President Wilson made the required proclamation of public necessity, and provided that no citizen should be granted a passport unless it affirmatively appeared that his 'departure or entry is not prejudicial to the interests of the United States.' Proc. No. 1473, 40 Stat. 1829.
34
The legislative history of the 1918 Act sharply indicates that Congress meant the Secretary to deny passports to those whose travel abroad would be contrary to our national security. The Act came to the floor of the House of Representatives accompanied by the following explanation in the Report of the House Committee on Foreign Affairs, H.R.Rep. No. 485, 65th Cong., 2d Sess. 2—3:
35
'That some supervision of travel by American citizens is essential appeared from statements made before the committee at the hearing upon the bill. One case was mentioned of a United States citizen who recently returned from Europe after having, to the knowledge of our Government, done work in a neutral country for the German Government. There was strong suspicion that he came to the United States for no proper purpose. Nevertheless not only was it impossible to exclude him but it would now be impossible to prevent him from leaving the country if he saw fit to do so. The known facts in his case are not sufficient to warrant the institution of a criminal prosecution, and in any event the difficulty of securing legal evidence from the place of his activities in Europe may easily be imagined.
36
'It is essential to meet the situation that the Executive should have wide discretion and wide authority of action. No one can foresee the different means which may be adopted by hostile nations to secure military information or spread propaganda and discontent. It is obviously impracticable to appeal to Congress for further legislation in each new emergency. Swift Executive action is the only effective counterstroke.
37
'The committee was informed by representatives of the executive departments that the need for prompt legislation of the character suggested is most pressing. There have recently been numerous suspicious departures for Cuba which it was impossible to prevent. Other individual cases of entry and departure at various points have excited the greatest anxiety. This is particularly true in respect of the Mexican border, passage across which can not legally be restricted for many types of persons reasonably suspected of aiding Germany's purposes.' During debate of the bill on the floor of the House, its House spokesman stated:
38
'The Government is now very much hampered by lack of authority to control the travel to and from this country, even of people suspected of not being loyal, and even of those whom they suspect of being in the employ of enemy governments.' 56 Cong.Rec. 6029.
39
'Our ports are open, so far as the law is concerned, to alien friends, citizens, and neutrals, to come and go at will and pleasure, and that notwithstanding the Government may suspect the conduct and the intention of the individuals who come and go.' Id. at 6065.
40
His counterpart in the Senate stated in debate:
41
'The chief object of the bill is to correct a very serious trouble which the Department of State, the Department of Justice, and the Department of Labor are having with aliens and alien enemies and renegade American citizens, I am sorry to say, entering the United States from nests they have in Cuba and over the Mexican border. They can now enter and depart without any power of the departments or of the Government to intercept or delay them. There is no law that covers this case. It is believed that all the information which goes to Germany of the war preparations of the United States and of the transportation of troops to France passes through Mexico. The Government is having a great deal of trouble along that border. It is an everyday occurrence, and the emergency of this measure is very great. The bill is supplementary to the espionage laws and necessary for their efficient execution in detecting and punishing German spies.' 56 Cong.Rec. 6192.
42
The implication is unmistakable that the Secretary was intended to exercise his traditional passport function in such a manner as would effectively add to the protection of this country's internal security.
43
That the Secretary so understood and so exercised his passport power in this period is evident from two State Department documents in 1920. A memorandum of the Under Secretary of State, dated November 30, 1920, declared, 'Any assistance in the way of passport facilities, which this Government may render to a person who is working either directly or indirectly in behalf of the Soviet Government is a help to the Soviet Government * * *.' Memorandum Re Applicants for Passports Who are Bolshevists or Who are Connected with Bolshevist Government, Code No. 5000. Accordingly, it was recommended that passports be refused any person 'who counsels or advocates publicly or privately the overthrow (of) organized Governments by force.' Id. Among the examples stated were '(m)embers of the Communist Party.' Id. Two weeks later, the State Department published office instructions, dated December 16, 1920, to our embassies throughout the world, implementing Code No. 5000 by prohibiting issuance of passports to 'anarchists' and 'revoluntionary radicals.' Expressly included among the proscribed classes of citizens were those who 'believe in or advocate the overthrow by force or violence of the Government of the United States,' as well as all those who 'are members of or are affiliated with any organization' that believes in or advocates such overthrow.
44
By its terms a war statute, the 1918 Act expired in March 1921, see 41 Stat. 1359, after which no more travel controls existed until 1941. In that year, Congress amended the 1918 Act so as to provide the same controls during the national emergency proclaimed by the President on May 27, 1941, should the President find and publicly proclaim that the interest of the United States required that such restrictions be reimposed. 55 Stat. 252. Shortly thereafter, President Roosevelt invoked this authority, 55 Stat. 1696, and implementing regulations were issued by the State Department. 22 CFR § 53. The legislative history of the 1941 amendment is as clear as that of the 1918 Act: the purpose of the legislation was to so use the passport power of the Secretary as to block travel to and from the country by those persons whose passage would not be in the best interests and security of the United States. The Report of the Senate Committee on the Judiciary, S.Rep. No. 444, 77th Cong., 1st Sess. 1—2, declared:
45
'Since the outbreak of the present war it has come to the attention of the Department of State and of other executive departments that there are many persons in and outside of the United States who are directly engaged in espionage and subversive activities in the interests of foreign governments, and others who are engaged in activities inimical to the best interests of the United States, who desire to travel from time to time between the United States and foreign countries in connection with their activities * * *.'
46
During debate on the House floor, the 'sole purpose' of the bill was stated to be establishment of 'a sort of clearing house,' where those persons wishing to enter or leave the country 'would have to give their reasons why they were going or coming, and where it would be determined whether * * * their coming in or going our would be inimical to the interests of the United States.' 87 Cong.Rec. 5052. See also 87 Cong.Rec. 5048—5053, 5386—5388. The carrying out of this legislative purpose resulted in a 'complete change in emphasis of the work of the Division from that of an agency to afford protection to the individual to that of one whose principal purpose was to safeguard and maintain the security of the state.' 12 Dept.State Bull. 1070. That transformation involved 'the clearance upon a basis of security for the state of the entry and departure of hundreds of thousands of persons into and from the United States.' Id. (Emphasis added.)
47
While the national emergency to which the 1941 amendment related was officially declared at an end on April 28, 1952, Proc. No. 2974, 66 Stat. C31, Congress continued the provisions of the Act in effect until April 1, 1953. 66 Stat. 54. In that interim period, Congress passed the Immigration and Nationality Act of 1952, which both repealed the 1918 Act as amended in 1941, 66 Stat. 279, and reenacted it as § 215 of the 1952 Act, amending it only to the extent that its provisions would be subject to invocation 'during the existence of any national emergency proclaimed by the President.' 66 Stat. 190. There is practically no legislative history on this incorporation of the 1918 statute in the 1952 Act apart from a comment in the House Report that the provisions of § 215 are 'incorporated in the bill * * * in practically the same form as they now appear in the act of May 22, 1918.' H.R. Rep. No. 1365, 82d Cong., 2d Sess. 53. For that reason, the legislative history of the 1918 Act and the 1941 amendment, which I have set out at some detail, is doubly important in ascertaining the intent of the Congress as to the authority of the Secretary to deny passports under § 215 of the 1952 Act. Cf. United States v. Plesha, 1957, 352 U.S. 202, 205, 77 S.Ct. 275, 277, 1 L.Ed.2d 254.
48
At the time of the 1952 Act, a national emergency proclaimed by President Truman on December 16, 1950, in response to the Korean conflict, was—and still is today—in existence. Proc. No. 2914, 64 Stat. A454, 50 U.S.C.A.Appendix, note preceding section 1. In reliance on that, the President invoked the travel restrictions of § 215 on January 17, 1953. Proc.No. 3004, 67 Stat. C31. The proclamation by which this was done carefully pointed out that none of its provisions should be interpreted as revoking any regulation 'heretofore issued relating to the departure of persons from, or their entry into, the United States.' Id. Among the regulations theretofore issued were those now attacked relating to the issuance of passports to Communists, for they had been promulgated to be effective on August 28, 1952, shortly after passage of the 1952 Act. 17 Fed.Reg. 8013.
49
Congress, by virtue of § 215 of the 1952 Act, has approved whatever use of his discretion the Secretary had made prior to the June 1952 date of that legislation.1 That conclusion necessarily follows from the fact that § 215 continued to make legal exit or entry turn on possession of a passport, without in any way limiting the discretionary passport power theretofore exercised by the Secretary. See United States v. Allen-Bradley Co., 1957, 352 U.S. 306, 310—311, 77 S.Ct. 343, 345—346, 1 L.Ed.2d 347; Allen v. Grand Central Aircraft Co., 1954, 347 U.S. 535, 544—545, 74 S.Ct. 745, 750—751, 98 L.Ed. 933; United States v. Cerecedo Hermanos y Compan ia, 1908, 209 U.S. 337, 339, 28 S.Ct. 532, 533, 52 L.Ed. 821. But the Court then determines (1) that the Secretary's denial of passports in peacetime extended to only two categories of cases, those involving allegiance and those involving criminal activity, and (2) that the Secretary's wartime exercise of his discretion, while admittedly more restrictive, has no relevance to the practice which Congress can be said to have approved in 1952. Since the present denials do not involve grounds either of allegiance or criminal activity, the Court concludes that they were beyond the pale of congressional authorization. Both of the propositions set out above are vital to the Court's final conclusion. Neither of them has any validity: the first is contrary to fact, and the second to common sense.
50
The peacetime practice of the State Department indisputably involved denial of passports for reasons of national security. The Report of the Commission on Government Security (1957), 470—473, summarizes the Department's policy on granting passports to Communists by excerpts from State Department documents. Shortly after the 1917 Russian Revolution, the Department 'became aware of the scope and danger of the world-wide revolutionary movement and the attendant purpose to overthrow all existing governments, including our own.' Thereafter 'passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 * * *.' (Emphasis added.) From 1931 'until World War II no persons were refused passports because they were Communists.' After World War II, '(a)t first passports were refused,' but upon reconsideration of the matter in 1948, 'the decision was made that passports would be issued to Communists and supporters of communism who satisfied the Department that they did not intend, while abroad, to engage in the promotion of Communist activities.' At the same time, however, it was decided that 'passports should be refused to persons whose purpose in traveling abroad was believed to be to subvert the interest of the United States.' Later in 1948 the policy was changed to give Communist journalists passports even though they were 'actively promoting the Communist cause.' Nearly two years later, in September 1950, the latter leniency was reversed, after it was pointed out 'that the Internal Security Act of 1950 clearly showed the desire of Congress that no Communists should be issued passports of this Government.'2 The matter was referred to the Department's Legal Adviser, 'who agreed that it was the duty of the State Department to refuse passports to all Communists, including journalists.'
51
Other evidence of peacetime denials for security reasons is more scattered, but nevertheless existent. Much of it centers around opposition to the Internal Security Act of 1950, for one of the stated aims of that legislation was denial of passports to Communists. The minority report of the Senate Committee on the Judiciary objected, 'But this can be done under the existing discretionary powers of the Secretary of State * * * as evidenced by the recent denial or cancellation of a passport to Paul Robeson.' S.Rep.No. 2369, Part 2, 81st Cong., 2d Sess. 10. President Truman, in vetoing that Act, stated: 'It is claimed that this bill would deny passports to Communists. The fact is that the Government can and does deny passports to Communists under existing law.' 96 Cong.Rec. 15631.3
52
In 1869 Attorney General Hoar advised the Secretary of State that good reason existed for the passport power being discretionary in nature, for it might sometimes be 'most inexpedient for the public interests for this country to grant a passport to a citizen of the United States.' 23 Op.Atty.Gen. 509, 511. As an example he referred to the case of 'an avowed anarchist,' for if such person were to seek a passport, 'the public interests might require that his application be denied.' Ibid. See also, 13 Op.Atty.Gen. 89, 92.
53
Orders promulgated by the Passport Office periodically have required denial of passports to 'political adventurers' and 'revolutionary radicals,' the latter phrase being defined to include 'those who wish to go abroad to take part in the political or military affairs of foreign countries in ways which would be contrary to the policy or inimical to the welfare of the United States.' See, shortly after the end of World War I, Passport Office Instructions of May 4, 1921; in 1937, Passport Office Instructions of July 30, 1937; in 1948, Foreign Service Regulations of July 9, 1948.
54
An even more serious error of the Court is its determination that the Secretary's wartime use of his discretion is wholly irrelevant in determining what discretionary practices were approved by Congress in enactment of § 215. In a wholly realistic sense there is no peace today, and there was no peace in 1952. At both times the state of national emergency declared by the President in 1950, wherein he stated that 'world conquest communist imperialism is the goal of the forces of aggression that have been loosed upon the world' and that 'the increasing menace of the forces of communist aggression requires that the national defense of the United States be strengthened as speedily as possible,' was in full effect. Proc.No. 2914, 64 Stat. A454. It is not a case, then, of judging what may be done in peace by what has been done in war. Professor Jaffe has aptly exposed the fallacy upon which the majority proceeds:
55
'The criterion here is the defense of the country from external enemies. It is asserted that the precedents of 'war' have no relevance to 'peace.' But the critical consideration is defense against an external enemy; and communication abroad between our citizens and the enemy cannot by its nature be controlled by the usual criminal process. The facts in a particular case as to the citizen's intention are inevitably speculative: all is to be done after the bird has flown. Now our Congress and the Administration have concluded that the Communist International is a foreign and domestic enemy. We deal with its domestic aspect by criminal process; we would seem justified in dealing with its external aspect by exit control. If an avowed Communist is going abroad, it may be assumed that he will take counsel there with his fellows, will arrange for the steady and dependable flow of cash and information, and do his bit to promote the purposes of the 'conspiracy." Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17, 26.
56
Were this a time of peace, there might very well be no problem for us to decide, since petitioners then would not need a passport to leave the country. The very structure of § 215 is such that either war or national emergency is prerequisite to imposition of its restrictions.
57
Indeed, rather than being irrelevant, the wartime practice may be the only relevant one, for the discretion with which we are concerned is a discretionary control over international travel. Yet only in times of war and national emergency has a passport been required to leave or enter this country, and hence only in such times has passport power necessarily meant power to control travel.4
58
Finally, while distinguishing away the Secretary's passport denials in wartime, the majority makes no attempt to distinguish the Secretary's practice during periods when there has been no official state of war but when nevertheless a a presidential proclamation of national emergency has been in effect, the very situation which has prevailed since the end of World War II. Throughout that time, as I have pointed out, the Secretary refused passports to those 'whose purpose in traveling abroad was believed to be to subvert the interest of the United States.' Report of the Commission on Government Security, supra. Numerous specific instances of passport denials on security grounds during the years 1947—1951 were reported in a February 1952 law review article, nearly half a year prior to passage of § 215. Note, Passport Refusals for Political Reasons, 61 Yale L.J. 171.
59
On this multiple basis, then, I am constrained to disagree with the majority as to the authority of the Secretary to deny petitioners' applications for passports. The majority's resolution of the authority question prevents it from reaching the constitutional issues raised by petitioners, relating to claimed unlawful delegation of legislative power, violation of free speech and association under the First Amendment, and violation of international travel under the Fifth Amendment. In view of that, it would be inappropriate for me, as a dissenter, to consider those questions at this time. Cf. Peters v. Hobby, 1955, 349 U.S. 331, 353—357, 75 S.Ct. 790, 801—803, 99 L.Ed. 1129. Accordingly, I would affirm on the issue of the Secretary's authority to require the affidavits involved in this case, without reaching any constitutional questions.
1
22 CFR § 51.135 provides:
'In order to promote the national interest by assuring that persons who support the world Communist movement of which the Communist Party is an integral unit may not, through use of United States passports, further the purposes of that movement, no passport, except one limited for direct and immediate return to the United States, shall be issued to:
'(a) Persons who are members of the Communist Party or who have recently terminated such membership under such circumstances as to warrant the conclusion—not otherwise rebutted by the evidence—that they continue to act in furtherance of the interests and under the discipline of the Communist Party;
'(b) Persons, regardless of the formal state of their affiliation with the Communist Party, who engage in activities which support the Communist movement under such circumstances as to warrant the conclusion—not otherwise rebutted by the evidence that they have engaged in such activities as a result of direction, domination, or control exercised over them by the Communist movement;
'(c) Persons, regardless of the formal state of their affiliation with the Communist Party, as to whom there is reason to believe, on the balance of all the evidence, that they are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement.'
2
Section 51.142 of the Regulations provides:
'At any stage of the proceedings in the Passport Division or before the Board, if it is deemed necessary, the applicant may be required, as a part of his application, to subscribe, under oath or affirmation, to a statement with respect to present or past membership in the Communist Party. If applicant states that he is a Communist, refusal of a passport in his case will be without further proceedings.'
3
Sections 2 and 6 of the Act of September 23, 1950, known as the Internal Security Act of 1950, 64 Stat. 987, 993, 50 U.S.C. §§ 781, 785, 50 U.S.C.A. §§ 781, 785, provide that it shall be unlawful, when a Communist organization is registered under the Act or when 'there is in effect a final order of the Board requiring an organization to register,' for any member having knowledge of such registry and order to apply for a passport or for any official to issue him one. But the conditions precedent have not yet materialized.
4
That section provides in relevant part:
'(a) When the United States is at war or during the existence of any national emergency proclaimed by the President, * * * and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this section be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or the Congress, be unlawful—
'(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;
'(3) for any person knowingly to make any false statement in an application for permission to depart from or enter the United States with intent to induce or secure the granting of such permission either for himself or for another;
'(b) After such proclamation as is provided for in subsection (a) has been made and published and while such proclamation is in force, it shall, except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.'
5
Proc.No.3004, 67 Stat. C31.
6
See & Op.Atty.Gen. 350, 352.
7
Dept.Reg.No.108.162, effective August 28, 1952, 17 Fed.Reg. 8013.
8
See 2 Hyde, International Law (2d rev. ed. 1945), § 399; 3 Hackworth, Digest of International Law (1942), § 268.
9
See Perkins v. Elg, 307 U.S. 325, 350, 59 S.Ct. 884, 896, 83 L.Ed. 1320.
10
Exec.Order No. 654, June 13, 1907; id., No. 2119—A Jan. 12, 1915; id., No. 2286—A Dec. 17, 1915; id., No. 2362—A, Apr. 17, 1916; id., No. 2519—A, Jan. 24, 1917; id., No. 4382—A, Feb. 12, 1926; id., No. 4800, Jan. 31, 1928; id., No. 5860, June 22, 1932; id., No. 7856, Mar. 31, 1938, 3 Fed.Reg. 681, 22 CFR § 51.75. The present provision is that last listed and reads in part as follows:
'The Secretary of State is authorized in his discretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose of restricting its validity or use in certain countries.'
The Department, however, did not feel that the Secretary of State could exercise his discretion willfully without cause. Acting Secretary Wilson wrote on April 27, 1907, 'The issuance of passports is a discretionary act on the part of the Secretary of State, and he may, for reasons deemed by him to be sufficient, direct the refusal of a passport to an American citizen; but a passport is not to be refused to an American citizen, even if his character is doubtful, unless there is reason to believe that he will put the passports to an improper or unlawful use.' Foreign Relations of the United States, Pt. II, (1910), 1083. See 3 Moore, International Law Digest (1906), § 512. Freund, Administrative Powers over Persons and Property (1928), 97, states '* * * in practice it is clear that the Department of State acts upon the theory that it must grant the passport unless there is some circumstance making it a duty to refuse it. Any other attitude would indeed to intolerable; it would mean an executive power of a political character over individuals quite out of harmony with traditional American legislative practice.'
11
13 Op.Atty.Gen. 89, 92; 23 Op.Atty.Gen. 509, 511.
12
Article 42 reads as follows:
'It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdon: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.' And see Jaffe, op. cit. supra, 19—20; Sibley, The Passport System, 7 J.Soc.Comp.Leg.(N.S.) 26, 32—33; 1 Blackstone Commentaries 134 135.
13
The use of foreign travel to promote educational interests is reviewed by Francis J. Colligan in 30 Dept. State Bull. 663.
14
See note 3, supra.
1
This is not seriously disputed by the majority. However, reference is made to a reluctance to interpret broadly the practice of the Secretary approved by Congress in the 1952 Act because the denial of passports on security grounds had not 'jelled' at the time of the 1926 Act. But that overlooks (1) that it is congressional intent in the 1952 statute, not the 1926 statute, to which we look, and (2) that there is abundant evidence, set out in this opinion, of security denials before as well as after 1926.
2
For a comprehensive story of Communism in America indicating the necessity for passport control, see Hoover, Masters of Deceit (1958).
3
To the same effect see the statement of Senator Kilgore during Senate debate on the Act, 96 Cong.Rec. 14538, and an amendment offered to the Act in both the House, 96 Cong.Rec. 13756, and Senate, 96 Cong.Rec. 14599.
4
Peacetime exercise of the passport power may still be relevant from another point of view, namely, if other countries hinge entry on possession of a passport, the right of international travel of a United States citizen who cannot secure a passport will thereby be curtailed. For though he can get out of this country, he cannot get into another.
| 23
|
357 U.S. 155
78 S.Ct. 1097
2 L.Ed.2d 1228
The UNITED STATES, Petitioner,v.CENTRAL EUREKA MINING COMPANY (a Corporation), Alaska-Pacific Consolidated Mining Company, Idaho Maryland Mines Corporation, Homestake Mining Company, Bald Mountain Mining Company, Ermont Mines, Inc.
No. 29.
Argued Jan. 7, 1958.
Decided June 16, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 9.
Mr. George Cochran Doub, Washington, D.C., for the petitioner.
Mr. Edward W. Bourne, New York City, for the respondents.
Mr. Justice BURTON belivered the opinion of the Court.
1
In the interest of national defense, the War Production Board, in 1942, issued its Limitation Order L—2081 ordering nonessential gold mines to close down. This litigation was instituted in the Court of Claims to recover compensation from the United States for its alleged taking, under such order, of respondents' rights to operate their respective gold mines. Two issues are now presented. First, whether the Act of July 14, 1952,2 granting jurisdiction to the Court of Claims to entertain the claims arising out of L—208, was a mandate to that court to award compensation for whatever losses were suffered as a result of L—208, or whether it amounted merely to a waiver by the United States of defenses based on the passage of time. For the reasons hereafter stated, we hold that it was the latter. We, therefore, reach the second question—whether L—208 constituted a taking of private property for public use within the meaning of the Fifth Amendment.3 For the reasons hereafter stated, we hold that it did not.
2
Early in 1941, it became apparent to those in charge of the Nation's defense mobilization that we faced a critical shortage of nonferrous metals, notably copper, and a comparable shortage of machinery and supplies to produce them. Responsive to this situation, the Office of Production Management (OPM) and its successor, the War Production Board (WPB), issued a series of Preference Orders. These gave the producers of mining machinery and supplies relatively high priorities for the acquisition of needed materials. They also gave to those mines, which were deemed important from the standpoint of defense or essential civilian needs, a high priority in the acquisition of such machinery. Gold mines were classified as nonessential and eventually were relegated to the lowest priority rating. These orders prevented the mines operated by respondents from acquiring new machinery or supplies so that, by March of 1942, respondents were reduced to using only the machinery and supplies which they had on hand.
3
Soon thereafter, a severe shortage of skilled labor developed in the nonferrous metal mines. This was due in part to the expanding need for nonferrous metals, and in part to a depletion of mining manpower as a result of the military draft and the attraction of higher wages paid by other industries. It became apparent that the only reservoir of skilled mining labor was that which remained in the gold mines. Pressure was brought to bear on the WPB to close down the gold mines with the expectation that many gold miners would thus be attracted to the nonferrous mines.
4
As a part of this conservation program, WPB, on October 8, 1942, issued Limitation Order L—2084 now before us. That order was addressed exclusively to the gold mining industry which it classified as nonessential. It directed each operator of a gold mine to take steps immediately to close down its operations and, after seven days, not to acquire, use or consume any material or equipment in development work. The order directed that, within 60 days, all operations should cease, excepting only the minimum activity necessary to maintain mine buildings, machinery and equipment, and to keep the workings safe and accessible. Applications to the WPB were permitted to meet special needs and several exceptions were made under that authority. Small mines were defined and exempted from the order. The WPB did not take physical possession of the gold mines. It did not require the mine owners to dispose of any of their machinery or equipment.
5
On November 19, 1942, Order L—208 was amended to prohibit the disposition of certain types of machinery or supplies without the permission of an officer of the WPB. Each mine operator was required to submit an itemized list of all such equipment held in inventory and to indicate which items he would be willing to sell or rent.5 On August 31, 1943, L—208 was further amended to permit disposition of equipment, without approval of the WPB, to persons holding certain preference ratings.6 The order, thus amended, remained in effect until revoked on June 30, 1945.7
6
The first legal action against the Government arising out of L—208 was brought in the Court of Claims in 1950. It was there alleged that the order had amounted to a taking of the complainant's right to mine gold during the life of the order. The Government demurred, taking its present position that the order was merely a lawful regulation of short supplies relevant to the war effort. The court sustained the demurrer, holding that the damages were not compensable. Oro Fina Consolidated Mines, Inc., v. United States, 92 F.Supp. 1016, 118 Ct.Cl. 18. Accord, Alaska-Pacific Consolidated Mining Co. v. United States, 120 Ct.Cl. 307. Somewhat later, the instant action was brought in the Court of Claims by the Idaho Maryland Mines Corporation. Relying on the Oro Fina decision, the Government again demurred. This time, however, the court overruled the demurrer on the ground that this complaint contained detailed allegations which, if true, in its opinion demonstrated that L—208 was an arbitrary order without rational connection with the war effort. On that basis, the court authorized a commissioner to hear this case and several similar ones, solely to determine the Government's liability, leaving determination of the amount of recovery, if any, to further proceedings. Idaho Maryland Mines Corp. v. U.S., 104 F.Supp. 576, 122 Ct.Cl. 670.8 The commissioner heard the cases and filed his report. The Court of Claims, with two judges dissenting, held that the six respondents now before us were entitled to just compensation. 138 F.Supp. 281, 310, 312, 134 Ct.Cl. 1, 53, 56.9 A new trial was denied. 146 F.Supp. 476, 134 Ct.Cl. 130. We granted the Government's petition for certiorari in order to consider the important constitutional issue presented. 352 U.S. 964, 77 S.Ct. 354, 1 L.Ed.2d 320.
7
Before reaching the merits, we face the suggestion of respondents that the Special Jurisdictional Act of July 14, 1952, 66 Stat. 605, did more than waive the statute of limitations and the defense of laches. Respondents contend that this Act was a congressional mandate to the Court of Claims to award compensation to such of the respondents as established any loss which was, in fact, caused by L—208. We conclude that the language of the Act and its legislative history demonstrate that it was no more than a waiver of defenses based on the passage of time.
The entire Act reads as follows:
8
'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States Court of Claims be, and hereby is, given jurisdiction to hear, determine, and render judgment, notwithstanding any statute of limitations, laches, or lapse of time, on the claim of any owner or operator of a gold mine or gold placer operation for losses incurred allegedly because of the closing or curtailment or prevention of operations of such mine or placer operation as a result of the restrictions imposed by War Production Board Limitation Order L—208 during the effective life thereof: Provided, That actions on such claims shall be brought within one year from the date this Act becomes effective.'
9
The Act thus contains no language prejudging the validity of the claims on their merits. On the other hand, it expressly permits the filing of actions, based on L—208, within one year from the taking effect of the Act, 'notwithstanding any statute of limitations, laches, or lapse of time * * *.' (Emphasis supplied.) That this was the motivating purpose of Congress is further indicated by the fact that the statute of limitations had recently run against many of these claims by the time the Court of Claims, in the instant case, upheld the claim on the pleadings of the Idaho Maryland Mines Corporation, 104 F.Supp. 576, 122 Ct.Cl. 670. This was explained to Congress as follows in the House Report recommending passage of the bill:
10
'At the present time many other claimants who may have as good a right for an adjudication of their claims as does the Idaho Maryland Mines Corp. may not prosecute such claims due to the running of the statute of limitations. Many of the claimants after the ruling in the Oro Fina case undoubtedly felt that to file in the Court of Claims would be useless and, therefore, allowed the statute to run against them.' H.R.Rep.No. 2220, 82d Cong., 2d Sess. 2. See also, S.Rep.No. 1605, 82d Cong., 2d Sess. 2.
11
The legislative history also discloses repeated failures to induce Congress to act upon the merits of the claims.10 In view of such history, it is hard to believe that the successful passage of this Act of July 14, 1952, would have taken place, as it did, without opposition11 had it included a concession of liability. On the other hand, as explained in the above-quoted House Committee Report, its passage is readily understood if it merely granted an extension, for one year, of the time within which to file an action to recover a claim, the merits of which would be determined by the Court of Claims. For these reasons, we hold that this Jurisdictional Act is fairly interpreted as amounting only to a waiver of defenses based on the passage of time.
12
Turning to the merits, it is clear from the record that the Government did not occupy, use, or in any manner take physical possession of the gold mines or of the equipment connected with them. Cf. United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. All that the Government sought was the cessation of the consumption of mining equipment and manpower in the gold mines and the conservation of such equipment and manpower for more essential was uses. The Government had no need for the gold or the gold mines. The mere fact that L—208 was in the form of an express prohibition of the operation of the mines, rather than a prohibition of the use of the scarce equipment in the mines, did not convert the order into a 'taking' of a right to operate the mines. Obviously, if the use of equipment were prohibited, the mines would close and it did not make that order a 'taking' merely because the order was, in form, a direction to close down the mines. The record shows that the WPB expected that L—208 would release substantial amounts of scarce mining equipment for use in essential industries, and also that experienced gold miners would transfer to other mines whose product was in gravely short supply. The purpose of L—208 was to encourage voluntary real-location of scarce resources from the unessential to the essential.
13
Respondents contend that L—208 was arbitrary and without rational connection with the war effort.12 They contend that, if it were arbitrary, there is no distinction in law between this case and one where the Government consciously exercises its power to take for public use. Respondents base their assertion of arbitrariness on several circumstances. For example, they urge that the preamble to L—208 recited as its sole purpose the conservation of scarce materials. If that alone were the purpose, they contend, it had already been achieved by priority orders which prevented the gold mines from obtaining any scarce equipment. Order L—208 did more than merely prohibit the acquisition of scarce equipment—it also prohibited the use of equipment previously acquired. The fact that L—208 did not require the mine owners to sell their inventory of scarce equipment to essential users was a reasonable course of action. The WPB could properly rely on the profit motive to induce the mine owners to liquidate their inventories, and it was thought that the people who would be interested in purchasing used mining equipment probably would be the owners of essential mines. In any event, L 208 was soon amended to prohibit sales to nonessential users.13
14
Respondents also urge that the record shows that the shortage of experienced miners was the dominant, if not the sole, consideration for the issuance of L—208. They contend that the WPB had no authority to compel gold miners to transfer to other mines. The record shows that a dominating consideration in the issuance of L—208 was the expectation that it would release experienced miners for work in the nonferrous mines, but the record does not support a finding that such was the sole purpose of the order. It was lawful for the WPB to consider the impact of its material orders on the manpower situation. Order L—208 did not draft gold miners into government service as copper miners. It sought only to make the gold miners available for more essential work if they chose to move. Although the record indicates that the number of gold miners who transferred to nonferrous mines was disappointingly small, yet there were some who did, and others moved to other essential wartime services. The record shows a careful official consideration of the subject and a well-considered decision to accomplish a proper result. There is no suggestion that any of the officials who were responsible for the order were motivated by anything other than appropriate concern for the war effort.
15
Thus the WPB made a reasoned decision that, under existing circumstances, the Nation's need was such that the unrestricted use of mining equipment and manpower in gold mines was so wasteful of wartime resources that it must be temporarily suspended. Traditionally, we have treated the issue as to whether a particular governmental restriction amounted to a constitutional taking as being a question properly turning upon the particular circumstances of each case. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322. In doing so, we have recognized that action in the form of regulation can so diminish the value of property as to constitute a taking. E.g., United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. However, the mere fact that the regulation deprives the property owner of the most profitable use of his property is not necessarily enough to establish the owner's right to compensation. See Mugler v. State of Kansas, 123 U.S. 623, 664, 668, 669, 8 S.Ct. 273, 298, 300, 301, 31 L.Ed. 205. In the context of war, we have been reluctant to find that degree of regulation which, without saying so, requires compensation to be paid for resulting losses of income. E.g., Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; and see United States v. Caltex (Philippines), Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157. The reasons are plain. War, particularly in modern times, demands the strict regulation of nearly all resources. It makes demands which otherwise would be insufferable. But wartime economic restrictions, temporary in character, are insignificant when compared to the widespread uncompensated loss of life and freedom of action which war traditionally demands.
16
We do not find in the temporary restrictions here placed on the operation of gold mines a taking of private property that would justify a departure from the trend of the above decisions. The WPB here sought, by reasonable regulation, to conserve the limited supply of equipment used by the mines and it hoped that its order would divert available miners to more essential work. Both purposes were proper objectives; both matters were subject to regulation to the extent of the order. L—208 did not order any disposal of property or transfer of men. Accordingly, since the damage to the mine owners was incidental to the Government's lawful regulation of matters reasonably deemed essential to the war effort, the judgment is reversed.
17
Reversed.
18
Mr. Justice FRANKFURTER, dissenting.
19
For losses alleged to have resulted from a wartime order of the War Production Board, various of the respondents sought monetary relief in the Court of Claims. These suits had a checkered career in that court, and, as a consequence, Congress passed remedial legislation that has served as a ground for respondents' continued assertion of their right to recover. A consideration of the history of this controversy is necessary for due appreciation of this legislation, and an understanding of the legislation, its background and its meaning, is essential to a proper disposition of the suit before us.
20
From a time shortly before our entry into the Second World War, gold mines in this country were subjected by the United States Government to increasingly stringent limitations on their operations. Because they were regarded as a non-essential industry, they were first restricted in, and then virtually excluded from, the acquisition of required machinery, spare parts and supplies that were needed in mines producing critical materials. Finally, on October 8, 1942, apparently more in an attempt to divert gold miners into copper mines than (as its preamble recited) to conserve critical materials, the War Production Board issued Limitation Order L—208, 7 Fed.Reg. 7992 7993, as amended, 7 id., at 9613—9614, 8 id., at 12007—12008, which ordered operators of gold mines that did not also produce substantial quantities of strategic materials to cease mining operations within sixty days. This order was revoked on June 30, 1945, 10 id., at 8110.
21
Early in 1950, one of the mine operators allegedly affected by the shutdown order brought suit against the United States in the Court of Claims, asserting that Order L—208 was issued 'arbitrarily and without authority of law' and was therefore a taking of property within the meaning of the Fifth Amendment for which the claimant sought just compensation. The court, while holding that the six-year statute of limitations (28 U.S.C. § 2501, 28 U.S.C.A., § 2501) did not begin to run against the claimant until the order was rescinded, dismissed the petition for failure to state a claim under the Fifth Amendment. Oro Fina Consol. Mines, Inc., v. United States, 1950, 92 F.Supp. 1016, 118 Ct.Cl. 18. Approximately a month before the end of the statutory period, three other mine operators filed suits in the Court of Claims, also contending that, by virtue of the WPB order, their property had been taken without just compensation in violation of the Fifth Amendment. In their complaints (as amended after the statute had run) they laid a considerably more extenstive factual basis for their contentions of arbitrary and unauthorized action. The Court of Claims in Idaho Maryland Mines Corp. v. United States, 1952, 104 F.Supp. 576, 122 Ct.Cl. 670,1 denied the Government's motion to dismiss the suits. It distinguished Oro Fina on the ground that the facts there alleged in support of the contentions of unconstitutionality, by contrast with those in Idaho Maryland, had not been sufficient to rebut the presumption of constitutionality attaching to governmental action. A motion by the Government for rehearing was overruled two months later. Ibid.
22
Within two weeks after the Idaho Maryland decision Senator McCarran of Nevada introduced a bill (S. 3195, 82d Cong., 2d Sess.) to grant the Court of Claims jurisdiction, notwithstanding the statute of limitations, to hear claims of gold mine operators for losses resulting from the issuance of Order L—208. 98 Cong.Rec. 5394. After consideration of the bill, the Committee on the Judiciary on May 28, 1952, recommended 'favorable consideration of the measure by the Senate' in a report, S.Rep. No. 1605, 82d Cong., 2d Sess. The report, '(i)n order that the background of this situation can be fully understood and appreciated,' id., at p. 2, set forth large portions of an earlier report (on H.R. 4393 of the 79th Congress) setting forth in great detail a factual basis for the following contentions:
23
'1. WPB Order L—208 was unique in that it was the only Government order closing a productive industry.
24
'2. Issuance of the order was an administrative error, based upon a statistical misconception, and may, furthermore, have been illegal.
25
'3. The net results of order in accomplishing its avowed primary purpose of channeling manpower to 'essential' mines were negligible.
26
'4. The economic loss to the gold-mining industry has been great and in some cases the damage may be irreparable.' Id., at p. 3.
27
In the conclusion of the report, it was stated (id., at p. 7) that
28
'The committee has carefully studied the facts relating to the situation that arose as a result of the proclamation of the War Production Board Limitation Order L—208 and is convinced that the gold mining industry was dealt with in a fashion which merits the consideration of the court in the adjudication of the losses which may have been occasioned by this order. The Idaho Maryland Mines Corp. decision is ample evidence of the fact that the least that can be done is to allow those persons affected by Order L—208 their day in court for such recompense as may seem justified.'
29
The Senate passed the bill without debate on June 2. 98 Cong.Rec. 6322. In the House of Representatives, the bill was referred to and considered by the Committee on the Judiciary, which recommended its passage in a report (H.R.Rep.No. 2220, 82d Cong., 2d Sess.) substantially identical with the Senate report. The House passed the bill on July 2, 98 Cong.Rec. 8931, and it was signed by the President on July 14, 1952. It provides as follows:
30
'That the United States Court of Claims be, and hereby is, given jurisdiction to hear, determine, and render judgment, notwithstanding any statute of limitations, laches, or lapse of time, on the claim of any owner or operator of a gold mine or gold placer operation for losses incurred allegedly because of the closing or curtailment or prevention of operations of such mine or placer operation as a result of the restrictions imposed by War Production Board Limitation Order L—208 during the effective life thereof: Provided, That actions on such claims shall be brought within one year from the date this Act becomes effective.' 66 Stat. 605.
31
Thereupon a number of gold mine operators brought suit in the Court of Claims, and their claims were consolidated with those involved in Idaho Maryland for trial on the issue of liability. These plaintiffs proceeded under alternative claims against the United States: first, that the action of the Government in ordering them to close their gold mines constituted a taking of their property that entitled them to just compensation; and, second, that the Act of July 14, 1952, created liability on the part of the Government for their provable losses resulting from the closing. The Court of Claims (two judges dissenting) decided that the closing of the mines constituted a compensable 'taking' of the plaintiffs' right to operate their mines within the meaning of the Fifth Amendment. The court dealt with the statutory claim in the following terms: 'In view of our decision in these cases it is unnecessary to discuss the various contentions relative to the special jurisdictional act of July 14, 1952, 66 Stat. 605.' 1956, 138 F.Supp. 281, 310, 134 Ct.Cl. 1, 53.
32
Since a court of the United States may properly decide a constitutional question only if the case cannot fairly be disposed of on a non-constitutional basis, any statutory question that is not frivolous should be met and disposed of before questions requiring construction of the Constitution are reached. The reason for the Court of Claims' failure to heed this fundamental rule can only be surmised. This litigation was initiated before the Act of July 14, 1952, had been passed by Congress and was framed exclusively in constitutional terms. The statutory claim was injected into the litigation at a time when the court, having already handed down several decisions on the question of whether or not a claim under the Fifth Amendment had been stated, had become preoccupied with, and, therefore, oriented toward, the constitutional aspects of the claims. Understandable though this approach may be, it should not be permitted to govern the ultimate disposition of the cases before us. In the interest of responsible administration of our constitutional system, the scope and meaning of the Act of July 14, 1952, call for determination before any decision is made as to whether or not the Government's action amounted to a 'taking' within the meaning of the Fifth Amendment.
33
The critical question is, of course, whether the Act merely eliminates the bar of the statute of limitations or substantively establishes a congressionally acknowledged basis for recovery. On its face, the Act is readily susceptible of either interpretation. The action authorized by the statute—i.e., the filing of a certain type of suit in the Court of Claims within one year—is consistent with either or these alternative legislative ends. In order to waive the Government's then existing defense of the statute of limitations, it was necessary for Congress to authorize the assertion of claims notwithstanding the availability of that defense. And recognition by Congress of what it may regard as a just claim against the Government is not necessarily to be met by an outright appropriation to the claimants: there often remain questions (such as may be involved here, whether or not the alleged losses were caused by the Government's liability-creating action) that Congress quite properly wishes to have judicially determined before funds are to be withdrawn from the Treasury for the benefit of claimants.
34
Since the statutory language alone sheds little light on the congressional purpose, it is appropriate to canvass the legislative background of the Act. At the outset it should be noted that the legislative manner attending the passage of the Act has no relevance as to its interpretation. It is no more admissible that a statute's passage virtually without debate and from a bill on the consent calendar should reflect on its weight than that a decision of this Court should be given less weight because it was argued on the summary docket. There is no reason to suppose that this legislation did not receive the careful study that the committees in their reports claim to have given it. Here one need not even draw on the indisputable fact that much legislation is passed solely on the basis of committee recommendations; the grievances of the gold mining industry had been continually pressed on Congress since shortly after the issuance of L—208,2 so that the problem to which the Act was directed was one with which many members of Congress were undoubtedly thoroughly conversant.
35
Nothing is clearer from a reading of the committees' reports than that their members regarded the gold mine operators to have been unjustly treated by the Government. It is, of course, no concern of ours whether or not they were justified in thinking so. The reports quote extensively from an earlier report casting serious doubt on the propriety and even the legality of the government order and detailing the seriousness of the industry's resulting losses. To be sure, support may be drawn from this condemnation for either of the competing interpretations of the statute. It may imply a conviction that the Government should pay for whatever losses resulted from the issuance of the order; but it may also serve as nothing more than a justification for making an exception to the statute of limitations. Specific statements in the reports only compound this ambiguity. The committees make clear their concern that prospective claimants, discouraged by the Oro Fina decision, may have failed to assert their claims within the statutory period, discovering too late (through the Idaho Maryland decision) that they might have recovered. See S.Rep. No. 1605, 82d Cong., 2d Sess. 2; H.R.Rep.No.2220, 82d Cong., 2d Sess. 2. On the other hand, the committees' conclusions that 'the gold mining industry was dealt with in a fashion which merits the consideration of the court in the adjudication of the losses which may have been occasioned by this order' and that 'the least that can be done is to allow those persons affected by Order L—208 their day in court for such recompense as may seem justified,' S.Rep.No.1605, supra, at p. 7; H.R.Rep.No.2220, supra, at p. 7, provide ground for inferring that Congress intended to establish a right of recovery if one did not already exist. The most, then, that can be said concerning the background of the Act is that it is inconclusive.
36
Although the language of the statute is equivocal and its legislative history ambiguous, another relevant line of inquiry must be pursued. The Act of July 14, 1952, is but one of many special jurisdictional statutes passed from time to time by Congress, and a number of these have been construed by the Court of Claims. An examination of these cases tends to corroborate the conclusion that the wording of the statute provides little clue to its judicially ascertainable meaning. The phrase 'to hear, determine, and render judgment * * * on the claim,' or an approximate equivalent, is common to most special jurisdictional statutes, including many that have been held to do no more than waive limited defenses. See, e.g., Act of Sept. 25, 1950, 64 Stat. 1032, involved in State of California v. United States, 119 F.Supp. 174, 177, 127 Ct.Cl. 624, 628; Act of June 15, 1946, 60 Stat. 1227, involved in Zephyr Aircraft Corp. v. United States, 104 F.Supp. 990, 997, 122 Ct.Cl. 523, 551; cf. United States v. Mille Lac Band of Chippewas, 229 U.S. 498, 500, 33 S.Ct. 811, 812, 57 L.Ed. 1299. Again, statutes similar in significant respects to the Act of July 14, 1952, have been construed in some cases to create a legal basis for recovery where none had existed before, see, e.g., Act of June 14, 1935, 49 Stat. 2078, involved in Stubbs v. United States, 86 Ct.Cl. 152; Act of June 25, 1938, 52 Stat. 1399, involved in Creech v. United States, 60 F.Supp. 885, 102 Ct.Cl. 301, while in other cases to do no more than provide a forum for the adjudication of a claim on the basis of existing legal principles, see, e.g., Act of May 11, 1948, 62 Stat. 1350, involved in Hempstead Warehouse Corp. v. United States, 98 F.Supp. 572, 120 Ct.Cl. 291.
37
In many of these special jurisdictional statutes, Congress has clarified its purpose by employing various qualifying phrases and clauses. The absence of such qualifications may be found to have some relevance in the interpretation of the statute before us. For example, where a specific defense is waived (as the statute of limitations is waived in the Act of July 14, 1952), Congress has on occasion been at pains to emphasize that the effect of the statute should extend no further than that limited waiver. See, e.g., Act of Aug. 24, 1949, 63 Stat. 1169, involved in Breinig Bros., Inc., v. United States, 110 F.Supp. 269, 124 Ct.Cl. 645; Act of Oct. 18, 1951, 65 Stat. A124, involved in Watson v. United States, 146 F.Supp. 425, 135 Ct.Cl. 145. Moreover, it has not been uncommon for Congress in these statutes specifically to provide that the passage of the act should not be construed as 'an inference of liability' on the part of the United States Government. See, e.g., Act of July 16, 1952, 66 Stat. A206, A207, involved in Griffith v. United States, 135 Ct.Cl. 278; and Act of Aug. 25, 1950, 64 Stat. A191, involved in Booth v. United States, 140 Ct.Cl. —-, 155 F.Supp. 235.
38
Of course, if there is any significance to Congress' failure expressly to limit the application of the statute, it must also be recognized that Congress failed to employ techniques that would have made clear any intention to create a new right of action. Congress might, for example, have made a virtual confession of liability as it did in the Act of March 1, 1929, 45 Stat. 2345, involved in Garrett v. United States, 70 Ct.Cl. 304. Congress might have waived other defenses than the statute of limitations. See, e.g., the Act of May 28, 1928, 45 Stat. 2001, involved in Alcock v. United States, 74 Ct.Cl. 308. Or Congress might, as it has often done, spell out in detail precisely what the task of the Court of Claims is to be under the statute, making clear what issues remain to be litigated. See, e.g., Act of July 2, 1956, 70 Stat. A103, involved in Kramer v. United States, 149 F.Supp. 152, 137 Ct.Cl. 537; Act of July 16, 1952, 66 Stat. A206, involved in Griffith v. United States, 135 Ct.Cl. 278; Act of March 19, 1951, 65 Stat. 5, involved in Board of County Com'rs v. United States, 105 F.Supp. 995, 123 Ct.Cl. 304.
39
The Court of Claims, in seeking to determine the meaning of these statutes, has had occasion to turn to their legislative backgrounds. The court has, for example, been more readily able to find an intention on the part of Congress to admit liability where the claim in question arose out of a national emergency that had necessitated hasty and experimental governmental action resulting in disproportionate hardships, see Nolan Bros. v. United States, 98 Ct.Cl. 41, 89 (Act of July 23, 1937, 50 Stat. 533); cf. Mansfield v. United States, 89 Ct.Cl. 12 (Act of Aug. 19, 1935, 49 Stat. 2148). Significance has also been attached to the fact that Congress regarded the governmental action to have been wrongful. See Hawkins v. United States, 96 Ct.Cl. 357, 369—370 (Act of Feb. 11, 1936, 49 Stat. 2217) (statement in committee report to effect that action was 'unmoral, inequitable, and unjust'). Contrariwise, however, where Congress has not made its intention quite clear, the court has approached its task with caution, see Hempstead Warehouse Corp. v. United States, supra, 98 F.Supp. at page 573, 120 Ct.Cl. at page 305; and it has often asserted that special jurisdictional statutes should be strictly construed. See, e.g., State of California v. United States, supra, 119 F.Supp. at pages 178—179, 127 Ct.Cl. at pages 629—630; cf. United States v. Cumming, 130 U.S. 452, 455, 9 S.Ct. 583, 584, 32 L.Ed. 1029.
40
Thus, even this limited examination of relevant materials leaves one very much in balance. But the fact that the answer to this question is not easy is no excuse for passing over it and deciding constitutional questions. It is startling doctrine to construe the Constitution in order to avoid difficult questions of statutory interpretation. It may well be that the Court of Claims, experienced as it obviously is in interpreting such statutes as these, may find the purpose of the Act of July 14, 1952, more readily susceptible of determination than could a court not possessed of that specialized competence. When the alternatives are initial and yet final decision by this Court and decision by an experienced court with the possibility of review in this Court, the choice seems clear. I would send the case back to the Court of Claims for an authoritative construction of the Special Jurisdictional Act.
41
Mr. Justice HARLAN, dissenting.
42
I dissent because I believe that the Fifth Amendment to the Constitution requires the Government to pay just compensation to the respondents for the temporary 'taking' of their property accomplished by WPB Order L—208.
43
The Court views L—208 as a normal regulatory measure of the WPB, which had authority to allocate critical materials during the late war. It holds that this was the character of the administrative Order even though the Court of Claims found that L 208 was actually designed to cause a shift of gold miners to other nonferrous metal mines, rather than to control the allocation of mining equipment in short supply, as the Order on its face purported to do. In so holding, the Court emphasizes that the 'manpower' objective was simply one of the purposes of L—208. I am unable to reconcile the Court's conclusions with the findings of the Court of Claims. Finding 46 of the Court of Claims states that reallocation of gold miners by forced closure of the gold mines was 'The dominant consideration * * * in the issuance of * * * L—208.' (Italics supplied.) That this finding reflected the conclusion that the 'manpower' purpose was the sole objective of the Order seems clear from the fact that the Court of Claims struck from this finding, as submitted to it by the hearing officer, the following two sentences:
44
'Another consideration in the issuance of the order was as stated in the preamble that the fulfillment of requirements for the defense of the United States had created a shortage in the supply of critical materials which had been used in the maintenance and operation of gold mines.
45
'Both objectives (the other being 'manpower') were in some measure accomplished with the closing of the plaintiffs' gold mines pursuant to the order.'
46
On the basis of its findings, the Court of Claims concluded in its opinion:
47
'From the language of the order itself (L—208) and from the circumstances surrounding its promulgation, it is apparent that its only purpose was to deprive the gold mine owners and operators of their right to make use of their mining properties.'
48
These conclusions, which seem to me to be convincingly supported by the evidence in the record, require that L—208 be regarded as having no other purpose than to effect the closing of respondents' mines in order to free gold mine labor for essential war work. The Government acknowledges that during the war it lacked any legal authority to order the transfer of civilian manpower.
49
Viewing L—208 in this light, I cannot agree with the Court's conclusion that the Order was simply a 'regulation' incident to which respondents happened to suffer financial loss. Instead, I believe that L—208 effected a temporary 'taking' of the respondents' right to mine gold which is compensable under the Fifth Amendment.
50
L—208 was the only order promulgated during World War II which by its terms required a lawful and productive industry to shut down at a severe economic cost. See S.Rep. No. 1605, 82d Cong., 2d Sess. 3. As a result of the Order the respondents were totally deprived of the beneficial use of their property. Any suggestion that the mines could have been used in such a way (that is, other than to mine gold) so as to remove them from the scope of the Order would be chimerical. Not only were the respondents completely prevented from making profitable use of their property, but the Government acquired all that it wanted from the mines their complete immobilization and the resulting discharge of the hardrock miners. It is plain that as a practical matter the Order led to consequences no different from those that would have followed the temporary acquisition of physical possession of these mines by the United States.
51
In these circumstances making the respondents' right to compensation turn on whether the Government took the ceremonial step of planting the American flag on the mining premises, cf. United States v. Pewee Coal Co., 341 U.S. 114, 116, 71 S.Ct. 670, 671, 95 L.Ed. 809, is surely to permit technicalities of form to dictate consequences of substance. In my judgment the present case should be viewed precisely as if the United States, in order to accomplish its purpose of freeing gold miners for essential work, had taken possession of the gold mines and allowed them to lie fallow for the duration of the war. Had the Government adopted the latter course it is hardly debatable that respondents would have been entitled to compensation. See United States v. Pewee Coal Co., supra.
52
As the Court recognizes, governmental action in the form of regulation which severely diminishes the value of property may constitute a 'taking.' See United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Richards v. Washington Terminal Co., 233 U.S. 546. 'The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.' Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322. In my opinion application of this principle calls here for the conclusion that there was a 'taking,' for it is difficult to conceive of a greater impairment of the use of property by a regulatory measure than that suffered by the respondents as a result of L—208.
53
None of the cases relied on by the Government precludes our acknowledging the confiscatory nature of L—208 and according respondents just compensation. Except in the extraordinary situation where private property is destroyed by American armed forces to meet the exigencies of the military situation in a theatre of war, see United States v. Caltex (Philippines), Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157, no case in this Court has held that the Government is excused from providing compensation when property has been 'taken' from its owners during wartime in the interest of the common good. Cases such as Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694, involving the wartime regulation of prices, rents, and profits, are wide of the mark. In all of them the Government was administering a nationwide regulatory system rather than a narrowly confined order directed to a small, singled-out category of individual concerns. Furthermore, none of the regulations involved in those cases prohibited the profitable exploitation of a legal business. And in none of them did the Government, following issuance of its edict, stand virtually in the position of one in physical possession of the property.
54
Also beside the point are the wartime prohibition cases. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194, dealt with the consequences of the Act of November 21, 1918, 40 Stat. 1045, 1046, which placed upon the property owners a burden not nearly so onerous as the one imposed on respondents by L—208. That Act permitted unrestricted sale ofliquor for more than seven months from the date of its passage, and even after that time there was no restriction on sale for export or on local sale for other than beverage purposes. Moreover, the prohibition cases arose only after congressional action dealing specifically with the sale of liquor, and the Court in Hamilton particularly adverted to the fact that Congress might properly conclude that such sale should be halted 'in order to guard and promote the efficiency' of the armed forces and defense workers. Hamilton v. Kentucky Distilleries & Warehouse Co., supra, 251 U.S. at page 155, 40 S.Ct. at page 107. This latter factor was also the premise of Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260. Not only has there been no comparable congressional finding that gold mining was injurious, but the Senate Committee on the Judiciary, which conducted a thorough analysis of the operation of L—208, recognized that 'Issuance of the order was an administrative error * * * and may, furthermore, have been illegal.' S.Rep. No. 1605, 82d Cong., 2d Sess. 3.
55
The question whether there has been a taking cannot of course be resolved by general formulae, but must turn on the circumstances of each particular case. As I have shown, the present case is plainly outside the run of past decisions. In those cases the Court was rightfully reluctant to sanction compensation for losses resulting from wartime regulatory measures which, under conditions of total mobilization, have ramifications touching everyone in one degree or another. But where the Government proceeds by indirection, and accomplishes by regulation what is the equivalent of outright physical seizure of private property, courts should guard themselves against permitting formalities to obscure actualities. As Mr. Justice Holmes observed in Pennsylvania Coal Co. v. Mahon, supra, 260 U.S. at page 416, 43 S.Ct. at page 160: 'We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.'
56
We should treat L—208 as being what in every realistic sense it was, a temporary confiscation of respondents' property. The Government is not absolved from providing just compensation here because the WPB may have lacked authority to 'take' respondents' mines in order to free the miners for essential work in other mines. See International Paper Co. v. United States, 282 U.S. 399, 406, 51 S.Ct. 176, 177, 75 L.Ed. 410; cf. Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065. I need hardly add that we should not be deterred from according respondents their due because their claims and those of others similarly situated may run into sizable amounts. The Court of Claims, certainly not given to the easy allowance of demands upon the public treasury, faced up to what the Constitution plainly requires in this instance. We should affirm its judgment.
1
Issued October 8, 1942, 7 Fed.Reg. 7992—7993. Amended, November 19, 1942, 7 Fed.Reg. 9613—9614; November 25, 1942, 7 Fed.Reg. 9810—9811; and August 31, 1943, 8 Fed.Reg. 12007—12008. Revoked, June 30, 1945, 10 Fed.Reg. 8110. For text of the order as issued October 8, 1942, see note 4, infra.
2
The Act is set forth in the text of this opinion 78 S.Ct. 1101, infra.
3
'No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' U.S.Const. Amend. V.
4
War Production Board Limitation Order L—208, 7 Fed.Reg. 7992—7993, provided as follows:
'The fulfillment of requirements for the defense of the United States has created a shortage in the supply of critical materials for defense, for private account and for export which are used in the maintenance and operation of gold mines; and the following order is deemed necessary and appropriate in the public interest and to promote the national defense.
'§ 3093.1 Limitation Order L—208—(a) Definitions. For the purposes of this order, 'nonessential mine' means any mining enterprise in which gold is produced, whether lode or placer, located in the United States, its territories or possessions, unless the operator of such mining enterprise is the holder of a serial number for such enterprise which has been issued under Preference Rating Order P—56.
'(b) Restrictions upon production. (1) On and after the issuance date of this order, each operator of a nonessential mine shall immediately take all such steps as may be necessary to close down, and shall close down, in the shortest possible time, the operations of such mine.
'(2) In no event on or after 7 days from the issuance date of this order shall any operator of a nonessential mine acquire, consume, or use any material, facility, or equipment to break any new ore or to proceed with any development work or any new operations in or about such mine.
'(3) In no event on or after 60 days from the issuance date of this order shall any operator of a nonessential mine acquire, consume, or use any material, facility, or equipment to remove any ore or waste from such mine, either above or below ground, or to conduct any other operations in or about such mine, except to the minimum amount necessary to maintain its buildings, machinery, and equipment in repair, and its access and development workings safe and accessible.
'(4) The provisions of this order shall not apply to any lode mine
which produced 1200 tons or less of commercial ore in the year 1941, provided the rate of production of such mine, after the issuance date of this order, shall not exceed 100 tons per month, nor to any placer mine which treated less than 1000 cubic yards of material in the year 1941, provided that the rate of treatment of such placer mine, after the issuance date of this order, shall not exceed 100 cubic yards per month.
'(5) Nothing contained in this order shall limit or prohibit the use or operation of the mill, machine shop, or other facilities of a nonessential mine in the manufacture of articles to be delivered pursuant to orders bearing a preference rating of A—1—k or higher, or in milling ores for the holder of a serial number under Preference Rating Order P—56.
'(c) Restrictions on application of preference ratings. No person shall apply any preference rating, whether heretofore or hereafter assigned, to acquire any material or equipment for consumption or use in the operation, maintenance, or repair of a nonessential mine, except with the express permission of the Director General for Operations issued after application made to the Mining Branch, War Production Board. this order shall keep and preserve, for The Director General for Operations, upon receiving an application in accordance with paragraph (c) above, may assign such preference ratings as may be required to obtain the minimum amount of material necessary to maintain such nonessential mine on the basis set forth in paragraph (b)(3) above.
'(e) Records. All persons affected by this order shall keep and preserve, for not less than two years, accurate and complete records concerning inventory, acquisition, consumption, and use of materials, and production of ore.
'(f) Reports. All persons affected by this order shall execute and file with the War Production Board such reports and questionnaires as said Board shall from time to time prescribe.
'(g) Audit and inspection. All records required to be kept by
this order shall, upon request, be submitted to audit and inspection by duly authorized representatives of the War Production Board.
'(h) Communications. All reports to be filed, appeals, and other communications concerning this order should be addressed to: War Production Board, Mining Branch, Washington, D.C., Ref.: L 208.
'(i) Violations. Any person who wilfully violates any provision of this order, or who, in connection with this order, wilfully conceals a material fact or furnishes false information to any department or agency of the United States, is guilty of a crime, and upon conviction may be punished by fine or imprisonment. In addition, any such person may be prohibited from making or obtaining further deliveries of, or from processing or using, material under priority control and may be deprived of priorities assistance.
'(j) Appeal. Any person affected by this order who considers that compliance therewith would work an exceptional and unreasonable hardship upon him may appeal to the War Production Board, by letter, in triplicate, setting forth the pertinent facts and the reason he considers he is entitled to relief. The Director General for Operations may thereupon take such action as he deems appropriate.
'(k) Applicability of priorities regulations. This order and all transactions affected thereby are subject to all applicable provisions of the priorities regulations of the War Production Board, as amended from time to time.
'(P.D.Reg. 1, as amended, 6 F.R. 6680; W.P.B.Reg. 1, 7 F.R. 561; E.O. 9024, 7 F.R. 329; E.O. 9040, 7 F.R. 527; E.O. 9125, 7 F.R. 2719; sec. 2(a), Pub.Law 671, 76th Cong., as amended by Pub.Laws 89 and 507, 77th Cong.)
'Issued this 8th day of October 1942.
'Ernest Kanzler,
'Director General for Operations.'
5
Section 6(e), added to the original order on November 19, 1942, 7 Fed.Reg. 9613, provided:
'(e) Restrictions on disposition of machinery and equipment. No person shall sell or otherwise dispose of any machinery or equipment of the types listed in Schedule A to Preference Rating Order P—56, which has been used in a nonessential mine, and no person shall accept delivery thereof, except with specific permission of the Director General for Operations. On or before November 19, 1942, or within sixty days after the effective date, whichever is later, each operator of a nonessential mine shall file with the War Production Board, Washington, D.C., Reference: L 208, an itemized list of such machinery and equipment, signed by such operator or an authorized official, indicating each item available for sale or rental. Upon receipt of such itemized list, the War Production Board will furnish to the operator appropriate forms to be filled out for each item which the operator desires to dispose of.'
6
8 Fed.Reg. 12007—12008.
7
10 Fed.Reg. 8110.
8
See also, Homestake Mining Co. v. United States, 122 Ct.Cl. 690, and Central Eureka Mining Co. v. United States, 122 Ct.Cl. 691.
9
The Court of Claims concluded that respondents had shown not only that L—208 was arbitrary, but also that they had a sufficient inventory of machinery and supplies so that they would have been able to operate had it not been for the order. However, as to the following companies, it ordered their petitions dismissed on the ground that they had not shown that they would have been able to continue operations, thus failing to show that L 208 was the proximate cause of their loss: Alabama-California Gold Mines Co., Consolidated Chollar Gould & Savage Mining Co., and Oro Fino Consolidated Mines, Inc., 138 F.Supp. at page 310, 134 Ct.Cl. at page 53.
10
Bills were first introduced in the 78th Congress, 1st Session (1943), for the relief of the owners and operators of gold mines. Early efforts were directed at recision of L—208. H.R. 3009, 89 Cong.Rec. 6181, was referred to the House Committee on Banking and Currency and never reported out; H.R. 3682, 89 Cong.Rec. 9653, was referred to the House Committee on the Judiciary and never reported out.
At the same session of Congress, Senator McCarran introduced a bill, S. 27, 89 Cong.Rec. 34, which provided legislative relief to the mine owners vis-a -vis their creditors. This bill, referred to the Senate Committee on the Judiciary, was favorably reported, 89 Cong.Rec. 5187, S.Rep.No.271, 78th Cong., 1st Sess., and, after amendment, it passed the Senate, 89 Cong.Rec. 6094—6095. In the House, S. 27 was referred to the House Committee on Mines and Mining, 89 Cong.Rec. 6180, and was never reported out. In the following session of Congress, a similar bill was introduced in the House by Representative Engle. H.R. 5093, 90 Cong.Rec. 6587. It too was referred to the House Committee on Banking and Currency and was never reported out.
In the 79th Congress, 1st Session (1945), Representative Engle introduced the first bill calling for compensation for losses arising out of L—208. H.R. 4393, 91 Cong.Rec. 9726. This bill was referred to the House Committee on War Claims which, in turn, referred the matter to a Subcommittee. The Subcommittee held hearings over several days and issued a report to the full Committee recommending approval. (This report was quoted at length in the Reports to both Houses favoring passage of the Jurisdictional Act.) The bill was never reported out of the full Committee.
In the 81st Congress, 1st Session (1949), Senator McCarran introduced S. 45, 95 Cong.Rec. 39, substantively similar to H.R. 4393 introduced by Representative Engle. The bill was referred to the Senate Committee on the Judiciary which reported it favorably. S.Rep.No.79, 81st Cong., 1st Sess. It was objected to, however, by Senator Donnell, 95 Cong.Rec. 2764; Senator Hendrickson, by request, id., at 13297; Senator Schoeppel, id., at 14722; Senator Williams, 96 Cong.Rec. 1278; Senator Hendrickson, id., at 14691; and Senators Hendrickson and Williams, id., at 16592, and consequently never came to a vote. In the same Congress, Representative White introduced H.R. 7851, 96 Cong.Rec. 4066, a bill of the same type, which was referred to the House Committee on the Judiciary and never reported out.
11
The Special Jurisdictional Act was passed on the Consent Calendar. 98 Cong.Rec. 6322—6323, 8931. The seriousness of a concession of liability is evidenced by the Government's recent estimate that its potential liability, if respondents prevail, can be measured in 'terms of thirty to sixty million dollars.'
12
Ordinarily the remedy for arbitrary governmental action is an injunction, rather than an action for just compensation. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. Our view of the case makes it unnecessary to reach that question.
13
See 357 U.S. 160, 78 S.Ct. 1100, supra.
1
That decision also governed the companion cases of Homestake Mining Co. v. United States, 122 Ct.Cl. 690, and Central Eureka Mining Co. v. United States, 122 Ct.Cl. 691.
2
E.g., S. 27, 78th Cong.; S. 344, 78th Cong.; H.R. 3009, 78th Cong.; H.R. 3682, 78th Cong.; H.R. 5093, 78th Cong.; H.R. 4393, 79th Cong.; H.R. 950, 80th Cong.; S. 45, 81st Cong.; H.R. 7851, 81st Cong.
| 34
|
357 U.S. 63
78 S.Ct. 1079
2 L.Ed.2d 1165
Walter W. FLORA, Petitioner,v.UNITED STATES of America.
No. 492.
Argued May 20, 1958.
Decided June 16, 1958.
Petition for rehearing pending, see 79 S.Ct. 112.
Mr. Randolph W. Thrower, Atlanta, Ga., for the petitioner.
Mr. John N. Stull, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The issue in this case is whether a taxpayer must pay the full amount of an income tax deficiency before he may challenge its correntness by a suit for refund under 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1).
2
During 1950 petitioner suffered losses on the sale of certain commodities and futures. He reported them as ordinary losses, but the Commissioner of Internal Revenue characterized them as capital losses. A deficiency assessment was levied in the amount of $28,908.60, including interest. Petitioner made two payments that totaled $5,058.54, and then submitted a claim for refund of that amount. The claim was disallowed. On Aug. 3, 1956, petitioner brought this action under 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1), for refund. The United States moved to dismiss for want of jurisdiction and for failure to state a claim upon which relief could be granted. The district judge held that because petitioner had not paid the full amount of the deficiency he 'should not maintain' the action. Because the question had not been resolved by the Court of Appeals, however, he deemed it advisable to pass upon the merits, and upon doing so entered judgment for defendant United States. 142 F.Supp. 602, 604. The Court of Appeals for the Tenth Circuit vacated the judgment and remanded with instructions to dismiss, holding that the complaint 'failed to state a claim' because petitioner had not paid the entire assessment for the period in question. 246 F.2d 929, 931.1 We granted certiorari, 355 U.S. 881, 78 S.Ct. 150, 2 L.Ed.2d 112, to resolve the conflict between that decision and Bushmiaer v. United States, 8 Cir., 230 F.2d 146.2
3
The pertinent jurisdictional statute, 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1), reads as follows:
4
'(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
5
'(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws * * *.' (Emphasis supplied.) In matters of statutory construction the duty of this Court is to give effect to the intent of Congress, and in doing so our first reference is of course to the literal meaning of words employed. The principle of strict construction of waivers of sovereign immunity, United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598, and the sharp division of opinion among the lower courts on the meaning of the pertinent statutory language suggest the presence of ambiguity in what might otherwise be termed a clear authorization to sue for the refund of 'any sum.' Consequently, a thorough consideration of the relevant legislative history is required.
6
Section 1346 was originally enacted as Section 1310(c) of the Revenue Act of 1921.3 Its essential language seems to have been copied from R.S. § 3226, the predecessor of the present claim-for-refund statute, 26 U.S.C. (Supp. V) § 7422(a), 26 U.S.C.A. § 7422(a). Those statutes use language identical to that appearing above to provide that no suit for the refund of a 'tax,' 'penalty,' or 'sum' shall be maintained until similar relief has been sought from the Secretary or his delegate.4 The meaning that has been ascribed to this language in the claim-for-refund statute provides the key to what Congress intended when it used that language in the jurisdictional provision.
7
The original claim-for-refund statute, Section 19 of the Revenue Act of July 13, 1866, provided that no suit should be maintained in any court for the recovery of 'any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue * * *.'5 On this 'appeal' the Commissioner was empowered to 'remit, refund, and pay back' all taxes or penalties improperly assessed or collected.6 When the appeal requirement was restated in Section 3226 of the Revised Statutes,7 Congress added the 'penalty' and 'sum' clauses, bringing together for the first time the three-way division that survives in 26 U.S.C. (Supp. V) § 7422(a), 26 U.S.C.A. § 7422(a), and 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1). The revisers left no indication of what significance, if any, was to be attached to this addition.
8
During the period of this formative legislation refund suits could not be brought against the United States because of its sovereign immunity. Tax litigation took the form of an action of assumpsit against the collector. See City of Philadelphia v. Diehl, 5 Wall. 720, 18 L.Ed. 614.8 Such suits were of course subject to the provision in Section 19 of the 1866 Act that they must be preceded by 'appeal' to the Commissioner. The meaning of that command, which later became R.S. § 3226 and eventually, as amended, 26 U.S.C. (Supp. V) § 7422(a), 26 U.S.C.A. § 7422(a), was considered in Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561. There, in response to an appeal, the Commissioner of Internal Revenue had set aside the first assessment of taxpayer's 1864 income taxes and directed the local assessor to make a second one. The taxpayer paid the second assessment and sued the collector for refund. The Court held that by failing to appeal from the second assessment the taxpayer failed to comply with Section 19 and hence had no right of action. In the course of its opinion the Court made this careful statement of the remedies then available to taxpayers who sought to contest the correctness of their tax:
9
'So also in the internal-revenue department, the statute which we have copied allows appeals from the assessor tothe commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay.
10
'* * * While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. * * * If the compliance with this condition (that suit must be brought within six months of the Commissioner's decision) requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the government that its taxes should be promptly paid, and drawbacks speedily adjusted; and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. * * *
11
'The objecting party can take his appeal. He can, if the decision is delayed beyond twelve months, rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months. * * *'9 (Emphasis added.)
12
From this carefully considered dictum it is unmistakably clear that the Court understood the statutes of that time to require full payment of an assessed tax as a condition precedent to the right to sue the collector for a refund. This understanding of the statutory scheme appears to have prevailed for the succeeding fifty or sixty years. It was never suggested that the addition in R.S. § 3226 of the clause beginning 'any sum' effected any change. The Cheatham case was decided after that addition was made, and it gave no indication that the 'condition precedent' of which it spoke had already been abrogated by Congress. Consistent with that understanding, there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due. Court opinions that took occasion to comment on the extent of payment are consistent with the Cheatham declaration,10 and that case has continued to be cited with approval to the present day.11 Such was the understanding of the necessity for full payment in the suit against the collector.
13
Since the statute now under consideration, 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1), employs language identical to that in the statute under which the full-payment understanding developed, R.S. § 3226, a construction requiring full payment would appear to be more consistent with the established meaning of the statutory language. Furthermore, the situation with respect to tax suits against the United States at the time 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1) was enacted, the express purpose of its enactment, and subsequent expressions of congressional intent all suggest that the principle of full payment was to be rpeserved.
14
The jurisdictional provision that is now 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1) was first enacted in Section 1310(c) of the Revenue Act of 1921.12 At that time the United States was already suable in the District Courts. Since 1887 the Tucker Act had allowed suit against the United States for claims less than $10,000 'founded upon * * * any law of Congress * * *,'13 and that language included suits to obtain refund of income taxes. United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825. Since R.S. § 3226 was cast in the broadest of terms, its requirement that refund suits be preceded by an 'appeal' to the Commissioner clearly applied to the Tucker Act cases, United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598, and the related requirement that full payment must be made prior to suit seems to have been assumed to be equally applicable. For amounts in excess of the $10,000 Tucker Act limitation the taxpayer could invoke his old remedy against the collector.
15
The complementary nature of the two District Court remedies was impaired when this Court re-emphasized the rule requiring the collector to be sued personally. A suit against the office or the successor in office of a deceased collector could not be maintained. Smietanka v. Indiana Steel Co., 1921, 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99. Senator Jones of New Mexico interrupted floor debate on the Revenue Act of 1921 to call attention to this decision. In his view it meant that when the particular collector was dead a taxpayer suing for more than $10,000 had to bring suit in the Court of Claims. In addition to the extra expense and inconvenience of litigating in Washington, a Court of Claims judgment carried no interest. The Senator proposed an amendment, stating:
16
'What is here proposed is that we shall remedy that situation by providing that where the collector to whom the revenue was paid has died then the claimant may sue the United States. It simply brings about an equitable situation and prevents the taxpayer from having to suffer the hardships which would be brought upon him simply through the accident of the death of the collector to whom he paid the money. I offer the amendment for the purpose of remedying that situation.'14
17
The amendment, which was accepted without further comment, conferred jurisdiction on the District Court,
18
'Concurrent with the Court of Claims, of any suit or proceeding, commenced after the passage of the revenue act of 1921, for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws, even if the claim exceeds $10,000, if the collector of internal revenue by whom such tax, penalty, or such was collected is dead at the time such suit or proceeding is commenced.'15
19
The amendment's narrow-stated purpose refutes any suggestion that Congress intended further to expand or even to restate the jurisdiction of the District Court in refund suits brought against the United States. As we have seen, the District Courts already had such jurisdiction under the Tucker Act, and there is no indication that Congress intended any change in the terms on which that action was made available other than the change that was clearly set forth. The statute that is now 28 U.S.C. § 1346(a) (1), 28 U.S.C.A. § 1346(a)(1) was enacted merely to remove the jurisdictional amount limitation of the Tucker Act in the special situation where the collector could not be sued. See Lowe Bros. Co. v. United States, 304 U.S. 302, 305, 58 S.Ct. 896, 897, 82 L.Ed. 1362. The House Conference Report and a contemporary Treasury Department declaration confirm this view of the statute's effect.16
20
The similarity of essential language leaves no doubt that the terms of the jurisdictional provision were copied from the claim-for-refund statute, R.S. § 3226, as amended by Section 1318 of the Revenue Act of 1921.17 The fact that this language had for many years been considered to require full payment before suing the collector, and the fact that the avowed purpose of the 1921 amendment was merely to cure an inadequacy in the suit against the collector, combine as persuasive indications that no change was intended in the full-payment principle declared in Cheatham v. United States, supra.
21
When Congress created the Board of Tax Appeals in 1924,18 it demonstrated a clear understanding that refund suits could only be maintained upon full payment of the tax alleged to be due. The House Committee proposing the bill explained its purpose as follows:
22
'The committee recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excessprofits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination of the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in non-liquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.'19
23
Petitioner argues that the 'hardship' the Board of Tax Appeals was created to alleviate was not the taxpayer's inability to sue without paying the whole tax—for petitioner erroneously concludes that the 1921 amendment conferred that right—but the Government's power to collect the balance due while a refund suit was in progress. But the Committee Report quoted above clearly demonstrates that the hardship about which the Congress was concerned was the hardship of prelitigation payment, not post-litigation collection. Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 721, 49 S.Ct. 499, 501, 73 L.Ed. 918.20
24
The final step in the evolvement of 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1) took place in the Act of July 30, 1954,21 which removed the $10,000 jurisdictional limitation and eliminated the condition about the collector being dead or out of office. Far from indicating an intent to allow suit without full payment of the tax due, the legislative history of that amendment shows a clear understanding of the Cheatham requirement, and demonstrates a narrow purpose in no way inconsistent with that requirement. The House Report states:
25
'The purpose of this bill is to permit taxpayers a greater opportunity to sue the United States in the district court of their own residence to recover taxes which they feel have been wrongfully collected. This is done by removing the jurisdictional limitation of $10,000 now imposed on such suits.'22
26
In explaining the present state of the law the Report goes on to point out that a taxpayer may contest a deficiency assessment by a petition in the Tax Court. 'The taxpayer may, however,' the Report continues, 'elect to pay his tax and thereafter bring suit to recover the amount claimed to have been illegally exacted.'23
27
The foregoing study of the legislative history of 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1) and related statutes leaves no room for contention that their broad terms were intended to alter in any way the Cheatham principle of 'pay first and litigate later.'24 For many years that principle has been reinforced by the rule that no suit can be maintained for the purpose of restraining the assessment or collection of any tax.25 More recently, Congress took care to except from the operation of the Federal Declaratory Judgments Act any controversies 'with respect to Federal taxes.'26 To ameliorate the hardship produced by these requirements Cognress created a special court where tax questions could be adjudicated in advance of any payment. But there is no indication of any intent to create the hybrid remedy for which petitioner contends.
28
It is suggested that a part-payment remedy is necessary for the benefit of a taxpayer too poor to pay the full amount of the tax. Such an individual is free to litigate in the Tax Court without any advance payment. Where the time to petition that court has expired, or where for some other reason a suit in the District Court seems more desirable, the requirement of full payment may in some instances work a hardship. But since any hardship would grow out of an opinion whose effect Congress in successive statutory revisions has made no attempt to alter, if any amelioration is required it is now a matter for Congress, not this Court.
29
The judgment of the Court of Appeals is affirmed.
30
Affirmed.**
31
Mr. Justice WHITTAKER, believing that Bushmiaer v. United States, 8 Cir., 230 F.2d 146; Sirian Lamp Co. v. Manning, 3 Cir., 123 F.2d 776, 138 A.L.R. 1423, and Coates v. United States, 2 Cir., 111 F.2d 609, properly apply the statutes involved and should be followed, would reverse the judgment below.
1
See also Suhr v. United States, 3 Cir., 18 F.2d 81. But cf. Sirian Lamp Co. v. Manning, 3 Cir., 123 F.2d 776, 138 A.L.R. 1423.
2
See also Sirian Lamp Co. v. Manning, 3 Cir., 123 F.2d 776; Coates v. United States, 2 Cir., 111 F.2d 609. But cf. Bendheim v. Commissioner, 2 Cir., 214 F.2d 26, 28; Elbert v. Johnson, 2 Cir., 164 F.2d 421, 423—424.
3
42 Stat. 311.
4
26 U.S.C. (Supp. V) § 7422(a), 26 U.S.C.A. § 7422(a): 'No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.' R.S. § 3226 is quoted in note 7, infra.
5
14 Stat. 152.
6
14 Stat. 111.
7
'No suit shall be maintained in any court for the recovery of (1) any internal tax alleged to have been erroneously or illegally assessed or collected, or of (2) any penalty claimed to have been collected without authority, or of (3) any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of Internal Revenue * * *.' R.S. § 3226.
This language is practically identical to that used by the 1866 Act in giving the Commissioner his refunding powers. 14 Stat. 111, restated in R.S. § 3220. The first category dates back to the 1863 Act. 12 Stat. 729. The third category was added in 1864. 13 Stat. 239. The 1866 Act rounded out the three categories by adding the second. 14 Stat. 111. An examination of the legislative history discloses no indication of the purpose of these successive additions.
8
Initially such suits depended upon diversity jurisdiction. Collector of Internal Revenue v. Hubbard, 12 Wall. 1, 20 L.Ed. 272. Later Congress created jurisdiction for 'all causes arising under any law providing internal revenue * * *.' R.S. § 629(4). With slight modification that provision became Section 24(5) of the Judicial Code, 36 Stat. 1092, 28 U.S.C.A. § 1340, and is presently 28 U.S.C. § 1340. See Lowe Bros. Co. v. United States, 304 U.S. 302, 305, 58 S.Ct. 896, 897, 82 L.Ed. 1362.
9
92 U.S. at pages 88—89.
10
Kings County Savings Institution v. Blair, 1886, 116 U.S. 200, 205, 6 S.Ct. 353, 356, 29 L.Ed. 657 ('No claim for the refunding of taxes can be made according to law and the regulations until after the taxes have been paid (and) * * * no suit can be maintained for taxes illegally collected unless a claim therefor has been made within the time prescribed by the law.'); Pollock v. Farmers' Loan & Trust Co., 1895, 157 U.S. 429, 609, 15 S.Ct. 673, 700, 39 L.Ed. 759 (dissenting opinion) ('The same authorities (including the Cheatham case) have established the rule that the proper course, in a case of illegal taxation, is to pay the tax under protest or with notice of suit, and then bring an action against the officer who collected it.'); Dodge v. Osborn, 1916, 240 U.S. 118, 120, 36 S.Ct. 275, 276, 60 L.Ed. 557 ('The remedy of a suit to recover back the tax after it is paid is provided by statute. * * *'); see note 20, infra.
11
E.g., Phillips v. Commissioner, 283 U.S. 589, 595, 51 S.Ct. 608, 611, 75 L.Ed. 1289; United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 395—396, 54 S.Ct. 443, 446—447, 78 L.Ed. 859; Dobson v. Commissioner, 320 U.S. 489, 496, 64 S.Ct. 239, 244, 88 L.Ed. 248.
12
42 Stat. 311.
13
24 Stat. 505, 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2).
14
61 Cong.Rec. 7506—7507.
15
61 Cong.Rec. 7507. A second amendment provided that interest should be allowed in any judgment against the United States in these refund suits. Ibid. A special amendment in 1925 added the right to bring such refund suits when the collector 'is not in office.' 43 Stat. 972.
16
H.R.Rep.No.486, 67th Cong., 1st Sess. 57; II—1 Cum.Bull. 224, 225.
17
42 Stat. 314. The 1921 Act substituted 'claim for refund or credit' where the statute formerly referred to an 'appeal' to the Commissioner.
18
43 Stat. 336.
19
H.R.Rep.No.179, 68th Cong., 1st Sess. 7. The Senate Committee on Finance made a similar explanation. S.Rep.No.398, 68th Cong., 1st Sess. 8.
20
'The Board of Tax Appeals * * * was created by Congress to provide taxpayers an opportunity to secure an independent review of the Commissioner of Internal Revenue's determination of additional income and estate taxes by the Board in advance of their paying the tax found by the Commissioner to be due. Before the act of 1924 the taxpayer could only contest the Commissioner's determination of the amount of the tax after its payment.'
21
68 Stat. 589.
22
H.R.Rep.No.659, 83d Cong., 1st Sess. 1.
23
Id., at 2. And see S.Rep.No.115, 83d Cong., 1st Sess.
24
Allen v. Regents of University System of Georgia, 304 U.S. 439, 456, 58 S.Ct. 980, 988, 82 L.Ed. 1448 (concurring opinion).
25
14 Stat. 475 (1867), re-enacted in R.S. § 3224, presently in force as 26 U.S.C. (Supp. V) § 7421, 26 U.S.C.A. § 7421.
26
49 Stat. 1027, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. See S.Rep.No.1240, 74th Cong., 1st Sess. 11.
**
Petition for rehearing pending, see 79 S.Ct. 112.
| 1112
|
357 U.S. 197
78 S.Ct. 1087
2 L.Ed.2d 1255
SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET COMMERCIALES, S. A., etc., Petitioner,v.William P. ROGERS, Attorney General of the United States, and Ivy Baker Priest, Treasurer of the United States.
No. 348.
Argued May 1, 1958.
Decided June 16, 1958.
Mr. John J. Wilson, Washington, D.C., for petitioner.
Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The question before us is whether, in the circumstances of this case, the District Court erred in dismissing, with prejudice, a complaint in a civil action as to a plaintiff that had failed to comply fully with a pretrial production order.
2
This issue comes to us in the context of an intricate litigation. Section 5(b) of the Trading with the Enemy Act, 40 Stat. 415, as amended, 50 U.S.C.Appendix, § 5(b), 50 U.S.C.A.Appendix, § 5(b), sets forth the conditions under which the United States during a period of war or national emergency may seize' * * * any property or interest of any foreign country or national * * *.' Acting under this section, the Alien Property Custodian during World War II assumed control of assets which were found by the Custodian to be 'owned by or held for the benefit of' I.G. Farbenindustrie, a German firm and a then enemy national. These assets, valued at more than $100,000,000, consisted of cash in American banks and approximately 90% of the capital stock of General Aniline & Film Corporation, a Delaware corporation. In 1948 petitioner, a Swiss holding company also known as I. G. Chemie or Interhandel, brought suit under § 9(a) of the Trading with the Enemy Act, 40 Stat. 419, as amended, 50 U.S.C.Appendix, § 9(a), 50 U.S.C.A.Appendix, § 9(a), against the Attorney General, as successor to the Alien Property Custodian, and the Treasurer of the United States, to recover these assets. This section authorizes recovery of seized assets by '(a)ny person not an enemy or ally of enemy' to the extent of such person's interest in the assets. Petitioner claimed that it had owned the General Aniline stock and cash at the time of vesting and hence, as the national of a neutral power, was entitled under § 9(a) to recovery.
3
The Government both challenged petitioner's claim of ownership and asserted that in any event petitioner was an 'enemy' within the meaning of the Act since it was intimately connected with I. G. Farben and hence was affected with 'enemy taint' despite its 'neutral' incorporation. See Uebersee Finanz-Korp., A. G. v. McGrath, 343 U.S 205, 72 S.Ct. 618, 96 L.Ed. 888. More particularly, the Government alleged that from the time of its incorporation in 1928, petitioner had conspired with I. G. Farben, H. Sturzenegger & Cie, a Swiss banking firm, and others '(t)o conceal, camouflage, and cloak the ownership, control and domination by I. G. Farben of properties and interests located in countries, including the United States, other than Germany, in order to avoid seizure and confiscation in the event of war between such countries and Germany.'
4
At an early stage of the litigation the Government moved under Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for an order requiring petitioner to make available for inspection and copying a large number of the banking records of Sturzenegger & Cie. Rule 34, in conjunction with Rule 26(b), provides that upon a motion 'showing good cause therefor,' a court may order a party to produce for inspection nonprivileged documents relevant to the subject matter of pending litigation '* * * which are in his possession, custody, or control * * *.' In support of its motion the Government alleged that the records sought were relevant to showing the true ownership of the General Aniline stock and that they were within petitioner's control because petitioner andSturzenegger were substantially identical. Petitioner did not dispute the general relevancy of the Sturzenegger documents but denied that it controlled them. The District Court granted the Government's motion, holding, among other things, that petitioner's 'control' over the records had been prima facie established.
5
Thereafter followed a number of motions by petitioner to be relieved of production on the ground that disclosure of the required bank records would violate Swiss penal laws and consequently might lead to imposition of criminal sanctions, including fine and imprisonment, on those responsible for disclosure. The Government in turn moved under Rule 37(b)(2) of the Federal Rules of Civil Procedure to dismiss the complaint because of petitioner's noncompliance with the production order. During this period the Swiss Federal Attorney, deeming that disclosure of these records in accordance with the production order would constitute a violation of Article 273 of the Swiss Penal Code, prohibiting economic espionage, and Article 47 of the Swiss Bank Law, relating to secrecy of banking records, 'confiscated' the Sturzenegger records. This 'confisaction' left possession of the records in Sturzenegger and amounted to an interdiction on Sturzenegger's transmission of the records to third persons. The upshot of all this was that the District Court, before finally ruling on petitioner's motion for relief from the production order and on the Government's motion to dismiss the complaint, referred the matter to a Special Master for findings as to the nature of the Swiss laws claimed by petitioner to block production and as to petitioner's good faith in seeking to achieve compliance with the court's order.
6
The Report of the Master bears importantly on our disposition of this case. It concluded that the Swiss Government had acted in accordance with its own established doctrines in exercising preventive police power by constructive seizure of the Sturzenegger records, and found that there was '* * * no proof, or any evidence at all of collusion between plaintiff and the Swiss Government in the seizure of the papers herein.' Noting that the burden was on petitioner to show good faith in its efforts to comply with the production order, and taking as the test of good faith whether petitioner had attempted all which a reasonable man would have undertaken in the circumstances to comply with the order, the Master found that '* * * the plaintiff has sustained the burden of proof placed upon it and has shown good faith in its efforts (to comply with the production order) in accordance with the foregoing test.'
7
These findings of the Master were confirmed by the District Court. Nevertheless the court, in February 1953, granted the Government's motion to dismiss the complaint and filed an opinion wherein it concluded that: (1) apart from considerations of Swiss law petitioner had control over the Sturzenegger records; (2) such records might prove to be crucial in the outcome of this litigation; (3) Swiss law did not furnish an adequate excuse for petitioner's failure to comply with the production order, since petitioner could not invoke foreign laws to justify disobedience to orders entered under the laws of the forum; and (4) that the court in these circumstances had power under Rule 37(b)(2), as well as inherent power, to dismiss the complaint. 111 F.Supp. 435. However, in view of statements by the Swiss Government, following petitioner's intercession, that certain records not deemed to violate the Swiss laws would be released, and in view of efforts by petitioner to secure waivers from those persons banking with the Sturzenegger firm who were protected by the Swiss secrecy laws, and hence whose waivers might lead the Swiss Government to permit production, the court suspended the effective date of its dismissal order for a limited period in order to permit petitioner to continue efforts to obtain waivers and Swiss consent for production.
8
By October 1953, some 63,000 documents had been released by this process and tendered the Government for inspection. None of the books of account of Sturzenegger were submitted, though petitioner was prepared to offer plans to the Swiss Government which here too might have permitted at least partial compliance. However, since full production appeared impossible, the District Court in November 1953 entered a final dismissal order. This order was affirmed by the Court of Appeals, which accepted the findings of the District Court as to the relevancy of the documents, control of them by petitioner, and petitioner's good-faith efforts to comply with the production order. The court found it unnecessary to decide whether Rule 37 authorized dismissal under these circumstances since it ruled that the District Court was empowered to dismiss both by Rule 41(b) of the Federal Rules of Civil Procedure, and under its own 'inherent power.' It did, however, modify the dismissal order to allow petitioner an additional six months in which to continue its efforts. 96 U.S.App.D.C. 232, 225 F.2d 532. We denied certiorari. 350 U.S. 937, 76 S.Ct. 302, 100 L.Ed. 818.
9
During this further period of grace, additional documents, with the consent of the Swiss Government and through waivers, were released and tendered for inspection, so that by July of 1956, over 190,000 documents had been procured. Record books of Sturzenegger were offered for examination in Switzerland, subject to the expected approval of the Swiss Government, to the extent that material within them was covered by waivers. Finally, petitioner presented the District Court with a plan, already approved by the Swiss Government, which was designed to achieve maximum compliance with the production order: A 'neutral' expert, who might be an American, would be appointed as investigator with the consent of the parties, District Court, and Swiss authorities. After inspection of the Sturzenegger files, this investigator would submit a report to the parties identifying documents, without violating secrecy regulations, which he deemed to be relevant to the litigation. Petitioner could then seek to obtain further waivers or secure such documents by letters rogatory or arbitration proceedings in Swiss courts.
10
The District Court, however, refused to entertain this plan or to inspect the documents tendered in order to determine whether there had been substantial compliance with the production order. It directed final dismissal of the action. The Court of Appeals affirmed, but at the same time observed: 'That (petitioner) and its counsel patiently and diligently sought to achieve compliance * * * is not to be doubted.' 100 U.S.App.D.C. 148, 149, 243 F.2d 254, 255. Because this decision raised important questions as to the proper application of the Federal Rules of Civil Procedure, we granted certiorari. , 355 U.S. 812, 78 S.Ct. 61, 2 L.Ed.2d 30.
I.
11
We consider first petitioner's contention that the District Court erred in issuing the production order because the requirement of Rule 34, that a party ordered to produce documents must be in 'control' of them, was not here satisfied. Without intimating any view upon the merits of the litigation, we accept as amply supported by the evidence the findings of the two courts below that, apart from the effect of Swiss law, the Sturenegger documents are within petitioner's control. The question then becomes: Do the interdictions of Swiss law bar a conclusion that petitioner had 'control' of these documents within the meaning of Rule 34?
12
We approach this question in light of the findings below that the Swiss penal laws did in fact limit petitioner's ability to satisfy the production order because of the criminal sanctions to which those producing the records would have been exposed. Still we do not view this situation as fully analogous to one where documents required by a production order have ceased to exist or have been taken into the actual possession of a third person not controlled by the party ordered to produce, and without that party's complicity. The 'confiscation' of these records by the Swiss authorities adds nothing to the dimensions of the problem under consideration, for possession of the records stayed where it was and the possibility of criminal prosecution for disclosure was of course present before the confiscation order was issued.
13
In its broader scope, the problem before us requires consideration of the policies underlying the Trading with the Enemy Act. If petitioner can prove its record title to General Aniline stock, it certainly is open to the Government to show that petitioner itself is the captive of interests whose direct ownership would bar recovery. This possibility of enemy taint of nationals of neutral powers, particularly of holding companies with intricate financial structures, which asserted rights to American assets was of deep concern to the Congress when it broadened the Trading with the Enemy Act in 1941 '* * * to reach enemy interests which masqueraded under those innocent fronts.' Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 485, 68 S.Ct. 174, 176, 92 L.Ed. 88. See Administration of the Wartime Financial and Property Controls of the United States Government, Treasury Department (1942), pp. 29—30; H.R.Rep. No. 2398, 79th Cong., 2d Sess. 3.
14
In view of these considerations, to hold broadly that petitioner's failure to produce the Sturzenegger records because of fear of punishment under the laws of its sovereign precludes a court from finding that petitioner had 'control' over them, and thereby from ordering their production, would undermine congressional policies made explicit in the 1941 amendments, and invite efforts to place ownership of American assets in persons or firms whose sovereign assures secrecy of records. The District Court here concluded that the Sturzenegger records might have a vital influence upon this litigation insofar as they shed light upon petitioner's confused background. Petitioner is in a most advantageous position to plead with its own sovereign for relaxation of penal laws or for adoption of plans which will at the least achieve a significant measure of compliance with the production order, and indeed to that end it has already made significant progress. United States courts should be free to require claimants of seized assets who face legal obstacles under the laws of their own countries to make all such efforts to the maximum of their ability where the requested records promise to bear out or dispel any doubt the Government may introduce as to true ownership of the assets.
15
We do not say that this ruling would apply to every situation where a party is restricted by law from producing documents over which it is otherwise shown to have control. Rule 34 is sufficiently flexible to be adapted to the exigencies of particular litigation. The propriety of the use to which it is put depends upon the circumstances of a given case, and we hold only that accommodation of the Rule in this instance to the policies underlying the Trading with the Enemy Act justified the action of the District Court in issuing this production order.
II.
16
We consider next the source of the authority of a District Court of dismiss a complaint for failure of a plaintiff to comply with a production order. The District Court found power to dismiss under Rule 37(b)(2)(iii) of the Federal Rules of Civil Procedure as well as in the general equity powers of a federal court. The Court of Appeals chose not to rely upon Rule 37, but rested such power on Rule 41(b) and on the District Court's inherent power.
17
Rule 37 describes the consequences of a refusal to make discovery. Subsection (b), which is entitled 'Failure to Comply With Order,' provides in pertinent part:
18
'(2) * * * If any party * * * refuses to obey * * * an order made under Rule 34 to produce any document or other thing for inspection * * *, the court may make such orders in regard to the refusal as are just, and among others the following:
19
'(iii) An order striking out pleadings or parts thereof * * *, or dismissing the action or proceeding or any part thereof * * *.'
20
Rule 41(b) is concerned with involuntary dismissals and reads in part: 'For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.' In our opinion, whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery by listing a variety of remedies which a court may employ as well as by authorizing any order which is 'just.' There is no need to resort to Rule 41(b), which appears in that part of the Rules concerned with trials and which lacks such specific references to discovery. Further, that Rule is on its face appropriate only as a defendant's remedy, while Rule 37 provides more expansive coverage by comprehending disobedience of production orders by any party. Reliance upon Rule 41, which cannot easily be interpreted to afford a court more expansive powers than does Rule 37, or upon 'inherent power,' can only obscure analysis of the problem before us. See generally Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Col.L.Rev. 480.
21
It may be that the Court of Appeals invoked Rule 41(b), which uses the word 'failure,' and hesitated to draw upon Rule 37(b) because of doubt that Rule 37 would cover this situation since it applies only where a party 'refuses to obey.' (Italics added.) Petitioner has urged that the word 'refuses' implies willfulness and that it simply failed and did not refuse to obey since it was not in willful disobedience. But this argument turns on too fine a literalism and unduly accents certain distinctions found in the language of the various subsections of Rule 37.1 Indeed subsection (b), as noted above, is itself entitled 'Failure to Comply With Order.' (Italics added.) For purposes of subdivision (b)(2) of Rule 37, we think that a party 'refuses to obey' simply by failing to comply with an order. So construed the Rule allows a court all the flexibility it might need in framing an order appropriate to a particular situation. Whatever its reasons, petitioner did not comply with the production order. Such reasons, and the willfulness or good faith of petitioner, can hardly affect the fact of noncompliance and are relevant only to the path which the District Court might follow in dealing with petitioner's failure to comply.
III.
22
We turn to the remaining question, whether the District Court properly exercised its powers under Rule 37(b) by dismissing this complaint despite the findings that petitioner had not been in collusion with the Swiss authorities to block inspection of the Sturzenegger records, and had in good faith made diligent efforts to execute the production order.
23
We must discard at the outset the strongly urged contention of the Government that dismissal of this action was justified because petitioner conspired with I. G. Farben, Sturzenegger & Cie, and others to transfer ownership of General Aniline to it prior to 1941 so that seizure would be avoided and advantage taken of Swiss secrecy laws. In other words, the Government suggests that petitioner stands in the position of one who deliberately courted legal impediments to production of the Sturzenegger records, and who thus cannot now be heard to assert its good faith after this expectation was realized. Certainly these contentions, if supported by the facts, would have a vital bearing on justification for dismissal of the action, but they are not open to the Government here. The findings below reach no such conclusions; indeed, it is not even apparent from them whether this particular charge was ever passed upon below. Although we do not mean to preclude the Government from seeking to establish such facts before the District Court upon remand, or any other facts relevant to justification for dismissal of the complaint, we must dispose of this case on the basis of the findings of good faith made by the Special Master, adopted by the District Court, and approved by the Court of Appeals.
24
The provisions of Rule 37 which are here involved must be read in light of the provisions of the Fifth Amendment that no person shall be deprived of property without due process of law, and more particularly against the opinions of this Court in Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, and Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530. These decisions establish that there are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause. The authors of Rule 37 were well aware of these constitutional considerations. See Notes of Advisory Committee on Rules, Rule 37, 28 U.S.C. (1952 ed.) p. 4325, 28 U.S.C.A.
25
In Hovey v. Elliott, supra, it was held that due process was denied a defendant whose answer was struck, thereby leading to a decree pro confesso without a hearing on the merits, because of his refusal to obey a court order pertinent to the suit. This holding was substantially modified by Hammond Packing Co. v. State of Arkansas, supra, where the Court ruled that a state court, consistently with the Due Process Clause of the Fourteenth Amendment, could strike the answer of and render a default judgment against a defendant who refused to produce documents in accordance with a pretrial order. The Hovey case was distinguished on grounds that the defendant there was denied his right to defend 'as a mere punishment'; due process was found preserved in Hammond on the reasoning that the State simply utilized a permissible presumption that the refusal to produce material evidence '* * * was but an admission of the want of merit in the asserted defense.' 212 U.S. at pages 350—351, 29 S.Ct. at page 380. But the Court took care to emphasize that the defendant had not been penalized '* * * for a failure to do that which it may not have been in its power to do.' All the State had required 'was a bona fide effort to comply with an order * * *, and therefore any reasonable showing of an inability to comply would have satisfied the requirements * * *' of the order. 212 U.S. at page 347, 29 S.Ct. at page 378.
26
These two decisions leave open the question whether Fifth Amendment due process is violated by the striking of a complaint because of a plaintiff's inability, despite good-faith efforts, to comply with a pretrial production order. The presumption utilized by the Court in the Hammond case might well falter under such circumstances. Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. Certainly substantial constitutional questions are provoked by such action. Their gravity is accented in the present case where petitioner, though cast in the role of plaintiff, cannot be deemed to be in the customary role of a party invoking the aid of a court to vindicate rights asserted against another. Rather petitioner's position is more analogous to that of a defendant, for it belatedly challenges the Government's action by now protesting against a seizure and seeking the recovery of assets which were summarily possessed by the Alien Property Custodian without the opportunity for protest by any party claiming that seizure was unjustified under the Trading with the Enemy Act. Past decisions of this Court emphasize that this summary power to seize property which is believed to be enemy-owned is rescued from constitutional invalidity under the Due Process and Just Compensation Clauses of the Fifth Amendment only by those provisions of the Act which afford a non-enemy claimant a later judicial hearing as to the propriety of the seizure. See Stoehr v. Wallace, 255 U.S. 239, 245—246, 41 S.Ct. 293, 296, 65 L.Ed. 604; Guessefeldt v. McGrath, 342 U.S. 308, 318, 72 S.Ct. 338, 344, 96 L.Ed. 342; cf. Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 231, 75 L.Ed. 473.
27
The findings below, and what has been shown as to petitioner's extensive efforts at compliance, compel the conclusion on this record that petitioner's failure to satisfy fully the requirements of this production order was due to inability fostered neither by its own conduct nor by circumstances within its control. It is hardly debatable that fear of criminal prosecution constitutes a weighty excuse for nonproduction, and this excuse is not weakened because the laws preventing compliance are those of a foreign sovereign. Of course this situation should be distinguished from one where a party claims that compliance with a court's order will reveal facts which may provide the basis for criminal prosecution of that party under the penal laws of a foreign sovereign thereby shown to have been violated. Cf. United States v. Murdock, 284 U.S. 141, 149, 52 S.Ct. 63, 76 L.Ed. 210. Here the findings below establish that the very fact of compliance by disclosure of banking records will itself constitute the initial violation of Swiss laws. In our view, petitioner stands in the position of an American plaintiff subject to criminal sanctions in Switzerland because production of documents in Switzerland pursuant to the order of a United States court might violate Swiss laws. Petitioner has sought no privileges because of its foreign citizenship which are not accorded domestic litigants in United States courts. Cf. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 133 135, 58 S.Ct. 785, 82 L.Ed. 1224. It does not claim that Swiss laws protecting banking records should here be enforced. It explicitly recognizes that it is subject to procedural rules of United States courts in this litigation and has made full efforts to follow these rules. It asserts no immunity from them. It asserts only its inability to comply because of foreign law.
28
In view of the findings in this case, the position in which petitioner stands in this litigation, and the serious constitutional questions we have noted, we think that Rule 37 should not be construed to authorize dismissal of this complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner.2
29
This is not to say that petitioner will profit through its inability to tender the records called for. In seeking recovery of the General Aniline stock and other assets, petitioner recognizes that it carries the ultimate burden of proof of showing itself not to be an 'enemy' within the meaning of the Trading with the Enemy Act. The Government already has disputed its right to recovery by relying on information obtained through seized records of I. G. Farben, documents obtained through petitioner, and depositions taken of persons affiliated with petitioner. It may be that in a trial on the merits, petitioner's inability to produce specific information will prove a serious handicap in dispelling doubt the Government might be able to inject into the case. It may be that in the absence of complete disclosure by petitioner, the District Court would be justified in drawing inferences unfavorable to petitioner as to particular events. So much indeed petitioner concedes. But these problems go to the adequacy of petitioner's proof and should not on this record preclude petitioner from being able to contest on the merits.
30
On remand, the District Court possesses wide discretion to proceed in whatever manner it deems most effective. It may desire to afford the Government additional opportunity to challenge petitioner's good faith. It may wish to explore plans looking towards fuller compliance. Or it may decide to commence at once trial on the merits. We decide only that on this record dismissal of the complaint with prejudice was not justified.
31
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion.
32
It is so ordered.
33
Judgment of Court of Appeals reversed and case remanded to the District Court with directions.
34
Mr. Justice CLARK took no part in the consideration or decision of this case.
1
Rule 37 is entitled: 'Refusal to Make Discovery: Consequences.' Different subsections refer to 'Refusal to Answer' (a), 'Expenses on Refusal to Admit' (c), 'Failure of Party to Attend or Serve Answers' (d), and 'Failure to Respond to Letters Rogatory' (e). We find no design in the Rules evidenced by this pattern of words to establish the clear distinction petitioner detects between mere failure and willful refusal insofar as Rule 37(b) is concerned. The word 'refusal,' by way of example, clearly refers in several instances in subsection (a) of the Rule to noncompliance for any reason. And Rule 41(b) in turn, discussed above in text, refers simply to 'failure * * * to comply' but might as applied to a particular situation require a showing of willfulness to justify dismissal. (Italics added throughout.) The words 'refusal' and 'failure' cannot be deemed to bear a fixed meaning common to their use in all sections but must be read in the context of a particular subsection.
2
The Government relies in part upon a number of British prize cases in support of its position that dismissal without adjudication on the merits is justified where a party is prevented by foreign laws from satisfying a court order. However these cases are to be interpreted, they are not persuasive authority on the issue before us. We are here concerned with the interpretation to be accorded rules governing procedure in the federal courts and with constitutional doctrine underlying these rules.
| 89
|
357 U.S. 77
78 S.Ct. 1063
2 L.Ed.2d 1174
CITY OF CHICAGO, a Municipal Corporation, Petitioner,v.The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY; The Baltimore and Ohio Railway Company, et al. PARMELEE TRANSPORTATION CO., et al., Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY CO., et al.
Nos. 103, 104.
Argued March 5, 6, 1958.
Decided June 16, 1958.
[Syllabus from pages 76-78 intentionally omitted]
Mr. Joseph F. Grossman, Chicago, Ill., for the petitioner.
Mr. Amos M. Mathews, Chicago, Ill., for the respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Chicago is one of the Nation's great rail centers. Each day thousands of railroad passengers travel through that City on continuous journeys from one State to another. Since the lines of all railroads which carry passengers into and out of Chicago come to an end in one of that City's eight terminals, through passengers frequently arrive at a station different from the one where they are to board their outgoing train and must transfer with their baggage in order to continue their trip. Because of the serious problems of scheduling and passenger convenience involved in this interchange, the railroads, as a group, have long provided for the transfer of through passengers from one station to another by a systematic and highly organized motor carrier operation. Generally the passengers receive a coupon covering this transfer service, without special charge, as part of their through ticket.
2
For many years the railroads had an arrangement with Parmelee Transportation Company under which it carried through passengers between stations. Apparently finding its service no longer desirable, the railroads notified Parmelee in June 1955 that they would discontinue using its transfer vehicles as of October 1, 1955. Subsequently they engaged Railroad Transfer Service, a corporation specially organized at their request for that purpose, as their exclusive transfer agent for a five-year period commencing with the termination of Parmelee's service.
3
At the time the railroads gave Parmelee their notice the City of Chicago had in effect a detailed plan for the regulation and licensing of public passenger vehicles for hire. Among other things, operation of any public passenger vehicle, including a vehicle engaged in the transfer of passengers between railroad stations, was prohibited unless it had been licensed by the City. Any person who operated one of these vehicles without a license was subject to arrest and punishment.
4
After the railroads announced they intended to use the facilities of Railroad Transfer Service instead of those of Parmelee, the City Council proceeded to amend the Municipal Code so as to effect certain important changes with regard to the licensing of transfer vehicles. A new section, 28—31.1, was added. In substance, it provided that no license for a transfer vehicle would issue unless the City Commissioner of Licenses first determined that public convenience and necessity required additional interterminal service. In that event, the City Council reserved final discretion to determine how many, if any, new licenses were to be issued. In making his determination the Commissioner was authorized to consider public demand for the proposed additional transfer service, its economic feasibility, public safety and, generally, any other facts he might think relevant.1 If § 28—31.1 validly applied to Railroad Transfer Service that company was required to secure a certificate of convenience and necessity from the Commissioner plus the approval of the City Council before it could lawfully transfer any passengers for the railroads. On the other hand, Parmelee was permitted to continue operating without leave from the City since an exception in § 28—31.1 provided that no certificate was necessary for the renewal of an existing license. Parmelee's vehicles were all licensed, of course, at the time the section became effective.
5
As scheduled, Transfer began to carry passengers between stations on October 1, 1955.2 However, it refused to apply for a certificate of convenience and necessity, taking the position that § 28—31.1 was either inapplicable to its vehicles or, if applicable, invalid. The City rejected this contention and threatened to arrest and fine Transfer's drivers if they operated unlicensed vehicles. Transfer and the railroads then filed this suit in United States District Court asking for a judgment declaring § 28—31.1 either inapplicable or invalid. The complaint asserted that the city's requirement of a certificate of convenience and necessity was inconsistent with the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., as well as the Commerce Clause of the Constitution insofar as it applied to vehicles transferring interstate passengers from one rail road station to another under agreement with the railroads. The City filed no answer but moved for a summary judgment. Parmelee was permitted to intervene as a defendant.
6
The district judge, pointing out that there were no genuine issues of fact, granted the city's motion and dismissed the complaint. But the Court of Appeals for the Seventh Circuit reversed. 240 F.2d 930. It agreed with the District Court that § 28—31.1 applied to Transfer's operation, but held that the section as so applied was repugnant on its face to the Constitution and laws of the United States. We granted the City's petition for certiorari, 353 U.S. 972, 77 S.Ct. 1057, 1 L.Ed.2d 1135, but postponed assuming jurisdiction on an appeal by Parmelee until further consideration at the hearing on the merits, 353 U.S. 971, 77 S.Ct. 1057, 1 L.Ed.2d 1134. Counsel for Parmelee and Transfer were asked to discuss the following jurisdictional questions:
7
'1. Whether Parmelee Transportation Co. has standing to seek review here on appeal or by writ of certiorari.
8
'2. Whether the judgment of the Court of Appeals is 'final' so as to permit review by way of appeal under 28 U.S.C. § 1254(2) (28 U.S.C.A. § 1254(2)). Cf. Slaker v. O'Connor, 278 U.S. 188, 189 (49 S.Ct. 158, 159, 73 L.Ed. 258); South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901 (76 S.Ct. 692, 100 L.Ed. 1439).'
9
First. The judgment of the Court of Appeals is the proper subject of an appeal. Under 28 U.S.C. § 1254(2), 28 U.S.C.A. § 1254(2), this Court may review cases on appeal where a Court of Appeals has held a state statute invalid as repugnant to the Constitution, treaties or laws of the United States. In Slaker v. O'Connor, 278 U.S. 188, 189, 49 S.Ct. 158, 159, 73 L.Ed. 258, the Court construed the substantially identical predecessor of § 1254(2)3 as requiring a 'final' judgment in a case before an appeal could be taken. The Slaker case was followed without comment, as to § 1254(2) itself, by the per curiam opinion in South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439. Counsel for Parmelee, relying on the language and legislative history of § 1254(2) and its predecessor, forcefully argue that the requirement of finality announced in the Slaker case is erroneous and should be overruled. We find it unnecessary however to pass on this contention here because we are convinced that the judgment below was 'final' by any relevant standard.
10
By its decision the Court of Appeals resolved all disputed questions between the parties. From the beginning the only issues in the case were whether § 28—31.1 was applicable to Transfer and, if applicable, whether that section was consistent with federal law. The Court of Appeals held the section applied to Transfer but was unconstitutional. There was nothing more to litigate; all that remained for the District Court on remand was to formally enter judgment for the plaintiff. Compare Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 381—383, 73 S.Ct. 749, 750—751, 97 L.Ed. 1094.
11
Second. Parmelee has standing to secure review of the judgment below by appeal. It is enough, for purposes of standing, that we have an actual controversy before us in which Parmelee has a direct and substantial personal interest in the outcome. Undoubtedly it is affected adversely by Transfer's operation. Parmelee contends that this operation is prohibited by a valid city ordinance and asserts the right to be free from unlawful competition. Transfer, on the other hand, suggests that Parmelee has no standing because the city ordinance is invalid and Transfer's operation is lawful. It argues that a party has no right to complain about lawful competition, citing Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374, and Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543. We do not regard either of these cases as controlling here. It seems to us that Transfer's argument confuses the merits of the controversy with the standing of Parmelee to litigate them. Cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. Parmelee's standing could hardly depend on whether or not it is eventually held that Transfer can lawfully operate without a certificate of convenience and necessity.4
12
Third. There is still another preliminary point which must be decided. The City argues that the courts below should not have passed on the validity of § 28—31.1 until state courts had authoritatively ruled that Transfer's terminal vehicles came within its provisions. The City asks that we vacate the judgment of the Court of Appeals and remand to the District Court with directions to hold the case until efforts to obtain an adjudication in the state courts have been exhausted. Under the circumstances we do not believe this procedure is warranted.
13
After full argument on that point, both the District Court and a unanimous Court of Appeals held that § 28—31.1 applied to Transfer. That was the position of the city in both courts and it made no move there to have the matter remitted to the state courts. After referring to the provisions of § 28—31.1 the City declared in its brief in the Court of Appeals: 'A more accurate description of the business engaged in by Transfer would be hard to find.' We think this is a fair summarization. We see no ambiguity in the section which calls for interpretation by the state courts. Cf. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460. Remission to those courts would involve substantial delay and expense, and the chance of a result different from that reached below, on the issue of applicability, would appear to be slight.
14
Fourth. We agree with the Court of Appeals that § 28—31.1 is invalid insofar as it requires Transfer to secure a certificate of convenience and necessity before it can operate. By its terms § 28 31.1 gives the City Commissioner of Licenses, and ultimately the City Counsel itself, virtually unlimited discretion to determine who may transfer interstate passengers and baggage between railroad terminals. Although counsel for the City denies that it will use this power to exclude proposed transfer operations wholly or primarily because of economic considerations (cf. Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623), it is clear that the City claims at least some power under § 28—31.1 to decide whether a motor carrier may transport passengers from one station to another. In our judgment the provisions of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 1 et seq., 49 U.S.C.A. § 1 et seq., preclude the City from exercising any veto power over such transfer service when performed by the railroads or by their chosen agents.
Section 1(4) of that Act reads:
15
'It shall be the duty of every common carrier subject to this chapter * * * to establish reasonable through routes with other such carriers * * * (and) to provide reasonable facilities for operating such routes and to make reasonable rules and regulations with respect to their operation * * *.'
Section 3(4) provides:
16
'All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines * * *.'
17
Complementing these provisions, § 15(3) specifically empowers the Interstate Commerce Commission to establish reasonable through routes whenever necessary or desirable in the public interest.5
18
As we understand these sections they not only authorize the railroads to take all reasonable and proper steps for the transfer of persons and property between their connecting lines, but impose affirmative obligations on them in this respect. See United States v. Pennsylvania R. Co., 323 U.S. 612, 65 S.Ct. 471, 89 L.Ed. 499; Central Transfer Co. v. Terminal Railroad Association of St. Louis, 288 U.S. 469, 473, note 1, 53 S.Ct. 444, 446, 77 L.Ed. 899. Although the railroads may not be obligated to furnish transfer service between terminals in every instance, it seems apparent that such service would often be necessary if the statutory requirements were to be observed. On this basis the Interstate Commerce Commission has held that it has authority to require motor service between terminals. See Cartage, Rail to Steamship Lines at New York, 269 I.C.C. 199. Here the railroads have furnished transfer facilities for the heavy flow of traffic between the numerous Chicago terminals for more than a century. It is agreed that transportation by motor vehicle is now the only practical means of moving this traffic from terminal to terminal. We think the transfer service involved is at least authorized, if not actually required, under the Act as a reasonable and proper facility for the interchange of passengers and their baggage between connecting lines.
19
Moreover, § 302(c) of the Act provides that motor vehicle transportation between terminals, whether performed by a railroad or by an agent or contractor of its choosing, shall be regarded as railroad transportation and shall be subject to the same comprehensive scheme of regulation which applies to such transportation.6 While the Interstate Commerce Commission has not yet adopted special regulations for interstation transfer service it obviously can do so at any time under this section. In the meantime many of the Commission's regulations which generally govern railroad transportation apply to this service. And even without Commission action a number of the provisions of the Interstate Commerce Act itself are self-executing in their application.
20
The various provisions set forth above manifest a congressional policy to provide for the smooth, continuous and efficient flow of railroad traffic from State to State subject to federal regulation. In our view it would be inconsistent with this policy if local authorities retained the power to decide whether the railroads or their agents could engage in the interterminal transfer of interstate passengers. We believe the Act authorizes the railroads to engage in this transfer operation themselves or to select such agents as they see fit for that purpose without leave from local authorities.
21
National rather local control of interstate railroad transportation has long been the policy of Congress. It is not at all extraordinary that Congress should extend freedom from local restraints to the movement of interstate traffic between railroad terminals. Serious impediments to the efficient and uninterrupted flow of this traffic might well result if the City could deny the railroads the right to transfer passengers by their own vehicles or by those of their selected agents. For example, the railroads here undoubtedly have a better understanding of how to handle the transportation problems involved in expeditiously moving thousands of passengers from station to station each day than do local officials. Because of close time schedules, the great volume of traffic and its irregular ebb and flow, the railroads obviously need a cooperative and dependable transfer operator with suitable equipment who is willing to work in close harmony with them. The railroads have rejected as unsuitable the only transfer service now licensed to operate by the City. If local officials can prevent them from providing this service by some other means a break-down in the organized transfer of passengers could result. At a minimum they would be forced to deal once again with the rejected operator. Moreover, it seems clear that if the City could deny a license to one operator it has the power, at least so far as the Interstate Commerce Act is concerned, to deny a license to all.
22
We are fully aware that use of local streets is involved, but no one suggests that Congress cannot require the City to permit interstate commerce to pass over those streets. Of course the City retains considerable authority to regulate how transfer vehicles shall be operated. It could hardly be denied, for example, that such vehicles must obey traffic signals, speed limits and other general safety regulations. Similarly the City may require registration of these vehicles and exact reasonable fees for their use of the local streets. Cf. Fry Roofing Co. v. Wood, 344 U.S. 157, 73 S.Ct. 204, 97 L.Ed. 168; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053. All we hold here, and all we construe the Court of Appeals as holding, is that the City has no power to decide whether Transfer can operate a motor vehicle service between terminals for the railroads because this service is an integral part of interstate railroad transportation authorized an subject to regulation under the Interstate Commerce Act. Cf. Castle v. Hayes Freight Lines, 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68.
23
Fifth. Since we hold that § 28—31.1 is completely invalid insofar as it applies to Transfer, that company was not obligated to apply for a certificate of convenience and necessity and submit to the administrative procedures incident thereto before bringing this action. See Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 L.Ed. 1262; Public Utilities Commission of State of California v. United States, 355 U.S. 534, 539—540, 78 S.Ct. 446, 450, 2 L.Ed.2d 470. Cf. Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 277, 280, 2 L.Ed.2d 302.
24
Affirmed.
25
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting.
26
In my opinion the Court has acted prematurely in striking down this Chicago ordinance as it relates to Transfer. I accept the premise that the railroads have the right to choose whom they please to perform the transfer services, subject only to the City's right to regulate how transfer vehicles shall be operated. Nevertheless, the validity of the ordinance should not be determined until Transfer has applied to Chicago for a 'teminal' license and the local authorities have had an opportunity to act on the application. Not until then will it be known whether the ordinance, as it may be applied to Transfer's operations, trespasses upon paramount federal concerns. Proper regard for the City's legitimate interests in enforcing this local enactment entitles Chicago to that opportunity. Cf. Public Utilities Commission of State of California v. United States, 355 U.S. 534, 546 (dissenting opinion), 78 S.Ct. 446, 454, 2 L.Ed.2d 470.
27
No provision of the Interstate Commerce Act purports to pre-empt Chicago's power to apply its ordinance to one in the position of Transfer. This is therefore not a case where particular provisions of federal and local legislation conflict in such a way that they cannot logically or practically stand together, cf. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 786, 62 S.Ct. 491, 86 L.Ed. 754; First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143, nor one where there is such overall similarity between federal and state regulation that a congressional purpose to displace state action in its entirety can fairly be deduced. Cf. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581; Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. And because Transfer does not hold a certificate of necessity from the Interstate Commerce Commission, and seemingly cannot get one, see Status of Parmelee Transportation Co., 288 I.C.C. 95, no conflict appears between federal and local regulatory policies respecting those performing transfer services. Cf. Castle v. Hayes Freight Lines, Inc., 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68. The sole question is thus whether the ordinance must be struck down, when applied to Transfer's operations, as 'inconsistent' with the policy of the Interstate Commerce Act to foster efficient interstate transportation.
28
In determining whether Chicago's ordinance should now be annulled it must be borne in mind that local authorities are not foreclosed from regulating matters of local concern merely because there may be some incidental, but not burdensome, effect on interstate commerce. At least since Cooley v. Board of Wardens, 12 How. 299, 53 U.S. 299, 13 L.Ed. 996, it has been recognized that because regulation of local incidents of interstate transportation is, as a practical matter, beyond the effective reach of Congress, there would frequently be an undesirable absence of needed regulation unless states and municipalities were free to act. See State of California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219; see, also, H. P. Welch Co. v. State of New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500; Eichholz v. Public Service Comm. of Missouri, 306 U.S. 268, 59 S.Ct. 268, 83 L.Ed. 641. So much indeed is recognized by the Court today when it says that Chicago, as part of its 'considerable authority' to regulate the operation of transfer vehicles, may exact fees for their use of the city streets and may require them to meet with safety regulations and to be registered with the City. And, of course, the Court's examples do not exhaust the scope of local regulatory power to insure safe transportation. Nor can I perceive why the City should not be permitted to exercise such power before permitting unlicensed vehicles to travel on its streets. On the other hand, I would agree that Chicago, under the guise of promoting safe and proper transportation, could not validly limit on 'economic' grounds those with whom the railroads may contract to carry its interstate passengers through the City. Cf. Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623.
29
We do not yet know how Chicago will apply the ordinance. If it should grant Transfer a license, that will end the present controversy. If a license is denied, it will then be time enough to determine whether the basis for denial runs afoul of federal transportation policy. It is true that the ordinance gives the City broad authority, but that does not justify the assumption that such authority will be exercised beyond permissible bounds, especially since Chicago has acknowledged that it could not properly withhold a license 'solely or even primarily' because existing transfer facilities were adequate or because additional licenses would adversely affect the competitive situation. Only by refraining from passing on the ordinance until Chicago has had a chance to act under it, do we respect the long-standing tradition of this Court not to interfere prematurely with the administration of state and local enactments. See, e.g., Alabama Federaltion of Labor, Local Union No. 103, etc. v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291. Cf. Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101.
30
The fact that this course of action would involve some further delay and expense does not, in my judgment, justify by-passing the municipal authorities. Transfer accepted the risk of such a result when it failed to apply for a license in the first instance. And if it is said that this course will expose the transfer operations to hazards in the interval, the answer is that the Federal District Court in Chicago possesses ample authority to prevent any interference with Transfer's activities pending final adjudication of the matters in controversy.
31
Some years ago, in a situation closely analogous to the one before us, this Court approved the decision of a three-judge District Court declining to entertain a complaint attacking the constitutionality of a Missouri statute which prohibited interstate carriers from using state highways without obtaining a permit from the State, on the ground that the complainant had not applied for such a permit. Columbia Terminals Co. v. Lambert, D.C., 30 F.Supp. 28; 309 U.S. 620, 60 S.Ct. 471, 84 L.Ed. 983, 984. I believe that Columbia Terminals provides the guiding principle for the appropriate disposition of premature challenges to the validity of local ordinances. However, in view of the posture of the present litigation, I would follow a somewhat different course here, and would vacate the judgment of the Court of Appeals and remand the case to the District Court. Our mandate should enable the District Court to stay the operation of Chicago's ordinance and to retain jurisdiction over this case, pending Transfer's prompt steps to initiate license proceedings before the local authorities and the outcome of such proceedings.
1
In full, the section read:
'28—31.1. Public Convenience and Necessity. No license for any terminal vehicle shall be issued except in the annual renewal of such license or upon transfer to permit replacement of a vehicle for that licensed unless, after a public hearing held in the same manner as specified for hearings in Section 28—22.1, the commissioner shall report to the council that public convenience and necessity require additional terminal vehicle service and shall recommend the number of such vehicle licenses which may be issued.
'In determining whether public convenience and necessity require additional terminal vehicle service due consideration shall be given to the following:
'1. The public demand for such service;
'2. The effect of an increase in the number of such vehicles on the safety of existing vehicular and pedestrian traffic in the area of their operation;
'3. The effect of an increase in the number of such vehicles upon the ability of the licensee to continue rendering the required service at reasonable fares and charges to provide revenue sufficient to pay for all costs of such service, including fair and equitable wages and compensation for licensee's employees and a fair return on the investment in property devoted to such service;
'4. Any other facts which the commissioner may deem relevant.
'If the commissioner shall report that public convenience and necessity require additional terminal vehicle service, the council, by ordinance, may fix the maximum number of terminal vehicle licenses to be issued not to exceed the number recommended by the Commissioner.' Chicago Municipal Code, c. 28, § 28—31.1.
2
In accordance with its agreement with the railroads, Transfer's operation is limited exclusively to transporting through passengers from one railroad station to another. It carries no other passengers.
3
§ 240(b) of the Judiciary Act of 1925, 43 Stat. 939.
4
Since No. 104 is properly here on appeal, the petition for certiorari in that case is denied.
5
Section 12 generally authorizes and requires the Commission 'to execute and enforce' all of the provisions of the Act.
6
In pertinent part, § 302(c) reads:
'Notwithstanding any provision of this section or of section 303 of this title, the provisions of (Chapter 8 of the Act regulating motor carriers) * * * shall not apply—
'(1) to transportation by motor vehicle by a carrier by railroad * * * incidental to transportation or service subject to (regulation by the Interstate Commerce Commission under Chapter 1 of the Act as railroad transportation or service) * * * in the performance within terminal areas of transfer, collection, or delivery services; but such transportation shall be considered to be and shall be regulated as transportation subject to chapter 1 of this title when performed by such carrier by railroad * * *.
'(2) to transportation by motor vehicle by any person (whether as agent or under a contractual arrangement) for a common carrier by railroad subject to chapter 1 of this title * * * in the performance within terminal areas of transfer, collection, or delivery service; but such transportation shall be considered to be performed by such carrier * * * as part of, and shall be regulated in the same manner as, the transportation by railroad * * * to which such services are incidental.' 49 U.S.C. § 302(c), 49 U.S.C.A. § 302(c).
| 910
|
357 U.S. 193
78 S.Ct. 1076
2 L.Ed.2d 1252
William P. ROGERS, Attorney General, Petitioner,v.Jimmie QUAN, also known as Quan Dung Ngoon, et al.
No. 396.
Argued May 20, 1958.
Decided June 16, 1958.
Mr. Leonard B. Sand, Washington, D.C., for the petitioner.
Mr. David Carliner, Washington, D.C., for the respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a companion case to Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072. The five respondents are natives of China who came to the United States seeking admission between 1949 and 1954, four of them arriving before the effective date of the Immigration and Nationality Act. Like petitioner in Leng May Ma, all were paroled into the United States, and all have been ordered excluded. They applied for stays of deportation under § 243(h) of the Immigration and Nationality Act,1 and upon refusal, filed complaints in the District Court seeking judgments declaring their nondeportability to China, directing considerarion of their claims under § 243(h), and restraining the Attorney General from deporting them. The complaints were dismissed by the District Court, but the Court of Appeals held that excluded aliens on parole are 'within the United States' for purposes of § 243(h), 101 U.S.App.D.C. 229, 248 F.2d 89. Because of the conflict with the Ninth Circuit's decision in Leng May Ma, we granted certiorari. 1957, 355 U.S. 861, 78 S.Ct. 95, 2 L.Ed.2d 67. We have concluded that respondents, like petitioner in Leng May Ma, are ineligible for stays of deportation under § 243(h). However, because of the importance of this problem in the administration of the immigration laws, we deem it appropriate to deal specifically with a contention not directly asserted by petitioner in Leng May Ma.
2
The deportation of excluded aliens under the Immigration and Nationality Act is authorized in § 237(a) of Chapter 4, wherein it is provided that an alien excluded under the Act 'shall be immediately deported to the country whence he came * * *.' 66 Stat. 201, 8 U.S.C. § 1227(a), 8 U.S.C.A. § 1227(a). A similar provision existed in the immediate predecessor to § 237(a), which was § 18 of the Immigration Act of 1917.2 Deportation in expulsion proceedings is separately provided for under the present Act in § 243 of Chapter 5, subsection (h) of which, of course, contains the authority which respondents seek to invoke in this case. 66 Stat. 212, 8 U.S.C. § 1253, 8 U.S.C.A. § 1253. Like authority existed in the immediate predecessor of § 243, which was § 20 of the Immigration Act of 1917, 39 Stat. 890, as amended by § 23 of the Internal Security Act of 1950, 64 Stat. 1010.
3
Respondents assert, however, that neither § 237(a) nor its predecessor, § 18 of the 1917 Act, is the basis for their deportation since they were not 'immediately' deported as required in the sections. Hence, they argue that deportation must rest upon § 243 of the present Act, as to the respondent who arrived after the Immigration and Nationality Act, and its predecessor, § 20 of the 1917 Act, as to the four who arrived prior to the present Act.
4
We will assume, for purpose of analysis, that four of the five respondents are, as they claim, deportable only under prior Acts by virtue of their early arrival. However, under neither of the exclusion sections, i.e., § 237(a) of the present Act or § 18 of the 1917 Act, is the deportation authority confined, as respondents contend, to those situations where deportation is immediate. Neither section, when read in its entirety and in context, fairly suggests any such limitation. Nor are there reasons of policy to compel such a result. As the desie to remain increases, those knocking on our doors quite naturally become more litigious, and contested departures often involve long delays. We doubt that the Congress intended the mere fact of delay to improve an alien's status from that of one seeking admission to that of one legally considered within the United States. We conclude that there is ample basis under § 237(a) and § 18 of the 1917 Act to deport respondents; we need not draw upon the provisions in § 243 of the present Act or § 20 of the 1917 Act.
5
Regardless of which of the two exclusion sectons, § 237(a) of the 1952 Act or § 18 of the 1917 Act, provides the basis for respondents' deportation, the applications for stays were all filed subsequent to the 1952 Act and hence must be determined by that Act. For reasons explained in Leng May Ma, § 243(h) is unavailable to excluded aliens, and the fact of parole creates no variance from this principle.
6
Reversed.
7
The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN dissent for the reasons stated in the dissenting opinion in Leng May Ma v. Barber, 357 U.S. 190, 78 S.Ct. 1075.
1
Section 243(h): 'The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persencution and for such period of time as he deems to be necessary for such reason.' 66 Stat. 214, 8 U.S.C. § 1253(h), 8 U.S.C.A. § 1253(h).
2
Section 18: '(A)ll aliens brought to this country in violation of law shall be immediately sent back * * *.' 39 Stat. 887.
| 12
|
357 U.S. 214
78 S.Ct. 1061
2 L.Ed.2d 1269
Tom ESKRIDGE, Petitioner,v.WASHINGTON STATE BOARD of PRISON TERMS and PAROLES.
No. 96.
Argued May 19, 1958.
Decided June 16, 1958.
Mr. Robert W. Graham, Seattle, Wash., for the petitioner.
Mr. John J. O'Connell, Olympia, Wash., for the respondent.
PER CURIAM.
1
The Constitution of the State of Washington provides: 'In criminal prosecutions, the accused shall have * * * the right to appeal in all cases * * *.' Wash.Const., Amend. 10. In 1935, after petitioner was convicted of murder in a Washington state court and sentenced to life imprisonment, he gave timely notice of appeal to the Supreme Court of the State. Washington law authorizes a trial judge to have a stenographic transcript of trial proceedings furnished an indigent defendnat at public expense 'if in his opinion justice will thereby be promoted.' Remington's Wash.Rev.Stat., 1932, § 42—5. Alleging substantial errors in his trial petitioner moved for a free transcript. The trial judge denied this motion, finding that 'justice would not be promoted * * * in that defendant has been accorded a fair and impartial trial, and in the Court's opinion no grave defendant at public expense 'if in Petitioner then moved in the State Supreme Court for writ of mandate ordering the trial judge to have a transcript furnished for the prosecution of his appeal. The Supreme Court denied this petition and simultaneously granted the State's motion to dismiss petitioner's appeal for failure to file a certified 'statement of facts' and 'transcript of record.' In 1956 petitioner applied for habeas corpus in the Washington Supreme Court charging that failure to furnish a free transcript of the proceedings had violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. His petition was denied without opinion and we granted certiorari. 353 U.S. 922, 77 S.Ct. 683, 1 L.Ed.2d 719.
2
In this Court the State does not deny petitioner's allegations of poverty, the substantiality of the trial errors he alleges, or the necessity for him to have some record of the proceedings in order to prosecute his appeal properly. It does argue that petitioner might have utilized notes compiled by someone other than the official court reporter. Assuming that under some circumstances such notes could be an adequate substitute for a court reporter's transcript there is nothing in this record to show that any were available to petitioner, and the Washington courts appear to have proceeded on the assumption that he could not effectively prosecute his appeal unless the motion for a free transcript was granted. The State concedes that the reporter's transcript from the 1935 trial is still available. In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, we held that a State denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials. We hold that Washington has denied this constitutional right here. The conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript. We do not hold that a State must furnish a transcript in every case involving an indigent defendant. But here, as in the Griffin case, we do hold that, '(d)estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Griffin v. People of State of Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591.
3
The judgment of the Washington Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
4
Reversed and remanded.
5
Mr. Justice HARLAN and Mr. Justice WHITTAKER, believing that on this record the Griffin case, decided in 1956, should not be applied to this conviction occurring in 1935, would affirm the judgment.
6
Mr. Justice FRANKFURTER, not having heard the argument, took no part in the consideration or disposition of the case.
| 12
|
357 U.S. 320
78 S.Ct. 1209
2 L.Ed.2d 1345
CITY OF TACOMA, Petitioner,v.The TAXPAYERS OF TACOMA, and Robert Schoettler, as Director of Fisheries, and John A. Biggs, as Director of Game, of the State of Washington, and the State of Washington.
No. 509.
Argued April 30, 1958.
Decided June 23, 1958.
[Syllabus from pages 320-321 intentionally omitted]
Mr. Northcutt Ely, Washington, D.C., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for the United States and Federal Power Commission as amicus curiae, by leave of Court.
Mr. John S. Lynch, Jr., and E. P. Donnelly, Olympia, Wash., for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
This is the latest episode in litigation beginning in 1948 which has been waged in five tribunals and has produced more than 125 printed pages of administrative and judicial opinions. It concerns the plan of the City of Tacoma, a municipal corporation in the State of Washington, to construct a power project on the Cowlitz River, a navigable water of the United States, in accordance with a license issued by the Federal Power Commission under the Federal Power Act.1 The question presented for decision here is whether under the facts of this case the City of Tacoma has acquired federal eminent domain power and capacity to take, upon the payment of just compensation, a fish hatchery owned and operated by the State of Washington, by virtue of the license issued to the City under the Federal Power Act and more particularly § 21 thereof.2 The project cannot be built without taking the hatchery because it necessarily must be inundated by a reservoir that will be created by one of the project's dams.
2
The question has arisen under the following circumstances and proceedings. Having earlier filed its declaration of intention to construct the project,3 the City of Tacoma, a 'municipality'4 in the State of Washington, on December 28, 1948, filed with the Commission, under s 4(e) of the Federal Power Act,5 an application6 for a federal license to construct a power project, including two dams (known as Mossyrock and Mayfield) and appurtenant facilities, on the Cowlitz River.7
3
The Mossyrock development was proposed to be located at Mile 65 and to consist of a concrete dam across the Cowlitz rising 510 feet above bedrock (creating a reservoir covering about 10,000 acres extending 21 miles upstream) and an integral powerhouse containing, initially, three generators each of 75,000-kilowatt capacity and provisions for a fourth generator of like capacity. The Mayfield development was proposed to be located at Mile 52 and to consist of a concrete dam across the Cowlitz rising 240 feet above bedrock (creating a reservoir, covering about 2,200 acres extending 13.5 miles upstream to the tailwaters of the Mossyrock Dam, which would inundate the State's fish hatchery) and an integral powerhouse containing, initially, three generators each of 40,000 kilowatt-capacity and provisions for a fourth generator of like capacity. The project—estimated to cost $146,000,000, including $9,465,000 for devices to enable anadromous fish to pass to spawning grounds upstream and their young to pass to the sea, and for new fish hatcheries—would thus have initial capacity to produce 345,000 kilowatts or 474,000 horsepower, and eventually 460,000 kilowatts or 632,000 horsepower, of electrical energy.
4
The Commission ordered a public hearing to determine whether the license should issue, and gave notice of the hearing to the Governor of the State of Washington. In response, the Attorney General of the State filed an intervening petition, in the names of the State's Directors of Fisheries and of Game, alleging in substance that the State's Departments of Fisheries and of Game are subdivisions of the sovereign State, and that the respective Directors are charged with the duty of enforcing its laws concerning the conservation of fish and game; that the dams and fish-handling facilities proposed by the City would destroy fishery resources of the State; that construction of proposed dams would violate R.C.W. 90.28.060, requiring the State's permission to construct any dam for the storage of 10 acre-feet or more of water, and R.C.W. 75.20.010, prohibiting the construction of any dam higher than 25 feet across any river tributary to the Columbia, downstream from the McNary Dam, within the migratory range of anadromous fish; and '(t)hat the reservoirs which would be created by the proposed dams would inundate a valuable and irreplaceable fish hatchery owned by the State of Washington, as well as * * * productive spawning areas.' The City's answer admitted that the State's fish hatchery would be inundated by the Mayfield Reservoir. The State's Attorney General also appointed a Special Assistant Attorney General to represent all persons of the State whose views were in conflict with the State's official position.
5
Upon the issues thus framed a hearing, consuming 24 days, was conducted by a Commission examiner, throughout which the Attorney General of the State, by his designated assistant, actively participated in opposition to the application, and the Special Assistant Attorney General, appointed for the purpose stated, also participated in the proceedings before the Commission. Thereafter the Commission, on November 28, 1951, rendered its opinion,8 findings,9 and order granting the license.10 In the Matter of City of Tacoma, Washington, 92 P.U.R.(n.s.) 79. The State petitioned for a rehearing which was denied.
6
Pursuant to § 313 of the Act, 16 U.S.C. § 825l, 16 U.S.C.A. § 825l, the State, in its proper name and also on behalf of its Directors of Fisheries and of Game, petitioned for review of the Commission's order by the Court of Appeals for the Ninth Circuit. The City intervened. The State there challenged the Commission's authority to issue the license principally upon the grounds that the City had not complied with applicable state laws nor obtained state permits and approvals required by state statutes;11 that 'Tacoma, as a creature of the State of Washington, cannot act in opposition to the policy of the State or in derogation of its laws' (emphasis added); and that the evidence was not sufficient to sustain the Commission's findings and order. The Court of Appeals, holding that 'state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States' and that there was ample evidence to sustain the Commission's findings and its order, affirmed. State of Washington, Department of Game v. Federal Power Comm., 9 Cir., 207 F.2d 391, 396. (Emphasis added.) The State then petitioned this Court for a writ of certiorari which was denied. 347 U.S. 936, 74 S.Ct. 626, 98 L.Ed. 1087.
7
While the petition for review was pending in the Ninth Circuit, the City, on February 3, 1952, commenced an action in the Superior Court of Pierce County, Washington, against the taxpayers of Tacoma and the State's Directors of Fisheries and of Game, seeking a judgment declaring valid a large issue of revenue bonds, authorized by the City's ordinance (No. 14386) of January 9, 1952, to be issued and sold by Tacoma to finance the construction of the Cowlitz project—a proceeding specifically authorized by R.C.W. 7.25.010 through 7.25.040. As required by those statutes the court named representative taxpayers of Tacoma as class defendants and also appointed their counsel who demurred to the City's complaint. The State's Directors of Fisheries and of Game, acting through an Assistant Attorney General of the State, filed an answer and also a cross-complaint (reasserting substantially the same objections that they and the State had made before the Commission, and that had been made in, and rejected by, the Court of Appeals on their petition for review) to which the City demurred. The judge of the Superior Court sustained the Taxpayers' demurrer and dismissed the suit.12 Tacoma appealed to the Supreme Court of Washington. That court, three justices dissenting, reversed the judgment and remanded the cause with instructions to overrule the Taxpayers' demurrer and to proceed further consistently with the court's opinion. City of Tacoma v. Taxpayers of Tacoma, 43 Wash.2d 468, 262 P.2d 214.13
8
Following that opinion the City, on June 21, 1955, accepted bids for a block of its revenue bonds totaling $15,000,000, and on the next day it awarded contracts for construction of the Mayfield Dam aggregating $16,120,870. Two days later, June 24, 1955, the Directors 'acting for and on behalf of the State' moved in the Superior Court for, and obtained, ex parte, an order enjoining the City, pending determination of the suit, from proceeding to construct the Cowlitz project or to sell any of its revenue bonds. That order was modified on June 30, 1955, to permit such construction work as would not in any manner interfere with the bed or waters of the Cowlitz River. Promptly thereafter the City began construction of the project, within the limits of the injunction, and had expended about $7,000,000 thereon to the time the work was completely enjoined as later stated.
9
On July 27, 1955, Tacoma amended its complaint merely to assert the intervening facts that the Commission, upon application of the City which was opposed by the State, had, on the basis of delays entailed by this litigation, entered an order on February 24, 1954, amending Articles 28 and 33 of the City's license by extending the time for commencing and for completing the project to December 31, 1955, and December 31, 1958, respectively, and that the City had amended its pertinent ordinance (No. 14386) accordingly and in other minor respects. On August 8, 1955, on motion made by the State's Attorney General (in the names of the Directors of Fisheries and of Game), the State, 'in its sovereign capacity,' was formally made a defendant in the action. The State and those Directors answered, and also filed a cross-complaint again reviving the objections previously made by the Directors in their earlier cross-complaint and alleging further that the project would interfere with navigation of the Cowlitz River in violation of R.C.W. 80.40.010. Upon pretrial conference the Superior Court found that the navigation issue was the only one open and ordered that the evidence at the trial be limited to that issue. On January 11, 1956, the case was tried and the testimony taken was limited solely to the navigation issue. On March 6, 1956, the court, holding that the State's statutes proscribing the construction of dams (note 11) are 'inapplicable,' but that the City 'is acting illegally and in excess of its authority in the construction of the * * * project as presently proposed for the reason that said project would necessarily impede, obstruct or interfere with public navigation contrary to the proviso of R.C.W. 80.40.010 et seq.,' entered judgment in favor of the Taxpayers and the State, and enjoined the City from proceeding to construct the project.
10
Tacoma appealed, and the Taxpayers, the State and its Directors cross-appealed, to the Supreme Court of Washington. On February 7, 1957, that court,14 three justices dissenting, affirmed. City of Tacoma v. Taxpayers of Tacoma, 49 Wash.2d 781, 307 P.2d 567. It agreed that the Washington statutes proscribing the construction of dams (note 11) were 'inapplicable * * * insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of (the City's) License for said project, or insofar as they would enable State officials to exercise a veto over said project' (id., 49 Wash.2d at page 801, 307 P.2d at page 577), but it disapproved the action of the trial court in sustaining the State's objection that the project would interfere with navigation in violation of R.C.W. 80.40.010. However, upon the declared premise that though the trial court's judgment was based upon an erroneous ground it would sustain it if correct on any ground within the pleadings and established by proof, it held that, though the State Legislature has given the City the right to construct and operate facilities for the production and distribution of electric power and a general power of condemnation for those purposes, 'the legislature has (not) expressly authorized a municipal corporation to condemn state-owned land previously dedicated to a public use (and) that the city of Tacoma has not been endowed with (State) statutory capacity to condemn (the State's fish hatchery)'; that 'the city of Tacoma (may not) receive the power and capacity to condemn (the State's fish hatchery) previously dedicated to a public use, from the license issued to it by the Federal Power Commission in the absence of such power and capacity under state statutes' (emphasis added); and that the City's 'inability so to act can be remedied only by state legislation that expands its capacity.' (Emphasis in original.) Id., 49 Wash.2d at pages 798, 799, 307 P.2d at pages 576, 577. This, it said, 'is not a question of the right of the Federal government to control all phases of activity on navigable streams, nor a question of its power, under the Federal power act, to delegate that right. It only questions the capacity of a municipal corporation of this state to act under such license when its exercise requires the condemnation of state-owned property dedicated to a public use.' Id., 49 Wash.2d at page 798, 307 P.2d at page 576. (Emphasis added.) We granted certiorari. 355 U.S. 888, 78 S.Ct. 262, 2 L.Ed.2d 188.
11
At the outset respondents ask dismissal of our writ on the ground that the case is moot. They argue that it is evident the Cowlitz project cannot be completed by December 31, 1958, which is the date now stated in the license for its completion. There is no merit in this contention because § 13 of the Federal Power Act, 41 Stat. 1071, 16 U.S.C. § 806, 16 U.S.C.A. § 806, expressly provides that 'the period for the completion of construction carried on in good faith and with reasonable diligence may be extended by the commission when not incompatible with the public interests,' and an application by the City is now pending before the Commission for an extension of completion time based upon delays entailed by these proceedings.
12
We come now to the core of the controversy between the parties, namely, whether the license issued by the Commission under the Federal Power Act to the City of Tacoma gave it capacity to act under that federal license in constructing the project and delegated to it federal eminent domain power to take upon the payment of just compensation, the State's fish hatchery—essential to the construction of the project—in the absence of state legislation specifically conferring such authority.
13
At the threshold of this controversy petitioner, the City, asserts that, under the express terms of § 313(b) of the Act, 16 U.S.C. § 825l(b), 16 U.S.C.A. § 825l(b), this question has been finally determined by the decision of the Court of Appeals (State of Washington, Dept. of Game v. Federal Power Comm., 9 Cir., 207 F.2d 391) and this Court's denial of certiorari (347 U.S. 936, 74 S.Ct. 626, 98 L.Ed. 1087); and that respondents' cross-complaints, and proceedings thereon, in the subsequent bond validation suit in the Washington courts have been only impermissible collateral attacks upon the final judgment of the Court of Appeals. If this assertion is correct, the judgment of the Supreme Court of Washington now before us would necessarily have to be reversed, for obviously that court, like this one, may not, in such a case, re-examine and decide a question which has been finally determined by a court of competent jurisdiction in earlier litigation between the parties. We must turn then to an examination of petitioner's contention.
14
It is no longer open to question that the Federal Government under the Commerce Clause of the Constitution (Art. I, § 8, cl. 3) has dominion, to the exclusion of the States, over navigable waters of the United States. Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed. 23; State of New Jersey v. Sargent, 269 U.S. 328, 337, 46 S.Ct. 122, 124, 70 L.Ed. 289; United States v. Appalachian Electric Power Co., 311 U.S. 377, 424, 61 S.Ct. 291, 307, 85 L.Ed. 243; First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U.S. 152, 173, 66 S.Ct. 906, 916, 90 L.Ed. 1143; United States v. Twin City Power Co., 350 U.S. 222, 224—225, 76 S.Ct. 259, 260 261, 100 L.Ed. 240. Congress has elected to exercise this power under the detailed and comprehensive plan15 for development of the Nation's water resources, which it prescribed in the Federal Power Act, to be administered by the Federal Power Commission. First Iowa Hydro-Electric Cooperative v. Federal Power Comm., supra; United States v. Appalachian Electric Power Co., supra.
15
Section 313(b) of that Act, upon which petitioner's claim of finality depends, provides, in pertinent part:
16
'(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located * * * by filing in such court, within 60 days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall forthwith be served upon any member of the Commission and thereupon the Commission shall certify and file with the court a transcript of the record upon which the order complained of was entered. Upon the filing of such transcript such court shall have exclusive jurisdiction to affirm, modify, or set aside such order in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. * * * The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in sections 346 and 347 of Title 28.' 16 U.S.C. § 825l(b), 16 U.S.C.A. § 825l(b). (Emphasis added.)
17
This statute is written in simple words of plain meaning and leaves no room to doubt the congressional purpose and intent. It can hardly be doubted that Congress, acting within its constitutional powers, may prescribe the procedures and conditions under which, and the courts in which, judicial review of administrative orders may be had. Cf. National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739. So acting, Congress in § 313(b) prescribed the specific, complete and exclusive mode for judicial review of the Commission's orders. Safe Harbor Water Power Corp. v. Federal Power Comm., 3 Cir., 124 F.2d 800, 804, certiorari denied 316 U.S. 663, 62 S.Ct. 943, 86 L.Ed. 1740. It there provided that any party aggrieved by the Commission's order may have judicial review, upon all issues raised before the Commission in the motion for rehearing, by the Court of Appeals which 'shall have exclusive jurisdiction to affirm, modify, or set aside such order in whole or in part,' and that '(t)he judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification * * *.' (Emphasis added.) It thereby necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review.16 Hence, upon judicial review of the Commission's order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all. For Congress, acting within its powers, has declared that the Court of Appeals shall have 'exclusive jurisdiction' to review such orders, and that its judgment 'shall be final,' subject to review by this Court upon certiorari or certification. Such statutory finality need not be labeled res judicata, estoppel, collateral estoppel, waiver or the like either by Congress or the courts.
18
The State participated in the hearing before the Commission. It there vigorously objected to the issuance of the license upon the grounds, among others, '(t)hat the reservoirs which would be created by the proposed dams would inundate a valuable and irreplaceable fish hatchery owned by the State' and, hence, necessarily require the taking of it by the City under the license sought; that the City had not complied with the applicable laws of the State respecting construction of the project and performance of the acts necessarily incident thereto (note 11); and that the City was not authorized by the laws of the State to engage in such business. The Commission rejected these contentions of the State and made all the findings required by the Act to support its order granting the license (note 9) including the finding that:
19
'The applicant * * * has submitted satisfactory evidence of compliance with the requirements of all applicable State laws insofar as necessary to effect the purposes of a license for the project;17 and it is a municipality within the meaning of § 3(7) of the Act.'18
20
The State then petitioned the Commission for a rehearing, reviving the foregoing contentions and raising others. The petition was denied.
21
Thereafter, the State, following the procedures prescribed by § 313(b), petitioned the proper Court of Appeals for review of the Commission's findings and order. After full hearing, that court rejected all contentions there raised by the State, did not disturb any of the Commission's findings, and affirmed its order without modification. State of Washington, Department of Game v. Federal Power Comm., 9 Cir., 207 F.2d 391. It made particular mention of, and approved, the Commission's finding, as rephrased by the court, that the City had submitted 'such evidence of compliance with state law as, in the Commission's judgment, would be 'appropriate to effect the purposes of a Federal license on the navigable waters of the United States." Id., 207 F.2d at page 396.
22
Moreover, in its briefs in the Court of Appeals, the State urged reversal of the Commission's order on the grounds that the City 'has not shown, nor could it show, that (it) has availed itself of * * * any right to take or destroy the property of the State of Washington (and that) Tacoma, as a creature of the State of Washington, cannot act (under the license) in opposition to the policy of the State or in derogation of its laws.' (Emphasis added.) In rejecting these contentions—that the City does not have 'any right to take or destroy property of the State' and 'cannot act' in accordance with the terms of its federal license—the Court of Appeals said:
23
'Again, we turn to the First Iowa case, supra. There, too, the applicant for a federal license was a creature of the state and the chief opposition came from the state itself. Yet, the Supreme Court permitted the applicant to act inconsistently with the declared policy of its creator, and to prevail in obtaining a license.
24
'Consistent with the First Iowa case, supra, we conclude that the state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the domination of the United States.' Id., 207 F.2d at page 396. (Emphasis added.)
25
We think these recitals show that the very issue upon which respondents stand here was raised and litigated in the Court of Appeals and decided by its judgment. But even if it might be thought that this issue was not raised in the Court of Appeals, it cannot be doubted that it could and should have been, for that was the court to which Congress had given 'exclusive jurisdiction to affirm, modify, or set aside' the Commission's order. And the State may not reserve the point, for another round of piecemeal litigation, by remaining silent on the issue while its action to review and reverse the Commission's order was pending in that court—which had 'exclusive jurisdiction' of the proceeding and whose judgment therein as declared by Congress 'shall be final,' subject to review by this Court upon certiorari or certification. After the Court of Appeals' judgment was rendered, the State petitioned this Court for a writ of certiorari which was denied. 347 U.S. 936, 74 S.Ct. 626, 98 L.Ed. 1087.
26
These were precisely the proceedings prescribed by Congress in § 313(b) of the Act for judicial review of the Commission's findings and order. They resulted in affirmance. That result, Congress has declared, 'shall be final.'
27
But respondents say that the Court of Appeals did not decide the question of legal capacity of the City to act under the license and, therefore, its decision is not final on that question, but left it open to further litigation. They rely upon the following language of the opinion:
28
'However, we do not touch the question as to the legal capacity of the City of Tacoma to initiate and act under the license once it is granted. There may be limitations in the City Charter, for instance, as to indebtedness limitations. Questions of this nature may be inquired into by the Commission as relevant to the practicability of the plan, but the Commission has no power to adjudicate them.' Id., 207 F.2d at pages 396—397.
29
We believe that respondents' construction of this language is in error. The questioned language expressly refers to possible 'indebtedness limitations' in the City's Charter and 'questions of this nature,' not to the right of the City to receive and perform, as licensee of the Federal Government under the Federal Power Act, the federal rights determined by the Commission and delegated to the City as specified in the license. That this was the meaning of the court, if its meaning might otherwise be doubtful, is made certain by the facts that the court did not disturb a single one of the Commission's findings; affirmed its order without modification; and said, in the sentence immediately preceding the questioned language: 'Consistent with the First Iowa case, supra, we conclude that the state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States.' Id., 207 F.2d at page 396. (Emphasis added.)
30
The final judgment of the Court of Appeals was effective, not only against the State, but also against its citizens, including the taxpayers of Tacoma, for they, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment. State of Wyoming v. Colorado, 286 U.S. 494, 506—509, 52 S.Ct. 621, 624—627, 76 L.Ed. 1245; cf. State of missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497; State of Kansas v. Colorado, 185 U.S. 125, 142, 22 S.Ct. 552, 558, 46 L.Ed. 838, Id., 206 U.S. 46, 49, 27 S.Ct. 655, 656, 51 L.Ed. 956; State of Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038; Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828; Com. of Pennsylvania v. West Virginia, 262 U.S. 553, 591, 595, 43 S.Ct. 658, 663—664, 67 L.Ed. 1117; State of North Dakota v. Minnesota, 263 U.S. 365, 373, 44 S.Ct. 138, 139, 68 L.Ed. 342.
31
We conclude that the judgment of the Court of Appeals, upon this Court's denial of the State's petition for certiorari, became final under § 313(b) of the Act, and is binding upon the State of Washington, its Directors of Fisheries and of Game, and its citizens, including the taxpayers of Tacoma; and that the objections and claims to the contrary asserted in the cross-complaints of the State, its Directors of Fisheries and of Game, and the Taxpayers of Tacoma, in this bond validation suit, were impermissible collateral attacks upon, and de novo litigation between the same parties of issues determined by, the final judgment of the Court of Appeals. Therefore, the judgment of the Supreme Court of Washington is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
32
Reversed and remanded.
33
Mr. Justice HARLAN, concurring.
34
I join the Court's opinion, but deem it appropriate to state my understanding of what the Court has held. The Court of Appeals in the earlier proceeding had jurisdiction to determine whether state or federal law governed Tacoma's power to condemn the State's hatchery, and that issue itself was a federal question. Section 313(b) of the Federal Power Act therefore foreclosed relitigation of this issue in the present case. I do not understand the Court to suggest that the Federal Power Act endowed the Commission and the Court of Appeals with authority to decide any issues of state law if such law were deemed controlling, or that had the Court of Appeals undertaken to do so, such a determination would have foreclosed re-examination of such a decision in other proceedings.
1
41 Stat. 1063 et seq., 16 U.S.C. § 791a et seq., 16 U.S.C.A. § 791a et seq.
2
41 Stat. 1074, 16 U.S.C. § 814, 16 U.S.C.A. § 814.
3
On August 6, 1948, the City filed with the Commission its declaration of intention to build this power project. On March 18, 1949, the Commission ruled that the Cowlitz River was navigable below the proposed project and that its construction would affect navigation and interstate commerce and, hence, could not be built without a license from the Commission, because of the provisions of § 23 of the Federal Power Act. 41 Stat. 1075, 16 U.S.C. § 816, 16 U.S.C.A. § 816.
4
"Municipality' (as used in the Federal Power Act) means a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power.' § 3(7), 41 Stat. 1063, 16 U.S.C. § 796(7), 16 U.S.C.A. § 796(7).
By a Washington statute all cities and towns of that State are made legally competent to 'construct, condemn and purchase, purchase, acquire, add to, maintain, and operate works, plants, and facilities for the purpose of furnishing the city or town and its inhabitants, and any other persons, with gas, electricity, and other means of power and facilities for lighting, heating, fuel, and power purposes * * *.' R.C.W. 80.40.050. Tacoma has exercised such powers since 1893.
5
41 Stat. 1065, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e). That subsection, so far as presently pertinent, provides:
'The commission is hereby authorized and empowered—
'(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States * * *.'
6
The application was accompanied by the maps, plans, specifications and estimates of cost covering the proposed project, as required by § 9(a) of the Act. 41 Stat. 1068, 16 U.S.C. § 802(a), 16 U.S.C.A. § 802(a). Those maps, plans and specifications made clear that the State's hatchery would be inundated by the proposed Mayfield Reservoir.
7
The Cowlitz River is a tributary of the Columbia in Southwestern Washington. It drains an area of 2,490 square miles of the western slope of the Cascade Range, and flows westerly for about 100 miles and thence southerly for 30 miles to its confluence with the Columbia at Longview which is about 65 miles above the mouth of the Columbia. It is conceded to be navigable at all points below the projected Mayfield Dam and, at the point of confluence with the Columbia, is a tidal river with an average flow of about 10,000 cubic feet per second.
8
The Commission's opinion discussed at length the State's basic contention that the river should be left in its natural state for the unobstructed use and propagation of anadromous fish and, upon that contention, concluded:
'The question posed does not appear to us to be between all power and no fish but rather between large power benefits (needed particularly for defense purposes), important flood control benefits and navigation benefits, with incidental recreation and intangible benefits, balanced against some fish losses, or a retention of the stream in its present natural condition until such time in the fairly near future when economic pressures will force its full utilization. With proper testing and experimentation by the city of Tacoma, in cooperation with interested state and Federal agencies, a fishery protective program can be evolved which will prevent undue loss of fishery values in relation to the other values. For these reasons we are issuing the license with certain conditions which are set forth in our accompanying order.' 92 P.U.R.(n.s.) 79, 85.
9
In its order granting the license the Commission made 66 findings in which, among other things, it found that the Cowlitz is a navigable water of the United States below the site of the proposed project
and that the dams and reservoirs will affect the interests of interstate or foreign commerce (see §§ 4(e) and 23 of the Act, 41 Stat. 1065, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e) and 41 Stat. 1075, 16 U.S.C. § 816, 16 U.S.C.A. § 816); that a critical shortage of electric power exists on the west side of the Cascade Range; that the project 'will be an exceptionally valuable addition to the Northwest Region power supply'; that 'none of the hydroelectric projects suggested for construction in lieu of the Cowlitz Project can be constructed as quickly or as economically as the Cowlitz Project'; that the project has been approved by the Chief of Engineers and the Secretary of the Army (see § 4(e), 41 Stat. 1065, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e)); that the project is financially and economically feasible; that 'the applicant * * * has submitted satisfactory evidence of compliance with the requirements of all applicable State laws insofar as necessary to effect the purposes of a license for the project (see § 9(b), 41 Stat. 1068, 16 U.S.C. § 802(b), 16 U.S.C.A. § 802(b)) and it is a municipality within the meaning of § 3(7) of the Act'; and that '(u)nder present circumstances and conditions and upon the terms and conditions hereinafter included in the license, the project is best adapted to a comprehensive plan for improving or developing the waterway involved for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the conservation and preservation of fish and wildlife resources, and for other beneficial public uses including recreational purposes.' See § 10(a), 41 Stat. 1068, 16 U.S.C. § 803(a), 16 U.S.C.A. § 803(a). (Emphasis added.)
10
The license was issued on November 28, 1951, for a period of 50 years from January 1, 1952—the first day of the month in which the City filed with the Commission its ordinance, No. 14386, enacted on January 9, 1952, formally accepting the license and all its requirements and conditions. See § 6, 41 Stat. 1067, 16 U.S.C. § 799, 16 U.S.C.A. § 799. The license, among other things, incorporated the City's maps, plans, specifications, and estimates of cost for the construction of the project (see § 9(a), 41 Stat. 1068, 16 U.S.C. § 802(a), 16 U.S.C.A. § 802(a)); incorporated by reference all provisions of the Federal Power Act (see § 6, 41 Stat. 1067, 16 U.S.C. § 799, 16 U.S.C.A. § 799); required construction of the project to be commenced within two years from the effective date of the license and to be completed within 36 months (see § 13, 41 Stat. 1071, 16 U.S.C. § 806, 16 U.S.C.A. § 806); required the City to construct, maintain and operate
such fish-handling facilities and fish hatcheries as may be prescribed by the Commission, but, before doing so, to make further studies, tests and experiments in cooperation with the United States Fish and Wildlife Service and the Departments of Fisheries and of Game of the State of Washington to determine the effectiveness of such facilities, and to submit the plans therefor to the Commission and obtain its approval.
11
The Washington statutes relied upon were R.C.W. 75.20.050, proscribing the diversion or use of water without a state permit; R.C.W. 75.20.100, requiring the State's approval of plans for the protection of fish in connection with the construction of dams; and R.C.W. 75.20.010, proscribing the construction of any dam higher than 25 feet across any stream tributary to the Columbia, downstream from the McNary Dam, within the migration range of anadromous fish.
12
This order was entered by the Superior Court of Thurston County to which the cause had been transferred.
13
The court, in answering the contentions of the Taxpayers and the State's Directors of Fisheries and of Game that the State's statutes proscribing the diversion of water and the construction of dams (see note 11) 'are a valid exercise of the (State's) police power' (id., 43 Wash.2d at page 483, 262 P.2d at page 222) and 'must be complied with before (the City) can proceed with the construction of its project' (id., 43 Wash.2d at page 477, 262 P.2d at page 219), said: '(T)hese state laws are in direct conflict with the Federal Power Act, they are invalid under the terms of the supremacy clause contained in Article VI of the United States constitution * * * (and) (w)here, as here, the state and Federal acts cannot be reconciled or consistently stand together, the action of a state even under its police power must give way.' Id., 43 Wash.2d at page 483, 262 P.2d at page 222. And in answering the further contention that the City, 'being a municipal corporation created by the state, may not defy the laws of its creator' (id., 43 Wash.2d at page 491, 262 P.2d at page 227), the court said: 'The Federal Power Act defines the term municipal corporation and authorizes the power commission to issue a license to such an entity. Appellant has complied with the state law with respect to the right of a municipality to engage in the business of developing, transmitting and distributing power. Having been granted a license by the power commission, we hold that appellant is at the present time in the same position as any other licensee under the act.' Id., 43 Wash.2d at page 492, 262 P.2d at page 227. (Emphasis added.)
14
The Supreme Court of Washington was then somewhat differently constituted than when it rendered its decision on October 14, 1953, reversing the Superior Court's judgment sustaining the Taxpayers' demurrer to the City's complaint. City of Tacoma v. Taxpayers of Tacoma, 43 Wash.2d 468, 262 P.2d 214.
15
For a summary of the detailed and comprehensive plan of the Act see First Iowa case, supra, 328 U.S. at page 181, note 25, 66 S.Ct. at page 920.
16
Cf., e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48—50, 58 S.Ct. 459, 462—463, 82 L.Ed. 638; United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263; Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235.
17
See § 9(b) of the Act 41 Stat. 1068, 16 U.S.C. § 802(b), 16 U.S.C.A. § 802(b).
18
Under § 3(7) of the Act 'municipality' means, among other things, a city 'competent under the laws (of the State) to carry on the business of developing, transmitting, utilizing, or distributing power.' 41 Stat. 1063, 16 U.S.C. § 796(7), 16 U.S.C.A. § 796(7). It is no longer disputed that Tacoma is expressly authorized by R.C.W. 80.40.050 to carry on such business, and that it has done so for many years. In fact the State's brief in this Court goes much further, saying that '(i)mplicit in the state court's ruling is that petitioner, if licensed, could build a dam on a plan which would not necessitate the destruction of the state's fish hatchery,' and that 'Tacoma * * * has the right to build the dam in such a way that the fish hatchery will not be damaged.'
| 910
|
357 U.S. 275
78 S.Ct. 1174
2 L.Ed.2d 1313
The IVANHOE IRRIGATION DISTRICT and the State of California, Appellants,v.Courtney McCRACKEN et al. The MADERA IRRIGATION DISTRICT and the State of California, Appellants, v. Carl F. STEINER et al. The MADERA IRRIGATION DISTRICT, Appellant, v. Phillip and Jane E. ALBONICO. The SANTA BARBARA COUNTY WATER AGENCY, Appellant, v. Maurice A. BALAAM et al.
Nos. 122—125.
Argued April 29, 1958.
Decided June 23, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 10.
[Syllabus from pages 275-276 intentionally omitted]
Mr. B. Abbott Goldberg, San Francisco, Cal., for appellants.
Mr. John F. Davis, Washington, D.C., for the United States, amicus curiae.
Messrs. Harry W. Horton, El Centro, Cal., Alvin J. Rockwell, San Francisco, and Denslow Green, Madera, Cal., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
These four cases present issues of basic importance to the federal reclamation laws. The Supreme Court of California has refused to confirm certain contracts entered into between two state irrigation districts and a water agency on the one hand and the United States on the other,1 finding the contracts invalid on several grounds. Ivanhoe Irrigation District v. All Parties and Persons, 47 Cal.2d 597, 306 P.2d 824; Santa Barbara County Water Agency v. All Persons and Parties, 47 Cal.2d 699, 306 P.2d 875; Madera Irrigation District v. All Persons, 47 Cal.2d 681, 306 P.2d 886; Albonico v. Madera Irrigation District, 47 Cal.2d 695, 306 P.2d 894. Specifically involved are parts of two statutory enactments: Section 5 of the Reclamation Act of 1902,2 providing generally that no right to the use of water shall be sold for lands in excess of 160 acres in single ownership, and § 9 of the Reclamation Project Act of 1939,3 providing, inter alia, for the repayment to the United States of funds expended on the construction of reclamation works, and authorizing the Secretary of the Interior to make contracts to furnish reclamation water at appropriate rates for irrigation. The opinion of the Supreme Court of California turned on an interpretation of a third provision, § 8 of the Reclamation Act of 1902.4 That section provides that the Act is not to be construed as interfering with state laws 'relating to the control, appropriation, use, or distribution of water used in irrigation.' It further provides that in administering the Act the Secretary of the Interior 'shall proceed in conformity with such laws * * *.' The California court held that this provision required the application of California law, and finding the provisions of the contracts contrary thereto, it refused confirmation. The water districts and agency involved, joined by the State of California, appealed, and we postponed the question of jurisdiction to the merits. 1957, 355 U.S. 803, 78 S.Ct. 12, 2 L.Ed.2d 26. We have concluded, for reasons hereinafter set forth, that we have no jurisdiction over the appeals. Treating the papers as petitions for certiorari, 28 U.S.C. § 2103, 28 U.S.C.A. § 2103, we grant certiorari. On the merits, we deem the contracts controlled by federal law and valid as against the objections made.
I. The Background of the Litigation.
2
This litigation involves a dispute between landowners on the one hand and the combined State and Federal Governments on the other. As the Attorney General of California points out, there is no clash here between the United States and the State of California. Quite to the contrary, the United States and the various state agencies, with commendable faith and steadfastness to one another, have embarked upon and nearly completed a most complicated joint venture known as the Central Valley Project. There have at times been differences, but these are inevitable in the everyday implementation of such a giant undertaking. On the whole the parties have kept the ultimate goal firmly centered in their joint vision.
3
Central Valley is the largest single undertaking yet embarked upon under the federal reclamation program. It was born in the minds of far-seeing Californians is their endeavor to bring to that State's parched acres a water supply sufficiently permanent to transform them into veritable gardens for the benefit of mankind. Failing in its efforts to finance such a giant undertaking, California almost a quarter of a century ago petitioned the United States to join in the enterprise. The Congress approved and adopted the project, pursuant to repeated requests of the State, and thus far has expended nearly half a billion dollars. The total cost is estimated to be as high as a billion dollars.
4
The saga of this project is fascinating. California has two somewhat parallel ranges of mountains running south from its northern border for two-thirds the length of the State. Known as the Sierra Nevada on the east and the Coast Range on the west, they converge on the north at Mount Shasta and are joined by the Tehachapi Mountains on the south, thereby forming the Central Valley Basin. The basin extends almost 500 miles between these ranges, from Shasta to Bakersfield, and has an average width of 120 miles, including more than a third of the area of California. The main valley floor, comprising about a third of the basin area, is an alluvial plain some 400 miles long and averaging 45 miles in width. The Sacramento River, with headwaters near Mount Shasta, flows south into San Francisco Bay, draining the northern portion of the basin. The San Joaquin River, which rises above Friant in the south, runs first west then north to join the Sacramento River in the Sacramento-San Joaquin Delta, both finding a common outlet to the ocean through San Francisco Bay. See United States v. Gerlach Live Stock Co., 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231.
5
Rainfall on the valley floor comes during the winter months 85% from November to April—and summers are quite dry. At Red Bluff, just south of Mount Shasta, the average is 23 inches, while south at Bakersfield a scant 6 inches fall. The climate is ideal with a frost-free period of over seven months and a mild winter permitting production of some citrus as well as deciduous fruits and other specialized crops. The absence of rain, however, makes irrigation essential, particularly in the southern region.
6
In the mountain ranges precipitation is greater, and the winters more severe. The Northern Sierras average 80 inches of rainfall and the Southern 35 inches. The Coast Range experiences much less. In the higher recesses of the mountains precipitation is largely snow which, when it melts, joins the other runoff of the mountain areas to make up an annual average of 33,000,000 acre-feet of water coming from the mountain regions. Nature has not regulated the timing of the runoff water, however, and it is estimated that half of the Sierra runoff occurs during the three months of April, May, and June. Resulting floods cause great damage, and waste this phenomenal accumulation of water so vital to the valley's rich alluvial soil. The object of the plan is to arrest this flow and regulate its seasonal and year-to-year variations, thereby creating salinity control to avoid the gradual encroachment of ocean water, providing an adequate supply of water for municipal and irrigation purposes, facilitating navigation, and generating power. The plan is now nearing completion and is actually in partial operation in some areas.
7
The completed project is built around these two great rivers, and includes a series of dams, three of which— Shasta, Folsom, and Trinity River—will furnish electric power. The state water plan contemplates that eventually 38 major reservoirs scattered at various points in this part of the State will store an estimated 30,000,000 acre-feet of water. The Shasta Dam and Reservoir sits at the head of the table on the north. With a capacity of 4,500,000 acre-feet of water, it, along with tributary dams and reservoirs, will control the floods from that area. The Trinity River, with headwaters west of Shasta on the western slope of the Coast Range, drains into the Pacific Ocean. A dam now under construction near Lewiston will impound some three-quarters of a million acre-feet of water which, by means of a tunnel, will be partially diverted into and supplement the waters of the Sacramento River lying to the east and across the mountains. The water supply facilities along the Sacramento River will regulate its flow, store surplus winter runoff for use in the Sacramento Valley, maintain navigation in the channel, protect the Sacramento-San Joaquin Delta from salt intrusion from the Pacific, provide a water supply for the Contra Costa and Delta-Mendota Canals, and generate a great deal of hydroelectric energy. The Contra Costa Canal services the south shore of Suisun Bay from Antioch to Martinez with water from the Delta for domestic, industrial, and irrigation use. The Delta-Mendota Canal transports surplus Sacramento River water to Mendota Pool on the San Joaquin River, 120 miles south of the Delta. The water is pumped from the Delta to the canal along the foothills of the Coast Range and by gravity it runs to the pool at Mendota. This exchange of water replaces that diverted from the San Joaquin by the dam at Friant. This latter dam forces the entire flow of the San Joaquin into Millerton Lake which has a capacity of 520,000 acre-feet of water. It is diverted from the lake by the Madera Canal to the north and the Friant-Kern Canal to the south. The former extends about 37 miles in length and services the Madera District, while the latter supplies water to the Ivanhoe District and others to the south. It will extend south about 160 miles to a point near Bakersfield, which sits at the foot of the Central Valley's enormous table.
8
The power facilities of the project will, when finally completed, have a capacity of near a million kilowatts. Transmission lines, steam plants, and other essential facilities will be constructed so as to obtain the maximum utilization. It is estimated that through the sale of this power the United States will receive reimbursement for over half of its total reimbursable expenditures.
9
The over-all allocation of these enormous costs has not been definitely determined. That portion of the costs ultimately allocated to power facilities will be reimbursed at 4% interest, but that allocated to irrigation facilities will be reimbursed at no interest. Moreover, the Federal Government will receive no reimbursement for that portion of the cost allocated to numerous aspects of the project, such as navigation, flood control, salinity prevention, fish and wild life preservation, and recreation. The irrigators will, therefore, be chargeable with but a small fraction of the total cost of the project.
10
We hasten to correct any impression that lands in the Central Valley had not been reclaimed and irrigated at the inception of the project. On the contrary, since California entered the Union it has worked diligently to bring water to its arid lands. Working largely through state irrigation districts, private interests have been ingenious in constructing smaller reservoirs, tapping underground sources, and attempting to prevent saline encroachment which would destroy the soil for agricultural purposes. Water has been called 'the life blood of the State.' Competition for this vital natural resource has provoked such controversy that it has required amendments to the Constitution and continual legislative activity. It is not at all surprising, therefore, that in putting together the mosaic of Central Valley some litigation would ensue. See United States v. Gerlach Live Stock Co., supra.
11
II. Scope of the Appeals and Nature of the Contracts.
12
These four appeals contest the right of the United States and California to complete the venture and reap the rewards therefrom as provided by their respective laws.
13
It should be noted that the appeal involving the Santa Barbara County Water Agency, No. 125, does not involve the Central Valley Project, as it does not lie within that area. It concerns a project to supply water for irrigation and municipal uses along the south coastal area of Santa Barbara County. It includes a dam on the Santa Ynez River impounding water in Cachuma Reservoir. This river rises on the western slopes of the Coast Range and runs into the Pacific. The Tecolote Tunnel will deliver water across the coastal range of mountains to the Santa Barbara County Agency through the lateral distribution systems of the Goleta and Carpenteria County Water Districts. The adoption of the project by the Congress in 1948 was based on the recommendation of the State Division of Water Resources Report stating that there was 'an urgent and immediate need for substantial supplemental municipal and irrigation water supplies * * *. The city of Santa Barbara has a critical water supply situation at this time. * * * The underground water supplies in the county water districts are being seriously overdrawn. In some localities * * * wells are being damaged by salt water intrusion.' H.R.Doc. No. 587, 80th Cong., 2d Sess. 10. While the contract is authorized under § 9(c) of the 1939 Act,5 for our purposes it is identical to the others and will be discussed with them.
14
The remaining appeals involve areas in the southern portion of the Central Valley Basin. The Madera District includes the Friant Dam and Millerton Lake, the sites for which the United States has purchased outright. Water rights surrounding these areas were involved in United States v. Gerlach Live Stock Co., supra, and have been acquired by the United States. These installations are, of course, vital to the operation of the project in the south of the valley. The Madera District will be furnished water from Millerton Lake by the Madera Canal. The Ivanhoe District is south of Friant and will be supplied water through the Friant-Kern Canal. It is interesting to note that irrigators in this district receive water diverted from the San Joaquin in which they never had nor were able to obtain any water right.
15
The contracts to which the Supreme Court of California took exception provide, in outline, that the United States will, after construction of the water supply facilities and the lateral distribution system for the irrigation districts, furnish water to the districts and the Santa Barbara County Agency for a period of 40 years. Incorporating the requirements of § 5 of the Reclamation Act of 1902,6 the contract provides that project water shall not be furnished to lands in excess of 160 acres in single ownership. This limitation applies only to 'project water' and previously existing water supplies are unaffected thereby. 'Large landowners,' i.e., those who own excess land, who wish that excess to have the benefit of project water must agree to sell their excess to other than large landowners within 10 years at a price, fixed by three appraisers, which will exclude potential enhancement of the price by reason of project water being available. Large landowners electing not to sell their excess may use existing water supplies in underground sources. Moreover, if they designate which of their holdings shall be considered nonexcess, the district would furnish water to that land under the terms provided in the contracts.
16
The repayment provisions as to the 'distribution systems' require liquidation of the maximum stated expenditure of the United States by installments spread over 40 years, without interest, in accordance with § 9(d) of the Reclamation Project Act of 1939. As to the 'water supply facilities,' such as the dams and reservoirs, the contracts employ the more liberal provisions of § 9(e) of that Act.7 Repayment, without interest, is to be included in the charge for water sold to the districts and the agency by the United States. The contract term runs for 40 years and, using the language of § 9(e), the water rate is calculated so as to return to the United States 'revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, due consideration being given to that part of the cost of construction of works connected with water supply and allocated to irrigation.' The Congress has now supplemented these terms of the contracts by the Act of July 2, 1956, 70 Stat. 483, 43 U.S.C.A. § 485h—1. It provides that the districts and the agency shall be given 'credit each year' for 'so much of the amount paid * * * as is in excess of the share of the operation and maintenance costs of the project which the Secretary finds is properly chargeable * * *.' The provision is retroactive and runs with the contract, and when this amount is equal to the amount owing on the total water supply expenditures allocated to irrigation, 'no construction component shall be included in any charges made for the furnishing of water * * *.' The Act also permits renewal of the contract on terms that will reflect any 'increases or decreases in construction, operation, and maintenance costs and improvement or deterioration in the (district's) repayment capacity.' In addition, the Act provides that the districts and the agency 'shall * * * have a first right (to which right the rights of the holders of any other type of irrigation water contract shall be subordinate) to a stated share or quantity of the project's available water supply for beneficial use on the irrigable lands (within the district) and a permanent right to such share or quantity upon completion of payment of the amount' that is due on expenditures for water supply allocated to irrigation.
III. Action of the California Courts.
17
In the confirmation suits involving the Ivanhoe District, No. 122, and of the Madera District, No. 123, the trial court found the contracts and the proceedings leading to their execution invalid. The court reasoned that § 8 of the 1902 Act required that 'whenever there is a conflict between the Federal Reclamation laws and the laws of the State, the law of California must prevail.' The court also found that in the light of the origin of the Central Valley Project, the United States was trustee of an express trust of which the Ivanhoe District and others were among the beneficiaries. It concluded that all applications to appropriate water are included in such trust and the beneficiaries have 'an incomplete, incipient and conditional right in the water applied for' which is vested and runs with the land. The excess land provision was declared invalid and unenforceable as conflicting with both state law and the Reclamation Act. Application of the excess land provision to an irrigator would, the court found, be unconstitutional.
18
The Albonico litigation, No. 124, was an application for a mandatory order excluding lands in excess of 320 acres owned by the Albonicos from the Madera District. The court held that the excess land provisions were unconstitutional and that if applied to the Albonicos the mandatory order should issue.
19
The trial court in the Santa Barbara confirmation case, No. 125, contrary to the action in the other cases, upheld the contract and granted confirmation. The court found that the Master Contract was ratified and confirmed by the Interior Department's Appropriation Act for 1951. 64 Stat. 595, 679.
20
The Supreme Court of California, by a 4—3 vote, reversed the trial court judgment validating the contract in No. 125, the Santa Barbara case, and affirmed each of the other judgments. The principal opinion was in the Ivanhoe case to which we confine our discussion. The majority agreed with the trial court that § 8 of the 1902 Act required the application of state law. It found that the excess lands provision was inapplicable and improper under state law, and that the contract was therefore invalid. This conclusion was posited on a trust theory of California water law which placed a trust on the State and the irrigation districts for the benefit of water users. In administering this trust the United States, the majority held, stood in the shoes of the State. The § 9(e) provisions of the contract were found invalid on the grounds that no provision was made for repayment of a stated amount within 40 years or for transfer of title to the distribution systems to the respective districts after payment thereof, and that no permanent right to receive water was vested in the respective districts and their members. The court appears to have reached this conclusion by finding that the contract created a 'debtor-creditor' relationship and that the United States was acting as a public utility without conforming to state law.
IV. The Jurisdictional Question.
21
We first face the dual aspects of the jurisdictional question: has California's Supreme Court held a federal statute unconstitutional, and does its decision rest on an adequate state ground? Flournoy v. Wiener, 1944, 321 U.S. 253, 262, 64 S.Ct. 548, 552, 88 L.Ed. 708.
22
As we read the reasons, heretofore mentioned, upon which the Supreme Court of California invalidated the contracts, we conclude that they rest upon neither ground. As to the rights and duties of the United States under the contracts, these are matters of federal law on which this Court has final word, Clearfield Trust Co. v. United States, 1943, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. Our construction of the contract might dispel any features thereof found offensive. The other ground, namely, the 160-acre limitation, alone requires further consideration.
23
Appellants claim that California's Supreme Court has held unconstitutional the federal statutes, § 5 of the Reclamation Act of 1902, as re-enacted in § 46 of the Omnibus Adjustment Act of 1926, relating to the 160-acre limitation. It appears to us, however, that the opinion actually turned on the court's interpretation of § 8 of the 1902 Act. In effect, the court held that this section overrides all other sections of the Act, requiring that it be construed as not affecting state laws 'relating to the control, appropriation, use, or distribution of water used in irrigation.' Turning to state law, the court by applying a 'trust theory' held that the Federal Government could acquire no title to appropriative water rights free of a trust in the State of California for the benefit of the people of the State. This 'limited measure of control' of the appropriative water, the court said, 47 Cal.2d, at page 620, 306 P.2d at page 837, prevented the imposition of the 160-acre limitation because the beneficiaries of the trust, namely, the people of the State and particularly those in the districts involved, would be deprived by the acreage limitation of a right to the use of the water in the district. We think it plain that this was a construction of federal law and not a holding of unconstitutionality. This, of course, provides no basis for an appeal, but the importance of the case, as we earlier noted, requires that certiorari be granted.
24
We deem it equally clear that the judgments do not rest on an adequate state ground. The construction the opinion gave to § 8 of the 1902 Act nullified the specific mandate of § 5, as well as its re-enactment in the 1926 Act, and even though in the doing a state law may have been called into play, this would not immunize it from this Court's review. Basically it is the interpretation of the Federal Act that opens the door to the application of the state law and leads to the striking down of the contracts made by the Secretary.
25
Nor would the suggestion that state law prevented the water districts and agencies of the State from entering into the contracts change this conclusion. We need not determine whether a State could in that manner frustrate the consummation of a federal project constructed at its own behest. The fact remains that the state law was, in fact, invoked only by the interpretation the court gave § 8.
26
V. Application of the Reclamation Laws to the Contracts.
27
At the outset we set aside as not necessary to decision here the question of title to or vested rights in unappropriated water. Cf. State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 611—616, 65 S.Ct. 1332, 1347—1349, 89 L.Ed. 1815. If the rights held by the United States are insufficient, then it must acquire those necessary to carry on the project, United States v. Gerlach Live Stock Co., supra, 339 U.S. at page 739, 70 S.Ct. at page 962, paying just compensation therefor, either through condemnation or, if already taken, through action of the owners in the courts. As we see it, the authority to impose the conditions of the contracts here comes from the power of the Congress to condition the use of federal funds, works, and projects on compliance with reasonable requirements. And, again, if the enforcement of those conditions impairs any compensable property rights, then recourse for just compensation is open in the courts.
28
As we have noted, the Supreme Court of California first concluded that the provisions of § 8 of the 1902 Act as to the application of state law were absolute, and controlled all provisions of the Act and other reclamation statutes having to do with 'the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder * * *.' We believe this erroneous insofar as the substantive provisions of § 5 of the 1902 Act are concerned. As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of federal projects. As the Court said in State of Nebraska v. State of Wyoming, supra, 325 U.S. at page 615, 65 S.Ct. at page 1349: 'We do not suggest that where Congress has provided a system of regulation for federal projects it must give way before an inconsistent state system.' Section 5 is a specific and mandatory prerequisite laid down by the Congress as binding in the operation of reclamation projects, providing that '(n)o right to the use of water * * * shall be sold for a tract exceeding one hundred and sixty acres to any one landowner * * *.' We read nothing in § 8 that compels the United States to deliver water on conditions imposed by the State. To read § 8 to the contrary would require the Secretary to violate § 5, the provisions of which, as we shall see, have been national policy for over half a century. Without passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field, we do not believe that the Congress intended § 8 to override the repeatedly reaffirmed national policy of § 5.
29
From the beginning of the federal reclamation program in 1902, the policy as declared by the Congress has been one requiring that the benefits therefrom be made available to the largest number of people, consistent, of course, with the public good. This policy has been accomplished by limiting the quantity of land in a single ownership to which project water might be supplied. It has been applied to public land opened up for entry under the reclamation law as well as privately owned lands, which might receive project water. See Taylor, The Excess Land Law: Execution of a Public Policy, 64 Yale L.J. 477.
30
Significantly, where a particular project has been exempted because of its peculiar circumstances, the Congress has always made such exemption by express enactment. See Act of September 3, 1954, 68 Stat. 1190, exempting the Santa Maria Project from the applicability of 'excess land laws.'8
31
With respect to the Central Valley Project the Congress has again and again reaffirmed the specific requirements of § 5 and the action taken by the Secretary thereunder. As late as 1944 on consideration of the Omnibus Rivers and Harbors Bill the Senate refused, after vigorous debate, to concur in a conference report that would have exempted this project from the excess land requirements of § 5. 90 Cong.Rec. 9493—9499. At the next Session of the Congress the disputed exemption was deleted from the bill and it was promptly passed. Likewise, the Secretary reported to the Congress from time to time the execution of contracts, similar to those involved here, wherein 'the excess land limitations and other requirements of law are fully incorporated in the Central Valley contract form.' His annual report for 1950 and 1951 related the execution of the Madera, Ivanhoe, and Santa Barbara contracts involved here. In the latter report he mentions individual contracts with water users under the excess land laws, advising that these laws were 'given active attention. Five recordable contracts providing for delivery of Central Valley Project water to 3,570 acres of excess land are the first to be executed on the project.' During this period the Congress reauthorized the project, additional units were added, see Act of October 14, 1949, 63 Stat. 852; H.R.Doc. No. 416, 84th Cong., 2d Sess., pp. 620—622; Act of September tember 26, 1950, 64 Stat. 1036, and the Act of August 12, 1955, 69 Stat. 719; H.R.Doc. No. 416, pp. 937—940, and large appropriations of funds thereto were granted annually.
32
In light of these congressional actions, it cannot be said that Congress intended that § 8 would, under the application of state law, make inapplicable the excess land provisions of § 5 of the Reclamation Act of 1902 to the Central Valley Project. That possibility is foreclosed by subsequent and continuing action by the Congress ever since the inception of the project. Such a record constitutes ratification of administrative construction, and confirmation and approval of the contracts. Fleming v. Mohawk Wrecking & Lumber Co., 1947, 331 U.S. 111, 119, 67 S.Ct. 1129, 1133, 91 L.Ed. 1375; Brooks v. Dewar, 1941, 313 U.S. 354, 361, 61 S.Ct. 979, 982, 85 L.Ed. 1399; Swayne & Hoyt Ltd., v. United States, 1937, 300 U.S. 297, 302, 57 S.Ct. 478, 480, 81 L.Ed. 659.
33
VI. The Constitutional Issues.
34
Appellees urge, however, that the federal statutes requiring insertion of these provisions in the contracts are unconstitutional as a denial of due process and equal protection of the law under the Fifth and Fourteenth Amendments. They assert that the excess acreage provisions amount to a taking of vested property rights both in land and irrigation district water, and discriminate between the nonexcess and the excess landowner. We cannot agree.
35
There can be no doubt of the Federal Government's general authority to establish and execute the Central Valley and Santa Barbara County projects. As we said in United States v. Gerlach Live Stock Co., supra, the Congress 'elected to treat it (the Central Valley Project) as a reclamation project.' 339 U.S. at 739, 70 S.Ct. at page 962. We upheld its power to pursue the project as 'clear' and 'ample,' an exercise of the general power 'to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement.' Id., 339 U.S. at page 738, 70 S.Ct. at page 962. The Santa Barbara Project is supportable on the same grounds. Cf. United States v. Butler, 1936, 297 U.S. 1, 65—67, 56 S.Ct. 312, 319, 80 L.Ed. 477. In developing these projects the United States is expending federal funds and acquiring federal property for a valid public and national purpose, the promotion of agriculture. This power flows not only from the General welfare Clause of Art. I, § 8, of the Constitution, but also from Art. IV, § 3, relating to the management and disposal of federal property. As this Court said in United States v. City and County of San Francisco, 1940, 310 U.S. 16, 29—30, 60 S.Ct. 749, 756, 84 L.Ed. 1050, this 'power over the public land thus entrusted to Congress is without limitations. 'And it is not for the courts to say how that trust shall be administered. That is for Congress to determine." See also United States v. State of California, 1947, 332 U.S. 19, 27, 67 S.Ct. 1658, 1662, 91 L.Ed. 1889, and State of Alabama v. State of Texas, 1954, 347 U.S. 272, 273—274, 74 S.Ct. 481, 482, 98 L.Ed. 689.
36
Also beyond challenge is the power of the Federal Government to impose reasonable conditions on the use of federal funds, federal property, and federal privileges. See Berman v. Parker, 1954, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27, and Federal Power Comm. v. Idaho Power Co., 1952, 344 U.S. 17, 73 S.Ct. 85, 97 L.Ed. 15. The lesson of these cases is that the Federal Government may establish and impose reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof. Conversely, a State cannot compel use of federal property on terms other than those prescribed or authorized by Congress. Public Utilities Comm. of State of California v. United States, 1958, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470. Article VI of the Constitution, of course, forbids state encroachment on the supremacy of federal legislative action.
37
In considering appellees' specific constitutional contentions, it is well to recapitulate. The Central Valley Project is multi-purpose in nature. That portion of the project expense attributable to navigation, flood control, salinity prevention, recreation and fish and wildlife preservation is nonreimbursable. The remainder of the total expense, and the only part that is reimbursable, is divided between two main sources. The first is hydroelectric power which estimates indicate will be chargeable with over 50 percent of the reimbursable expense, plus interest on the part representing electric plants in servic. The other is irrigation, which pays the rest without interest charge. In short, the project is a subsidy, the cost of which will never be recovered in full. Appellees argue that the same reasoning applies to power facilities, but there the Government is operating the generating facilities itself and the base rate upon which the power is sold includes an item for interest on the amount of expenditures allocated to that purpose. Hence the true relationship of debtorcreditor is maintained. In the light of these facts we believe that the language of the Court in Wickard v. Filburn, 1942, 317 U.S. 111, 131, 63 S.Ct. 82, 92, 87 L.Ed. 122, is apposite: 'It is hardly lack of due process for the Government to regulate that which it subsidizes.'
38
In any event, the provisions under attack are entirely reasonable and do not deprive appellees of any rights to property or water. It is beyond dispute that excess land will be benefited by delivery of water to neighboring and nearby nonexcess land. This fact was recognized by the California Supreme Court in the Santa Barbara case. 47 Cal.2d 699, 712, 306 P.2d 875, 883. Furthermore the Chief Engineer of the Madera District so testified before the Senate Committee on Public Lands in 1944.9 The contracts themselves indirectly refer to the benefits that may accrue, through underground water improvement, to excess owners, by provisions which declare that such water shall not be considered as furnished by the project. In other words, any benefits to the underground water level under excess acreage will not be chargeable to the owner of such acreage, but still will be available to his excess land. We therefore find no substance in the contention that 'possible severance' of the excess acreage will result in damage constituting a taking of property without just compensation. We deem it unnecessary to discuss other claims in this area, but repeat in connection therewith that if the United States takes any compensable water or property right the courts are open for redress.
39
As to the claim of discrimination in the 160-acre limitation, we believe that it overlooks the purpose for which the project was designed. The project was designed to benefit people, not land. It is a reasonable classification to limit the amount of project water available to each individual in order that benefits may be distributed in accordance with the greatest good to the greatest number of individuals. The limitation insures that this enormous expenditure will not go in disproportionate share to a few individuals with large land holdings. Moreover, it prevents the use of the federal reclamation service for speculative purposes. In short, the excess acreage provision acts as a ceiling, imposed equally upon all participants, on the federal subsidy that is being bestowed.
40
We also find the other contract provisions reasonable and necessary. As we have pointed out heretofore the Act of July 2, 1956, supra, answered most of the objections lodged against these requirements. That Act requires the Secretary, in all § 9(d) and § 9(e) contracts executed after its passage, (1) to include a renewal provision, (2) to provide that during the term of the contract or any renewal thereof the contracting parties shall have 'first right * * * to a stated share or quantity of the project's available water supply,' and (3) to determine as soon as feasible the total repayment obligation of the contracting parties, crediting against that obligation so much of the amount paid for water supply as is unnecessary for operation and maintenance costs until, and only until, that obligation has been liquidated. The Secretary is authorized to negotiate amendments to existing contracts to incorporate the foregoing amendments. In view of the declarations and privileges incorporated in these amendments we see no room for objection to the contracts on the ground that they infer that the water users are not entitled to water rights beyond the 40-year terms of the contracts, or that they do not make clear that the districts and landowners become free of indebtedness upon repayment.
41
That leaves two other objections, the first being the failure of the contracts to recite a definite sum as being the total amount due for the water supply facilities. It was not possible at the time of executing the contracts, nor is it today, to determine the exact amount of expenditures necessary for dams and reservoirs. The record shows that original estimates often bore little resemblance to ultimate cost. The project is only two-thirds completed, and estimates of the remaining third cannot be accurately made. Moreover, the Government was not bound to determine in advance of the project's completion just what proportion of this total cost should be attributed to irrigation. In view of these uncertainties it would have been highly impractical, if not impossible, to recite any stated amount in the contract. Since no interest is charged on the amount due, it is difficult to see how harm or inconvenience is occasioned by the delay. The law now requires that all amounts paid the Government in excess of its maintenance and operation costs be credited on the obligations of the respective districts. That is an entirely adequate protection of the district's interest in not paying more than its share of the principal facilities.
42
Second, objection was made to the absence of any provision to the effect that the districts would obtain title to the distribution systems when their obligations therefor had been totally discharged. We do not understand appellees to contend that the districts and landowners should ultimately obtain title to the principal dams and reservoirs. The fact that irrigation interests are bearing but a small fraction of the cost of the water supply facilities renders such a suggestion untenable. For related reasons we see no defect in the failure to guarantee passage of title to the local distributing systems at the end of 40 years when it is contemplated that the obligation therefor shall have been discharged. As we have pointed out, even the terms regarding the distribution systems involve a substantial federal subsidy because no interest is charged over the 40-year period during which the principal amount is repaid. In reality, the districts will never repay the total cost of these systems. Moreover, it is likely that for some time beyond the 40-year period of these contracts the districts will remain indebted to the Federal Government for their share of the cost of the water supply facilities. Under such circumstances the retention of title to the distribution systems, at least until the stated obligations of the districts are discharged, seems entirely consistent with what the state court thought was a 'debtor-creditor' relationship. In view of these considerations, we think it altogether reasonable for the Federal Government and the districts and agency involved to defer the question of title passage to another day.
43
Any suggestion that the Congress might be arbitrary in the final accounting, or trample upon any of the rights of appellees, is highly improbable. It does not seem untoward for the recipients of a huge federal bounty to have to depend in small measure on the continued beneficience of their donor. It would be a physical impossibility to withdraw the facilities. As for the possibility of discrimination in the administration of those facilities, it seems farfetched to foresee the Federal Government 'turning its back upon a people who had been benefited by it' and allowing their lands to revert to desert.10 The prospect is too improbable to figure in our decision.
44
For the reasons set forth above, the judgments of the Supreme Court of California are reversed.
45
Reversed.
46
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
1
Section 46 of the Omnibus Adjustment Act of 1926 requires that the contracts be confirmed by decree of a court of competent jurisdiction. 44 Stat. 649, as amended, 70 Stat. 524, 43 U.S.C. § 423e, 43 U.S.C.A. § 423e. For the applicable California statutes authorizing such procedure, see Cal.Water Code, 1956, § 23225 (irrigation districts), and Cal.Stat. 1945, pp. 2780, 2798, as amended, Cal.Stat.1949, p. 18, West's Ann.Water Code, Appendix (water agency).
2
Section 5: '* * * No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made.' 32 Stat. 389, 43 U.S.C. § 431, 43 U.S.C.A. § 431. This provision was substantially re-enacted in § 46 of the Omnibus Adjustment Act of 1926, 44 Stat. 649, as amended, 70 Stat. 524, 43 U.S.C. § 423e, 43 U.S.C.A. § 423e.
3
53 Stat. 1193, as amended, 59 Stat. 75, 43 U.S.C. § 485h, 43 U.S.C.A. § 485h. Section 9(c), the pertinent section in No. 125, authorizes the Secretary of the Interior to enter into contracts to furnish water for municipal water supply. Section 9(d) involves contracts with irrigation districts, and requires repayment within a 40-year period of construction costs allocated to irrigation. Section 9(e) authorizes the use of an alternative method of repayment, whereby the Secretary may agree to furnish water for irrigation for a period of 40 years at rates sufficient 'to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, due consideration being given to that part of the cost of construction of works connected with water supply and allocated to irrigation * * *. (T)he costs of any irrigation water distribution works constructed by the United States in connection with the new project, new division of a project, shall be plemental works on a project, shall be covered by a repayment contract entered into pursuant to said subsection (d).'
4
Section 8: 'That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.' 32 Stat. 390, 43 U.S.C. §§ 372, 383, 43 U.S.C.A. §§ 372, 383.
5
See note 3, supra.
6
See note 2, supra.
7
See note 3, supra.
8
The Act recites: 'That is view of the special circumstances of the Santa Maria project' the excess land laws should not be applicable thereto 'so long as the water utilized on project lands is acquired by pumping from the underground reservoir.' See H.R.Rep. No. 1098, 83d Cong., 2d Sess. 2—3.
9
'There appears to be no doubt, therefore, that with introduction of surface irrigation and the consequent cessation of pumping by those using surface water, excess lands will receive direct benefits in the way of a higher water table, with consequent improvement in quality, plus lower pumping costs, and above all, reasonable assurance that the water table will not fall to the danger point.' Hearings before Senate Committee on Public Lands on S. 912, 80th Cong., 1st Sess. 1221.
10
Senator Gore (then Representative) gave this compelling answer to these trepidations in 1947:
'I cannot conceive of a Government that would spend $384,000,000 building one of the great reclamation-irrigation projects of the world and suddenly because some evil agent of Government had gotten into a bureau, turning its back upon a people who had been benefited by it and who in turn had greatly benefited the Nation by production of good stuffs and wealth. I just do not conceive of the United States as being that kind. * * *' Hearings before the Subcommittee of the House Committee on Appropriations on the Interior Department Appropriation Bill for 1948, 80th Cong., 1st Sess., p. 737, U.S.Code Cong.Service 1947, p. 467.
| 34
|
357 U.S. 265
78 S.Ct. 1222
2 L.Ed.2d 1305
Henry T. McKINNEY, Petitioner,v.The MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al.
No. 93.
Argued Jan. 27, 1958.
Decided June 23, 1958.
Mr. John G. Laughlin, Jr., Washington, D.C., for petitioner.
Mr. M. E. Clinton, Dallas, Tex., for respondent Missouri-Kansas-Texas R. co.
Mr. Carroll J. Donohue, St. Louis, Mo., for respondent Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case arises out of proceedings to enforce the claim of a veteran to re-employment rights under § 9 of the Universal Military Training and Service Act. 62 Stat. 604, 614—618, as amended, 50 U.S.C.App. § 459, as amended, 50 U.S.C.App. (Supp. V) § 459, 50 U.S.C.A.Appendix, § 459. More specifically, petitioner claims that he has been deprived of seniority rights to which he is entitled under the statute and the collective bargaining agreement in force between his employer, respondent railroad, and the union representing its employees.
2
Made part of the complaint filed in the District Court are provisions of the collective bargaining agreement regulating the relations between respondent and its employees, especially provisions relating to seniority and promotions. Employees are divided into three groups according to the functions they perform, with seniority defined within each group. Rule 10 provides that when new positions are available or vacancies occur in existing positions, such positions will be 'bulletined' by the employer and employees may bid therefor. Rule 1(3)(A) provides that, 'Promotion will be confined to the group * * * with the exception that employes on positions enumerated in group two (2) will be given preference over nonemployes in the assignment to positions in group one (1), based upon fitness and ability * * *.' Rule 15 states that, 'An employe returning after leave of absence may return to former position or may, upon return * * * exercise seniority rights to any position bulletined during such absence.'
3
The complaint alleges that petitioner was employed by respondent as a relief clerk-chief caller, a position classified under the collective bargaining agreement in group 2. On September 26, 1950, he left his employment for induction into the Armed Forces of the United States. Petitioner was still in the Armed Forces when respondent, pursuant to the procedure set forth in Rule 10 of the collective bargaining agreement, bulletined two group 1 positions to be filled. On September 8, 1952, the group 1 position of bill clerk was bulletined and a nonemployee assigned to it on September 15. On September 10, 1952, the group 1 position of assistant cashier was bulletined and a nonemployee assigned to it on September 22. Petitioner was separated from the military service on September 25, 1952, and on October 1 applied for re-employment with respondent. He was placed in the group 1 position of assistant cashier with a group 1 seniority date of October 7, 1952. Subsequently this position was abolished and petitioner reduced to a group 2 position. Respondent refused to allow petitioner to exercise claimed seniority rights to place himself in the group 1 position of bill clerk in place of the nonemployee who had been assigned to that position on September 15, 1952.
4
In the District Court petitioner contended that the group 1 seniority date assigned him on re-employment, October 7, 1952, was erroneous, and that under § 9 of the Universal Military Training and Service Act, supra, he was entitled to a seniority date of September 8 or September 10, 1952, the dates on which, if he had then been employed by respondent, he could have applied for the bulletined group 1 positions. Such a seniority date, according to petitioner, would have entitled him to replace the nonemployee as bill clerk when the position of assistant cashier was abolished, and thus avoided reduction to group 2.
5
Petitioner prayed the District Court to order respondent to assign him the requested earlier seniority date and to permit him to place himself in the position of bill clerk, and in addition he sought compensation for wages lost as a result of being deprived of the group 1 position. The District Court dismissed the complaint for failure to state a cause of action under the Universal Military Training and Service Act, and the Court of Appeals for the Tenth Circuit affirmed. 240 F.2d 8. Because of the importance of the question presented in the administration of the statute and the protection of veterans' rights thereunder, we granted certiorari. 353 U.S. 948, 77 S.Ct. 860, 1 L.Ed.2d 858.
6
The Court of Appeals correctly held that petitioner was not obliged, before bringing suit in the District Court under § 9(d) of the Act, 62 Stat. 616, as amended, 50 U.S.C.App. (Supp. V) § 459(d), 50 U.S.C.A.Appendix, § 459(d), to pursue remedies possibly available under the grievance procedure set forth in the collective bargaining agreement or before the National Railroad Adjustment Board. See 48 Stat. 1189—1193, 45 U.S.C. § 153, 45 U.S.C.A. § 153. The rights petitioner asserts are rights created by federal statute even though their determination may necessarily involve interpretation of a collective bargaining agreement. Although the statute does not itself create a seniority system, but accepts that set forth in the collective bargaining agreement, it requires the application of the principles of that system in a manner that will not deprive the veteran of the benefits, in terms of restoration to position and advancement in status, for which Congress has provided. Petitioner sues not simply as an employee under a collective bargaining agreement, but as a veteran asserting special rights bestowed upon him in furtherance of a federal policy to protect those who have served in the Armed Forces.
7
For the effective protection of these distinctively federal rights, Congress provided in § 9(d)1 of the Act that if any employer fails to comply with the provisions of the statute, the District Court, upon the filing of a petition by a person entitled to the benefits of the Act, has jurisdiction to compel compliance and to compensate for loss of wages. The court is enjoined to order speedy hearing in any such case and to advance it on the calendar, and the United States Attorney must appear and act for the veteran in the prosecution of his claim if reasonably satisfied that he is entitled to the benefits of the Act. Nowhere is it suggested that before a veteran can obtain the benefit of this expeditious procedure and the remedies available to him in the District Court he must exhaust other avenues of relief possibly open under a collective bargaining agreement or before a tribunal such as the National Railway Adjustment Board. On the contrary, the statutory scheme contemplates the speedy vindication of the veteran's rights by a suit brought immediately in the District Court, advanced on the calendar before other litigation, and prosecuted with the assistance of the United States Attorney. Only thus, it evidently was thought, would adequate protection be assured the veteran, since delay in the vindication of re-employment rights might often result in hardship to the veteran and the defeat, for all practical purposes, of the rights Congress sought to give him. To insist that the veteran first exhaust other possibly lengthy and doubtful procedures on the ground that his claim is not different from any other employee grievance or claim under a collective bargaining agreement would ignore the actual character of the rights asserted and defeat the liberal procedural policy clearly manifested in the statute for the vindication of those rights.
8
Section 9 of the Universal Military Training and Service Act, on which petitioner relies, requires that a returning veteran who has been separated from the service under the conditions set forth in the statute be restored by his employer to his former position or to a position of like seniority, status, and pay. He is not to be disadvantaged by serving his country. Section 9(c) (1) states that he shall be restored 'without loss of seniority.'2 In Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284—285, 66 S.Ct. 1105, 1110—1111, 90 L.Ed. 1230, and Oakley v. Louisville & N.R. Co., 338 U.S. 278, 283, 70 S.Ct. 119, 122, 94 L.Ed. 87, the same provision in an earlier Act was interpreted to mean that a returning veteran does not step back at the exact point he left his employment, but rather is entitled to 'a position which, on the moving escalator of terms and conditions affecting that particular employment, would be comparable to the position which he would have held if he had remained continuously in his civilian employment.' 338 U.S. at page 283, 70 S.Ct. at page 122. This interpretation is now embodied in § 9(c) (2) of the present Act.3
9
However, § 9(c) does not guarantee the returning serviceman a perfect reproduction of the civilian employment that might have been his if he had not been called to the colors. Much there is that might have flowed from experience, effort, or chance to which he cannot lay claim under the statute. Section 9(c) does not assure him that the past with all its possibilities of betterment will be recalled. Its very important but limited purpose is to assure that those changes and advancements in status that would necessarily have occurred simply by virtue of continued employment will not be denied the veteran because of his absence in the military service. The statute manifests no purpose to give to the veteran a status that he could not have attained as of right, within the system of his employment, even if he had not been inducted into the Armed Forces but continued in his civilian employment.
10
Thus, on application for re-employment a veteran is not entitled to demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer. On his return from service, petitioner in the present case could not have demanded under the statute that respondent place him in any group 1 position. Promotion to a group 1 position from group 2, in which petitioner had formerly been employed, is not dependent simply on seniority. Under Rule 1(3)(A) of the collective bargaining agreement it is dependent on fitness and ability and the exercise of a discriminating managerial choice. Collective bargaining agreements that include such familiar provisions are presupposed by the statute, and it is in their context that it must be placed. See Aeronautical Industrial District Lodge v. Campbell, 337 U.S. 521, 527, 69 S.Ct. 1287, 1290, 93 L.Ed. 1513. Petitioner was not entitled to a group 1 position simply because in his absence it had been bulletined, and if he had then been employed he might have applied for it, and respondent might have found that he possessed the requisite fitness and ability. The statute does not envisage overriding an employer's discretionary choice by any such mandatory promotion. Nor does it sanction interfering with and disrupting the usual, carefully adjusted relations among the employees themselves regarding opportunities for advancement.
11
The precise question in the present case is not essentially different. Petitioner was not, by virtue of the fact that the group 1 position of assistant cashier had been bulletined in his absence, entitled to that position on re-employment. Rule 15 of the collective bargaining agreement states that an employee who returns from leave of absence may 'exercise seniority rights to any position bulletined during such absence.' But seniority alone does not, under Rule 1(3)(A), entitle an employee to move from group 2 to group 1; fitness and ability are also relevant. Respondent asserts that petitioner was in fact assigned to the group 1 position of assistant cashier through a mistake of law. Whatever the reason, the fact of employment in the higher position did not enlarge petitioner's rights under either the collective bargaining agreement or the statute. Since respondent was not obligated to give petitioner the higher position at all, when it did so it was not bound to give him a seniority date earlier than that to which any employee similarly promoted would have been entitled. In this case that was the date on which petitioner's pay in the group 1 position commenced, and not a month earlier when the position had first been bulletined.
12
Petitioner argues that because the complaint was summarily dismissed on motion he did not have the opportunity to prove that by custom and practice under the collective bargaining agreement he would necessarily have been assigned to the group 1 position of bill clerk or assistant cashier had he remained continuously in respondent's employ. He states that interpretation and practice by the parties to an agreement are frequently the most reliable bases for determining rights claimed to arise under it. Accordingly, we affirm the judgment, but with leave to petitioner to amend his complaint to allege, if such be the fact, that in actual practice under the collective bargaining agreement advancement from group 2 to group 1 is automatic.
13
The judgment is affirmed.
14
Affirmed.
15
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent on the merits.
1
'In case any private employer fails or refuses to comply with the provisions of subsection (b), subsection (c)(1) or subsection (g) of this section, the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, specifically to require such employer to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employer's unlawful action: Provided, That any such compensation shall be in addition to and shall not be deemed to diminish any of the benefits of such provisions. The court shall order speedy hearing in any such case and shall advance it on the calendar. Upon application to the United States attorney or comparable official for the district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, such United States district attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof specifically to require such employer to comply with such provisions: Provided, That no fees or court costs shall be taxed against any person who may apply for such benefits: Provided further, That only the employer shall be deemed a necessary party respondent to any such action.' 62 Stat. 616, as amended, 50 U.S.C.App. (Supp. V) § 459(d), 50 U.S.C.A.Appendix, § 459(d).
2
'Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.' 62 Stat. 604, 615, as amended, 50 U.S.C.App. § 459(c)(1), 50 U.S.C.A.Appendix, § 459(c)(1).
3
'It is hereby declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.' 62 Stat. 604, 615—616, as amended, 50 U.S.C.App. § 459(c)(2), 50 U.S.C.A.Appendix, § 459(c)(2).
| 12
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357 U.S. 221
78 S.Ct. 1201
2 L.Ed.2d 1272
Richard McALLISTER, Petitioner,v.MAGNOLIA PETROLEUM COMPANY.
No. 83.
Argued April 1, 1958.
Decided June 23, 1958.
Mr. Arthur J. Mandell, Houston, Tex., for petitioner.
Mr. Frank C. Bolton, Jr., Dallas, Tex., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question in this case is whether a state court may apply its two-year statute of limitations to bar an unseaworthiness action that is joined with an action for negligence under the Jones Act.
2
Petitioner was a member of the crew of a vessel owned and operated by respondent. His back was injured Oct. 19, 1950, when he slipped and fell down a stairway leading from the lounge to the galley. He reported the injury, and the ship's log book supports his allegation that the steps were wet. At the termination of the voyage petitioner consulted a doctor about the pain and stiffness in his back. Intermittent medical attention failed to arrest a deteriorating condition. In March 1953, a specialist in orthopedics diagnosed the difficulty as ruptured discs between the vertebrae. By July 6, 1953, petitioner could no longer perform his duties aboard respondent's vessel, and on that date he entered a United States Public Health Marine Hospital as an injured seaman. After his discharge he consulted an attorney and this state-court action was filed Aug. 27, 1953, in the District Court of Dallas County, Texas
3
Petitioner claimed damages under the Jones Act for negligence1 and under the general maritime law for unseaworthiness. He also asked for maintenance and cure under the general maritime law. He alleged that the portholes and deck at the head of the stairs were not watertight, that they allowed water to accumulate on the stairs, and that this condition was the proximate cause of his fall. Respondent's answer denied the allegations of negligence and unseaworthiness, and averred that petitioner's claims were barred by the pertinent statutes of limitations and by laches. The trial court ruled that the actions were not barred, and after hearing evidence submitted all three claims to the jury.2 The jury returned special verdicts importing the following findings: Petitioner was injured while attempting to walk down the stairs in question; the portholes and deck above and near the stairs were not watertight; these defects were not due to the negligence of respondents; and the condition did not make the vessel unseaworthy.3 Pursuant to these findings, the trial court entered judgment for respondent on the Jones Act and unseaworthiness counts, and awarded petitioner $6,258 for maintenance and cure.
4
Both parties appealed to the Texas Court of Civil Appeals. Respondent sought to overturn the award for maintenance and cure, but the trial court's decision in that respect was affirmed and that portion of the case is not before us. Petitioner took no appeal from the judgment so far as it concerned his claim under the Jones Act, so that portion of the case is also outside the scope of our review. Limiting his appeal to the unseaworthiness aspect of his case, petitioner assigned errors in admitting evidence and in instructing the jury. The Court of Civil Appeals found it unnecessary to rule upon these questions, for in its opinion the unseaworthiness action was barred by the two-year Texas statute of limitations pertaining to actions for personal injuries.4 290 S.W.2d 313. The Texas Supreme Court refused petitioner's application for writ of error. In view of the importance of this ruling for maritime personal injury litigation in the state courts, we granted petitioner's motion for leave to proceed in forma pauperis, and granted certiorari. 352 U.S. 1000, 77 S.Ct. 580, 1 L.Ed.2d 545.
5
In the view we take of this case it is unnecessary for us to decide the broad question of whether a state court is free to apply its own statutes of limitation to an admiralty right of action for which no special limitation is prescribed, or whether it is bound to determine the timeliness of such actions by the admiralty doctrine of laches.5 For the reasons stated hereafter, we simply hold that where an action for unseaworthiness is combined with an action under the Jones Act a court cannot apply to the former a shorter period of limitations than Congress has prescribed for the latter. We think this is so whether the action is at law or in admiralty, in the state or the federal courts.
6
The appropriate period of limitations for this action must be determined with an eye to the practicalities of admiralty personal injury litigation. When a seaman is injured he has three means of recovery against his employer: (1) maintenance and cure, (2) negligence under the Jones Act, and (3) unseaworthiness. Without elaborating on the nature of these three actions, it is sufficient to say that they are so varied in their elements of proof, type of defenses, and extent of recovery that a seaman will rarely forego his right to sue for all three. But if the seaman is to sue for both unseaworthiness and Jones Act negligence, he must do so in a single proceeding. That is a consequence of this Court's decision in Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, which held that these claims were but alternative 'grounds' of recovery for a single cause of action. A judgment in the seaman's libel for unseaworthiness was held to be a complete 'bar' to his subsequent action for the same injuries under the Jones Act.
7
Since the seaman must sue for both unseaworthiness and Jones Act negligence in order to make full utilization of his remedies for personal injury, and since that can be accomplished only in a single proceeding, a time limitation on the unseaworthiness claim effects in substance a similar limitation on the right of action under the Jones Act. Congress has provided that a seaman shall have three years to bring his action under the Jones Act.6 A state court cannot reduce that time by applying its own statute of limitations to such an action. Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; cf. Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260. As an essential corollary of that proposition, it may not qualify the seaman's Jones Act right by affixing a shorter limitation to his concurrent right of action for unseaworthiness.7 To be sure, the seaman's right of action under the Jones Act is not extinguished when a State imposes a two-year limitation on the right to sue for unseaworthiness for the same injury. But in view of the practical necessity of combining both claims in a single action, Baltimore S.S. Co. v. Phillips, supra, the unseaworthiness limitation effectively diminishes the time within which the seaman must commence his action under the Jones Act. The result falls short of affording seamen 'the full benefit of federal law,' Garrett v. Moore-McCormack Co., 317 U.S. 239, 243, 63 S.Ct. 246, 250, 87 L.Ed. 239, to which they are entitled when state courts undertake to adjudicate claims under the federal maritime law.
8
Because the state court thought petitioner's action was barred by the statute of limitations, it had no occasion to consider the assignment of error in connection with the trial judge's instructions on unseaworthiness. The parties have argued the matter, and in furtherance of what we deem to be sound judicial administration, Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 569, 78 S.Ct. 438, 442, 2 L.Ed.2d 491, we rule on the question at this time. We think that the charges set out in the margin8 were erroneous. They carried the incorrect implication that petitioner could recover for unseaworthiness only if the defect was of such quality that it rendered the whole vessel unfit for the purpose for which it was intended.9 It is well settled that 'the vessel and owner are liable to indemnify a seaman for injury caused by unseaworthiness of the vessel or its appurtenant appliances and equipment * * *.' Mahnich v. Southern S.S. Co., 321 U.S. 96, 99, 64 S.Ct. 455, 457, 88 L.Ed. 561.
9
The judgment of the Court of Civil Appeals of Texas is vacated, and the cause is remanded to it for proceedings not inconsistent with this opinion.
10
It is so ordered.
11
Judgment vacated and cause remanded with directions.
12
Mr. Justice BRENNAN, concurring.
13
While I join in the opinion of the Court, I believe it proper to add a few words because of the suggestion in the dissent that the Court intimates that the state statute would be applied were it longer. I find no such indication in the Court's opinion. Indeed, the theory of the Court precludes consideration of that problem. The single question for decision is whether the Texas two-year statute of limitations was correctly applied to bar petitioner's claim for damages based on the unseaworthiness of his employer's vessel. More generally, the question is whether, in an action in a state court to enforce the seaman's federally created right to recover for unseaworthiness, the period of limitations for that action is governed by state or federal law.
14
In resolving this question the Court must touch upon the delicate problems of federalism inevitable in the working out of a viable scheme for enforcing federally created rights in state courts. Cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967. Where federal statutes, which create federal rights of action, do not include a period of limitations, it has been the practice of state and federal courts to apply state statutes of limitations. See Campbell v. City of Haverhill, 155 U.S. 610, 616, 15 S.Ct. 217, 219, 39 L.Ed. 280; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602. On the other hand, where a federal statute establishes a limitation period for the enforcement of federal rights, which period is an integral part of the right created, that limitation must be applied in actions brought in state courts, whether the state statute be longer, Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226, or shorter, Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813. This case has two factors which must be aligned with the pattern of those decisions. First, we deal with judicially created maritime rights, Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; second, we do not have an Act of Congress establishing a fixed period of limitations for enforcement of the right.
15
As to the first factor, that the remedy for unseaworthiness is judicially rather than legislatively created, it cannot fairly be considered pertinent to the problem of what period of limitations applies in state courts. As to the second, I do not believe that the absence of specific directions from Congress leads necessarily to the result that state statutes of limitations should apply in cases of this sort. The reason is that the considerations which in Campbell v. City of Haverhill, supra, and Cope v. Anderson, supra, prompted resort to the state statutes do not apply at all here. Those cases represented intensely practical solutions to a practical problem in the administration of justice. In the absence of any comparable federal statute of limitations which might be applied, the Court had four choices: (1) No period of limitations at all; (2) an arbitrary period applicable in all like cases; (3) the flexible but uncertain doctrine of laches; and (4) state statutes of limitations. The state statutes were chosen by default.
16
No such default is necessary in this case since the Court can look elsewhere for the measure of the seaman's federal right to recover for unseaworthiness. Just as equity follows the law in applying, as a rough measure of limitations, the period which would bar a similar action at law, see Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 530, 84 L.Ed. 754, I think that the maritime cause of action for unseaworthiness could be measured by the analogous action at law for negligence under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688. This reference seems especially appropriate since the seaman's remedy for unseaworthiness under the general maritime law and his remedy for negligence under the Jones Act are but two aspects of a single cause of action. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069.
17
It thus seems to me that the three-year limitation on the Jones Act remedy, 45 U.S.C. § 56, 45 U.S.C.A. § 56, is the ready and logical source to draw upon for determining the period within which this federal right may be enforced. This period should be applied in an action for unseaworthiness brought in a state court, just as it would be applied by the state courts in actions brought under the Jones Act, Engel v. Davenport, supra. Such a result would be in harmony with the practice in federal admiralty courts of applying state statutes of limitations in enforcing state-created rights. Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210. The alternative of subjecting the parties' rights to the variant state statutes of limitations and the consequent uncertainty of legal obligation would inject an unnecessarily sporting element into the affairs of men. Cf. Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. The mischief to be avoided is the possibility of shopping for the forum with the most favorable period of limitations. In actions arising at sea, frequently beyond the territorial bounds of any State, normal choice-of-law doctrines are likely to prove inadequate to the task of supplying certainty and predictability.
18
Since we are not advised that the Texas statute of limitations is anything more than a statute of repose, and since application of the state statute of limitations would be disruptive of the desired uniformity of enforcement of maritime rights, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, the state statute of limitations cannot be applied to bar petitioner's claim for unseaworthiness.
19
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
20
With all respect, I feel compelled to express my disagreement with the Court's holding 'that where an action for unseaworthiness is combined with an action under the Jones Act a court cannot apply to the former a shorter period of limitations than Congress has prescribed for the latter.'
21
Although both are federal laws, each creates a separate and independent cause of action for conduct not covered or made redressable by the other, though both are designed for the one purpose of authorizing, within their respective terms, recovery of damages by a seaman for a bodily injury suffered in the course of his employment. Under the maritime law of unseaworthiness the owner warrants the vessel, its appliances and gear to be free of defects, and is liable to pay damages to a seaman for an injury occasioned by a breach of the warranty. This is so even though 'negligence of the officers of the vessel contributed to its unseaworthiness (for their negligence) is not sufficient to insulate the owner from liability for * * * failure to furnish seaworthy appliances * * *.' Mahnich v. Southern Steamship Co., 321 U.S. 96, 100—101, 64 S.Ct. 455, 458, 88 L.Ed. 561. (Emphasis supplied.) But 'before the Jones Act the owner was, in other respects, not responsible for injuries to a seaman caused by the negligence of officers or members of the crew.' Id., 321 U.S. at page 101, 64 S.Ct. at page 458.
22
To fill the gap in the owner's liability, by making him liable for the operating negligence of officers and members of the crew, Congress passed the Jones Act in 1920, which, in pertinent part, provides:
23
'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply * * *.' 46 U.S.C. § 688, 46 U.S.C.A. § 688.
24
That Act, thus, incorporated the provisions of the Federal Employers' Liability Act,1 § 1 of which2 creates a liability upon the carrier for 'injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * boats, wharves, or other equipment' (emphasis supplied), and § 63 provides, in pertinent part, that '(n)o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.' This makes clear that the maritime law of unseaworthiness imposes an unqualified liability upon the owner to pay damages to a seaman for injuries sustained through the owner's failure to keep the vessel, its appliances and gear in that safe and sound condition colloquially called 'ship-shape,' and that the Jones Act, on the other hand, supplements the maritime law of unseaworthiness by imposing a liability in tort upon the owner to pay damages to a seaman injured by negligence of the officers or members of the crew in the operation of the vessel, its appliances and gear.
25
By the Jones Act, then, Congress created a new cause of action, not then known to maritime law, for damages for a bodily injury to a seaman caused by 'the negligence of any of the officers, agents, or employees of such carrier,' and required any suit thereunder to be brought within three years. But Congress has fixed no limitation upon the time within which an action for damages for unseaworthiness must be commenced.
26
Numerous decisions of this Court have established that, in a suit to enforce a federally created right which is silent on the matter of limitations, the applicable period of limitations is that prescribed by the law of the State in which the action is brought. Cope v. Anderson, 331 U.S. 461, 463, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602; Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743; Rawlings v. Ray, 312 U.S. 96, 97, 61 S.Ct. 473, 85 L.Ed. 605; Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 397, 27 S.Ct. 65, 66, 51 L.Ed. 241; McClaine v. Rankin, 197 U.S. 154, 158, 25 S.Ct. 410, 411, 49 L.Ed. 702, and Brady v. Daly, 175 U.S. 148, 158, 20 S.Ct. 62, 66, 44 L.Ed. 109. The Court's opinion, holding that, where an action for unseaworthiness is combined with an action under the Jones Act, a court cannot apply to the former 'a shorter period of limitations' than Congress has prescribed for the latter, recognizes this rule but permits it to be applied only to an unseaworthiness action which is not conjoined with a count for negligence under the Jones Act, or to an unseaworthiness action which is conjoined with a count for negligence under the Jones Act if brought in a State whose laws provide an equal or longer period than Congress has provided for the commencement of a negligence action under the Jones Act. This seems quite inconsistent. We know that many States provide a longer period, and others a shorter period, for the commencement of a suit for unseaworthiness than is provided by Congress for the commencement of an action for damages for negligence under the Jones Act. I cannot escape the conviction that the long-established rule, expressive of the meaning of the silence of Congress in fixing a statute of limitations, should be enforced in all unseaworthiness cases or in none. I am therefore unable to see why, as the Court argues, 'a time limitation on the unseaworthiness claim effects in substance a similar limitation on the right of action under the Jones Act' or, transposing—as I think more proper—the names of the laws as used in the Court's argument, why 'a time limitation on the (Jones Act) claim effects in substance a similar limitation on the right of action (for unseaworthiness),' i.e., extends it to three years when, as here, the applicable state statute prescribes a limitation of two years.
27
It is quite true, as the Court points out, that Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, holds that an action for damages for unseaworthiness and an action for damages for negligence under the Jones Act must be conjoined in the same suit inasmuch as they both look to redress of the same bodily injury, and that otherwise a final judgment on the one would bar an action on the other under principles of res judicata. But I think this is not to say, as the Court argues, that a time limitation upon the one 'effects in substance a similar limitation' upon the other. Surely a seaman may not, in such a suit, maintain a count for unseaworthiness which is barred by the applicable limitations of the State, any more than he may maintain a count for damages for negligence under the Jones Act which is barred by the applicable three-year federal statute. It would seem just as clear that he may maintain both counts in the same suit only if neither is barred by limitations as it is that he could not maintain an action on either count if both were so barred.
28
I, therefore, believe that the Court is in error in holding that 'where an action for unseaworthiness is combined with an action under the Jones Act a court cannot apply to the former a shorter period of limitations than Congress has prescribed for the latter' (emphasis supplied), for, as observed, a state court, in an unseaworthiness action, is bound to apply the period of limitations prescribed by the law of the State in which it sits, not only in instances where that period is equal to or longer, but also where it is shorter, than the three-year period prescribed by Congress for commencing a negligence action under the Jones Act which Act, I think, is quite immaterial to the question. However desirable coterminous and uniformly applicable periods of limitations may be in these two coordinate federal laws, accomplishment of that change in the law is not properly for us, but for Congress.
29
Here petitioner joined in his suit, brought in a Texas court, a count for unseaworthiness with a count for negligence under the Jones Act, but he did not bring the suit within the two-year period of limitations applicable to unseaworthiness actions as prescribed by the law of that State. Therefore, I think the Texas Court of Civil Appeals was correct in holding his unseaworthiness count to be barred for that reason, and I would affirm its judgment.
1
46 U.S.C. § 688, 46 U.S.C.A. § 688.
2
Recent authorities have effectively disposed of suggestions in earlier cases that an injured seaman can be required to exercise an election between his remedies for negligence under the Jones Act and for unseaworthiness. McCarthy v. American Eastern Corp., 3 Cir., 175 F.2d 724; Balado v. Lykes Bros. S.S. Co., 2 Cir., 179 F.2d 943; Williams v. Tide Water Associated Oil Co., 9 Cir., 227 F.2d 791. Cf. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. See Gilmore and Black, The Law of Admiralty, §§ 6—23—6—25.
3
Because of its negative findings on unseaworthiness and negligence, the jury made no finding on whether the condition of the portholes and deck was the proximate cause of petitioner's fall. The jury did find that petitioner was not contributorily negligent, and that it would require $32,500 to compensate him for loss of earnings, diminished earning capacity, past and future medical expenses, and pain and suffering.
4
'There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
'6. Action for injury to the person of another.' Vernon's Ann.Rev.Civ.Stat.Art. 5526.
5
The question of which limitation a state court must apply was reserved in Engel v. Davenport, 271 U.S. 33, 36, 46 S.Ct. 410, 411, 70 L.Ed. 813. Lower courts are divided on the related question of which principles govern the limitation of admiralty actions on the law side of the federal court. Compare Henderson v. Cargill, Inc., D.C., 128 F.Supp. 119; Apica v. Pennsylvania Warehousing & Safe Deposit Co., D.C., 74 F.Supp. 819; Id., D.C., 101 F.Supp. 575; Untersinger v. Keystone Tankship Corp., 1948 A.M.C. 1899; with Bonam v. Southern Menhaden Corp., D.C., 284 F. 360; Oroz v. American President Lines, D.C., 154 F.Supp. 241.
6
See 46 U.S.C. § 688, 46 U.S.C.A. § 688, which incorporates the statute of limitations under the Federal Employers' Liability Act, 45 U.S.C. § 56, 45 U.S.C.A. § 56. When the Jones Act was adopted in 1920 the period of limitations for the FELA was two years. Some authorities have suggested that the Act of Aug. 11, 1939, 53 Stat. 1404, which extended the FELA period to three years, did not effect a similar extension for the Jones Act. E.g., 3 Benedict, Admiralty, (6th ed., Knauth, 1940), § 469. The contrary must now be taken to have been established. See Cox v. Roth, 348 U.S. 207, 210, 75 S.Ct. 242, 244, 99 L.Ed. 260; Pope v. McCrady Rodgers Co., 3 Cir., 164 F.2d 591, 592; Streeter v. Great Lakes Transit Corp., D.C., 49 F.Supp. 466; Gahling v. Colabee S.S. Co., D.C., 37 F.Supp. 759; Royle v. Standard Fruit & Steamship Co., 269 App.Div. 762, 54 N.Y.S.2d 778.
7
Cf. Le Gate v. The Panamolga, 2 Cir., 221 F.2d 689. In that case, a longshoreman brought a libel claiming damages for personal injuries caused by negligence or unseaworthiness. The District Court held both claims barred by laches. He was reversed as to unseaworthiness. The Court of Appeals held that if the negligence count were the only basis of liability the District Court would have been correct in holding it barred by laches. However, since libellant was going to have a trial on his unseaworthiness claim, the court thought it a 'harsh result' to limit the scope of his suit. The cause was remanded for the District Court to reconsider the question of laches on the negligence count and respondent was given the burden of showing prejudice from inexcusable delay. And see Cross v. Allen, 141 U.S. 528, 12 S.Ct. 67, 35 L.Ed. 843 (laches will not bar suit in equity to foreclose mortgage so long as statute of limitations has not run on underlying debt); United States v. Mack, 295 U.S. 480, 489, 55 S.Ct. 813, 818, 79 L.Ed. 1559 ('Laches within the term of the statute of limitations is no defense at law.').
8
'Special Issue No. 3 (and 14). Do you find from a preponderance of the evidence that the portholes or windows in question (or the 'deck above the galley') not being in a watertight condition, if you have so found in answer to special issue No. 2 (or No. 13), made the crew ship in question 'unseaworthy,' as defined herein?
'You are instructed that the term 'unseaworthy,' as used herein, means that a vessel with its appliances and fittings is not reasonably fit for the purposes for which it is being used.'
9
The jurors were puzzled over the meaning of this charge. A short time after retiring to the juryroom they made the following inquiry of the trial judge: 'In special issue 3 is the term unseaworthy referring to the vessel as a whole, or the three windows on the port side?' Plaintiff thereupon requested the trial judge to instruct the jury that the term meant that 'the portholes and their fittings are not fit for the purpose for which such portholes are used.' The court declined to instruct the jury further and answered their request by referring them to the definition in his charge, presumably the one quoted in note 8, supra.
1
45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq.
2
45 U.S.C. § 51, 45 U.S.C.A. § 51.
3
45 U.S.C. § 56, 45 U.S.C.A. § 56.
| 78
|
357 U.S. 235
78 S.Ct. 1228
2 L.Ed.2d 1283
Elizabeth Donner HANSON, Individually, as Executrix of the Will of Dora Browning Donner, Deceased, et al., Appellants,v.Katherine N. R. DENCKLA, Individually, and Elwyn L. Middleton, as Guardian of the Property of Dorothy Browning Stewart. Dora Stewart LEWIS, Mary Washington Stewart Borie and Paula Browning Denckla, Petitioners, v. Elizabeth Donner HANSON, as Executrix and Trustee Under the Last Will of Dora Browning Donner, Deceased, et al.
Nos. 107 and 117.
Argued March 10, 11, 1958.
Decided June 23, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 10.
[Syllabus from pages 235-237 intentionally omitted]
Mr. William H. Foulk, Wilmingon, Del., for appellants Hanson et al.
Mr. Arthur G. Logan, Wilmington, Del., for petitioners Lewis et al.
Mr. Sol A. Rosenblatt, New York City, for appellees Denckla et al.
Mr. Edwin D. Steel, Jr., Wilmington, Del., for respondents Hanson et al.
Mr. CHIEF JUSTICE WARREN delivered the opinion of the Court.
1
This controversy concerns the right to $400,000, part of the corpus of a trust established in Delaware by a settlor who later became domiciled in Florida. One group of claimants, 'legatees,' urge that this property passed under the residuary clause of the settlor's will, which was admitted to probate in Florida. The Florida courts have sustained this position. Fla., 100 So.2d 378. Other claimants, 'appointees' and 'beneficiaries,' contend that the property passed pursuant to the settlor's exercise of the inter vivos power of appointment created in the deed of trust. The Delaware courts adopted this position and refused to accord full faith and credit to the Florida determination because the Florida court had not acquired jurisdiction over an indispensable party, the Delaware trustee. —- Del. —-, 128 A.2d 819. We postponed the question of jurisdiction in the Florida appeal, No. 107, 354 U.S. 919, 77 S.Ct. 1377, 1 L.Ed.2d 1434, and granted certiorari to the Delaware Supreme Court, No. 117, 354 U.S. 920, 77 S.Ct. 1380, 1 L.Ed.2d 1435.
2
The trust whose validity is contested here was created in 1935. Dora Browning Donner, then a domiciliary of Pennsylvania, executed a trust instrument in Delaware naming the Wilmington Trust Co., of Wilmington, Delaware, as trustee. The corpus was composed of securities. Mrs. Donner reserved the income for life, and stated that the remainder should be paid to such persons or upon such trusts as she should appoint by inter vivos or testamentary instrument. The trust agreement provided that Mrs. Donner could change the trustee, and that she could amend, alter or revoke the agreement at any time. A measure of control over trust administration was assured by the provision that only with the consent of a trust 'advisor' appointed by the settlor could the trustee (1) sell trust assets, (2) make investments, and (3) participate in any plan, proceeding, reorganization or merger involving securities held in the trust. A few days after the trust was established Mrs. Donner exercised her power of appointment. That appointment was replaced by another in 1939. Thereafter she left Pennsylvania, and in 1944 became domiciled in Florida, where she remained until her death in 1952. Mrs. Donner's will was executed Dec. 3, 1949. On that same day she executed the inter vivos power of appointment whose terms are at issue here.1 After making modest appointments in favor of a hospital and certain family retainers (the 'appointees'),2 she appointed the sum of $200,000 to each of two trusts previously established with another Delaware trustee, the Delaware Trust Co. The balance of the trust corpus, over $1,000,000 at the date of her death, was appointed to her executrix. that amount passed under the residuary clause of her will and is not at issue here.
3
The two trusts with the Delaware Trust Co. were created in 1948 by Mrs. Donner's daughter, Elizabeth Donner Hanson, for the benefit of Elizabeth's children, Donner Hanson and Joseph Donner Winsor. In identical terms they provide that the income not required for the beneficiary's support should be accumulated to age 25, when the beneficiary should be paid 1/4 of the corpus and receive the income from the balance for life. Upon the death of the beneficiary the remainder was to go to such of the beneficiary's issue or Elizabeth Donner Hanson's issue as the beneficiary should appoint by inter vivos or testamentary instrument; in default of appointment to the beneficiary's issue alive at the time of his death, and if none to the issue of Elizabeth Donner Hanson.
4
Mrs. Donner died Nov. 20, 1952. Her will, which was admitted to probate in Florida, named Elizabeth Donner Hanson as executrix. She was instructed to pay all debts and taxes, including any which might be payable by reason of the property appointed under the power of appointment in the trust agreement with the Wilmington Trust Co. After disposing of personal and household effects, Mrs. Donner's will directed that the balance of her property (the $1,000,000 appointed from the Delaware trust) be paid in equal parts to two trusts for the benefit of her daughters Katherine N. R. Denckla and Dorothy B. R. Stewart.
5
This controversy grows out of the residuary clause that created the lastmentioned trusts. It begins:
6
'All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be at the time of my death, including any and all property, rights and interest over which I may have power of appointment which prior to my death has not been effectively exercised by me or has been exercised by me in favor of my Executrix, I direct my Executrix to deal with as follows * * *.'
7
Residuary legatees Denckla and Stewart, already the recipients of over $500,000 each, urge that the power of appointment over the $400,000 appointed to sister Elizabeth's children was not 'effectively exercised' and that the property should accordingly pass to them. Fourteen months after Mrs. Donner's death these parties petitioned a Florida chancery court for a declaratory judgment 'concerning what property passes under the residuary clause' of the will. Personal service was had upon the following defendants: (1) executrix Elizabeth Donner Hanson, (2) beneficiaries Donner Hanson and Joseph Donner Winsor, and (3) potential beneficiary William Donner Roosevelt, also one of Elizabeth's children. Curtin Winsor, Jr., another of Elizabeth's children and also a potential beneficiary of the Delaware trusts, was not named as a party and was not served. About a dozen other defendants were nonresidents and could not be personally served. These included the Wilmington Trust Co. ('trustee'), the Delaware Trust Co. (to whom the $400,000 had been paid shortly after Mrs. Donner's death), certain individuals who were potential successors in interest to complainants Denckla and Stewart, and most of the named appointees in Mrs. Donner's 1949 appointment. A copy of the pleadings and a 'Notice to Appear and Defend' were sent to each of these defendants by ordinary mail, and notice was published locally as required by the Florida statutes dealing with constructive service.3 With the exception of two individuals whose interests coincided with complainants Denckla and Stewart, none of the nonresident defendants made any appearance.
8
The appearing defendants (Elizabeth Donner Hanson and her children) moved to dismiss the suit because the exercise of jurisdiction over indispensable parties, the Delaware trustees, would offend Section 1 of the Fourteenth Amendment. The Chancellor ruled that he lacked jurisdiction over these nonresident defendants because no personal service was had and because the trust corpus was outside the territorial jurisdiction of the court. The cause was dismissed as to them. As far as parties before the court were concerned, however, he ruled that the power of appointment was testamentary and void under the applicable Florida law. In a decree dated Jan. 14, 1955, he ruled that the $400,000 passed under the residuary clause of the will.
9
After the Florida litigation began, but before entry of the decree, the executrix instituted a declaratory judgment action in Delaware to determine who was entitled to participate in the trust assets held in that State. Except for the addition of beneficiary Winsor and several appointees, the parties were substantially the same as in the Florida litigation. Nonresident defendants were notified by registered mail. All of the trust companies, beneficiaries, and legatees except Katherine N. R. Denckla, appeared and participated in the litigation. After the Florida court enjoined executrix Hanson from further participation, her children pursued their own interests. When the Florida decree was entered the legatees unsuccessfully urged it as res judicata of the Delaware dispute. In a decree dated Jan. 13, 1956, the Delaware Chancellor ruled that the trust and power of appointment were valid under the applicable Delaware law, and that the trust corpus had properly been paid to the Delaware Trust Co. and the other appointees. Hanson v. Wilmington Trust Co., 119 A.2d 901.
10
Alleging that she would be bound by the Delaware decree, the executrix moved the Florida Supreme Court to remand with instructions to dismiss the Florida suit then pending on appeal. No full faith and credit question was raised. The motion was denied. The Florida Supreme Court affirmed its Chancellor's conclusion that Florida law applied to determine the validity of the trust and power of appointment. Under that law the trust was invalid because the settlor had reserved too much power over the trustee and trust corpus, and the power of appointment was not independently effective to pass the property because it was a testamentary act not accompanied by the requisite formalities. The Chancellor's conclusion that there was no jurisdiction over the trust companies and other absent defendants was reversed. The court ruled that jurisdiction to construe the will carried with it 'substantive' jurisdiction 'over the persons of the absent defendants' even though the trust assets were not 'physically in this state.' Whether this meant jurisdiction over the person of the defendants or jurisdiction over the trust assets is open to doubt. In a motion for rehearing the beneficiaries and appointees urged for the first time that Florida should have given full faith and credit to the decision of the Delaware Chancellor. The motion was denied without opinion, Nov. 28, 1956.
11
The full faith and credit question was first raised in the Delaware litigation by an unsuccessful motion for new trial filed with the Chancellor Jan. 20, 1956. After the Florida Supreme Court decision the matter was renewed by a motion to remand filed with the Delaware Supreme Court. In a decision of Jan. 14, 1957, that court denied the motion and affirmed its Chancellor in all respects. The Florida decree was held not binding for purposes of full faith and credit because the Florida court had no personal jurisdiction over the trust companies and no jurisdiction over the trust res.
12
The issues for our decision are, first, whether Florida erred in holding that it had jurisdiction over the nonresident defendants, and second, whether Delaware erred in refusing full faith and credit to the Florida decree. We need not determine whether Florida was bound to give full faith and credit to the decree of the Delaware Chancellor since the question was not seasonably presented to the Florida court. Radio Station WOW v. Johnson, 326 U.S. 120, 128, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092.
13
No. 107, The Florida Appeal. The question of our jurisdiction was postponed until the hearing of the merits. The appeal is predicated upon the contention that as applied to the facts of this case the Florida statute providing for constructive service is contrary to the Federal Constitution. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). But in the state court appellants (the 'beneficiaries') did not object that the statute was invalid as applied, but rather that the effect of the state court's exercise of jurisdiction in the circumstances of this case deprived them of a right under the Federal Constitution.4 Accordingly, we are without jurisdiction of the appeal and it must be dismissed. Wilson v. Cook, 327 U.S. 474, 482, 66 S.Ct. 663, 667, 90 L.Ed. 793; Charleston Fed. Sav. & Loan Ass'n v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857. Treating the papers whereon appeal was taken as a petition for certiorari, 28 U.S.C. § 2103, 28 U.S.C.A. § 2103, certiorari is granted.
14
Relying upon the principle that a person cannot invoke the jurisdiction of this Court to vindicate the right of a third party,5 appellees urge that appellants lack standing to complain of a defect in jurisdiction over the nonresident trust companies, who have made no appearance in this action. Florida adheres to the general rule that a trustee is an indispensable party to litigation involving the validity of the trust.6 In the absence of such a party a Florida court may not proceed to adjudicate the controversy.7 Since state law required the acquisition of jurisdiction over the nonresident trust company8 before the court was empowered to proceed with the action, any defendant affected by the court's judgment has that 'direct and substantial personal interest in the outcome' that is necessary to challenge whether that jurisdiction was in fact acquired. Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063.
15
Appellants charge that this judgment is offensive to the Due Process Clause of the Fourteenth Amendment because the Florida court was without jurisdiction. There is no suggestion that the court failed to employ a means of notice reasonably calculated to inform nonresident defendants of the pending proceedings,9 or denied them an opportunity to be heard in defense of their interests.10 The alleged defect is the absence of those 'AFFILIATING CIRCUMSTANCES'11 WITHOut which the courts of a state mAY NOt enter a judgment imposing obligations on persons (jurisdiction in personam) or affecting interests in property (jurisdiction in rem or quasi in rem).12 While the in rem and in personam classifications do not exhaust all the situations that give rise to jurisdiction,13 they are adequate to describe the affiliating circumstances suggested here, and accordingly serve as a useful means of approach to this case.
16
In rem jurisdiction. Founded on physical power, McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608, the in rem jurisdiction of a state court is limited by the extent of its power and by the coordinate authority of sister States.14 The basis of the jurisdicton is the presence of the subject property within the territorial jurisdiction of the forum State. Rose v. Himely, 4 Cranch 241, 277, 2 L.Ed. 608; Overby v. Gordon, 177 U.S. 214, 221—222, 20 S.Ct. 603, 606, 44 L.Ed. 741. Tangible property poses no problem for the application of this rule, but the situs of intangibles is often a matter of controversy.15 In considering restrictions on the power to tax, this Court has concluded that 'jurisdiction' over intangible property is not limited to a single State. State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358; Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339. Whether the type of 'jurisdiction' with which this opinion deals may be exercised by more than one State we need not decide. The parties seem to assume that the trust assets that form the subject matter of this action16 were located in Delaware and not in Florida. We can see nothing in the record contrary to that assumption, or sufficient to establish a situs in Florida.17
17
The Florida court held that the presence of the subject property was not essential to its jurisdiction. Authority over the probate and construction of its domiciliary's will, under which the assets might pass, was thought sufficient to confer the requisite jurisdiction.18 But jurisdiction cannot be predicated upon the contingent role of this Florida will. Whatever the efficacy of a so-called 'in rem' jurisdiction over assets admittedly passing under a local will, a State acquires no in rem jurisdiction to adjudicate the validity of inter vivos dispositions simply because its decision might augment an estate passing under a will probated in its courts. If such a basis of jurisdiction were sustained, probate courts would enjoy nationwide service of process to adjudicate interests in property with which neither the State nor the decedent could claim any affiliation. The settlor-decedent's Florida domicile is equally unavailing as a basis for jurisdiction over the trust assets. For the purpose of jurisdiction in rem the maxim that personalty has its situs at the domicile of its owner19 is a fiction of limited utility. Green v. Van Buskirk, 7 Wall. 139, 150, 19 L.Ed. 109. The maxim is no less suspect when the domicile is that of a decedent. In analogous cases, this Court has rejected the suggestion that the probate decree of the State where decedent was domiciled has an in rem effect on personalty outside the forum State that could render it conclusive on the interests f nonresidents over whom there was no personal jurisdiction. Riley v. New York Trust Co., 315 U.S. 343, 353, 62 S.Ct. 608, 614, 86 L.Ed. 885; Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, 37 S.Ct. 152, 154, 61 L.Ed. 386; Overby v. Gordon, 177 U.S. 214, 20 S.Ct. 603, 44 L.Ed. 741.20 The fact that the owner is or was domiciled within the forum State is not a sufficient affiliation with the property upon which to base jurisdiction in rem. Having concluded that Florida had no in rem jurisdiction, we proceed to consider whether a judgment purporting to rest on that basis is invalid in Florida and must therefore be reversed.
18
Prior to the Fourteenth Amendment an exercise of jurisdiction over persons or property outside the forum State was thought to be an absolute nullity,21 but the matter remained a question of state law over which this Court exercised no authority.22 With the adoption of that Amendment, any judgment purporting to bind the person of a defendant over whom the court had not acquired in personam jurisdiction was void within the State as well as without. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. Nearly a century has passed without this Court being called upon to apply that principle to an in rem judgment dealing with property outside the forum State. The invalidity of such a judgment within the forum State seems to have been assumed and with good reason. Since a State is forbidden to enter a judgment attempting to bind a person over whom it has no jurisdiction, it has even less right to enter a judgment purporting to extinguish the interest of such a person in property over which the court has no jurisdiction.23 Therefore, so far as it purports to rest upon jurisdiction over the trust assets, the judgment of the Florida court cannot be sustained. Sadler v. Industrial Trust Co., 327 Mass. 10, 97 N.E.2d 169.
19
In personam jurisdiction. Appellees' stronger argument is for in personam jurisdiction over the Delaware trustee. They urge that the circumstances of this case amount to sufficient affiliation with the State of Florida to empower its courts to exercise personal jurisdiction over this nonresident defendant. Principal reliance is placed upon McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. In McGee the Court noted the trend of expanding personal jurisdiction over nonresidents. As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. State of Washington, 326 U.S. 310. 319, 66 S.Ct. 154, 159, 90 L.Ed. 95.
20
We fail to find such contacts in the circumstances of this case. The defendant trust company has no office in Florida, and transacts no business there. None of the trust assets has ever been held or administered in Florida, and the record discloses no solicitation of business in that State either in person or by mail. Cf. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Travelers Health Ass'n v. Com. of Virginia ex rel. State Corporation Comm., 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154.
21
The cause of action in this case is not one that arises out of an act done or transaction consummated in the forum State. In that respect, it differs from McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, and the cases there cited. In McGee, the nonresident defendant solicited a reinsurance agreement with a resident of California. The offer was accepted in that State, and the insurance premiums were mailed from there until the insured's death. Noting the interest California has in providing effective redress for its residents when nonresident insurers refuse to pay claims on insurance they have solicited in that State, the Court upheld jurisdiction because the suit 'was based on a contract which had substantial connection with that State.' In contrast, this action involves the validity of an agreement that was entered without any connection with the forum State. The agreement was executed in Delaware by a trust company incorporated in that State and a settlor domiciled in Pennsylvania. The first relationship Florida had to the agreement was years later when the settlor became domiciled there, and the trustee remitted the trust income to her in that State. From Florida Mrs. Donner carried on several bits of trust administration that may be compared to the mailing of premiums in McGee.24 But the record discloses no instance in which the trustee performed any acts in Florida that bear the same relationship to the agreement as the solicitation in McGee. Consequently, this suit cannot be said to be one to enforce an obligation that arose from a privilege the defendant exercised in Florida. Cf. International Shoe Co. v. State of Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95. This case is also different from McGee in that there the State had enacted special legislation (Unauthorized Insurers Process Act, West's Ann.Cal.Insurance Code, § 1610 et seq.) to exercise what McGee called its 'manifest interest' in providing effective redress for citizens who had been injured by nonresidents engaged in an activity that the State treats as exceptional and subjects to special regulation. Cf. Travelers Health Ass'n v. Com. of Virginia ex rel. State Corporation Comm., 339 U.S. 643, 647—649, 70 S.Ct. 927, 929—930, 94 L.Ed. 1154; Doherty & Co. v. Goodman, 294 U.S. 623, 627, 55 S.Ct. 553, 554, 79 L.Ed. 1097; Henry L. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.
22
The execution in Florida of the powers of appointment under which the beneficiaries and appointees claim does not give Florida a substantial connection with the contract on which this suit is based. It is the validity of the trust agreement, not the appointment, that is at issue here.25 For the purpose of applying its rule that the validity of a trust is determined by the law of the State of its creation, Florida ruled that the appointment amounted to a 'republication' of the original trust instrument in Florida. For choice-of-law purposes such a ruling may be justified, but we think it an insubstantial connection with the trust agreement for purposes of determining the question of personal jurisdiction over a nonresident defendant. The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. State of Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95. The settlor's execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.
23
It is urged that because the settlor and most of the appointees and beneficiaries were domiciled in Florida the courts of that State should be able to exercise personal jurisdiction over the nonresident trustees. This is a nonsequitur. With personal jurisdiction over the executor, legatees, and appointees, there is nothing in federal law to prevent Florida from adjudicating concerning the respective rights and liabilities of those parties. But Florida has not chosen to do so. As we understand its law, the trustee is an indispensable party over whom the court must acquire jurisdiction before it is empowered to enter judgment in a proceeding affecting the validity of a trust.26 It does not acquire that jurisdiction by being the 'center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the trustee. As we have indicated, they are insufficient to sustain the jurisdiction.27
24
Because it sustained jurisdiction over the nonresident trustees, the Florida Supreme Court found it unnecessary to determine whether Florida law made those defendants indispensable parties in the circumstances of this case. Our conclusion that Florida was without jurisdiction over the Delaware trustee, or over the trust corpus held in that State, requires that we make that determination in the first instance. As we have noted earlier, the Florida Supreme Court has repeatedly held that a trustee is an indispensable party without whom a Florida court has no power to adjudicate controversies affecting the validity of a trust.28 For that reason the Florida judgment must be reversed not only as to the nonresident trustees but also as to appellants, over whom the Florida court admittedly had jurisdiction.
25
No. 117, The Delaware Certiorari. The same reasons that compel reversal of the Florida judgment require affirmance of the Delaware one. Delaware is under no obligation to give full faith and credit to a Florida judgment invalid in Florida because offensive to the Due Process Clause of the Fourteenth Amendment. 28 U.S.C. § 1738, 28 U.S.C.A. § 1738. Even before passage of the Fourteenth Amendment this Court sustained state courts in refusing full faith and credit to judgments entered by courts that were without jurisdiction over nonresident defendants. D'Arcy v. Ketchum, 11 How. 165, 13 L.Ed. 648; Hall v. Lanning, 91 U.S. 160, 23 L.Ed. 271. See Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386; Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885. Since Delaware was entitled to conclude that Florida law made the trust company an indispensable party, it was under no obligation to give the Florida judgment any faith and credit—even against parties over whom Florida's jurisdiction was unquestioned.
26
It is suggested that this disposition is improper—that the Delaware case should be held while the Florida cause is remanded to give that court an opportunity to determine whether the trustee is an indispensable party in the circumstances of this case. But this is not a case like Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789, where it is appropriate to remand for the state court to clarify an ambiguity in its opinion that may reveal an adequate state ground that would deprive us of power to affect the result of the controversy. Nor is this a circumstance where the state court has never ruled on the question of state law that we are deciding. Although the question was left open in this case, there is ample Florida authority from which we may determine the appropriate answer.
27
The rule of primacy to the first final judgment is a necessary incident to the requirement of full faith and credit. Our only function is to determine whether judgments are consistent with the Federal Constitution. In determining the correctness of Delaware's judgment we look to what Delaware was entitled to conclude from the Florida authorities at the time the Delaware court's judgment was entered. To withhold affirmance of a correct Delaware judgment until Florida has had time to rule on another question would be participating in the litigation instead of adjudicating its outcome.
28
The judgment of the Delaware Supreme Court is affirmed, and the judgment of the Florida Supreme Court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
29
It is so ordered.
30
Judgment of Delaware Supreme Court affirmed; judgment of Florida Supreme Court reversed and cause remanded with directions.
31
Mr. Justice BLACK, whom Mr. Justice BURTON and Mr. Justice BRENNAN join, dissenting.
32
I believe the courts of Florida had power to adjudicate the effectiveness of the appointment made in Florida by Mrs. Donner with respect to all those who were notified of the proceedings and given an opportunity to be heard without violating the Due Process Clause of the Fourteenth Amendment.1 If this is correct, it follows that the Delaware courts erred in refusing to give the prior Florida judgment full faith and credit. U.S.Const., Art. IV, § 1; 28 U.S.C. § 1738, 28 U.S.C.A. § 1738.
33
Mrs. Donner was domiciled in Florida from 1944 until her death in 1952. The controversial appointment was made there in 1949. It provided that certain persons were to receive a share of the property held by the Delaware 'trustee' under the so-called trust agreement upon her death. Until she died Mrs. Donner received the entire income from this property, and at all times possessed absolute power to revoke or alter the appointment and to dispose of the property as she pleased. As a practical matter she also retained control over the management of the property, the 'trustee' in Delaware being little more than a custodian.2 A number of the beneficiaries of the appointment, including those who were to receive more than 95% of the assets involved, were residents of Florida at the time the appointment was made as well as when the present suit was filed. The appointed property consisted of intangibles which had no real situs in any particular State although Mrs. Donner paid taxes on the property in Florida.
34
The same day the 1949 appointment was made Mrs. Donner executed a will, which after her death was duly probated in a Florida court. The will contained a residuary clause providing for the distribution of all of her property not previously bequeathed, including 'any and all property, rights and interest over which I may have power of appointment which prior to my death has not been effectively exercised by me * * *.' Thus if the 1949 appointment was ineffective the property involved came back into Mrs. Donner's estate to be distributed under the residuary clause of her will. As might be anticipated the present litigation arose when legatees brought an action in the Florida courts seeking a determination whether the appointment was valid. The beneficiaries of the appointment, some of whom live outside Florida, and the Delaware trustee were defendants. They had timely notice of the suit and an adequate opportunity to obtain counsel and appear.
35
In light of the foregoing circumstances it seems quite clear to me that there is nothing in the Due Process Clause which denies Florida the right to determine whether Mrs. Donner's appointment was valid as against its statute of wills. This disposition, which was designed to take effect after her death, had very close and substantial connections with that State. Not only was the appointment made in Florida by a domiciliary of Florida, but the primary beneficiaries also lived in that State. In my view it could hardly be denied that Florida had sufficient interest so that a court with jurisdiction might properly apply Florida law, if it chose, to determine whether the appointment was effectual. Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74; Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074. True, the question whether the law of a State can be applied to a transaction is different from the question whether the courts of that State have jurisdiction to enter a judgment, but the two are often closely related and to a substantial degree depend upon similar considerations. It seems to me that where a transaction has as much relationship to a State as Mrs. Donner's appointment had to Florida its courts ought to have power to adjudicate controversies arising out of that transaction, unless litigation there would impose such a heavy and disproportionate burden on a nonresident defendant that it would offend what this Court has referred to as 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 343, 85 L.Ed. 278; International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95. So far as the nonresident defendants here are concerned I can see nothing which approaches that degree of unfairness. Florida, the home of the principal contenders for Mrs. Donner's largess, was a reasonably convenient forum for all.3 Certainly there is nothing fundamentally unfair in subjecting the corporate trustee to the jurisdiction of the Florida courts. It chose to maintain business relations with Mrs. Donner in that State for eight years, regularly communicating with her with respect to the business of the trust including the very appointment in question.
36
Florida's interest in the validity of Mrs. Donner's appointment is made more emphatic by the fact that her will is being administered in that State. It has traditionally been the rule that the State where a person is domiciled at the time of his death is the proper place to determine the validity of his will, to construe its provisions and to marshal and distribute his personal property. Here Florida was seriously concerned with winding up Mrs. Donner's estate and with finally determining what property was to be distributed under her will. In fact this suit was brought for that very purpose.
37
The Court's decision that Florida did not have jurisdiction over the trustee (and inferentially the nonresident beneficiaries) stems from principles stated the better part of a century ago in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. That landmark case was decided in 1878, at a time when business affairs were predominantly local in nature and travel between States was difficult, costly and sometimes even dangerous. There the Court laid down the broad principle that a State could not subject nonresidents to the jurisdiction of its courts unless they were served with process within its boundaries or voluntarily appeared, except to the extent they had property in the State. But as the years have passed the constantly increasing ease and rapidity of communication and the tremendous growth of interstate business activity have led to a steady and inevitable relaxation of the strict limits on state jurisdiction announced in that case. In the course of this evolution the old jurisdictional landmarks have been left far behind so that in many instances States may now properly exercise jurisdiction over nonresidents not amenable to service within their borders.4 Yet further relaxation seems certain. Of course we have not reached the point where state boundaries are without significance, and I do not mean to suggest such a view here. There is no need to do so. For we are dealing with litigation arising from a transaction that had an abundance of close and substantial connections with the State of Florida.
38
Perhaps the decision most nearly in point is Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. In that case the Court held that a State could enter a personal judgment in favor of a trustee against nonresident beneficiaries of a trust even though they were not served with process in that State. So far as appeared, their only connection with the State was the fact that the trust was being administered there.5 In upholding the State's jurisdiction the Court emphasized its great interest in trusts administered within its boundaries and governed by its laws. Id., 339 U.S. at page 313, 70 S.Ct. at page 656. Also implicit in the result was a desire to avoid the necessity for multiple litigation with its accompanying waste and possibility of inconsistent results. It seems to me that the same kind of considerations are present here supporting Florida's jurisdiction over the nonresident defendants.
39
Even if it be assumed that the Court is right in its jurisdictional holding, I think its disposition of the two cases is unjustified. It reverses the judgment of the Florida Supreme Court on the ground that the trustee may be, but need not be, an indispensable party to the Florida litigation under Florida law. At the same time it affirms the subsequent Delaware judgment. Although in form the Florida case is remanded for further proceedings not inconsistent with the Court's opinion, the effect is that the Florida courts will be ogliged to give full faith and credit to the Delaware judgment. This means the Florida courts will never have an opportunity to determine whether the trustee is an indispensable party. The Florida judgment is thus completely wiped out even as to those parties who make their homes in that State, and even though the Court acknowledges there is nothing in the Constitution which precludes Florida from entering a binding judgment for or against them. It may be argued that the Delaware judgment is the first to become final and therefore is entitled to prevail. But it only comes first because the Court makes it so. In my judgment the proper thing to do would be to hold the Delaware case until the Florida courts had an opportunity to decide whether the trustee is an indispensable party. Under the circumstances of this case I think it is quite probable that they would say he is not. See Trueman Fertilizer Co. v. Allison, Fla., 81 So.2d 734. I can see no reason why this Court should deprive Florida plaintiffs of their judgment against Florida defendants on the basis of speculation about Florida law which might well turn out to be unwarranted.
40
Mr. Justice DOUGLAS, dissenting.
41
The testatrix died domiciled in Florida. Her will, made after she had acquired a domicile in Florida, was probated there. Prior to the time she established a domicile in Florida she executed a trust instrument in Delaware. By its terms she was to receive the income during her life. On her death the principal and undistributed income were to go as provided in any power of appointment or, failing that, in her last will and testament.
42
After she had become domiciled in Florida she executed a power of appointment; and she also provided in her will that if the power of appointment had not been effectively exercised, the property under the trust, consisting of intangibles, should pass to certain designated trusts.
43
The Florida court held that the power of appointment was testamentary in character and not being a valid testamentary disposition for lack of the requisite witnesses, failed as a will under Florida law. Therefore the property passed under the will. Fla., 100 So.2d 378.
44
Distribution of the assets of the estate could not be made without determining the validity of the power of appointment. The power of appointment, being integrated with the will, was as much subject to construction and interpretation by the Florida court as the will itself. Of course one not a party or privy to the Florida proceedings is not bound by it and can separately litigate the right to assets in other States. See Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885; Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386. But we have no such situation here. The trustee of the trust was in privity with the deceased. She was the settlor; and under the trust, the trustee was to do her bidding. That is to say, the trustee, though managing the res during the life of the settlor, was on her death to transfer the property to such persons as the settlor designated by her power of appointment or by her last will and testament, or, failing that, to designated classes of persons. So far as the present controversy is concerned the trustee was purely and simply a stakeholder or an agent holding assets of the settlor to dispose of as she designated. It had a community of interest with the deceased. I see no reason therefore why Florida could not say that the deceased and her executrix may stand in judgment for the trustee so far as the disposition of the property under the power of appointment and the will is concerned. The question in cases of this kind is whether the procedure is fair and just, considering the interests of the parties. Cf. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; Mullane v. Central Hanover Trust Co., 339 U.S. 306, 312—317, 70 S.Ct. 652, 656—658, 94 L.Ed. 865. Florida has such a plain and compelling relation to these out-of-state intangibles (cf. Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339), and the nexus between the settlor and trustee is so close, as to give Florida the right to make the controlling determination even without personal service over the trustee and those who claim under it. We must remember this is not a suit to impose liability on the Delaware trustee or on any other absent person. It is merely a suit to determine interests in those intangibles. Cf. Mullane v. Central Hanover Trust Co., supra, 339 U.S. at page 313, 70 S.Ct. at page 656. Under closely analogous facts the California Supreme Court held in Atkinson v. Superior Court, 49 Cal.2d 338, 316 P.2d 960, that California had jurisdiction over an absent trustee. I would hold the same here. The decedent was domiciled in Florida; most of the legatees are there; and the absent trustee through whom the others claim was an agency so close to the decedent as to be held to be privy with her in other words so identified in interest with her as to represent the same legal right.
1
The appointment was partially revoked July 7, 1950 in a respect not material to the instant controversy.
2
The hospital received $10,000. Six servants qualified for appointments totalling $7,000.
3
Fla.Stat., 1957, c. 48, § 48.01:
'Service of process by publication may be had, in any of the several courts of this state, and upon any of the parties mentioned in § 48.02 in any suit or proceeding:
'(1) To enforce any legal or equitable lien upon or claim to any title or interest in real or personal property within the jurisdiction of the court or any fund held or debt owing by any party upon whom process can be served within this state.
'(5) For the construction of any will, deed, contract or other written instrument and for a judicial declaration or enforcement of any legal or equitable right, title, claim, lien or interest thereunder.'
§ 48.02: 'Where personal service of process cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown, including: (1) Any known or unknown natural person * * * (2) Any corporation or other legal entity, whether its domicile be foreign, domestic or unknown * * *.'
4
The record discloses no mention of the state statute until the petition for rehearing in the Florida Supreme Court. In the trial court, appellant's motion to dismiss raised the federal question in this manner: 'The exercise by this Court of the jurisdiction sought to be invoked by the plaintiffs herein would contravene the Constitution and Laws of the State of Florida and the Constitution of the United States, and, in particular, Section 1 of the Fourteenth Amendment to the United States Constitution.' No. 107, R. 41.
5
See Liberty Warehouse Co. v. Burley Tobacco Growers' Co-op. Marketing Ass'n, 276 U.S. 71, 88, 48 S.Ct. 291, 294, 72 L.Ed. 473; Smith v. State of Indiana, 191 U.S. 138, 148, 24 S.Ct. 51, 52, 48 L.Ed. 125; Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Robertson and Kirkham, Jurisdiction of the Supreme Court (Wolfson and Kurland ed.), § 298.
6
Trueman Fertilizer Co. v. Allison, Fla., 81 So.2d 734, 738; Winn v. Strickland, 34 Fla. 610, 633, 16 So. 606, 613; Wilson v. Russ, 17 Fla. 691, 697; McArthur v. Scott, 113 U.S. 340, 396, 5 S.Ct. 652, 670, 28 L.Ed. 1015; Sadler v. Industrial Trust Co., 327 Mass. 10, 97 N.E.2d 169.
7
Martinez v. Balbin, Fla., 76 So.2d 488, 490; Florida Land Rock Phosphate Co. v. Anderson, 50 Fla. 501, 512—513, 39 So. 392, 396.
8
Hereafter the terms 'trust,' 'trust company' and 'trustee' have reference to the trust established in 1935 with the Wilmington Trust Co., the validity of which is at issue here. It is unnecessary to determine whether the Delaware Trust Co., to which the $400,000 remainder interest was appointed and was paid after Mrs. Donner's death, is also an indispensable party to this proceeding.
9
Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 179; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608.
10
Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520.
11
Sunderland, The Problem of Jurisdiction, Selected Essays on Constitutional Law, 1270, 1272.
12
A judgment in personam imposes a personal liability or obligation on one person in favor of another. A judgment in rem affects the interests of all persons in designated property. A judgment quasi in rem affects the interests of particular persons in designated property. The latter is of two types. In one the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons. In the other the plaintiff seeks to apply what he concedes to be the property of the defendant to the satisfaction of a claim against him. Restatement, Judgments, 5—9. For convenience of terminology this opinion will use 'in rem' in lieu of 'in rem and quasi in rem.'
13
E.g., Mallane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 312, 70 S.Ct. 652, 656, 94 L.Ed. 865; Williams v. State of North Carolina, 317 U.S. 287, 297, 63 S.Ct. 207, 212, 87 L.Ed. 279. Fraser, Jurisdiction by Necessity, 100 U. of Pa.L.Rev. 305.
14
Baker v. Baker, Eccles & Co., 242 U.S. 394, 400, 37 S.Ct. 152, 154, 61 L.Ed. 386; Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S.Ct. 608, 612, 86 L.Ed. 885; Overby v. Gordon, 177 U.S. 214, 221—222, 20 S.Ct. 603, 606, 44 L.Ed. 741; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Rose v. Himely, 4 Cranch 241, 277, 2 L.Ed. 608.
15
See Andrews, Situs of Intangibles in Suits against Non-Resident Claimants, 49 Yale L.J. 241.
16
This case does not concern the situs of a beneficial interest in trust property. These appellees were contesting the validity of the trust. Their concern was with the legal interest of the trustee or, if the trust was invalid, the settlor. Therefore, the relevant factor here is the situs of the stocks, bonds, and notes that make up the corpus of the trust. Properly speaking such assets are intangibles that have no 'physical' location. But their embodiment in documents treated for most purposes as the assets themselves makes them partake of the nature of tangibles. Cf. Wheeler v. Sohmer, 233 U.S. 434, 439, 34 S.Ct. 607, 58 L.Ed. 1030.
17
The documents evidencing ownership of the trust property were held in Delaware, cf. Bank of Jasper v. First Nat. Bank, 258 U.S. 112, 119, 42 S.Ct. 202, 204, 66 L.Ed. 490, by a Delaware trustee who was the obligee of the credit instruments and the record owner of the stock. The location of the obligors and the domicile of the corporations do not appear. The trust instrument was executed in Delaware by a settlor then domiciled in Pennsylvania. Without expressing any opinion on the significance of these or other factors unnamed, we note that none relates to Florida.
18
The Florida Supreme Court's opinion states: 'We held (in Henderson v. Usher, 118 Fla. 688, 160 So. 9) that constructive service was valid in that state of the record because substantive jurisdiction existed in the Florida court by virtue of construction of a will, which was also involved, the testator having been domiciled in Florida. We observed that it was not essential that the assets of the trust be physically in this state in order that constructive service be binding upon a non-resident where the problem presented to the court was to adjudicate, inter alia, the status of the securities incorporated in the trust estate and the rights of the non-resident therein. It is entirely consistent with the Henderson case to hold, as we do, that the court below erred in ruling that it lacked jurisdiction over the persons of the absent defendants.' Fla., 100 So.2d at page 385.
The foregoing leaves unclear whether the court was invoking in personam jurisdiction over the trustee, or in rem jurisdiction over the trust assets. Henderson v. Usher, supra, which was an action by testamentary trustees for a construction of the will establishing a trust whose assets were held in New York, found it unnecessary to decide the basis of the jurisdiction exercised. In response to the jurisdictional objections of a specially appearing nonresident defendant, the Florida Supreme Court ruled: 'Since the interpretation of the will is the primary question with which we are confronted we are impelled to hold that the res is at least constructively in this state and that the Florida courts are empowered to advise the trustees how to proceed under it and what rights those affected have in it. For the immediate purpose of this suit the will is the res and when that is voluntarily brought into the courts of Florida to be construed the trust created by it is to all intents and purposes brought with it.' 118 Fla. at page 692, 160 So. at page 10.
19
We assume arguendo for the purpose of this discussion that the trust was invalid so that Mrs. Donner was the 'owner' of the subject property.
20
Though analogous, these cases are not squarely in point. They concerned the efficacy of such judgments in the courts of another sovereign, while the issue here is the validity of such an exercise of jurisdiction within the forum State.
21
See Pennoyer v. Neff, 95 U.S. 714, 720—728, 732, 24 L.Ed. 565; Story, Commentaries on the Conflict of Laws (6th ed. 1865), §§ 539, 550—551; Cooley, Constitutional Limitations (1st ed. 1868), 404—405; Rheinstein, The Constitutional Bases of Jurisdiction, 22 U. of Chi.L.Rev. 775, 792—793.
22
See Baker v. Baker, Eccles & Co., 242 U.S. 394, 403, 37 S.Ct. 152, 155, 61 L.Ed. 386.
23
This holding was forecast in Pennoyer v. Neff, supra. When considering the effect of the Fourteenth Amendment, this Court declared that in actions against nonresidents substituted service was permissible only where 'property in the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose * * *.' (Emphasis supplied.) 95 U.S. at page 733.
24
By a letter dated Feb. 5, 1946, Mrs. Donner changed the compensation to be paid the trust advisor. April 2, 1947, she revoked the trust as to $75,000, returning that amount to the trustee December 22, 1947. To these acts may be added the execution of the two powers of appointment mentioned earlier.
25
The Florida Supreme Court's opinion makes repeated references to the 'invalidity' of the trust, and uses other language of like import. See 100 So.2d at pages 381, 382, 383, 384, 385. Its ruling that the 1949 and 1950 'appointments' were ineffective to pass title to the property (because lacking the requisite testamentary formalities) proceeded from this initial ruling that the trust agreement was 'invalid,' 100 So.2d at page 383, or 'illusory,' 100 So.2d at page 384, and therefore created no power of appointment. There was no suggestion that the appointment was ineffective as an exercise of whatever power was created by the trust agreement.
26
See note 6, supra.
27
This conclusion make unnecessary any consideration of appellants' contention that the contacts the trust agreement had with Florida were so slight that it was a denial of due process of law to determine its validity by Florida law. See Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926.
28
See notes 6 and 7, supra.
1
In my judgment it is a mistake to decide this case on the assumption that the Florida courts invalidated the trust established in 1935 by Mrs. Donner while she was living in Pennsylvania. It seems quite clear to me that those courts had no such purpose. As I understand it, all they held was that an appointment made in Florida providing for the disposition of part of the trust property after Mrs. Donner's death was (1) testamentary since she retained complete control over the appointed property until she died, and (2) ineffective because not executed in accordance with the Florida statute of wills.
2
Among other things Mrs. Donner reserved the right to appoint 'advisers' serving at her sufferance who controlled all purchases, sales and investments by the 'trustee.' Evidence before the Delaware courts indicated that these advisers, not the Delaware 'trustee,' actually made all decisions with respect to transactions affecting the 'trust' property and that the 'trustee' mechanically acted as they directed.
3
The suggestion is made that Delaware was a more suitable forum, but the plain fact is that none of the beneficiaries or legatees has ever resided in that State.
4
See, e.g., McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Travelers Health Ass'n v. Com. of Virginia ex rel. State Corporation Comm., 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.
5
There was no basis for in rem jurisdiction since the litigation concerned the personal liability of the trustee and did not involve the trust property.
| 34
|
357 U.S. 301
78 S.Ct. 1190
2 L.Ed.2d 1332
William MILLER, Petitioner,v.UNITED STATES of America.
No. 126.
Argued Jan. 28, 1958.
Decided June 23, 1958.
Mr. De Long Harris, Washington, D.C., for petitioner.
Mr. Leonard B. Sand, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner, William Miller, together with Bessie Byrd and her brother, Arthur R. Shepherd, was tried and convicted in the District Court for the District of Columbia for conspiracy to commit violations, and violations, of the federal narcotics laws. 26 U.S.C. (Supp. V) § 4704(a), 26 U.S.C.A. § 4704(a); 21 U.S.C. § 174, 21 U.S.C.A. § 174; 18 U.S.C. § 371, 18 U.S.C.A. § 371. The Court of Appeals for the District of Columbia Circuit affirmed, one judge dissenting, 100 U.S.App.D.C. 302, 244 F.2d 750. We granted certiorari, 353 U.S. 957, 77 S.Ct. 867, 1 L.Ed.2d 908, to determine whether evidence seized at the time of petitioner's arrest was properly admitted against the petitioner. The evidence was $100 of marked currency which was seized by the federal officers who arrested the petitioner and Bessie Byrd at their apartment.
2
On March 25, 1955, at 1:35 a.m., Clifford Reed was arrested, under an arrest warrant, on a washington, D.C., street on suspicion of narcotics offenses. Reed revealed to Wilson, a federal narcotics agent, that he purchased heroin in 100-capsule quantities from the petitioner through Shepherd. Agent Wilson knew of the petitioner as one who had trafficked in narcotics and had been convicted for a narcotics offense in 1953. Reed said that he was to meet Shepherd later that morning to make a purchase. Agent Wilson enlisted his aid to apprehend Shepherd and the petitioner. About 3 a.m. another federal narcotics agent, Lewis, carrying $100 of marked currency, went with Reed in a taxicab to Shepherd's home. Reed introduced Lewis to Shepherd as a buyer. Shepherd accepted the $100 and agreed to secure 100 capsules of heroin from the petitioner and deliver them to Lewis at Reed's apartment. Shepherd proceeded alone in the taxicab to the petitioner's apartment.
3
The taxicab was followed by agent Wilson, officer Wurms of the Metropolitan Police Department, and other officers in police cars.1 Shepherd was seen to leave the taxicab in front of the apartment house where the petitioner and Bessie Byrd occupied a two-room-and-bath basement apartment. The taxicab waited. Shepherd entered the basement but agent Wilson, who looked into the basement hall, could not see where he went. Shepherd came out of the basement within a few minutes and reentered the taxicab. The taxicab was proceeding toward Reed's apartment when the officers following in the police cars intercepted it. Shepherd was arrested and searched. He did not have the marked bills on his person but admitted to agent Wilson and officer Wurms that a package of 100 capsules of narcotics found under the taxicab's front seat was put there by him when the police cars stopped the taxicab. He said that he had taken the package from behind a fire extinguisher in the basement hall where he had been sent by a 'fellow' with Reed who had promised him $10 for getting it.
4
The federal officers returned immediately to the apartment building. About 3:45 a.m. agent Wilson and officer Wurms went to the door of the petitioner's apartment. Officer Wurms knocked and, upon the inquiry from within—'Who's there?'—replied in a low voice, 'Police.' The petitioner opened the door on an attached door chain and asked what the officers were doing there. Before either responded, he attempted to close the door. Thereupon, according to officer Wurms, 'we put our hands inside the door and pulled and ripped the chain off, and entered.'2 The officers had no arrest or search warrant. They did not expressly demand admission or state their purpose for their presence,3 nor did they place the petitioner under arrest until after they entered the apartment.
5
Bessie Byrd was also arrested in the apartment and turned over the cash she had in her housecoat. The cash included $34 of the marked currency. After an extended search the remaining $66 of marked currency was found, some in a hatbox in a closet, and the rest within the covers of a bed in the bedroom.
6
The Government contends that there was probable cause for arresting the petitioner and that the marked currency was properly admitted in evidence because it was seized as an incident to a lawful arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. The petitioner's argument breaks down into three contentions: (1) that the officers had no probable cause to arrest the petitioner without a warrant; (2) that the search was not justified as being an incident of a lawful arrest; (3) that the arrest, and therefore the search, was in any event unlawful because the officers broke the door of petitioner's home without first giving notice of their authority and purpose in demanding admission. If any one of these contentions prevails, it is agreed that the marked money was inadmissible in evidence. In the view we take, we need consider only petitioner's third contention.
7
The lawfulness of the arrest of petitioner depends upon the power of the arresting officers to 'break' the doors of a home in order to arrest without warrant persons suspected of having committed narcotics offenses. Agent Wilson did not have statutory authority to arrest without a warrant although officer Wurms, as a member of the Metropolitan Police Department, did have such authority.4 This Court has said, in the similar circumstance of an arrest for violation of federal law by state peace officers, that the lawfulness of the arrest without warrant is to be determined by reference to state law. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210; Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436. By like reasoning the validity of the arrest of petitioner is to be determined by reference to the law of the District of Columbia.
8
In making reference to that law we are mindful of our policy of not interfering with local rules of law fashioned by the courts of the District of Columbia. Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382; Griffin v. United States, 336 U.S. 704, 715, 69 S.Ct. 814, 819, 93 L.Ed. 993. But the Government agrees with petitioner that the validity of the entry to execute the arrest without warrant must be tested by criteria identical with those embodied in 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, which deals with entry to execute a search warrant.5 That section provides that an officer, executing a search warrant, may break open a door only if, 'after notice of his authority and purpose,' he is denied admittance. The Government states in its brief that, 'where an arrest is made on probable cause rather than a warrant, these statutory requirements must be met before an officer can force entry into an apartment.' These statutory requirements are substantially identical to those judicially developed by the Circuit Court of Appeals for the District of Columbia in Accarino v. United States, 85 U.S.App.D.C. 394, 403, 179 F.2d 456, 465. Since the rule of Accarino bears such a close relationship to a statute which is not confined in operation to the District of Columbia, we believe that review is warranted here. Cf. Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229; Carroll v. United States, 354 U.S. 394, 414, 77 S.Ct. 1332, 1343, 1 L.Ed.2d 1442.
9
From earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest.6 Such action invades the precious interest of privacy summed up in the ancient adage that a man's house is his castle. As early as the 13th Yearbook of Edward IV (1461—1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man's house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed7 to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle:
10
'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!'
11
But the common law recognized some authority in law officers to break the door of a dwelling to arrest for felony. The common-law authorities differ, however, as to the circumstances in which this was the case. Hawkins says: 'where one lies under a probable Suspicion only, and is not indicted, it seems the better Opinion at this Day, That no one can justify the Breaking open Doors in Order to apprehend him.' 2 Hawkins, Pleas of the Crown, c. 14, § 7 (1762); see also Foster, Crown Law, (1762) 320—321 (2d ed. 1776). Coke appears to have been of the same view, and to have thought that the breaking of a house was limited to cases in which a writ, now our warrant, had issued. Co. 4th Inst. 177. On the other hand, Hale says that 'A man, that arrests upon suspicion of felony, may break open doors, if the party refuse upon demand to open them * * *.' 1 Hale, Pleas of the Crown, 583 (1736).
12
Whatever the circumstances under which breaking a door to arrest for felony might be lawful, however, the breaking was unlawful where the officer failed first to state his authority and purpose for demanding admission. The requirement was pronounced in 1603 in Semayne's Case, 5 Coke Co.Rep. 91a, 11 E.R.C. 629, 77 Eng.Repr. 194, at 195: 'In all cases where the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K(ing)'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors * * *.' (Emphasis supplied.)
13
The requirement stated in Semayne's Case still obtains. It is reflected in 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, in the statutes of a large number of States,8 and in the American Law Institute's proposed Code of Criminal Procedure, § 28.9 It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant, or when officers are authorized to make an arrest for a felony without a warrant. There are some state decisions holding that justification for noncompliance exists in exigent circumstances, as, for example, when the officers may in good faith believe that they or someone within are in peril of bodily harm, Read v. Case, 4 Conn. 166, or that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.
14
But whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances is not a question we are called upon to decide in this case. The Government makes no claim here of the existence of circumstances excusing compliance. The Government concedes that compliance was required but argues that 'compliance is evident from the events immediately preceding the officers' forced entry.'
15
The rule seems to require notice in the form of an express announcement by the officers of their purpose for demanding admission. The burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirement in this case. It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal.2d 755, 290 P.2d 855; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 802 (1924).10 But even by that test the evidence upon which the Government relief was not sufficient to justify the officers' failure expressly to notify the petitioner that they demanded admission to his apartment for the purpose of arresting him.
16
The single fact known to the officers upon which the Government relies is the 'split-second' occurrence in which the petitioner evinced 'instantaneous resistance to their entry,' an 'almost instinctive attempt to bar their entry after they (the officers) had identified themselves as police * * *.' It is argued that this occurrence 'certainly points up that he knew their purpose immediately * * * (and), at once, realized that he had been detected and that the officers were there to arrest him'; that '(i)t would be wholly unrealistic to say that the officers had not made their purpose known because they did not more formally announce that they were there to arrest him.'
17
But, first, the fact that petitioner attempted to close the door did not of itself prove that he knew their purpose to arrest him. It was an ambiguous act. It could have been merely the expected reaction of any citizen having this experience at that hour of the morning, particularly since it does not appear that the officers were in uniform, cf. Accarino v. United States, supra, 85 U.S.App.D.C. at page 403, 179 F.2d at page 465, and the answer 'Police' was spoken 'in a low voice' and might not have been heard by the petitioner so far as the officers could tell.
18
Second, petitioner's reaction upon opening the door could only have created doubt in the officers' minds that he knew they were police intent on arresting him. On the motion to suppress, Agent Wilson testified that 'he wanted to know what we were doing there.' This query, which went unanswered, is on its face inconsistent with knowledge. The majority of the Court of Appeals denied the import of the query by inferring that Miller knew Wilson and Wurms personally and recognized them as soon as he opened the door. That inference has no support in the record.11 But even if this inference were supportable, Miller's recognition of Wilson and Wurms as police officers would not have justified them, in light of other facts known to them, in being virtually certain that Miller actually knew the reason for their presence. The officers knew that petitioner was unaware of Shepherd's arrest; they knew that he was unaware that the currency was marked; they knew that he was unaware tht their presence was pursuant to a plan, initiated by Reed's disclosures, to catch the petitioner in a criminal act. Moreover, they did not actually know that petitioner had made a sale to Shepherd and received the marked money, for Shepherd had not talked and had not been seen to enter petitioner's apartment. The fact that the marked money was found in the apartment has no bearing upon the petitioner's knowledge of the officers' purpose since he did not know that the money was marked. This Court said in United States v. Di Re, supra, 332 U.S. at page 595, 68 S.Ct. at page 229: 'We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.' The most that can be said is that the petitioner's act in attempting to close the door might be the basis for the officers being virtually certain that the petitioner knew there were police at his door conducting an investigation. This, however, falls short of a virtual certainty that the petitioner knew of their purpose to arrest him. The requirement is not met except by notice of that purpose, for the Government admits that the officers had no authority to break the petitioner's door except to arrest him. We must, therefore, conclude that the petitioner did not receive the required notice of authority and purpose.
19
We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual's right of privacy in his house.12 Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. The petitioner could not be lawfully arrested in his home by officers breaking in without first giving him notice of their authority and purpose. Because the petitioner did not receive that notice before the officers broke the door to invade his home, the arrest was unlawful, and the evidence seized should have been suppressed.
20
Reversed.
21
Mr. Justice HARLAN concurs in the result.
22
Mr. Justice CLARK, with whom Mr. Justice BURTON concurs, dissenting.
23
I agree that a requirement of prior notice of authority and purpose should not be given a 'grudging' application. But by the same token it should not be reduced to an absurdity. A majority of the Court of Appeals has concluded that petitioner, at the time the police entered his apartment, 'already fully understood who the officers were and that they sought to arrest him.' 100 U.S.App.D.C. 302, 310, 244 F.2d 750, 758. The entry, therefore, was held valid under District of Columbia law.1 This Court now superimposes upon the local rule of the District an artificial and unrealistic requirement that, even under the circumstances found here, police must make 'an express announcement' in unmistakable words that they are the police and have come to make an arrest.
24
The Court attempts to justify interference in local law by what it terms a 'concession' of the Government that validity of the entry must be tested by a federal statute relating to forcible entry to execute a search warrant.2 But the fact that the Government seeks clarification of a general federal statute, possibly to serve its purposes in prosecutions elsewhere, is no reason for us to oblige, especially when the result is to subvert existing local law. In the process, the Court reverses the conviction of a wholesale narcotics violator with a previous record in the traffic who carries on his abominable trade by using a juvenile as his dope peddler and co-conspirator.
25
The facts on which the Court of Appeals found the entry valid were these: Officers trailed Shepherd as he proceeded by taxicab to purchase heroin for Lewis, a narcotics agent. Shepherd went to the apartment occupied by his sister, Mrs. Byrd, and by petitioner. The officers saw him enter the apartment building. Agent Wilson followed him to the basement entrance and saw him disappear down a lighted hall about 'as long as the jury box.' Other than the entrance, there were only two doors into the hall, one leading into petitioner's apartment, the other into a furnace room. No one lived in the basement except petitioner and Mrs. Byrd. Wilson then withdrew to a location across the street. He saw a light go on in the furnace room, remain on shortly, and then go out. Shepherd soon emerged, re-entered the taxicab and drove away. The officers followed, arrested Shepherd, and seized 100 capsules of heroin found in the taxicab.
26
The opinion of the Court of Appeals graphically described the subsequent events:
27
'After the arrest of Shepherd, the officers, having found the 100 capsules of heroin, immediately went back to the apartment occupied by Mrs. Byrd and Miller, and, a few minutes later, knocked on the door and announced their identity. Thereupon Miller, known to the officers as a narcotics violator, having opened his door part way, recognized the officers of the narcotics squad and attempted to close the door. As he pulled the door to, the officers resisted his effort to close it, a chain bolt broke, and the officers arrested Miller and Mrs. Byrd.' 100 U.S.App.D.C. at page 304, 244 F.2d at page 752.
28
This summary is amply supported by the evidence. Wilson testified that petitioner previously met him when he was an agent with the Federal Bureau of Narcotics. He also knew petitioner in connection with a narcotics case. Officer Wurms testified that he too knew petitioner officially.3 As to their entry into the apartment, Wurms testified: 'I knocked on the front door * * * somebody asked, 'Who's there?' I said, 'Blue'—in a low voice, I said 'Police.' I repeated it two or three times in that manner. The door opened. There was a chain on the door. Blue Miller saw me, Agent Wilson, and I don't know who else he saw but he tried to close the door * * *.' Wilson described the entry this way: 'There was a short struggle there between Wurms and Miller to open the door and finally the door was forced open and we got ourselves into the apartment.' The officers found the marked currency and a carton of one thousand unfilled gelatin capsules. Three hundred and eighty-one such capsules filled with heroin were found in the furnace room across the hall.
29
At a pretrial hearing petitioner moved to suppress the marked currency, alleging that the officers had neither warrant nor probable cause for arrest. This motion was denied. At trial before a jury and a different judge the motion was renewed. In denying the motion, the judge said, 'I will give you the right to make another motion. You certainly have a right at the end of the testimony.' Petitioner never availed himself of this opportunity.
30
On appeal petitioner shifted his ground, emphasizing that even if the officers had probable cause to arrest him, such authority was improperly exercised because they did not formally announce their purpose before entry. The Court of Appeals held:
31
'Against the background of the facts as noted and the law as summarized, we find the officers at Miller's door, knowing that a felony had been committed and having probable cause to believe it was continuing. The statute spelled out their clear duty to arrest.' 100 U.S.App.D.C. 302, 309, 244 F.2d 750, 757.
32
The court agreed with the trial judge 'that the attempt of the officers to arrest Miller at his doorway under the circumstances of this case was not unreasonable,' and found that the breaking of the door chain 'in the course of his resistance (was) immaterial and his arrest, immediately made, was justified.' 100 U.S.App.D.C. at page 310, 244 F.2d at page 758. Concluding that Miller without doubt was aware both of the officers' identity and purpose, the court upheld the refusal of the trial court to suppress the evidence, and found the proof of guilt 'overwhelming and unanswerable.'
33
The majority, however, brushes aside these conclusions, explaining petitioner's action in slamming the door as 'the expected reaction of any citizen.' This is something entirely foreign to my concept of the respect a law-abiding citizenry pays to its law-enforcement officers. Nor can I accept the conclusion of the Court that the circumstances found by the Court of Appeals fall 'short of a virtual certainty that the petitioner knew of (the officers') purpose to arrest him.' His knowledge—in the absence of an express admission by him—can never be a 'virtual certainty.' Rather than attempting to psychoanalyze petitioner, we should measure his understanding by his outward acts. The Court of Appeals found that they indisputably established petitioner's awareness of the police purpose. We should not disturb that finding.
34
The majority does not deal with the 'exigent circumstances' of the case because the Government makes no claim for thus 'excusing compliance' with the statute. It is to be noted, however, that the Court of Appeals expressly based its opinion on the fact that the officers 'were confronted by the need for a decision arising from the necessitous circumstances of the situation.' The position of the Government does not excuse us from evaluating the circumstances of the whole case. I believe that the Court of Appeals was eminently correct in its conclusion that 'necessitous circumstances' here warranted the officers in entering the apartment. As that court pointed out, petitioner might have fled or hidden himself or destroyed the fruits of his crime, particularly in view of his background and the visit of his brother-in-law Shepherd only a few moments before. Certainly he soon would have learned of Shepherd's arrest. Moreover, his attempt to forcibly prevent the entry of the officers into his apartment required their immediate action. Any delay might well have precluded the arrest. Destruction of the marked money might have prevented the establishment of petitioner's guilt. As the Government points out, 'split-second action (was) necessary.'
35
I would affirm the judgment on the basis of the District of Columbia rule in Accarino, supra, which I believe this Court should honor.4
1
The group included two Federal Bureau of Narcotics agents, Wilson and Pappas, officer Wurms of the District of Columbia Metropolitan Police Department, and officers Bowman and Thompson of the Virginia State Police, who were trainees in the narcotics program of the State of Virginia.
2
Officer Wurms testified:
'The Witness: Agent Wilson and I were at the front door of the apartment No. 1, 1337 Columbia Road. I knocked on the front door. I said—somebody asked, 'Who's there?' I said, 'Blue' (the petitioner's nickname)—in a low voice, I said 'Police.'
'I repeated it two or three times, in that manner.
'The door opened. There was a chain on the door. Blue Miller saw me, Agent Wilson, and I don't know who else he saw but he tried to close the door and at that time we put our hands inside the door and pulled and ripped the chain off, and entered.'
3
At the trial, but not at the hearing on the motion to suppress, agent Wilson testified, 'He said, 'What do you-all want?' And we says, 'Police, you are under arrest, we want in.' He says he was not going to let us in, or something like that, and so officer Wurms took ahold of the door and pulled it open.' But apparently the Government is satisfied that agent Wilson was mistaken in saying that there was mention of the purpose to arrest. His testimony on the motion to suppress as well as the testimony of officer Wurms, both on the motion and at the trial, is contrary. The Government in its brief refers to this testimony merely in footnotes. Its brief accepts the petitioner's premise that the case should be decided upon the basis that the evidence shows that the officers did not formally announce their purpose. The Court of Appeals decided the case on the basis that Wilson did not make the statement. 100 U.S.App.D.C. 302, 306, 244 F.2d 750, 754.
4
Narcotics agents were subsequently given authority by 26 U.S.C. § 7607, 26 U.S.C.A. § 7607, added July 18, 1956, to make an arrest where the agents have 'reasonable grounds to believe that the person to be arrested has committed' a narcotics offense. In the District of Columbia peace officers having probable cause to believe that a felony is being, or has been, committed are empowered to arrest without a warrant. Wrightson v. United States, 98 U.S.App.D.C. 377, 378, 236 F.2d 672; Id., 95 U.S.App.D.C. 390, 222 F.2d 556, 558.
5
18 U.S.C. § 3109, 18 U.S.C.A. § 3109:
'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.'
The petitioner does not raise a question of the application of D.C.Code, 1951, § 4—141. See also § 4—145.
6
Judge Prettyman's opinion for the Court of Appeals in Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, discusses comprehensively the development of the law. See also the exhaustive article, Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 673, 798 (1924).
7
The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: 'Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man's house was his castle, he said.'
8
Ala.Code 1940, Tit. 15, § 155; Ariz.Rev.Stat.1955, Tit. 13, § 1411, A.R.S. § 13—1411; Deering's Cal.Penal Code, § 844, West's Ann.Cal.Pen.Code, § 844; Fla.Stat.1957, § 901.17, F.S.A.; Idaho Code 1947, § 19—611; Burns' Ind.Ann.Stat. 1956, Replacement Vol., § 9—1009; Iowa Code Ann.1949, § 755.9, I.C.A.; Kan. Gen.Stat.1949, § 62—1819; Ky.Rev.Stat. 1953, § 70.078; Dart's La.Crim.Code, 1943, Art. 72, LSA—R.S. 15:72; Mich.Stat.Ann.1954, § 28.880; Minn.Stat.1945, § 629.34, M.S.A.; Miss.Code 1942, § 2471; Mo.Rev.Stat.Ann.1949, § 544.200, V.A.M.S.; Mont.Rev.Codes 1947, § 94—6011; Nebr.Rev.Stat.1943, § 29—411; Nev.Rev.Stat.1957, § 171.275; Clevenger-Gilbert's N.Y.Crim.Code 1956, § 178; N.C.Gen.Stat.1953, § 15—44; Page's Ohio Rev.Code 1953, § 2935.15; Okl.Stat.Ann., Tit. 22, § 194; Ore.Comp.Laws 1940, § 26—1530; S.C.Code 1952, § 53—198; S.D.Code 1939, § 34.1606; Tenn.Code 1955, § 40—807; Utah Code Ann.1953, 77—13—12; Remington's Wash.Rev.Stat.1932, § 2082; Wyo.Comp.Stat.1945, § 10—309.
9
Code of Crim.Proc., American Law Institute, Official Draft, § 28 (1930):
'Right of officer to break into building. An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, as provided in section 21, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.'
10
Professor Wilgus sums up his discussion of the breaking of doors thus: 'Before doors are broken, there must be a necessity for so doing, and notice of the authority and purpose to make the arrest must be given and a demand and refusal of admission must be made, unless this is already understood, or the peril would be increased.' 22 Mich.L.Rev. 798, 802. (Footnotes omitted.) The dissenting opinion herein, in footnote 1, mistakenly refers to this passage as if it were a holding 'enunciated' by the Court of Appeals. In fact, this passage was merely quoted without approval. The holding was: 'Upon one topic there appears to be no dispute in the authorities. Before an officer can break open a door to a home, he must make known the cause of his demand for entry. There is no claim in the case at bar that the officers advised the suspect of the cause of their demand before they broke down the door.' Accarino v. United States, 85 U.S.App.D.C. 394, 403, 179 F.2d 456, 465.
11
Judge Holtzoff heard the motion to suppress over two months before the trial. Our examination of the record made at that time brings us into complete agreement with Judge Edgerton, who, dissenting in the Court of Appals, said, 'I find no evidence, and the court cites no evidence, that supports an inference that Miller even recognized the officers as the narcotics squad.' 100 U.S.A.pp.D.C. 302, 311, 244 F.2d 750, 759. Even if petitioner could have seen the officers sufficiently to make out their faces, there is no evidence that he knew them personally. The record at best supports an inference, not that either officer personally knew Miller, or that Miller had met, or even heard of, either officer, but only that the officers know of him as a reputed narcotics violator. Judge Youngdahl presided at the trial and refused to hear a renewed motion to suppress because he considered the matter settled by Judge Holtzoff's ruling. Agent Wilson's testimony at the trial was again at variance with his testimony before Judge Holtzoff as it had been on the question whether the officers had communicated their purpose to arrest. At the trial he testified that Miller had met him on one occasion before the night of the arrest. Apparently unwilling to rely on this testimony, in the face of its inconsistency, the majority of the Court of Appeals did not allude to it as the basis for its conclusion that Miller recognized the officers.
12
Compliance is also a safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder. See concurring opinion in McDonald v. United States, 335 U.S. 451, 460—461, 69 S.Ct. 191, 195—196, 93 L.Ed. 153.
1
The rule in the District with which the Court of Appeals found compliance was enunciated in Accarino v. United States, 85 U.S.A.pp.D.C. 394, 179 F.2d 456 (opinion by Judge Prettyman). Rehearing en banc in the instant case was denied without dissent, with the author of Accarino participating.
In discussing the local rule, Judge Prettyman in Accarino quoted with approval from Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 802: 'Before doors are broken, there must be a necessity for so doing, and notice of the authority and purpose to make the arrest must be given and a demand and refusal of admission must be made, unless this is already understood, or the peril would be increased.' (Emphasis added.) 85 U.S.App.D.C. at page 401, 179 F.2d at page 463. The Court of Appeals in the instant case recognized this language as the embodiment of the local rule, 100 U.S.App.D.C. at page 309, 244 F.2d at page 757, and in finding that petitioner 'already fully understood who the officers were and that they sought to arrest him,' id., 100 U.S.App.D.C. at page 310, 244 F.2d at page 758, applied that rule in affirming the conviction.
This Court now concludes that the rule 'judicially developed' in the District is 'substantially identical' to 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, which concerns entry to execute a search warrant. It is important to note, however, that certain language, set out in italics above, is peculiar to the local 'judicially developed' rule. The latter is not respected in the interpretation of § 3109 by the Court today.
2
While the Government in its brief agrees 'that the validity of the entry should be tested under the standard of 18 U.S.C. 3109,' it joins that position with the contention that '(u)nder these circumstances, (the police) entry complied with the teaching accepted in Accarino v. United States (85 U.S.App.D.C. 394, 401), 179 F.2d 456, 463.' See note 1, supra.
3
Q. 'How did you know (Miller)?' A. 'Previous knowledge, and I have seen him before.' Furthermore, petitioner in his affidavit supporting his motion to suppress swore 'that officers Wilson, Pappas and four others did break the chain off the door,' and further that Wilson physically assaulted him in his apartment.
4
See Fisher v. United States, 1946, 328 U.S. 463, 476, 66 S.Ct. 1318, 1325, 90 L.Ed. 1382, where the Court said, 'Our policy is not to interfere with the local rules of law which (District of Columbia courts) fashion, save in exceptional situations where egregious error has been committed.'
In Griffin v. United States, 1949, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993, the Court determined that there was no 'federal rule' on the issue in the case. But it added that even if there were such a rule, it would not necessarily control in the District of Columbia: 'This Court, in its decisions, and Congress, in its enactment of statutes, have often recognized the appropriateness of one rule for the District and another for other jurisdictions so far as they are subject to federal law.' Id., 336 U.S. at page 712, 69 S.Ct. at page 818. The Court noted that it was the 'special function' of the Court of Appeals to decide questions of local law. 'Only in exceptional cases will this Court review a determination of such a question by the Court of Appeals for the District.' Id., 336 U.S. at page 718, 69 S.Ct. at page 821.
| 01
|
357 U.S. 345
78 S.Ct. 1367
2 L.Ed.2d 1367
NATIONAL LABOR RELATIONS BOARD, petitioner,v.
MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNIONS NOS. 338 AND 680, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO.
No. 412.
Supreme Court of the United States
June 23, 1958
Solicitor General Rankin, Messrs. Jerome D. Fenton, Stephen Leonard, Dominick L. Manoli and Norton J. Come, for petitioner.
Mr. Samuel J. Cohen, for respondent Local 338.
Mr. Thomas L. Parsonnet, for respondent Local 680.
On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the Court of Appeals is reversed on the authority of Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. v. National Labor Relations Board (National Labor Relations Board v. General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local No. 886, AFL-CIO, and Local 850, International Association of Machinists, AFL-CIO, v. National Labor Relations Board), 357 U.S. 93, 78 S.Ct. 1011.
2
The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS dissent for the reasons stated in the dissenting opinion of Mr. Justice DOUGLAS in these cases.
| 67
|
357 U.S. 371
78 S.Ct. 1302
2 L.Ed.2d 1393
Milton KNAPP, Petitioner,v.Mitchell D. SCHWEITZER, Judge of the Court of General Sessions, and Frank S. Hogan, District Attorney of the County of New York.
No. 189.
Argued March 6, 10, 1958.
Decided June 30, 1958.
Motion for Leave to File Petition for Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 12.
Mr. Bernard H. Fitzpatrick, New York City, for petitioner.
Mr. Richard G. Denzer, New York City, for respondents
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner is a partner in a New York manufacturing firm engaged in interstate commerce, some of whose employees have been organized by a local union of the International Brotherhood of Teamsters. Petitioner was subpoenaed to appear before a New York grand jury conducting an inquiry regarding bribery of labor representatives, conspiracy and extortion, constituting crimes under state law. Petitioner, duly sworn, was asked a question concerning the union's representation in certain wage negotiations with petitioner's firm; he refused to answer on the ground that his answer might tend to incriminate him. The grand jury then granted petitioner immunity from prosecution, applying N.Y. Penal Law, McKinney's Consol.Laws, c. 40, §§ 381, 2447, which provides that one duly granted immunity
2
'shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding.' § 2447(2).
3
Having been thus granted immunity, petitioner was directed to answer the question. He again refused to do so on the ground of possible self-incrimination.
4
In a subsequent appearance before the grand jury, petitioner was asked, and was directed to answer by the foreman, fourteen other questions concerning relations and transactions between petitioner and union officials. Petitioner again invoked the privilege against self-incrimination. On application of the foreman of the grand jury, respondent Schweitzer, as judge of a New York Court of General Sessions, ordered petitioner to return to the grand jury and make answer to the questions put to him.
5
After further refused to answer, petitioner was once more ordered to appear before respondent Schweitzer; when he did so, the respondent district attorney moved that petitioner be punished for contempt of court. In opposition to this application petitioner stood on his refusal to answer inasmuch as the immunity granted by the grand jury did not protect him against federal prosecution. Respondent Schweitzer adjudged petitioner in contempt of court and sentenced him to serve thirty days in jail and to pay a fine of $250. People v. Knapp, 4 Misc.2d 449, 157 N.Y.S.2d 820.
6
Petitioner applied to the Supreme Court of New York for reversal of the contempt conviction and for an order prohibiting respondents from proceeding further in the matter. He alleged that his danger of self-incrimination was attributable to the prosecutorial potentialities of § 302 of the Labor Management Relations Act of 1947, 61 Stat. 136, 157, 29 U.S.C. § 186, 29 U.S.C.A. § 186, making it unlawful
7
'for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce' (§ 302(a)),
8
and to the fact that the United States Attorney for the Southern District of New York had 'made public announcement of his intention to cooperate with the (respondent) District Attorney * * * in the prosecution of criminal cases in the field of the subject matter out of which petitioner's commitment arose.' The petition for reversal of the contempt conviction was denied by the Supreme Court; this judgment was unanimously affirmed in the Appellate Division, 2 A.D.2d 579, 157 N.Y.S.2d 158, and, without opinion, by the Court of Appeals of New York, 2 N.Y.2d 913, 161 N.Y.S.2d 437, 141 N.E.2d 825, which duly amended its remittitur to show that it had passed on and rejected petitioner's claim of a privilege against self-incrimination under the Fifth Amendment, 2 N.Y.2d 975, 162 N.Y.S.2d 613, 142 N.E.2d 649. We granted certiorari, 355 U.S. 804, 78 S.Ct. 23, 2 L.Ed.2d 27, to consider this constitutional question.
9
Petitioner does not claim that his conviction of contempt for refusal to answer questions put to him in a state proceeding deprived him of liberty or property without due process of law in violation of the Fourteenth Amendment; that such a claim is without merit was settled in Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. His contention is, rather, that, because the Congress of the United States has in the exercise of its constitutional powers made certain conduct unlawful, the Fifth Amendment gives him the privilege, which he can assert against either a State or the National Government, against giving testimony that might tend to implicate him in a violation of the federal act.1 Because of the momentum of adjudication whereby doctrine expands from case to case, such a claim carries dangerous implications. It may well lead to the contention that when Congress enacts a statute carrying criminal sanctions it has as a practical matter withdrawn from the States their traditional power to investigate in aid of prosecuting conventional state crimes, some facts of which may be entangled in a federal offense. To recognize such a claim would disregard the historic distribution of power as between Nation and States in our federal system.
10
The essence of a constitutionally formulated federalism is the division of political and legal powers between two systems of government constituting a single Nation. The crucial difference between federalisms is in a wide sweep of powers conferred upon the central government with a reservation of specific powers to the constituent units as against a particularization of powers granted to the federal government with the vast range of governmental powers left to the constituent units. The difference is strikingly illustrated by the British North America Act, 1867, 30 Vict., c. 3, and the Commonwealth of Australia Constitution Act, 1900, 63 & 64 Vict., c. 12. It is relevant to remind that our Constitution is one of particular powers given to the National Government with the powers not so delegated reserved to the States or, in the case of limitations upon both governments, to the people. Except insofar as penal remedies may be provided by Congress under the explicit authority to 'make all Laws which shall be necessary and proper for carrying into Execution' the other powers granted by Art. I, § 8, the bulk of authority to legislate on what may be compendiously described as criminal justice, which in other nations belongs to the central government, is under our system the responsibility of the individual States.
11
The choice of this form of federal arrangement was the product of a jealous concern lest federal power encroach upon the proper domain of the States and upon the rights of the people. It was the same jealous concern that led to the restrictions on the National Government expressed by the first ten amendments, colloquially known as the Bill of Rights. These provisions are deeply concerned with procedural safeguards pertaining to criminal justice within the restricted area of federal jurisdiction. They are not restrictions upon the vast domain of the criminal law the belongs exclusively to the States.2 Needless to say, no statesman of his day cared more for safeguarding the liberties that were enshrined in the Bill of Rights than did James Madison. But it was his view that these liberties were already protected against federal action by the Constitution itself. 'My own opinion,' he wrote to Thomas Jefferson, 'has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light 1. Because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. * * *'3 Plainly enough the limitations arising from the manner in which the federal powers were granted were limitations on the Federal Government, not on the States. The Bill of Rights that Madison sponsored because others anxiously desired that these limitations be made explicit patently was likewise limited to the Federal Government. If conclusive proof of this were needed, it is afforded by the fact that when Madison came to sponsor the Bill of Rights in the House of Representatives as safeguards against the Federal Government he proposed that like safeguards against the States be placed in the United States Constitution.4 Congress, however, rejected such limitations upon state power.
12
While the adoption of the Fourteenth Amendment in 1868 did not change the distribution of powers between the States and the Federal Government so as to withdraw the basic interests of criminal justice from the exclusive control of the States, it did impose restrictions upon the States in the making and in the enforcement of the criminal laws. It did this insofar as the 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Malinski v. People of State of New York, 324 U.S. 401, 412—416, with 438, 65 S.Ct. 781, 786—788, 798, 89 L.Ed. 1029, are implied in the comprehensive concept of due process of law. But this concept does not blur the great division of powers between the Federal Government and the individual States in the enforcement of the criminal law.
13
Generalities though these observations be, they bear decisively on the issue that has been tendered in this case. To yield to the contention of the petitioner would not only disregard the uniform course of decision by this Court for over a hundred years in recognizing the legal autonomy of state and federal governments.5 In these days of the extensive sweep of such federal statutes as the income tax law and the criminal sanctions for their evasions, investigation under state law to discover corruption and misconduct, generally, in violation of state law could easily be thwarted if a State were deprived of its power to expose such wrongdoing with a view to remedial legislation or prosecution. While corruption and generally low standards in local government may not today be as endemic as Lord Bryce reported them to be in The American Commonwealth (1888), not even the most cheerful view of the improvements that have since taken place can afford justification for blunting the power of States to ferret out, and thereby guard against, such corruption by restrictions that would reverse our whole constitutional history. To achieve these essential ends of state government the States may find it necessary, as did New York, to require full disclosure in exchange for immunity from prosecution. This cannot be denied on the claim that such state law of immunity may expose the potential witness to prosecution under federal law. See Jack v. State of Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234. Every witness before a state grand jury investigation would feel free to block those vitally important proceedings.
14
In construing the Fifth Amendment and its privilege against self-incrimination, one must keep in mind its essential quality as a restraint upon compulsion of testimony by the newly organized Federal Government at which the Bill of Rights was directed, and not as a general declaration of policy against compelling testimony. It is plain that the amendment can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole—although deeply valuable—purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.
15
Of course the Federal Government may not take advantage of this recognition of the States' autonomy in order to evade the Bill of Rights. If a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play. Such testimony is barred in a federal prosecution, see Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. Whether, in a case of such collaboration between state and federal officers, the defendant could successfully assert his privilege in the state proceeding, we need not now decide, for the record before us is barren of evidence that the State was used as an instrument of federal prosecution or investigation. Petitioner's assertion that a federal prosecuting attorney announced his intention of cooperating with state officials in the prosecution of cases in a general field of criminal law presents a situation devoid of legal significance as a joint state and federal endeavor.
16
This Court with all its shifting membership has repeatedly found occasion to say that whatever inconveniences and embarrassments may be involved, they are the price we pay for our federalism, for having our people amenable to—as well as served and protected by—two governments. If a person may, through immunized selfdisclosure before a law-enforcing agency of the State, facilitate to some extent his amenability of federal process, or vice versa, this too is a price to be paid for our federalism. Against it must be put what would be a greater price, that of sterilizing the power of both governments by not recognizing the autonomy of each within its proper sphere.
17
Judgment affirmed.
18
Mr. Justice BRENNAN, concurring.
19
I join the Court's opinion upon my understanding that the only question we decide is that a witness who is granted immunity by a State against state prosecution may be compelled to testify in a state proceeding and cannot successfully assert the privilege against self-incrimination under the Fifth Amendment.
20
I therefore do not believe that reconsideration of the holding in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, is necessary or appropriate in this case. In view of the contrary suggestion in the dissent of Mr. Justice BLACK, I think it proper however to note that in joining the Court's opinion, I should not be understood as believing that our decision today forecloses reconsideration of the Feldman holding in a case requiring our decision of that question.
21
Mr. Chief Justice WARREN, dissenting.
22
There can be no doubt that the problem in this case is a problem of federalism. Competing considerations of the greatest significance are involved. But in resolving questions that touch upon the intricate and delicate mechanism of our federal system it is especially important to remember, as Mr. Justice Holmes observed, that 'General propositions do not decide concrete cases.' Lochner v. People of State of New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937. In this case the New York courts sustained petitioner's conviction of the understanding that in the circumstances of this case the testimony petitioner was compelled to give before the New York State grand jury could not, as a matter of federal law, be employed in a subsequent federal prosecution. On the other hand, it is implicit in the majority opinion in this Court that the petitioner does run the risk of a federal prosecution based on his own testimony under Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408. If we are to have any profitable discussion of federalism based on the facts of this case, we should begin with agreement on the facts and the controlling principles. In any event, we should not affirm a New York conviction if in fact the state courts construed state law under a misconception of federal law. To do so does violence to the vital principle of federalism that a state court is the final arbiter of state law. See May v. Anderson, 345 U.S. 528, 534, 535, 73 S.Ct. 840, 843, 844, 97 L.Ed. 1221. I therefore agree with Mr. Justice BLACK that this case should be remanded so that the New York Court of Appeals can reconsider state law in light of the majority's conclusion that the role of the federal prosecutor was not such as to prevent use of the state-compelled testimony against petitioner in a federal prosecution. At all events, the unsettling influence that Feldman has had upon the course of this litigation indicates that a satisfactory solution cannot be reached without a reconsideration of that decision.
23
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, dissenting.
24
Petitioner refused to answer questions directed to him by a New York grand jury on the ground that his answers might tend to incriminate him under both state and federal law. He was then granted immunity from prosecution under state law and ordered to answer. When he persisted in his refusal he was found guilty of contempt and sentenced to jail. In reviewing his conviction the Appellate Division of the New York Supreme Court rejected the contention that it violated both State and Federal Constitutions to punish him for declining to give testimony which might have incriminated him under federal law. 2 A.D.2d 579, 157 N.Y.S.2d 158.
25
Article I, § 6 of the New York Constitution, like the Fifth Amendment, provides that 'No person * * * shall be compelled in any criminal case to be a witness against himself.' The Appellate Division ruled that this state provision had not been infringed, pointing out (1) that petitioner had been granted immunity from state prosecution and (2) his answers could not be used to convict him of a federal crime since the record showed that the federal district attorney had 'cooperated' with state officers in the grand jury investigation. The New York Court of Appeals affirmed without opinion. 2 N.Y.2d 913, 161 N.Y.S.2d 437, 141 N.E.2d 825.
26
In affirming, this Court evidently takes the position, contrary to the Appellate Division, that whatever cooperation between federal and state officials is disclosed by this record it is not enough to bar use of petitioner's testimony in a federal prosecution. In the light of this, it seems to me that the proper course would be to vacate the judgment of the New York Court of Appeals and remand so that the courts of that State might consider petitioner's claim of privilege under the New York Constitution free from the erroneous assumption that his testimony could not be used to convict him of a federal crime. See Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611. Cf. Patterson v. State of Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082; 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. Otherwise petitioner will go to jail when there is at least a chance that the New York courts would not have upheld his conviction had they known, as they now do, that his state-compelled testimony could be used against him in the federal courts.1
27
I think it is also appropriate to say a few words here about Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, which was referred to by the Appellate Division. In that case a minority of this Court held, 4—3, that information extracted from a person by state authorities under threat of punishment could be used to convict him of a federal crime.2 The passage of time has only strengthened my conviction that this result is thoroughly contrary to the guarantee of the Fifth Amendment that no person shall be compelled to be a witness against himself, at least in a federal prosecution. The untenability of the premises upon which the Court relied in Feldman has been clearly revealed in a series of penetrating law review articles by Professor J. A. C. Grant. Immunity from Compulsory Self-Incrimination in a Federal System of Government, 9 Temple L.Q. 57, 194; Federalism and Self-Incrimination, 4 U.C.L.A.Law Rev. 549, 5 id., 1. Feldman places a witness who is called before a state agency and ordered to testify in a desperate position; he must either remain silent and risk state imprisonment for contempt or confess himself into a federal penitentiary. See Marcello v. United States, 5 Cir., 196 F.2d 437. Indeed things have now reached the point, as the result of United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, Feldman, and the present case, where a person can be whipsawed into incriminating himself under both state and federal law even though there is a privilege against self-incrimination in the Constitution of each. Cf. Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561; United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. I cannot agree that we must accept this intolerable state of affairs as a necessary part of our federal system of government.
1
No force or validity is added to petitioner's argument by the invocation of the Supremacy Clause, Art. VI, cl. 2, and the Privileges and Immunities Clause of the Fourteenth Amendment. Whatever the applicability of the Fifth Amendment, it is in no way expanded by those two provisions. Cf. Twining v. State of New Jersey, supra, 211 U.S. at page 99, 29 S.Ct. at page 19: '(T)he exemption from compulsory self-incrimination is not a privilege or immunity of National citizenship * * *.'
2
In 1883 Mr. Chief Justice Marshall had this to say:
'Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.
'But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government—not against those of the local governments.' Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 250, 8 L.Ed. 672.
3
Letter to Thomas Jefferson, Oct. 17, 1788, 14 Papers of Thomas Jefferson (Boyd ed. 1958) 16, 18. Madison went on to give the following additional reasons for his view: '2. Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. * * * 3. Because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. Because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed.' 14 id., at 18—19. The entire, rather long, letter merits reading. For an account of Madison's management of the resolution that became the Bill of Rights, see Brant, James Madison: Father of the Constitution, 1787—1800, c. 21.
4
'Mr. Madison conceived this to be the most valuable amendment in the whole list. If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments. He thought that if they provided against the one, it was as necessary to provide against the other, and was satisfied that it would be equally grateful to the people.' 1 Annals of Cong. 755 (1789).
5
By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment. See, e.g., Article I: Permoli v. First Municipality No. 1, 3 How. 589, 609, 11 L.Ed. 739 (free exercise of religion); United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 (right to assemble and petition the Government); Article II: United States v. Cruikshank, supra, 92 U.S. at page 553 (right to keep and bear arms); Article IV: Smith v. State of Maryland, 18 How. 71, 76, 15 L.Ed. 269 (no warrant except on probable cause); Spies v. People of State of Illinois, 123 U.S. 131, 166, 8 S.Ct. 21, 24, 31 L.Ed. 80 (security against unreasonable searches and seizures); Article V: Barron for Use of Tiernan v. Mayor and City Council of City of Baltimore, note 2, supra, 7 Pet. at page 247, 8 L.Ed. 672 (taking without just compensation); Fox v. State of Ohio, 5 How. 410, 434, 12 L.Ed. 213 (former jeopardy); Twitchell v. Com. of Pennsylvania, 7 Wall. 321, 325—327, 19 L.Ed. 223 (deprivation of life without due process of law); Spies v. People of State of Illinois, supra, 123 U.S. at page 166, 8 S.Ct. at page 24, 31 L.Ed. 80 (compulsory self-incrimination); Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 34—35, 10 S.Ct. 424, 425, 33 L.Ed. 801 (presentment or indictment by grand jury); Article VI: Twitchell v. Com. of Pennsylvania, supra, 7 Wall. at pages 325 327, 12 L.Ed. 213 (right to be informed of nature and cause of accusation); Spies v. People of State of Illinois, supra, 123 U.S. at page 166, 8 S.Ct. at page 24, 31 L.Ed. 80 (speedy and public trial by impartial jury); In re Sawyer, 124 U.S. 200, 219, 8 S.Ct. 482, 492, 31 L.Ed. 402 (compulsory process); Eilenbecker v. District Court of Plymouth County, supra, 134 U.S. at pages 34—35, 10 S.Ct. at page 425, 33 L.Ed. 801 (confrontation of witnesses); Article VII: Livingston's Lessee v. Moore, 7 Pet. 469, 551—552, 8 L.Ed. 751 (right of jury trial in civil cases); Justices v. Murray, 9 Wall. 274, 278, 19 L.Ed. 658 (re-examination of facts tried by jury); Article VIII: Pervear v. Com. of Massachusetts, 5 Wall. 475, 479—480, 18 L.Ed. 608 (excessive fines, cruel and unusual punishments).
1
In Michigan, at least, the state constitution has been interpreted as preventing state officers from compelling disclosure of facts which might tend to incriminate the witness under federal law, even though he has been granted full immunity from state prosecution. People v. Den-Uyl, 318 Mich. 645, 29 N.W.2d 284, 2 A.L.R.2d 625. Cf. State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894.
2
Contrast Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, where this Court ruled that an involuntary confession could not be used in a federal prosecution even though it was procured by officers of a foreign nation outside the United States. And see Ashcraft v. State of Tennessee, 322 U.S. 143, at page 155, 64 S.Ct. 921, at page 927, 88 L.Ed. 1192, where we declared that 'The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.' It seems to me that there was at least as much coercion in Feldman as in either of these cases.
| 01
|
357 U.S. 549
78 S.Ct. 1263
2 L.Ed.2d 1531
Bart Luis CARITATIVO, Petitioner,v.The PEOPLE OF THE STATE OF CALIFORNIA and Fred R. Dickson, Acting Warden. William Francis RUPP, Petitioner, v. Fred R. DICKSON, Acting Warden.
Nos. 561, 562.
Argued May 21, 1958.
Decided June 30, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 13.
Mr. George T. Davis, San Francisco, Cal., for petitioner caritativo.
Mr. A. J. Zirpoli, San Francisco, Cal., for petitioner Ruff.
Mr. Clarence A. Linn, San Francisco, Cal., for respondents.
Mr. Arlo E. Smith, San Francisco, Cal., for respondent Dickson.
PER CURIAM.
1
The judgment are affirmed. Solesbee v. Balkcom, 339 U.S. 9, 12, 70 S.Ct. 457, 458, 94 L.Ed. 604.
2
Mr. Justice HARLAN, concurring.
3
Being uncertain as to the full implications of Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604, I prefer not to rely on that decision in disposing of these cases.
4
I proceed on the premise that the Fourteenth Amendment prohibits a State from executing a prisoner who has become insane after his conviction. Even so, I do not believe that the procedure established by California to deal with such cases, in evident recognition of the grave interest at stake, can upon the records before us be said to offend due process.
5
The California statute in substance imposes on the warden a mandatory duty to make a continuing check on the mental condition of condemned prisoners and to notify the district attorney whenever he finds grounds for belief that a prisoner has become insane. Upon being so advised, it is the unqualified duty of the district attorney to submit the issue of the prisoner's sanity to a jury in judicial proceedings in which the prisoner is entitled to be heard. The prisoner is given no right to commence such proceedings himself, or to be heard in connection with the warden's initiating determination. Affidavits submitted by the warden disclose that his statutory duty is carried out under a regular procedure pursuant to which the prison psychiatric staff submits reports to the warden as to all condemned prisoners soon after their arrival at the prison, and also submits a special psychiatric report within 20 days of a scheduled execution.
6
This procedure, in my opinion, satisfies the test of fundamental fairness which underlies due process. At the post-conviction stage of a capital case, it seems to me entirely proper for the State to condition a prisoner's right to a sanity trial upon a preliminary determination by a responsible official that 'good reason' exists for the belief that the prisoner has become insane. Surely it is not inappropriate for California to lodge this grave responsibility in the hands of the warden, the official who beyond all others has had the most intimate relations with, and best opportunity to observe, the prisoner. And having regard to the natural and impelling impulse of lawyers representing condemned men to stave off their execution as long as possible, I also think it constitutionally permissible for the State to conclude that such a preliminary determination should be made ex parte. It is a legitimate consideration for California to take into account that an adversary proceeding on the issue of probable cause might open the door to interminable delaying maneuvers in capital cases, contrary to the sound administration of justice. For example, unless this Court were prepared to accept as conclusive the warden's representation that he had reckoned with the condemned prisoner's submissions, whenever such a representation is challenged, it would inevitably invite judicial proceedings to determine whether the warden had in fact acted properly on every occasion that a condemned man claimed that he had become insane.
7
Granting that under the Fourteenth Amendment the warden may not refrain from making a responsible and good-faith determination, no considerations of this kind are suggested by either of the records before us. The warden's affidavits show that the usual procedures were followed here; that the prison psychiatrists unanimously concluded that each of the petitioners was sane; that the warden personally observed their conduct; and that 'neither from the psychiatric reports, his own observation, nor the reports of his custodial staff has he any reason to believe (petitioners) presently insane.' In addition, the warden affirms his intention to institute the required proceedings to determine petitioners' sanity if and when he has 'good reason' to believe either of them insane. Petitioners do not controvert the substance of these affirmations, but simply claim that they were denied due process because the warden acted without according them an opportunity to be heard or to submit further data.
8
In the absence of any challenge to the warden's affirmations that he followed the customary California procedure, that is, that he determined petitioners' sanity on the basis of responsible medical advice and on his own personal observations, and in the absence of any allegation that he acted in bad faith, I cannot say that the petitioners were denied due process solely because the warden declined, in the exercise of his discretion, to consider also the professions sought to be made on their behalf.
9
For these reasons I concur in the Court's affirmance of the two judgments.
10
Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
11
By its summary disposition of these cases, the Court extends the disturbing decision in Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604, where it was found that a State did not offend due process by leaving to the private judgment of its governor, in which the victim had no part, the determination of the sanity of a man condemned to death. Now it appears that this determination, upon which depends the fearful question of life or death, may also be made on the mere say-so of the warden of a state prison, according to such procedure as he chooses to pursue, and more particularly without any right on the part of a man awaiting death who claims that insanity has supervened to have his case put to the warden. There can hardly be a comparable situation under our constitutional scheme of things in which an interest so great, that an insane man not be executed, is given such flimsy procedural protection, and where one asserting a claim is denied the rudimentary right of having his side submitted to the one who sits in judgment.
12
Petitioners in both these cases have been convicted of murder in the first degree and sentenced to death. Their convictions were affirmed by the Supreme Court of California. People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513; People v. Rupp, 41 Cal.2d 371, 260 P.2d 1. Subsequently, each petitioned that court for habeas corpus to review the determination of the warden of San Quentin, where they are confined awaiting execution, that there is no reason to believe petitioners insane and his refusal to institute proceedings under California law to determine their present sanity. To review the denial of these petitions, Caritativo v. Teets, 48 A.C. (Minutes, May 8, 1957); Rupp v. Teets, 49 A.C. (Minutes, Aug. 27, 1957), we granted certiorari. 355 U.S. 853, 78 S.Ct. 89, 2 L.Ed.2d 62; Rupp v. Teets, 355 U.S. 854, 78 S.Ct. 91, 2 L.Ed.2d 62.
13
Sections 3700 and 3701 of the California Penal Code set forth the procedure to be followed in determining the sanity of a person condemned to death. Section 3700 provides that, 'No judge, court, or officer, other than the Governor, can suspend the execution of a judgment of death, except the warden of the State prison to whom he is delivered for execution, as provided in the six succeeding sections, unless an appeal is taken.' Section 3701 provides that, 'If, after his delivery to the warden for execution, there is good reason to believe that a defendant, under judgment of death, has become insane, the warden must call such fact to the attention of the district attorney of the county in which the prison is situated, whose duty it is to immediately file in the superior court of such county a petition, stating the conviction and judgment, and the fact that the defendant is believed to be insane, and asking that the question of his sanity be inquired into. Thereupon the court must at once cause to be summoned and impaneled, from the regular jury list of the county, a jury of 12 persons to hear such inquiry.'
14
The warden in the present cases did not institute proceedings pursuant to these sections leading to a judicial determination of petitioners' sanity. According to the petitions for habeas corpus filed in the California Supreme Court, he did not do so in spite of the fact that 'there is good reason to believe' that petitioners are insane. Affidavits of the warden, appended to briefs filed in this Court, state that he has observed the petitioners and examined reports submitted to him by prison psychiatrists, and that he has no reason to believe that petitioners are insane. Furthermore, that he 'intends to follow the statutes of California and to institute proceedings to determine (petitioners') * * * sanity pursuant to section 3701 of the Penal Code, if and when he has 'good reason to believe' (they are) * * * insane.'
15
In Rupp's petition for habeas corpus, it is stated that the conclusions of the prison psychiatrists, upon which the warden professed to rely in reaching his determination that there was no reason to think Rupp insane, were made without benefit of the complete medical and psychiatric reports relating to Rupp's past history of mental disease. This history is set forth in detail in the petition and shows a continuous record of mental disease extending over many years. It is also stated that the warden has refused to allow a private psychiatrist, employed by Rupp's sister, to examine the prisoner to determine his sanity, and has refused to let Rupp's attorneys examine the prison psychiatric records. In regard to Caritativo, it is clear from the warden's affidavit that he refused counsel permission to have the prisoner examined by a private psychiatrist, and declared that he would 'rely on the advice of the members of his staff as to the mental condition of Bart Luis Caritativo.' It is now perfectly clear, as it was not when the Court decided Phyle v. Duffy, 334 U.S. 431, 68 S.Ct. 1131, 92 L.Ed. 1494, that there is no remedy whatsoever under California law if the warden fails to perform the duties imposed upon him by § 3701. Neither habeas corpus nor mandamus is available to review his determination that there is no reason to believe a condemned man insane. His determination on this issue is not a 'preliminary determination,' but both an initial and final determination. The fact of the condemned man rests entirely with the warden, and depends on his willingness to consider the prisoner's sanity, and, if he decides to consider this question, his willingness to hear and rationally appraise information relevant to such a determination. Beyond the warden, under California law, there is no recourse of right. Even if no reasonable man would say that the condemned prisoner is sane, still, if the warden does not choose to call this fact to the attention of the district attorney, the insane prisoner will be executed. Thus, even if constitutional requirements are met by the procedure set forth in the California statute, under which the warden may determine the question of sanity without any opportunity for the condemned man to put his case, there is no way under California law to inquire into whether the warden has in fact followed this rudimentary procedure and made any inquiry whatsoever into the prisoner's sanity. The only assurance that he has done so in the present cases comes from the warden's own affidavits, two of which were introduced for the first time with respondents' briefs filed in this Court.
16
Under the California statute, what information the warden considers, and the manner in which he considers it, in the common experience of lawyers a factor vital in determining the outcome of any legal inquiry, are matters resting solely with the warden. He may make his determination ex parte, and as evidently was true in the present cases, without affording the condemned man, his counsel, or family, any opportunity whatsoever to present evidence or arguments highly relevant to the proper disposition of the case and therefore essential to be considered, from a rational point of view, if the warden is properly to perform the duty imposed upon his by law. In these cases the warden relied almost exclusively on the reports of his staff and refused to allow examination of petitioners by independent psychiatrists. If the petition for habeas corpus filed on behalf of Rupp is to be believed, and for our purposes it must be believed for it was not traversed, he was denied the opportunity to put before the warden much information on his medical history that would be highly pertinent to any inquiry into his present sanity, and, at the least, was highly relevant to a fair judgment whether further inquiry should be pursued.
17
In considering the adequacy of this procedure, it is imporrant to bear in mind that California does not tolerate the execution of the insane. California Penal Code, § 1367. On the contrary, from the beginning of its history as a State, California has explicitly forbidden it. Cal.Stat.1850, c. 119, § 615. The State has adhered to a view set deep in the Common Law and part and parcel of our notions of what is tolerable in a civilized society. The reasons for this view, explaining and justifying the profound abhorrence with which the execution of the insane has long been regarded, I have set forth in my dissent in Solesbee v. Balkcom, 339 U.S. 9, 14, 70 S.Ct. 457, 459, 94 L.Ed. 604. Time has not discredited or weakened the force of these reasons. It is not merely a matter of administrative grace, to be dispensed at the will of the warden, that an insane man not be executed. It is a matter of right under both California law and the Federal Constitution. So important does California consider the matter that, in § 3701 of the Penal Code, it has provided for a judicial proceeding and jury determination of the question of sanity once the warden has notified the district attorney. So, substantially, it has been from the beginning in California. Cal.Stat.1850, c. 119, § 502. I make no claim that the Due Process Clause requires an opportunity to persons in the place of petitioners to have their claim tested in a judicial proceeding. I do not even suggest that there must be a formal adversary hearing before the warden. I do insist on the mandatory requirement that some procedure be established for assuring that the warden give ear to a claim that the circumstances warrant his submission of the issue of sanity to a determination in accordance with the procedure set forth in the California statutes.
18
Surely the right of an insane man not to be executed, a right based on moral principles deeply embedded in the traditions and feelings of our people and itself protected by the Due Process Clause of the Fourteenth Amendment, merits the procedural protection that that Amendment safeguards. What kind of a constitutional right is it, especially if life is at stake, the vindication of which rests wholly in the hands of an administrative official whose actions cannot be inquired into, and who need not consider the claims of the person most vitally affected, the person in whom the constitutional right is said to inhere? In Solesbee v. Balkcom, supra, the Court found that a State had not offended due process in constituting its governor an 'apt and special tribunal' for determining, in ex parte proceedings, the sanity of a condemned man at the time of execution. The Court relied particularly on 'the solemn responsibility of a state's highest executive.' 339 U.S. at page 13, 70 S.Ct. at page 459. It analogized the function given the governor to the power to pardon and reprieve, powers traditionally confided to the chief executive of the State. It did not appear in that case whether, in exercising this function, the governor had declined to hear statements on the defendant's behalf. In the present case, however, the determination is not to be made on the 'solemn responsibility of a state's highest executive,' but by a prison warden. There is no apparent reason why this awesome power, surely without parallel under our law in the freedom of its exercise and the seriousness of its consequences, should not after today's decision be entrusted to still lower administrative officials. It is no reflection on the qualities of wardens and similar officials to point out that when wielded by them in ex parte proceedings this power can scarcely be assimilated to the chief executive's traditional power to pardon or reprieve. Finally, in these cases, it does appear that the warden did in fact refuse to consider evidence tendered on the prisoners' behalf, and refused to allow an examination by independent psychiatrists. He expressly rested his determination on the untested conclusions of his own staff.
19
Audi alteram partem—hear the other side!—a demand made insistently through the centuries, is now a command, spoken with the voice of the Due Process Clause of the Fourteenth Amendment, against state governments, and every branch of them—executive, legislative, and judicial—whenever any individual, however lowly and unfortunate, asserts a legal claim. It is beside the point that the claim may turn out not to be meritorious. It is beside the point that delay in the enforcement of the law may be entailed. The protection of a constitutional right to life ought not be subordinated to the fear that some lawyers will be wanting in the observance of their professional responsibilities. The right to be heard somehow by someone before a claim is denied, particularly if life hangs in the balance, is far greater in importance to society, in the light of the said history of its denial, than inconvenience in the execution of the law. If this is true when mere property interests are at stake, see Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, how much more so when the difference is between life and death. As Mr. Justice Holmes said, happily speaking for the Court, in United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 69, 61 L.Ed. 161, 'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.'
20
It may well be that if the warden of a California prison cannot act on his arbitrary judgment—for it is inherently arbitrary if the condemned man or those who speak for him are not allowed to be heard—in deciding whether there is good reason to believe that a person about to be executed is insane, that unworthy claims will be put to the warden and perchance add to delays in the execution of the law. But far better such minor inconveniences, and an effective penal administration ought to find no difficulty in making them minor, than that the State of California should have on its conscience a single execution that would be barbaric because the victim was in fact, though he had no opportunity to show it, mentally unfit to meet his destiny.
| 01
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357 U.S. 493
78 S.Ct. 1253
2 L.Ed.2d 1514
Joy JONES, Petitioner,v.UNITED STATES of America.
No. 331.
Argued April 7, 8, 1958.
Decided June 30, 1958.
Mr. Wesley R. Asinof, Atlanta, Ga., for petitioner.
Mr. Engene L. Grimm, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
After a trial without a jury in the Federal District Court for the Northern District of Georgia, petitioner was found guilty of various violations of the federal liquor laws, stemming from and including the possession of an unregistered still. See 26 U.S.C. (Supp. V) §§ 5601, 5216, 5008, 5681, 26 U.S.C.A. §§ 5601, 5216, 5008, 5681. His claim is that some of the evidence used against him at the trial should have been suppressed because it was obtained by an unlawful search and seizure by federal officers, and that its admission vitiates his conviction. The importance of maintaining strict standards for the admissibility of evidence so challenged in the federal courts led us to grant certiorari. 355 U.S. 810, 78 S.Ct. 57, 2 L.Ed.2d 29.
2
Federal alcohol agents received information on April 30, 1956, that petitioner's farmhouse near Dawsonville, Georgia, was the site of an illicit distillery in current operation. Investigating this lead, the agents discovered spent mash, a product resulting from the distilling of alcohol out of mash, in a hollow behind petitioner's house. The running mash emerged from a concealed rubber hose which, when traced as far as was consistent with caution, led close to petitioner's home. On May 1, four federal agents and one state officer returned to this vicinity. The officers observed mash, still emerging from the hose, detected the distinctive odor of hot mash from the direction of the house, and heard coming from within the house the sounds of voices and of a blower burner, commonly used in that area to heat distilleries.
3
At 2 a.m. on May 2, the officers abandoned their watch and returned to the nearby city of Gainesville. During the day, Federal Agent Langford obtained from the United States Commissioner there a daytime search warrant for petitioner's house on the basis of an affidavit describing what had been discovered and asserting the officer's belief that the house sheltered an illicit distillery. Late that afternoon, but still in daylight, the five officers resumed their surveillance of the house. Rather than execute the daytime warrant at once, they decided to make further observations to determine which parties were implicated in the operations and whether any vehicles were being used.
4
About 9 p.m., after darkness had set in, a truck entered petitioner's yard and retreated out of the officers' sight behind the house. Loud noises were heard, and when the truck shortly thereafter sought to regain the public road in front of the house, it became stuck in petitioner's driveway. The officers arrested the two men in the truck and seized what turned out to be 413 gallons of nontaxpaid liquor. At that time a passenger car carrying petitioner's wife and children drove into the yard. The wife rushed to the house and reached the doorway before the federal officers who were then advancing towards it. She sought to block entry by placing her arms across the door, and when informed by Langford of his identity as a federal officer, she demanded to see his search warrant. Langford said that a warrant was not required, and the officers brushed past Mrs. Jones into the house, seizing from the hands of her young boy a shotgun which he was brandishing in an apparent effort to prevent entry.
5
In the house at that time, in addition to Mrs. Jones and the children, were petitioner's father and brother. The officers did not arrest any of them, but immediately engaged in a general search of the house. The evidence later admitted against petitioner at the trial, including a boiler, fuel burner, and 15 barrels, was seized in rear rooms and in the attic. Petitioner was arrested when he returned to his house about one hour after the search had been completed.
6
Petitioner moved before trial to suppress the use in evidence of the articles seized in his home. During the hearing on this motion, the Government conceded that by the time petitioner's house was searched the daytime search warrant had expired, and it disclaimed any intention on the part of the federal officers to execute it. Rather it urged that '* * * it is the reasonableness of the search which is under question.' Federal Agent Evans testified that he thought a nighttime search warrant could be dispensed with because '* * * the crime was being committed in our presence, at least I assumed we had probable cause for that.'1 And Agent Langford explained his position by stating: '* * * I thought we had sufficient evidence to go in the premises without a search warrant.'2 The court, in denying the motion to suppress, entered findings of fact and conclusions of law wherein it stated (245 F.2d 35):
7
'The Court finds that the facts and circumstances within the knowledge of the officers were sufficient in themselves to warrant a man of reasonable caution in the belief that an offense was being committed and therefore the Court finds that probable cause for the search existed at the time the search was made.'
8
Since this was so, and since '* * * a cautious man (would have been warranted) in the belief that (petitioner) was guilty of the offense of operating an illicit distillery in his home * * *,' the court deemed the search reasonable, and hence justified, despite the failure of the officers to obtain a nighttime warrant, and despite their ability, under the circumstances, to have sought such a warrant before entering the house. In so holding, the District Court relied upon United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. The Court of Appeals affirmed on the basis of the findings of the district judge. 245 F.2d 32.
9
Although it must be recognized that the basis of the two lower court decisions is not wholly free from ambiguity, a careful consideration of the record satisfies us that the search and seizure were considered to have been justified because the officers had probable cause to believe that petitioner's house contained contraband materials which were being utilized in the commission of a crime, and not necause the search and seizure were indicent to petitioner's arrest. So viewed the judgments below cannot be squared with the Fourth Amendment to the Constitution of the United States3 and with the past decisions of this Court.
10
It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant. Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145;4 Taylor v. United States, 286 U.S. 1, 6 52 S.Ct. 466, 467, 76 L.Ed. 951. The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrustions into his privacy. See, e.g., Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153; cf. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245. This purpose is realized by Rule 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which implements the Fourth Amendment by requiring that an impartial magistrate determine from an affidavit showing probable cause whether information possessed by law-enforcement officers justifies the issuance of a search warrant. Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified.
11
The facts of this case impressively bear out these observations, for it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home that occurred in this instance. The Criminal Rules specifically deal with searches of this character by restricting nighttime warrants to situations where the affidavits upon which they are issued '* * * are positive that the property is * * * in the place to be searched * * *.' Rule 41(c). (Italics added.) This Rule is hardly compatible with a principle that a search without a warrant can be based merely upon probable cause.
12
The case of United States v. Rabinowitz, supra, upon which the District Court relied, has no application here. There federal agents, without a search warrant, explored the office of the defendant and thereby obtained evidence used against him at trial. But immediately after entering the office and before their search, the agents executed a warrant they had previously obtained for the defendant's arrest. The Court stressed that the legality of the search was entirely dependent upon an initial valid arrest. 339 U.S. at page 60, 70 S.Ct. at page 432. The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn, and search incident to a valid arrest is among them. See, e.g., United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Johnson v. United States, supra, 333 U.S. at pages 14—15, 68 S.Ct. at page 369. None of these exceptions obtains in this case.
13
The Government, however, for the first time now maintains that the search and seizure were justifiable as incident to petitioner's lawful arrest. Its argument is: The federal agents involved in this search had authority under federal law to arrest without a warrant upon probable cause to believe that a person had committed a felony. From the record it is 'rational' to infer that the federal agents entered petitioner's house with the purpose of arresting him, upon probable cause to believe that he was guilty of a felony and that he was then in the house. Consequently, the agents' entry was justified and, once in the house, while searching for petitioner, they could properly seize all contraband material in plain sight. The fact that petitioner was not found should not vitiate the legality of the seizures.
14
These contentions, if open to the Government here, would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment. But we do not consider this issue fairly presented by this case, for the record fails to support he theory now advanced by the Government. The testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, and not to arrest petitioner. See notes 1 and 2, supra, 78 S.Ct. 1255, 1256.5
15
Since the evidence obtained through this unlawful search was admitted at the trial, the judgment of the Court of Appeals must be reversed.
16
Reversed.
17
Mr. Justice BLACK concurs in the result.
18
Mr. Justice CLARK, with whom Mr. Justice BURTON concurs, dissenting.
19
Although there are many ways to kill a cat, drowning remains the most favored. The Court applies that method to this conviction drowning it by watering down the Findings of Fact and Conclusions of Law. By attributing to them a diluted meaning, the judgments of the District Court and the Court of Appeals are rendered insupportable.
20
The District Court found that the officers in this moonshine liquor case received information that petitioner, previously known to them as a liquor law violator, was operating an illicit distillery in his home. In the course of an investigation the officers (1) found 'spent mash' flowing from a hose which was traced to within 75 yards of the house, (2) heard a 'blower burner' of the type generally used in illicit distilleries, (3) smelled the odor of hot mash coming from the house, and (4) heard the moving of heavy objects from within the house. These observations were gained over a two-day period. On the third day the officers returned with a daylight search warrant, but decided to resume surveillance instead of immediately executing the warrant. After dark, as one person left the house to walk up the road, the officers heard conversation, specifically, an inquiry as to whether 'they were ready for the truck to be brought to the house.' An empty truck then entered the yard and drove to the back door of the house, where a thumpting sound suggesting 'activity with heavy objects' was heard. The truck, heavily laden, became stuck on its attempt to leave the yard; its two occupants then were arrested, and its contents—413 gallons of nontax paid liquor—were seized. Thereafter, petitioner's wife and son, who had just arrived, attempted to bar the officers' entry into the house, telling them to wait until petitioner returned. The officers entered anyway, and in the course of a search, found the disputed evidence. The record reveals that petitioner was not found in the search of the premises, but was arrested when he returned later in the evening.
21
From these findings common sense would seem to dictate the conclusion that the officers, not believing the statement of petitioner's wife that he was not there, entered the house to find and arrest petitioner. It was his house, he was known as a prior offender, and it was he who was implicated by the tip which launched the investigation. The district judge, in fact, concluded that 'the officers had reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that Roy Jones was guilty of the offense of operating an illicit distillery in his home * * *.' The Court, however, takes these findings and conclusions to mean that both the District Court and the Court of Appeals considered the search and seizure justified 'because the officers had probable cause to believe that petitioner's house contained contraband materials which were being utilized in the commission of a crime, and not because the search and seizure were incident to petitioner's arrest.'
22
It is our duty, when the meaning of the findings is somewhat doubtful, to so construe them as to conform with and uphold the judgment. Cf. Larkin v. Upton, 1892, 144 U.S. 19, 21, 12 S.Ct. 614, 36 L.Ed. 330; Loring v. Frue, 1881, 104 U.S. 223, 224, 26 L.Ed. 713. This the Court has not done. The Court's construction is all the more surprising because it places the judgments below in direct conflict with an elementary rule of hornbook law, namely, that officers may not search a dwelling without a warrant 'notwithstanding facts unquestionably showing probable cause.' Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. I feel certain the four learned judges on the two lower courts were well acquainted with the Agnello rule, and that they used the words 'probable cause' as referring not ultimately to the search of the premises, but instead to the arrest of petitioner and any others violating the law within the house. This is borne out by the definition with which the trial judge introduced the crucial paragraph of his Conclusions of Law: 'Probable cause is reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged.' Furthermore, the trial judge relied on United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, a case where the legality of a search hinged on the legality of an arrest. The majority, noting the judge's use of Rabinowitz, would have us believe that the case 'has no application here'; on the contrary, it would appear that the majority has overlooked the only reason for which the case was cited.
23
I submit that the officers had authority to enter the house, arrest any persons engaged in the illicit operation, and, not finding petitioner, arrest him upon his return to the scene. Under the law as I have always understood it, an officer, even over protest, may enter a house to make an arrest where he has probable cause to believe that a felony is being or has been committed and that the perpetrators are in the house. Mullaney v. United States, 9 Cir., 82 F.2d 638; Appell v. United States, 5 Cir., 29 F.2d 279; Mattus v. United States, 9 Cir., 11 F.2d 503; 1 Wharton, Criminal Procedure (10th ed.), § 51; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 800—807. Cf. Taylor v. United States, 1932, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 951; Agnello v. United States, supra, 269 U.S. at page 30, 46 S.Ct. at page 5. There being probable cause here to believe that a felon was within the house, the entry of the officers was lawful, even though after a complete search the belief was found to be incorrect. Love v. United States, 4 Cir., 170 F.2d 32, 33. Such a circumstance 'cannot be distinguished on any reasonable basis from the search of the premises of an accused as an incident to the lawful arrest of his person * * *.' Martin v. United States, 4 Cir., 183 F.2d 436, 439.
24
Since the entry of petitioner's home was lawful, the officers had a right to seize the contraband property. The only test is the lawfulness of the officers' activity when they come upon the offending property. If the seizure follows a lawful entry to effect an arrest, as here, then it is valid. See Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, seizure during lawful search incident to arrest for another crime; Steele v. United States, 1925, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757, seizure during execution of warrant for different property.
25
I believe that these principles control here, and would, therefore, affirm.
1
This witness further testified:
'Q. What crime did you see committed inside the house before you went inside to search the place? A. I didn't see any crime.
'Q. What crime did you say was committed in your presence? A. The one I saw was the transporting of the whiskey out through his yard.
'Q. Through his yard? A. Yes, sir.
'Q. You stopped that truck, didn't you? A. Yes, sir.
'Q. You arrested the occupants of that truck, did you not? A. Yes, sir.
'Q. Neither one of the occupants of that truck fled into that house, did they? A. No, sir.
'Q. So you had no knowledge that anyone else was even in the house, had you? A. If you mean by 'knowledge,' did I see anyone else inside the house, no, sir.'
2
On cross-examination, Langford testified: 'Q. Mrs. Jones did ask you not to come in, did she not? A. That is correct. Q. Mrs. Jones asked you, did she or not ask you to wait until her husband got there? A. I believe she did, yes.' These answers amplified his earlier testimony: 'Q. * * * Then you didn't wait until Mr. Jones, himself, came home, did you? A. I did not. Q. Yet they were his premises? A. That is correct.'
3
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be sized.'
4
In Agnello the Court said: 'Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. * * * Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.' 269 U.S. at page 33, 46 S.Ct. at page 6.
5
We cannot accept the suggestion that the entry was justified since it was made to disarm petitioner's young son of the shotgun. The record plainly enough reveals that this was but a passing episode in the course of the entry, and that the officers immediately proceeded to a search of the entire house.
| 01
|
357 U.S. 576
78 S.Ct. 1387
2 L.Ed.2d 1548
Veto GIORDENELLO, petitioner,v.UNITED STATES of America.
No. 515, Misc.
Supreme Court of the United States
June 30, 1958
Mr. William F. Walsh, for petitioner.
Solicitor General Rankin, for the United States.
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, decided this day.
2
Mr. Justice BURTON, Mr. Justice CLARK, and Mr. Justice WHITTAKER dissent for the reasons set forth in the dissenting opinion in 357 U.S. 489, 78 S.Ct. 1251, decided this day.
| 01
|
357 U.S. 545
78 S.Ct. 1350
2 L.Ed.2d 1484
The FIRST UNITARIAN CHURCH OF LOS ANGELES, a Corporation, Petitioner,v.COUNTY OF LOS ANGELES, CALIFORNIA, City of Los Angeles, California, H. L.Byram, County of Los Angeles Tax Collector, et al. VALLEY UNITARIAN-UNIVERSALIST CHURCH, Inc., Petitioner, v. COUNTY OF LOS ANGELES, CALIFORNIA; City of Los Angeles, California; H. L.Byram, County Tax Collector.
Nos. 382, 385.
Argued April 8, 1958.
Decided June 30, 1958.
Mr. A. L. Wirin, Los Angeles, Cal., for petitioners.
Mr. Gordon Boller, Los Angeles, Cal., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These are companion cases to Speiser v. Randall and Prince v. City and County of San Francisco, 357 U.S. 513, 78 S.Ct. 1332. The petitioners claimed the property-tax exemption provided by Art. XIII, § 1 1/2, of the California Constitution for real property and buildings used solely and exclusively for religious worship. The Los Angeles assessor denied the exemptions because each petitioner refused to subscribe, and struck from the prescribed application form, the oath that they did not advocate the overthrow of the Government of the United States and of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in the event of hostilities. Each petitioner sued in the Superior Court in and for the County of Los Angeles to recover taxes paid under protest and for declaratory relief. Both contended that the exaction of the oath pursuant to § 19 of Art. XX of the State Constitution and § 32 of the California Revenue and Taxation Code was forbidden by the Federal Constitution. The court upheld the validity of the provisions in the action brought by petitioner First Unitarian Church of Los Angeles, and the Supreme Court of California affirmed. 48 Cal.2d 419, 311 P.2d 508. We granted certiorari. 355 U.S. 853, 78 S.Ct. 86, 2 L.Ed.2d 62. The Superior Court in the action brought by petitioner Valley Unitarian-Universalist Church, Inc., upheld the validity of the provisions under the Federal Constitution but held that § 32 of the Revenue and Taxation Code violated the California Constitution because it excluded or exempted householders from the requirement. The Supreme Court of California reversed, 48 Cal.2d 899, 311 P.2d 540, and we granted certiorari, 355 U.S. 854, 78 S.Ct. 86, 2 L.Ed.2d 62.
2
In addition to the contentions advanced by the appellants in Speiser v. Randall, the petitioners argue that the provisions are invalid under the Fourteenth Amendment as abridgments of religious freedom and as violations of the principle of separation of church and state. Our disposition of the cases, however, makes consideration of these questions unnecessary. For the reasons expressed in Speiser v. Randall, we hold that the enforcement of § 19 of Art. XX of the State Constitution through proceedures which place the burdens of proof and persuasion of the taxpayer is a violation of due process.
3
The judgments are reversed and the causes remanded for proceedings not inconsistent with this opinion.
4
Reversed and remanded.
5
Mr. Justice BURTON concurs in the result.
6
The CHIEF JUSTICE took no part in the consideration or decision of this case.
7
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring.
8
What I have said in Speiser v. Randall and Prince v. City and County of San Francisco, 357 U.S. 513, 78 S.Ct. 1332, is sufficient for these cases as well. But there is a related ground on which the decision in these Unitarian cases should rest. We know from the record one principle of that church:
9
'The principles, moral and religious, of the First Unitarian Church of Los Angeles compel it, its members, officers and minister, as a matter of deepest conscience, belief and conviction, to deny power in the state to compel acceptance by it or any other church of this or any other oath of coerced affirmation as to church doctrine, advocacy or beliefs.' We stated in Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 829, 90 L.Ed. 1084, 'The test oath is abhorrent to our tradition.' See American Communications Ass'n v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925 (dissenting opinion). The reason for that abhorrence is the supremacy of conscience in our constitutional scheme. As we stated in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'
10
There is no power in our Government to make one bend his religious scruples to the requirements of this tax law.
11
Mr. Justice CLARK, dissenting.
12
For the reasons stated in my dissenting opinion in No. 483, Speiser v. Randall, and No. 484, Prince v. City and County of San Francisco, 357 U.S. 513, 78 S.Ct. 1332, I cannot agree either that California law imposes the burden which the Court considers here, or that such a burden in any event would cause the procedure established by § 32 of the California Revenue and Taxation Code to violate the Due Process Clause of the Fourteenth Amendment. Again for reasons stated in my dissenting opinion in Speiser and Prince, supra, I find no violation of the constitutional right to freedom of speech.
13
The majority notes the further contention here that freedom of religion is abridged, but has no occasion to consider it. The California court found that no tenet of petitioners' respective religions embraces the activity which is the subject of the state provisions. Nor does it appear that such activity can be characterized as religious in nature. Cf. Davis v. Beason, 1890, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Reynolds v. United States, 1878, 98 U.S. 145, 25 L.Ed. 244. I would affirm.
14
For concurring opinion of Mr. Justice BLACK, with whom Mr. Justice DOUGLAS, joins see 357 U.S. 513, 78 S.Ct. 1352.
| 23
|
357 U.S. 560
78 S.Ct. 1260
2 L.Ed.2d 1540
FEDERAL TRADE COMMISSION, Petitioner,v.NATIONAL CASUALTY COMPANY. FEDERAL TRADE COMMISSION, Petitioner, v. The AMERICAN HOSPITAL AND LIFE INSURANCE COMPANY.
Nos. 435, 436.
Argued April 9, 10, 1958.
Decided June 30, 1958.
[Syllabus from 560 intentionally omitted]
Mr. Ralph S. Spritzer, Washington, D.C., for petitioner.
Mr. John F. Langs, Detroit, Mich., for respondent National Casualty co.
Mr. J. D. Wheeler, for respondent American Hospital and Life Ins. Co.
[Amicus Curiae from pages 560-561 intentionally omitted.]
PER CURIAM.
1
The Courts of Appeals for the Fifth and Sixth Circuits have set aside cease-and-desist orders of the Federal Trade Commission prohibiting respondent insurance companies from carrying on certain advertising practices found by the Commission to be false, misleading, and deceptive, in violation of the Federal Trade Commission Act, 15 U.S.C. § 45, 15 U.S.C.A. § 45.1 These orders seek to proscribe activities within the boundaries of States that have their own statutes prohibiting unfair and deceptive insurance practices as well as within States that do not. The courts below concluded that in view of the existence of these statutes, the McCarran-Ferguson Act, 15 U.S.C. §§ 1011—1015, 15 U.S.C.A. §§ 1011—1015, prohibits the Federal Trade Commission from regulating such practices within the States having these statutes. We granted certiorari to review this interpretation of an important federal statute. 355 U.S. 867, 78 S.Ct. 119, 120, 2 L.Ed.2d 73.
2
Respondents, the National Casualty Company in No. 435 and the American Hospital and Life Insurance Company in No. 436, engage in the sale of health and accident insurance. National is licensed to sell policies in all States, as well as the District of Columbia and Hawaii, while American is licensed in fourteen States. Solicitation of business for National is carried on by independent agents who operate on commission. The company's advertising material is prepared by it and shipped in bulk to these agents, who distribute the material locally and assume the expense of such dissemination. Only an insubstantial amount of any advertising goes directly by mail from the company to the public, and there is no use of radio, television, or other means of mass communication by the company. American does not materially differ from National in method of operation.
3
The pertinent portions of the McCarran-Ferguson Act are set forth in the margin.2 An examination of that statute and its legislative history establishes that the Act withdrew from the Federal Trade Commission the authority to regulate respondents' advertising practices in those States which are regulating those practices under their own laws.3
4
Petitioner asserts that for constitutional reasons the McCarran-Ferguson Act should be construed to authorize federal regulation in these cases. It is urged that because Congress understood that in accordance with due process there are territorial limitations on the power of the States to regulate an interstate business, it did not intend to foreclose federal regulation of interstate insurance as a supplement to state action.4 However, petitioner concedes that this constitutional infirmity on the power of the States does not operate to hinder state regulation of the advertising practices of the respondents in the instant cases. Whatever may have been the intent of Congress with regard to interstate insurance practices which the States cannot for constitutional reasons regulate effectively, that intent is irrelevant in the cases before us. Respondents' advertising programs require distribution by their local agents, and there is no question but that the States possess ample means to regulate this advertising within their respective boundaries. Cf., e.g., Robertson v. People of State of California, 328 U.S. 440, 445, note 6, 461,5 66 S.Ct. 1160, 1163, 1171, 90 L.Ed. 1366.
5
Petitioner also argues in a different vein that even if the McCarran-Ferguson Act bars federal regulation where state regulation has been effectively applied, the exercise of Commission authority in these cases should be upheld because the States have not 'regulated' within the meaning of the Section 2(b) proviso. This argument is not persuasive in the instant cases. Each State in question has enacted prohibitory legislation which proscribes unfair insurance advertising and authorizes enforcement through a scheme of administrative supervision.6 Petitioner does not argue that the statutory provisions here under review were mere pretense. Rather, it urges that a general prohibition designed to guarantee certain standards of conduct is too 'inchoate' to be 'regulation' until that prohibition has been crystallized into 'administrative elaboration of these standards and application in individual cases.' However, assuming there is some difference in the McCarran-Ferguson Act between 'legislation' and 'regulation,' nothing in the language of that Act or its legislative history supports the distinctions drawn by petitioner. So far as we can determine from the records and arguments in these cases, the proviso in Section 2(b) has been satisfied.
6
The judgments of the Courts of Appeals are affirmed.
7
Affirmed.
1
The decision of the Court of Appeals for the Fifth Circuit is reported at 243 F.2d 719. The decision of the Court of Appeals for the Sixth Circuit is reported at 245 F.2d 883. ed at 245 F.2d 883.
2
'That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
'Sec. 2. (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
'(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, * * * the Sherman Act, * * * the Clayton Act, and * * * the Federal Trade Commission Act * * * shall be applicable to the business of insurance to the extent that such business is not regulated by State law. * * *' 59 Stat. 33, as amended, 61 Stat. 448, 70 Stat. 908.
3
The crucial proviso in Section 2(b) was the subject of extended debate. See, especially, the remarks of Senator McCarran, 91 Cong.Rec. 1443, and Senator Ferguson, 91 Cong.Rec. 1481. A substantial amount of material appears during the formulating period of the McCarran-Ferguson Act. See, e.g., S.Rep. No. 20, 79th Cong., 1st Sess.; H.R.Rep. No. 143, 79th Cong., 1st Sess., and the remarks of Senators Ferguson, Murdock, and Radcliffe, 91 Cong.Rec. 482—483, and of Representatives Hancock and Gwynne, 91 Cong.Rec. 1087, 1089—1090.
4
Cf., e.g., H.R.Rep. No. 143, 79th Cong., 1st Sess. 3, and 91 Cong.Rec. 1442.
5
See also Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777; Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074.
6
At the time the complaints were filed thirty-six States had enacted the 'Model Unfair Trade Practices Bill for Insurance.' Eight others had statutes essentially the same in effect as the 'Model Bill.'
| 78
|
357 U.S. 513
78 S.Ct. 1335
2 L.Ed.2d 1460
Lawrence SPEISER, Appellant,v.Justin A. RANDALL, as Assessor of Contra Costa County, State of California. Daniel PRINCE, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, a Municipal Corporation.
Nos. 382, 385, 483, 484.
June 30, 1958.
[Syllabus from pages 513-514 intentionally omitted]
Mr. Lawrence Speiser, San Francisco, Cal., for appellants.
Mr. George W. McClure, Pittsburgh, Pa., for appellee Randall.
Mr. Robert M. Desky, San Francisco, Cal., for appellee City and County of San Francisco.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The appellants are honorably discharged veterans of World War II who claimed the veterans' property-tax exemption provided by Art. XIII, § 1 1/4, of the California Constitution. Under California law applicants for such exemption must annually complete a standard form of application and file it with the local assessor. The form was revised in 1954 to add an oath by the applicant: 'I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign Government against the United States in event of hostilities.' Each refused to subscribe the oath and struck it from the form which he executed and filed for the tax year 1954 1955. Each contended that the exaction of the oath as a condition of obtaining a tax exemption was forbidden by the Federal Constitution. The respective assessors denied the exemption solely for the refusal to execute the oath. The Supreme Court of California sustained the assessors' actions against the appellants' claims of constitutional invalidity.1 We noted probable jurisdiction of the appeals. 355 U.S. 880, 78 S.Ct. 148, 2 L.Ed.2d 111.
2
Article XX, § 19, of the California Constitution, adopted at the general election of November 4, 1952, provides as follows:
3
'Notwithstanding any other provision of this Constitution, no person or organization which advocates the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocates the support of a foreign government against the United States in the event of hostilities shall:
4
'(b) Receive any exemption from any tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State.
5
'The Legislature shall enact such laws as may be necessary to enforce the provisions of this section.'
6
To effectuate this constitutional amendment the California Legislature enacted § 32 of the Revenue and Taxation Code, which requires the claimant, as a prerequisite to qualification for any property-tax exemption, to sign a statement on his tax return declaring that he does not engage in the activities described in the constitutional amendment.2 The California Supreme Court held that this declaration, like other statements required of those filing tax returns, was designed to relieve the tax assessor of 'the burden * * * of ascertaining the facts with reference to tax exemption claimants.' 48 Cal.2d 419, 432, 311 P.2d 508, 515. The declaration, while intended to provide a means of determining whether a claimant qualifies for the exemption under the constitutional amendment, is not conclusive evidence of eligibility. The assessor has the duty of investigating the facts underlying all tax liabilities and is empowered by § 454 of the Code to subpoena taxpayers for the purpose of questioning them about statements they have furnished. If the assessor believes that the claimant is not qualified in any respect, he may deny the exemption and require the claimant, on judicial review, to prove the incorrectness of the determination. In other words, the factual determination whether the taxpayer is eligible for the exemption under the constitutional amendment is made in precisely the same manner as the determination of any other fact bearing on tax liability.
7
The appellants attack these provisions, inter alia, as denying them freedom of speech without the procedural safeguards required by the Due Process Clause of the Fourteenth Amendment.3
I.
8
It cannot be gainsaid that a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. The Supreme Court of California recognized that these provisions were limitations on speech but concluded that 'by no standard can the infringement upon freedom of speech imposed by section 19 of article XX be deemed a substantial one.' 48 Cal.2d 419, 440, 311 P.2d 508, 521. It is settled that speech can be effectively limited by the exercise of the taxing power. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a 'privilege' or 'bounty,' its denial may not infringe speech. This contention did not prevail before the California courts, which recognized that conditions imposed upon the granting of privileges or gratuities must be 'reasonable.' It has been said that Congress may not by withdrawal of mailing privileges place limitations upon the freedom of speech which if directly attempted would be unconstitutional. See Hannegan v. Esquire, Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586; cf. United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430—431, 41 S.Ct. 352, 360—361, 65 L.Ed. 704 (Brandeis, J., dissenting). This Court has similarly rejected the contention that speech was not abridged when the sole restraint on its exercise was withdrawal of the opportunity to invoke the facilities of the National Labor Relations Board, American Communications Ass'n, C.J.O. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925, or the opportunity for public employment, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. So here, the denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is 'frankly aimed at the suppression of dangerous ideas.' American Communications Ass'n, C.I.O. v. Douds, supra, 339 U.S. at page 402, 70 S.Ct. at page 686.
9
The Supreme Court of California construed the constitutional amendment as denying the tax exemptions only to claimants who engage in speech which may be criminally punished consistently with the free-speech guarantees of the Federal Constitution. The court defined advocacy of 'the overthrow of the Government * * * by force or violence or other unlawful means' and advocacy of 'support of a foreign government against the United States in event of hostilities' as reaching only conduct which may constitutionally be punished under either the California Criminal Syndicalism Act, Cal.Stat.1919, c. 188, see Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, or the Federal Smith Act, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. 48 Cal.2d at page 428, 311 P.2d at page 513. It also said that it would apply the standards set down by this Court in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, in ascertaining the circumstances which would justify punishing speech as a crime.4 Of course the constitutional and statutory provisions here involved must be read in light of the restrictive construction that the California court, in the exercise of its function of interpreting state law, has placed upon them. For the purposes of this case we assume without deciding that California may deny tax exemptions to persons who engage in the proscribed speech for which they might be fined or imprisoned.5
10
But the question remains whether California has chosen a fair method for determining when a claimant is a member of that class to which the California court has said the constitutional and statutory provisions extend. When we deal with the complex of strands in the web of freedoms which make up free speech, the operation and effect of the method by which speech is sought to be restrained must be subjected to close analysis and critical judgment in the light of the particular circumstances to which it is applied. Kingsley Books, Inc., v. Brown, 354 U.S. 436, 441—442, 77 S.Ct. 1325, 1327—1328, 1 L.Ed.2d 1469; Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; cf. Cantwell v. State of Connecticut, 310 U.S. 296, 305, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302.
11
To experienced lawyers it is commonplace that the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights. Cf. Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158. When the State undertakes to restrain unlawful advocacy it must provide procedures which are adequate to safeguard against infringement of constitutionally protected rights—rights which we value most highly and which are essential to the workings of a free society. Moreover, since only considerations of the greatest urgency can justify restrictions on speech, and since the validity of a restraint on speech in each case depends on careful analysis of the particular circumstances, cf. Dennis v. United States, supra; Whitney v. People of State of California, supra, the procedures by which the facts of the case are adjudicated are of special importance and the validity of the restraint may turn on the safeguards which they afford. Compare Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280, with Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295. It becomes essential, therefore, to scrutinize the procedures by which California has sought to restrain speech.
12
The principal feature of the California procedure, as the appellees themselves point out, is that the appellants, 'as taxpayers under state law, have the affirmative burden of proof, in Court as well as before the Assessor. * * * (I) t is their burden to show that they are proper persons to qualify under the self-executing constitutional provision for the tax exemption in question—i.e., that they are not persons who advocate the overthrow of the government of the United States or the State by force or violence or other unlawful means or who advocate the support of a foreign government against the United States in the event of hostilities. * * * (T)he burden is on them to produce evidence justifying their claim of exemption.'6 Not only does the initial burden of bringing forth proof of nonadvocacy rest on the taxpayer, but throughout the judicial and administrative proceedings the burden lies on the taxpayer of persuading the assessor, or the court, that he falls outside the class denied the tax exemption. The declaration required by § 32 is but a part of the probative process by which the State seeks to determine which taxpayers fall into the proscribed category.7 Thus the declaration cannot be regarded as having such independent significance that failure to sign it precludes review of the validity of the procedure of which it is a part. Cf. Staub v. City of Baxley, supra, 355 U.S. at pages 318—319, 78 S.Ct. at pages 280 281. The question for decision, therefore, is whether this allocation of the burden of proof, on an issue concerning freedom of speech, falls short of the requirements of due process.
13
It is of course within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, 'unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. '(O)f course the legislature may go a good way in raising * * * (presumptions) or in changing the burden of proof, but there are limits. * * * (I)t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.' McFarland v. American Sugar Refining Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501, 60 L.Ed. 899. The legislature cannot 'place upon all defendants in criminal cases the burden of going forward with the evidence * * *. (It cannot) validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible.' Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 1246, 87 L.Ed. 1519. Of course, the burden of going forward with the evidence at some stages of a criminal trial may be placed on the defendant, but only after the State has 'proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.' Morrison v. People of State of California, 291 U.S. 82, 88—89, 54 S.Ct. 281, 284, 78 L.Ed. 664. In civil cases too this Court has struck down state statutes unfairly shifting the burden of proof. Western & A.R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884; cf. Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78.
14
It is true that due process may not always compel the full formalities of a criminal prosecution before criminal advocacy can be suppressed or deterred, but it is clear that the State which attempts to do so must provide procedures amply adequate to safeguard against invasion of speech which the Constitution protects. Kingsley Books, Inc., v. Brown, supra. It is, of course, familiar practice in the administration of a tax program for the taxpayer to carry the burden of introducing evidence to rebut the determination of the collector. Phillips v. Dime Trust Co., 284 U.S. 160, 167, 52 S.Ct. 46, 47, 76 L.Ed. 220; Brown v. Helvering, 291 U.S. 193, 199, 54 S.Ct. 356, 359, 78 L.Ed. 725. But while the fairness of placing the burden of proof on the taxpayer in most circumstances is recognized, this Court has not hesitated to declare a summary tax-collection procedure a violation of due process when the purported tax was shown to be in reality a penalty for a crime. Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061; cf. Helwig v. United States, 188 U.S. 605, 23 S.Ct. 427, 47 L.Ed. 614. The underlying rationale of thse cases is that where a person is to suffer a penalty for a crime he is entitled to greater procedural safeguards than when only the amount of his tax liability is in issue. Similarly it does not follow that because only a tax liability is here involved, the ordinary tax assessment procedures are adequate when applied to penalize speech.
15
It is true that in the present case the appellees purport to do no more than compute the amount of the taxpayer's liability in accordance with the usual procedures, but in fact they have undertaken to determine whether certain speech falls within a class which constitutionally may be curtailed. As cases decided in this Court have abundantly demonstrated, the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. The separation of legitimate from illegitimate speech calls for more sensitive tools than California has supplied. In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247; Sampson v. Channell, 1 Cir., 110 F.2d 754, 758, 128 A.L.R. 394. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt. Tot v. United States, supra. Where the transcendent value of speech is involved, due process certainly requires in the circumstances of this case that the State bear the burden of persuasion to show that the appellants engaged in criminal speech. Cf. Kingsley Books, Inc., v. Brown, supra.
16
The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding—inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free. 'It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.' Bailey v. State of Alabama, 219 U.S. 219, 239, 31 S.Ct. 145, 151, 55 L.Ed. 191.
17
The appellees, in controverting this position, rely on cases in which this Court has sustained the validity of loyalty oaths required of public employees, Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317, candidates for public office, Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745, and officers of labor unions, American Communications Ass'n, C.I.O. v. Douds, supra. In these cases, however, there was no attempt directly to control speech but rather to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern. The purpose of the legislation sustained in the Douds case, the Court found, was to minimize the danger of political strikes disruptive of interstate commerce by discouraging labor unions from electing Communist Party members to union office. While the Court recognized that the necessary effect of the legislation was to discourage the exercise of rights protected by the First Amendment, this consequence was said to be only indirect. The congressional purpose was to achieve an objective other than restraint on speech. Only the method of achieving this end touched on protected rights and that only tangentially. The evil at which Congress has attempted to strike in that case was thought sufficiently grave to justify limited infringement of political rights. Similar considerations governed the other cases. Each case concerned a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety. The principal aim of those statutes was not to penalize political beliefs but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public. The present legislation, however, can have no such justification. It purports to deal directly with speech and the expression of political ideas. 'Encouragement to loyalty to our institutions * * * (is a doctrine) which the state has plainly promulgated and intends to foster.' 48 Cal.2d at page 439, 311 P.2d at page 520. The State argues that veterans as a class occupy a position of special trust and influence in the community, and therefore any veteran who engages in the proscribed advocacy constitutes a special danger to the State. But while a union official or public employee may be deprived of his position and thereby removed from the place of special danger, the State is powerless to erase the service which the veteran has rendered his country; though he be denied a tax exemption, he remains a veteran. The State, consequently, can act against the veteran only as it can act against any other citizen, by imposing penalties to deter the unlawful conduct.
18
Moreover, the oaths required in those cases performed a very different function from the declaration in issue here. In the earlier cases it appears that the loyalty oath, once signed, became conclusive evidence of the facts attested so far as the right to office was concerned. If the person took the oath he retained his position. The oath was not part of a device to shift to the officeholder the burden of proving his right to retain his position.8 The signer, of course, could be prosecuted for perjury, but only in accordance with the strict procedural safeguards surrounding such criminal prosecutions. In the present case, however, it is clear that the declaration may be accepted or rejected on the basis of incompetent information or no information at all. It is only a step in a process throughout which the taxpayer must bear the burden of proof.
19
Believing that the principles of those cases have no application here, we hold that when the constitutional right to speak is sought to be deterred by a State's general taxing program due process demands that the speech he unencumbered until the State comes forward with sufficient proof to justify its inhibition. The State clearly has no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech. Accordingly, though the validity of § 19 of Art. XX of the State Constitution be conceded arguendo, its enforcement through procedures which place the burdens of proof and persuasion on the taxpayer is a violation of due process. It follows from this that appellants could not be required to execute the declaration as a condition for obtaining a tax exemption or as a condition for the assessor proceeding further in determining whether they were entitled to such an exemption. Since the entire statutory procedure, by placing the burden of proof on the claimants, violated the requirements of due process, appellants were not obliged to take the first step in such a procedure.
20
The judgments are reversed and the causes are remanded for further proceedings not inconsistent with this opinion.
21
Reversed and remanded.
22
Mr. Justice BURTON concurs in the result.
23
THE CHIEF JUSTICE took no part in the consideration or decision of this case. has never even been attempted before. I believe that it constitutes a palpable violation of the First Amendment, which of course is applicable in all its particulars to the States. See, e.g., Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Poulos v. State of New Hampshire, 345 U.S. 395, 396 397, 73 S.Ct. 760, 762, 97 L.Ed. 1105; Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 507, 91 L.Ed. 711; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 880, 87 L.Ed. 1324; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 109, 63 S.Ct. 870, 873, 87 L.Ed. 1292; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 768, 86 L.Ed. 1031; Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138. The mere fact that California attempts to exact this ill-concealed penalty from individuals and churches and that its validity has to be considered in this Court only emphasizes how dangerously far we have departed from the fundamental principles of freedom declared in the First Amendment. We should never forget that the freedoms secured by that Amendment Speech, Press, Religion, Petition and Assembly—are absolutely indispensable for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised minorities. See American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925 (dissenting opinion); Dennis v. United States, 341 U.S. 494, 580, 71 S.Ct. 857, 902, 95 L.Ed. 1137 (dissenting opinion).
24
This case offers just another example of a wide-scale effort by government in this country to impose penalties and disabilities on everyone who is or is suspected of being a 'Communist' or who is not ready at all times and all places to swear his loyalty to State and Nation. Compare Adler v. Board of Education, 342 U.S. 485, 496, 72 S.Ct. 380, 386, 96 L.Ed. 517 (dissenting opinion); Wieman v. Updegraff, 344 U.S. 183, 193, 73 S.Ct. 215, 219, 97 L.Ed. 216 (concurring opinion) Barsky v. Board of Regents, 347 U.S. 442, 456, 472, 74 S.Ct. 650, 658, 666, 98 L.Ed. 829 (dissenting opinions). Government employees, lawyers, doctors, teachers, pharmacists, veterinarians, subway conductors, industrial workers and a multitude of others have been denied an opportunity to work at their trade or profession for these reasons. Here a tax is levied unless the taxpayer makes an oath that he does not and will not in the future advocate certain things; in Ohio those without jobs have been denied unemployment insurance unless they are willing to swear that they do not hold specific views; and Congress has even attempted to deny public housing to needy families unless they first demonstrate their loyalty. These are merely random samples; I will not take time here to refer to innumerable others, such as oaths for hunters and fishermen, wrestlers and boxers and junk dealers.
25
I am convinced that this whole business of penalizing people because of their views and expressions concerning government is hopelessly repugnant to the principles of freedom upon which this Nation was founded and which have helped to make it the greatest in the world. As stated in prior cases, I believe 'that the First Amendment grants an absolute right to believe in any governmental system, (to) discuss all governmental affairs and (to) argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment's unequivocal command that freedom of assembly, petition, speech and press shall not be abridged. I happen to believe this was a wise choice and that our free way of life enlists such respect and love that our Nation cannot be imperiled by mere talk.' Carlson v. Landon, 342 U.S. 524, 555—556, 72 S.Ct. 525, 542, 96 L.Ed. 547 (dissenting opinion).
26
Loyalty oaths, as well as other contemporary 'security measures,' tend to stifle all forms of unorthodox or unpopular thinking or expression—the kind of thought and expression which has played such a vital and beneficial role in the history of this Nation. The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be. The course which we have been following the last decade is not the course of a strong, free, secure people, but that of the frightened, the insecure, the intolerant. I am certain that loyalty to the United States can never be secured by the endless proliferation of 'loyalty' oaths; loyalty must arise spontaneously from the hearts of people who love their country and respect their government. I also adhere to the proposition that the 'First Amendment provides the only kind of security system that can preserve a free government—one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.' Yates v. United States, 354 U.S. 298, 344, 77 S.Ct. 1064, 1090, 1 L.Ed.2d 1356 (separate opinion).
27
If it be assumed however, as Mr. Justice BRENNAN does for purposes of this case, that California may tax the expression of certain views, I am in full agreement with him that the procedures it has provided to determine whether petitioners are engaged in 'taxable' advocacy violate the requirements of due process.
28
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring.
29
California, in effect, has imposed a tax on belief and expression. In my view, a levy of this nature is wholly out of place in this country; so far as I know such a thing
30
While I substantially agree with the opinion of the Court, I will state my reasons more fully and more explicitly.
31
I. The State by the device of the loyalty oath places the burden of proving loyalty on the citizen. That procedural device goes against the grain of our constitutional system, for every man is presumed innocent until guilt is established. This technique is an ancient one that was denounced in an early period of our history.
32
Alexander Hamilton, writing in 1784 under the name Phocion, said:
33
'* * * let it be supposed that instead of the mode of indictment and trial by jury, the Legislature was to declare, that every citizen who did not swear he had never adhered to the King of Great Britain, should incur all the penalties which our treason laws prescribe. Would this not be * * * a direct infringement of the Constitution? * * * it is substituting a new and arbitrary mode of prosecution to that ancient and highly esteemed one, recognized by the laws and the Constitution of the State,—I mean the trial by jury.' 4 The Works of Alexander Hamilton (Fed. ed. 1904) 269—270.
34
Hamilton compared that hypothetical law to an actual one passed by New York on March 27, 1778, whereby a person who had served the King of England in enumerated ways was declared 'to be utterly disabled disqualified and incapacitated to vote either by ballot or viva voce at any election' in New York. N.Y.Laws 1777 1784, 35. An oath was required1 in enforcement of that law.2
35
Hamilton called this 'a subversion of one great principle of social security: to wit, that every man shall be presumed innocent until he is proved guilty.' 4 The Works of Alexander Hamilton (Fed. ed. 1904) 269. He went on to say 'This was to invert the order of things; and, instead of obliging the State to prove the guilt in order to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalty. It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury.' Ibid.
36
If the aim is to apprehend those who have lifted a hand against the Government, the procedure is unconstitutional.
37
If one conspires to overthrow the government, he commits a crime. To make him swear he is innocent to avoid the consequences of a law is to put on him the burden of proving his innocence. That method does not square with our standards of procedural due process, as the opinion of the Court points out.
38
The Court in Cummings v. State of Missouri, 4 Wall. 277, 328, 18 L.Ed. 356, denounced another expurgatory oath that had some of the vices of the present one.
39
'The clauses in question subvert the presumptions of innocence, and alter the rules of evidence, which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. They assume that the parties are guilty; they call upon the parties to establish their innocence; and they declare that such innocence can be shown only in one way—by an inquisition, in the form of an expurgatory oath, into the consciences of the parties.'
40
II. If the aim of the law is not to apprehend criminals but to penalize advocacy, it likewise must fall. Since the time that Alexander Hamilton wrote concerning these oaths, the Bill of Rights was adopted; and then much later came the Fourteenth Amendment. As a result of the latter a rather broad range of liberties was newly guaranteed to the citizen against state action. Included were those contained in the First Amendment—the right to speak freely, the right to believe what one chooses, the right of conscience. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. Today what one thinks or believes, what one utters and says have the full protection of the First Amendment. It is only his actions that government may examine and penalize. When we allow government to probe his beliefs and withhold from him some of the privileges of citizenship because of what he thinks, we do indeed 'invert the order of things,' to use Hamilton's phrase. All public officials state and federal—must take an oath to support the Constitution by the express command of Article VI of the Constitution. And see Gerende v. Board of Sup'rs of Elections, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. But otherwise the domains of conscience and belief have been set aside and protected from government intrusion. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. What a man thinks is of no concern to government. 'The First Amendment gives freedom of mind the same security as freedom of conscience.' Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430. Advocacy and belief go hand in hand. For there can be no true freedom of mind if thoughts are secure only when they are pent up.
41
In Murdock v. Commonwealth of Pennsylvania, supra, we stated, 'Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful.' 319 U.S. at page 116, 63 S.Ct. at page 876. If the Government may not impose a tax upon the expression of ideas in order to discourage them, it may not achieve the same end by reducing the individual who expresses his views to second-class citizenship by withholding tax benefits granted others. When government denies a tax exemption because of the citizen's belief, it penalizes that belief. That is different only in form, not substance, from the 'taxes on knowledge' which have had a notorious history in the English-speaking world. See Grosjean v. American Press Co., 297 U.S. 233, 246—247, 56 S.Ct. 444, 447—448, 80 L.Ed. 660.
42
We deal here with a type of advocacy which, to say the least, lies close to the 'constitutional danger zone.' Yates v. United States, 354 U.S. 298, 319, 77 S.Ct. 1064, 1077, 1 L.Ed.2d 1356. Advocacy which is in no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the ideas we despise. As Mr. Justice Holmes wrote in dissent in Gitlow v. People of State of New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138, 'If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.' It is time for government—state or federal—to become concerned with the citizen's advocacy when his ideas and beliefs move into the realm of action.
43
The California oath is not related to unlawful action. To get the tax exemption the taxpayer must swear he 'does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in event of hostilities.'3 The Court construes the opinion of the California Supreme Court as applying the same test of illegal advocacy as was sustained against constitutional challenge in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. That case held that advocacy of the overthrow of government by force and violence was not enough, that incitement to action, as well as clear and present danger, were also essential ingredients. Id., 341 U.S. at pages 512, 509—510, 71 S.Ct. at pages 867, 868. As Yates v. United States, supra, makes clear, there is still a clear constitutional line between advocacy of abstract doctrine and advocacy of action. The California Supreme Court said, to be sure, that the oath in question 'is concerned' with that kind of advocacy.4 But it nowhere says that oath is limited to that kind of advocacy. It seemed to think that advocacy was itself action for it said, 'What one may merely believe is not prohibited. It is only advocates of the subversive doctrines who are affected. Advocacy constitutes action and the instigation of action, not mere belief or opinion.'5
44
However the California opinion may be read, these judgments should fall. If the construction of the oath is the one I prefer, then the Supreme Court of California has obliterated the line between advocacy of abstract doctrine and advocacy of action. If the California oath has been limited by judicial construction to the type of advocacy condemned in Dennis, it still should fall. My disagreement with that decision has not abated. No conspiracy to overthrow the Government was involved. Speech and speech alone was the offense. I repeat that thought and speech go hand in hand. There is no real freedom of thought if ideas must be suppressed. There can be no freedom of the mind unless ideas can be uttered.
45
I know of no power that enables any government under our Constitution to become the monitor of thought, as this statute would have it become.
46
Mr. Justice CLARK, dissenting.
47
The decision of the Court turns on a construction of California law which regards the filing of the California tax oath as introductory, not conclusive, in nature. Hence, once the oath is filed, it may be 'accepted or rejected on the basis of incompetent information or no information at all.' And the filing is 'only a step in a process throughout which the taxpayer must bear the burden of proof.'
48
No California case, least of all the present one, compels such an understanding of § 32 of the California Revenue and Taxation Code. Neither appellant here filed the required oath, so the procedural skeleton of this case is not enlightening. If anything, the opinion of the state court indicates that the filing, whether the oath be true or false, would conclusively establish the taxpayer's eligibility for an exemption. Thus, in explaining the effect of § 32, the California court stated:
49
'For the obvious purpose, among others, of avoiding litigation, the Legislature, throughout the years has sought to relieve the assessor of the burden, on his own initiative and at the public expense, of ascertaining the facts with reference to tax exemption claimants. In addition to the means heretofore and otherwise provided by law the Legislature, with special reference to the implementation of section 19 of article XX, has enacted section 32. That section provides a direct, time saving and relatively inexpensive method of ascertaining the facts.' (Emphasis added.) 48 Cal.2d 419, 432, 311 P. 508, 515—516.
50
Moreover, the recourse of the State in the event a false oath is filed is expressly provided by § 32: 'Any person or organization who makes such declaration knowing it to be false is guilty of a felony.' The majority relies heavily on the duty of the assessor to '(investigate) the facts underlying all tax liabilities,' as well as his subpoena power incident thereto under § 454 of the California Tax Code. But the California court adverts to those matters only under a hypothetical state of facts, namely, in the absence of the aid provided by § 32. 48 Cal.2d, at pages 430—432, 311 P.2d at page 515. The essential point is that, whatever the assessor's duty, § 32 provides for its discharge on the basis of the declarations alone.
51
On the other hand, if it be thought that the Supreme Court of California is ambiguous on this matter, then it is well established that our duty is to so construe the state oath as to avoid conflict with constitutional guarantees of due process. Garner v. Board of Public Works, 1951, 341 U.S. 716, 723—724, 71 S.Ct. 909, 914—915, 95 L.Ed. 1317; Gerende v. Board of Supervisors of Elections, 1951, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. Two years ago we construed filing of the non-Communist affidavit required by § 9(h) of the National Labor Relations Act, 29 U.S.C.A. § 159(h), as being conclusive in character, holding that the criminal sanction provided in that section was the exclusive remedy for the filing of a false affidavit. Leedom v. International Union of Mine, Mill & Smelter Workers, 1956, 352 U.S. 145, 77 S.Ct. 154, 1 L.Ed.2d 201. That Act bars issuance of a complaint or conducting an investigation upon the application of a union unless the prescribed non-Communist affidavit is filed by each officer of the union. Article XX, § 19, of the California Constitution expressly prohibits a tax exemption to any person or organization that advocates violent overthrow of either the California or the United States Governments, or advocates the support of a foreign government against the United States in the event of hostilities, and provides for legislative implementation thereof. By § 32 the California Legislature has required only the filing of the affidavit. The terms of § 9(h) of the National Labor Relations Act and § 32 of the California Tax Code, therefore, establish identical procedures. That identity points up the inappropriateness of the Court's construction of § 32.
52
Even if the Court's interpretation of California law is correct, I cannot agree that due process requires California to bear the burden of proof under the circumstances of this case. This is not a criminal proceeding. Neither fine nor imprisonment is involved. So far as Art. XX, § 19, of the California Constitution and § 32 of the California Tax Code are concerned, appellants are free to speak as they wish, to advocate what they will. If they advocate the violent and forceful overthrow of the California Government, California will take no action against them under the tax provisions here in question. But it will refuse to take any action for them, in the sense of extending to them the legislative largesse that is inherent in the granting of any tax exemption or deduction. In the view of the California court, 'An exemption from taxation is the exception and the unusual. * * * It is a bounty or gratuity on the part of the sovereign and when once granted may be withdrawn.' 48 Cal.2d, at page 426, 311 P.2d at page 512. The power of the sovereign to attach conditions to its bounty is firmly established under the Due Process Clause. Cf. Ivanhoe Irrigation District v. McCracken, 1958, 357 U.S. 275, 78 S.Ct. 1174. Traditionally, the burden of qualifying rests upon the one seeking the grace of the State. The majority suggests that traditional procedures are inadequate when 'a person is to suffer a penalty for a crime.' But California's action here, declining to extend the grace of the State to appellants, can in no proper sense be regarded as a 'penalty.' The case cited by the majority, Lipke v. Lederer, 1922, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061, involves an altogether different matter, imposition of a special tax upon one who engaged in certain illegal conduct, by a statute that described the levy as a 'tax or penalty.' (Emphasis added.) 259 U.S. at page 561, 42 S.Ct. at page 550.
53
The majority, however, would require that California bear the burden of proof under the circumstances of this case because 'the transcendent value of speech is involved.' This is a wholly novel doctrine, unsupported by any precedent, and so far as I can see, inapposite to several other decisions of this Court upholding the application of similar oaths to municipal employees, Garner v. Board of Public Works, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; public school teachers, Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; candidates for public office, Gerende v. Board of Supervisors, 1951, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745; and labor union officials, American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. See also Davis v. Beason, 1890, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637, as to voters in territorial elections. All of those decisions, by virtue of the oath involved, put the burden on the individual to come forward and disavow activity involving 'the transcendent value of speech.' The majority attempts to distinguish them on the basis of their involving a greater state interest in justification of restricting speech, and also on the ground that the oaths there involved were conclusive in nature. The first distinction, however, seems pertinent only to the validity of an oath requirement in the first place, not to burden of proof under such a requirement. The second distinction, which arguendo I accept as true at this point, seems exceedingly flimsy, since even an oath that is conclusive in nature forces the applicant to the burden of coming forward and making the requisite declaration. So far as impact on freedom of speech is concerned, the further burden of proving the declarations true appears close to being de minimus.
54
The majority assumes, without deciding, that California may deny a tax exemption to those in the proscribed class. I think it perfectly clear that the State may do so, since only that speech is affected which is criminally punishable under the Federal Smith Act, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, or the California Criminal Syndicalism Act, Cal.Stat., 1919, c. 188. And California has agreed that its interpretation of criminal speech under those Acts shall be in conformity with the decisions of this Court, e.g., Yates v. United States, 1957, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Whitney v. People of State of California, 1927, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. The interest of the State that justifies restriction of speech by imposition of criminal sanctions surely justifies the far less severe measure of denying a tax exemption, provided the lesser sanction bears reasonable relation to the evil at which the State aims. Cf. American Communications Ass'n v. Douds, supra. The general aim of the constitutional and legislative provisions in question is to restrict advocacy of violent or forceful overthrow of State or National Government; the particular aim is to avoid state subsidization of such advocacy by refusing the State's bounty to those who are so engaged. The latter has been denominated the 'primary purpose' by the California Supreme Court. 48 Cal.2d, at page 428, 311 P.2d at page 513. In view of that, reasonable relation is evident on the face of the matter.
55
Refusal of the taxing sovereign's grace in order to avoid subsidizing or encouraging activity contrary to the sovereign's policy is an accepted practice. We have here a parallel situation to federal refusal to regard as 'necessary and ordinary,' and hence deductible under the federal income tax, those expenses deduction of which would frustrate sharply defined state policies. See Tank Truck Rentals, Inc., v. Commissioner, 1958, 356 U.S. 30, 78 S.Ct. 507, 2 L.Ed.2d 562.
56
If the State's requirement of an oath in implementing denial of this exemption be thought to make an inroad upon speech over and above that caused by denial of the exemption, or even by criminal punishment of the proscribed speech, I find California's interest still sufficient to justify the State's action. The restriction must be considered in the context in which the oath is set—appeal to the largesse of the State. The interest of the State, as before pointed out, is dual in nature, but its primary thrust is summed up in an understandable desire to insure that those who benefit by tax exemption do not bite the hand that gives it.
57
Appellants raise other issues—pre-emption of security legislation under Commonwealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, and denial of equal protection because the oath is not required for all types of tax exemptions—which the majority does not pass upon. I treat of them only so far as to say that I think neither has merit, substantially for the reasons stated in the opinion of the Supreme Court of California.
58
If my interpretation of § 32 is correct, I assume that California will afford appellants another opportunity to take the oath, this time knowing that its filing will have conclusive effect. For the reasons stated above, I would affirm the judgment.
59
For concurring opinion of Mr. Justice BLACK with whom Mr. Justice DOUGLAS joins, see 357 U.S. 513, 78 S.Ct. 1352.
1
Appellant in No. 483 sued for declaratory relief in the Superior Court of Contra Costa County. Five judges sitting en banc held that both § 19 of Art. XX and § 32 of the Revenue and Taxation Code were invalid under the Fourteenth Amendment as restrictions on freedom of speech. The California Supreme Court reversed. 48 Cal.2d 903, 311 P.2d 546.
Appellant in No. 484 sued in the Superior Court for the City and County of San Francisco to recover taxes paid under protest and for declaratory relief. The court upheld the validity of both the constitutional provision and § 32 of the Code. The Supreme Court affirmed. 48 Cal.2d 472, 311 P.2d 544.
In both cases the Supreme Court adopted the reasoning of its opinion in First Unitarian Church of Los Angeles v. County of Los Angeles, 48 Cal.2d 419, 311 P.2d 508, in which identical issues are discussed at length. Hereinafter we will refer to that opinion as expressing the views of the California Supreme Court in the present cases.
2
Section 32 provides:
'Any statement, return, or other document in which is claimed any exemption, other than the householder's exemption, from any property tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State shall contain a declaration that the person or organization making the statement, return, or other document does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in event of hostilities. If any such statement, return, or other document does not contain such declaration, the person or organization making such statement, return, or other document shall not receive any exemption from the tax to which the statement, return, or other document pertains. Any person or organization who makes such declaration knowing it to be false is guilty of a felony. This section shall be construed so as to effectuate the purpose of Section 19 of Article XX of the Constitution.'
3
This contention was raised in the complaint and is argued in the brief in this Court. The California Supreme Court rejected the contention as without merit. 48 Cal.2d 472, 475, 311 P.2d 544, 545—546.
Appellants also argue that these provisions are invalid (1) as invading liberty of speech protected by the Due Process Clause of the Fourteenth Amendment; (2) as denying equal protection because the oath is required only as to property-tax and corporation-income-tax exemptions, but not as to the householder's personal-income-tax, gift-tax, inheritance-tax, or sales-tax exemptions; and (3) as violating the Supremacy Clause because this legislation intrudes in a field of exclusive federal control, Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. Our disposition of the cases makes considerations of these questions unnecessary.
4
The California Supreme Court construed these provisions as inapplicable to mere belief. On oral argument counsel for the taxing authorities further conceded that the provisions would not apply in the case of advocacy of mere 'abstract doctrine.' See Yates v. United States, 354 U.S. 298, 312—327, 77 S.Ct. 1064, 1073 1081, 1 L.Ed.2d 1356.
5
Appellants contend that under this Court's decision in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, the State can no longer enforce its criminal statutes aimed at subversion. We need not decide whether this contention is sound; nor need we consider whether, if it is, it follows that California cannot deny tax exemptions to those who in fact are in violation of the federal and state sedition laws.
6
The California Supreme Court held that § 19 of Art. XX of the State Constitution was in effect self-executing. '(U)nder the tax laws of the state wholly apart from section 32 it is the duty of the assessor to ascertain the facts with reference to the taxability or exemption from taxation of property within his jurisdiction. And it is also the duty of the property owner to cooperate with the assessor and assist him in the ascertainment of these facts by declarations under oath.' 48 Cal.2d at page 430, 311 P.2d at pages 514—515.
In all events, if the assessor 'is satisfied from his investigations that the exemption should not be allowed he may assess the property as not exempt and if contested compel a determination of the facts in a suit to recover the tax paid under protest. In such a case it would be necessary for the claimant to allege and prove facts with reference to the nature, extent and character of the property which would justify the exemption and compliance with all valid regulations in the presentation and prosecution of the claim. In any event it is the duty of the assessor to ascertain the facts from any legal source available. In performing this task he is engaged in the assembly of facts which are to serve as a guide in arriving at his conclusion whether an exemption should or should not be allowed. That conclusion is in no wise a final determination that the claimant belongs to a class proscribed by section 19 of article XX or is guilty of any activity there denounced. The presumption of innocence available to all in criminal prosecutions does not in a case such as this relieve or prevent the assessor from making the investigation enjoined upon him by law to see that exemptions are not improperly allowed. His administrative determination is not binding on the tax exemption claimant but it is sufficient to authorize him to tax the property as nonexempt and to place the burden on the claimant to test the validity of his administrative determination in an action at law.' Id., 48 Cal.2d at pages 431 432, 311 P.2d at page 515.
7
It is suggested that the opinion of the California Supreme Court be read as holding that 'the filing, whether the oath be true or false, would conclusively establish the taxpayer's eligibility for an exemption.' But the California court expressly states that 'it is the duty of the assessor to see that exemptions are not allowed contrary to law and this of course includes those which are contrary to the prohibitions provided for in section 19 of article XX,' 48 Cal.2d 419, 431, 311 P.2d 508, 515, and that the 'mandatory and prohibitory' provision of § 19 of Art. XX 'applies to all tax exemption claimants.' Id., 48 Cal.2d at page 428, 311 P.2d at page 513. Indeed, the tax authorities of California themselves point out that the signing of the declaration is not conclusive of the right to the tax exemption. The brief of the taxing authorities in the companion case, First Unitarian Church of Los Angeles v. County of Los Angeles, 78 S.Ct. 1350, states, 'Section 32 is an evidentiary provision. Its purpose and effect are to afford to the Assessor information to guide his compliance with and his enforcement of the Constitution's prohibition * * *.' (Emphasis supplied.)
It is also suggested that this Court construe the California legislation contrary to the clearly expressed construction of the California Supreme Court and thus avoid decision of the question of procedural due process. But this construction would not avoid decision of constitutional questions but rather would create the necessity for decision of the broader constitutional question of the validity of § 19 of Art. XX. A more fundamental objection to the suggestion, of course, is that it does violence to the basic constitutional principle that the construction of state laws is the exclusive responsibility of the state courts.
8
Significantly, the New York statute which this Court upheld in Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, provided that public-school teachers could be dismissed on security grounds only after a hearing at which the official pressing the charges sustained his burden of proof by a fair preponderance of the evidence.
1
The oath was prescribed by the Council in charge of the Southern District of New York. The Council, authorized by the Act of October 23, 1779, was composed of the Governor, President of the Senate, Chancellor, Supreme Court judges, Senators, Assemblymen, Secretary of State, Attorney General, and County Court judges. The Council was to assume authority 'whenever the enemy shall abandon or be dispossessed of the same, and until the legislature can be convened,' N.Y.Laws 1777—1784, 192. The Council governed from November 25, 1783, to February 5, 1784. See Barck,
[Footnote 2 is on page 534]
New York City 1776—1783 (1931), 220—221. Among the powers of the Council was control of elections.
The election oath prescribed by the Council read as follows:
'I .......... do solemnly, without any mental Reservation or Equivocation whatsoever, swear and declare, and call God to witness (or if of the People called Quakers, affirm) that I renounce and abjure all Allegiance to the King of Great-Britain; and that I will bear true Faith and Allegiance to the State of New-York, as a Free and Independent State, and that I will in all Things, to the best of my Knowledge and Ability, do my Duty as a good and faithful Subject of the said State ought to do. So help me God.' Independent Gazette, Dec. 13, 1783.
The Council further provided:
'That if any Person presenting himself to give his Vote, shall be suspected of, or charged with having committed any of the Offences above specified, it shall be Lawful for the Inspectors, or Superintendents (as the Case may be) to inquire into and determine the Fact whereof such Person shall be suspected, or wherewith he shall be charged, as the Cause of Disqualification, on the Oath of one or more Witnesses, or on the Oath of the Party so suspected or charged, at their Discretion; and if such Fact shall, in the Judgement of the Inspectors or Superintendents, be established, it shall be lawful for them, and they are hereby required, to reject the Vote of such Person at such Election.' Independent Gazette, Dec. 13, 1783.
2
Other loyalty oaths appeared during this early period. Suspected persons were required to take a loyalty oath. N.Y.Laws 1777—1784, 87. The same was required of lawyers. Id., at 155, 420. And see Flick, Loyalism in New York During the American Revolution, 14 Studies in History, Economics and Public Law (Columbia Univ. 1901) 9 (passim).
3
Calif.Rev. & Tax Code § 32; and see Calif.Const., Art XX, § 19.
4
48 Cal.2d 419, 440, 311 P.2d 508, 520.
5
48 Cal.2d at page 434, 311 P.2d at page 517.
| 23
|
357 U.S. 566
78 S.Ct. 1189
2 L.Ed.2d 1544
John AARON et al., Petitioners,v.William G. COOPER et al., Members of the Board of Directors of The Little Rock, Arkansas, Independent School District, and Virgil T. Blossom, Superintendent of Schools.
No. 1095.
Decided June 30, 1958.
Thurgood Marshall, Wiley A. Branton, Constance Baker Motley and Jack Greenberg, for petitioners.
PER CURIAM.
1
On June 21, 1958, the District Court for the Eastern District of Arkansas entered an order authorizing the members of the School Board of Little Rock, Arkansas, and the Superintendent of Schools, to suspend until January 1961 a plan of integration theretofore approved by that court in August 1956, Aaron v. Cooper, 143 F.Supp. 855, and affirmed by the Court of Appeals for the Eighth Circuit in April 1957. 243 F.2d 361. On June 23, 1958, the District Court denied an application for a stay of execution of its order. An appeal was docketed in the Court of Appeals for the Eighth Circuit on June 24, 1958, and there is pending in that court an application for a stay of the District Court's order.
2
By the present petition this Court is asked to bring the case here before the Court of Appeals has had an opportunity to act upon the petition for a stay or to hear the appeal. The power of the Court to do so has been exercised but rarely, and the issues and circumstances relevant to the present petition do not warrant its exercise now. The order that the District Court suspended has, in different postures, been before the Court of Appeals for the Eighth Circuit three times already. Aaron v. Cooper, 243 F.2d 361; Thomason v. Cooper, 254 F.2d 808 (April 28, 1958); Faubus v. United States, 254 F.2d 797 (April 28, 1958). That court is the regular court for reviewing orders of the District Court here concerned, and the appeal and the petition for a stay are matters properly to be adjudicated by it in the first instance.
3
We have no doubt that the Court of Appeals will recognize the vital importance of the time element in this litigation, and that it will act upon the application for a stay or the appeal in ample time to permit arrangements to be made for the next school year.
4
Accordingly, the petition for certiorari is denied.
Petition denied. CS SUP CT 78-121
| 12
|
357 U.S. 449
78 S.Ct. 1163
2 L.Ed.2d 1488
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation, Petitioner,v.STATE OF ALABAMA, ex rel. John PATTERSON, Attorney General.
No. 91.
Argued Jan. 15, 1958.
Decided June 30, 1958.
[Syllabus from pages 449-450 intentionally omitted]
Mr. Robert L. Carter, New York City, for petitioner.
Mr. Edmon L. Rinehart, Montgomery, Ala., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
We review from the standpoint of its validity under the Federal Constitution a judgment of civil contempt entered against petitioner, the National Association for the Advancement of Colored People, in the courts of Alabama. The question presented is whether Alabama, consistently with the Due Process Clause of the Fourteenth Amendment, can compel petitioner to reveal to the State's Attorney General the names and addresses of all its Alabama members and agents, without regard to their positions or functions in the Association. The judgment of contempt was based upon petitioner's refusal to comply fully with a court order requiring in part the production of membership lists. Petitioner's claim is that the order, in the circumstances shown by this record, violated rights assured to petitioner and its members under the Constitution.
2
Alabama has a statute similar to those of many other States which requires a foreign corporation, except as exempted, to qualify before doing business by filing its corporate charter with the Secretary of State and designating a place of business and an agent to receive service of process. The statute imposes a fine on a corporation transacting intrastate business before qualifying and provides for criminal prosecution of officers of such a corporation. Ala.Code, 1940, Tit. 10, §§ 192—198. The National Association for the Advancement of Colored People is a nonprofit membership corporation organized under the laws of New York. Its purposes, fostered on a nationwide basis, are those indicated by its name,* and it operates through chartered affiliates which are independent unincorporated associations, with membership therein equivalent to membership in petitioner. The first Alabama affiliates were chartered in 1918. Since that time the aims of the Association have been advanced through activities of its affiliates, and in 1951 the Association itself opened a regional office in Alabama, at which it employed two supervisory persons and one clerical worker. The Association has never complied with the qualification statute, from which it considered itself exempt.
3
In 1956 the Attorney General of Alabama brought an equity suit in the State Circuit Court, Montgomery County, to enjoin the Association from conducting further activities within, and to oust it from, the State. Among other things the bill in equity alleged that the Association had opened a regional office and had organized various affiliates in Alabama; had recruited members and solicited contributions within the State; had given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race. The bill recited that the Association, by continuing to do business in Alabama without complying with the qualification statute, was '* * * causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief * * *.' On the day the complaint was filed, the Circuit Court issued ex parte an order restraining the Association, pendente lite, from engaging in further activities within the State and forbidding it to take any steps to qualify itself to do business therein.
4
Petitioner demurred to the allegations of the bill and moved to dissolve the restraining order. It contended that its activities did not subject it to the qualification requirements of the statute and that in any event what the State sought to accomplish by its suit would violate rights to freedom of speech and assembly guaranteed under the Fourteenth Amendment to the Constitution of the United States. Before the date set for a hearing on this motion, the State moved for the production of a large number of the Association's records and papers, including bank statements, leases, deeds, and records containing the names and addresses of all Alabama 'members' and 'agents' of the Association. It alleged that all such documents were necessary for adequate preparation for the hearing, in view of petitioner's denial of the conduct of intrastate business within the meaning of the qualification statute. Over petitioner's objections, the court ordered the production of a substantial part of the requested records, including the membership lists, and postponed the hearing on the restraining order to a date later than the time ordered for production.
5
Thereafter petitioner filed its answer to the bill in equity. It admitted its Alabama activities substantially as alleged in the complaint and that it had not qualified to do business in the State. Although still disclaiming the statute's application to it, petitioner offered to qualify if the bar from qualification made part of the restraining order were lifted, and it submitted with the answer an executed set of the forms required by the statute. However petitioner did not comply with the production order, and for this failure was adjudged in civil contempt and fined $10,000. The contempt judgment provided that the fine would be subject to reduction or remission if compliance were forthcoming within five days but otherwise would be increased to $100,000.
6
At the end of the five-day period petitioner produced substantially all the data called for by the production order except its membership lists, as to which it contended that Alabama could not constitutionally compel disclosure, and moved to modify or vacate the contempt judgment, or stay it execution pending appellate review. This motion was denied. While a similar stay application, which was later denied, was pending before the Supreme Court of Alabama, the Circuit Court made a further order adjudging petitioner in continuing contempt and increasing the fine already imposed to $100,000. Under Alabama law, see Jacoby v. Goetter, Weil & Co., 74 Ala. 427, the effect of the contempt adjudication was to foreclose petitioner from obtaining a hearing on the merits of the underlying ouster action, or from taking any steps to dissolve the temporary restraining order which had been issued ex parte, until it purged itself of contempt. But cf. Harrison v. St. Louis & S.F.R. Co., 232 U.S. 318, 34 S.Ct. 333, 58 L.Ed. 621; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215.
7
The State Supreme Court thereafter twice dismissed petitions for certiorari to review this final contempt judgment, the first time, 265 Ala. 699, 91 So.2d 221, for insufficiency of the petition's allegations and the second time on procedural grounds. 265 Ala. 349, 91 So.2d 214. We granted certiorari because of the importance of the constitutional questions presented. 353 U.S. 972, 77 S.Ct. 1056, 1 L.Ed.2d 1135.
I.
8
We address ourselves first to respondent's contention that we lack jurisdiction because the denial of certiorari by the Supreme Court of Alabama rests on an independent nonfederal ground, namely, that petitioner in applying for certiorari had pursued the wrong appellate remedy under state law. Respondent recognizes that our jurisdiction is not defeated if the nonfederal ground relied on by the state court is 'without any fair or substantial support,' Ward v. Board of County Commissioners, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751. It thus becomes our duty to ascertain, '* * * in order that constitutional guaranties may appropriately be enforced, whether the asserted non-federal ground independently and adequately supports the judgment.' Abie State Bank v. Bryan, 282 U.S. 765, 773, 51 S.Ct. 252, 255, 75 L.Ed. 690.
9
The Alabama Supreme Court held that it could not consider the constitutional issues underlying the contempt judgment which related to the power of the State to order production of membership lists because review by certiorari was limited to instances '* * * where the court lacked jurisdiction of the proceeding, or where on the face of it the order disobeyed was void, or where procedural requirements with respect to citation for contempt and the like were not observed, or where the fact of contempt is not sustained * * *.' 265 Ala. at page 353, 91 So.2d at page 217. The proper means for petitioner to obtain review of the judgment in light of its constitutional claims, said the court, was by way of mandamus to quash the discovery order prior to the contempt adjudication. Because of petitioner's failure to pursue this remedy, its challenge to the contempt order was restricted to the above grounds. Apparently not deeming the constitutional objections to draw into question whether 'on the face of it the order disobeyed was void,' the court found no infirmity in the contempt judgment under this limited scope of review. At the same time it did go on to consider petitioner's constitutional challenge to the order to produce membership lists but found it untenable since membership lists were not privileged against disclosure pursuant to reasonable state demands and since the privilege against self-incrimination was not available to corporations.
10
We are unable to reconcile the procedural holding of the Alabama Supreme Court in the present case with its past unambiguous holdings as to the scope of review available upon a writ of certiorari addressed to a contempt judgment. As early as 1909 that court said in such a case, Ex parte Dickens, 162 Ala. 272, at pages 276, 279—280, 50 So. 218, at pages 220, 221:
11
'Originally, on certiorari, only the question of jurisdiction was inquired into; but this limit has been removed, and now the court 'examines the law questions involved in the case which may affect its merits.' * * * (T)he judgment of this court is that the proper way to review the action of the court in cases of this kind is by certiorari, and not by appeal.
12
'We think that certiorari is a better remedy than mandamus, because the office of a 'mandamus' is to require the lower court or judge to act, and not 'to correct error or to reverse judicial action,' * * * whereas, in a proceeding by certiorari, errors of law in the judicial action of the lower court may be inquired into and corrected.'
13
This statement was in full accord with the earlier case of Ex parte Boscowitz, 84 Ala. 463, 4 So. 279, and the practice in the later Alabama cases, until we reach the present one, appears to have been entirely consistent with this rule. See Ex parte Wheeler, 231 Ala. 356, 357, 165 So. 74, 75—76; Ex parte Blakey, 240 Ala. 517, 199 So. 857; Ex parte Sellers, 250 Ala. 87, 88, 33 So.2d 349, 350. For example, in Ex parte Morris, 252 Ala. 551, 42 So.2d 17, decided as late as 1949, the petitioner had been held in contempt for his refusal to obey a court order to produce names of members of the Ku Klux Klan. On writ of certiorari, constitutional grounds were urged in part for reversal of the contempt conviction. In denying the writ of certiorari, the Supreme Court concluded that petitioner had been accorded due process, and in explaining its denial the court considered and rejected various constitutional claims relating to the validity of the order. There was no intimation that the petitioner had selected an inappropriate form of appellate review to obtain consideration of all questions of law raised by a contempt judgment.
14
The Alabama cases do indicate, as was said in the opinion below, that an order requiring production of evidence '* * * may be reviewed on petition for mandamus.' 265 Ala. at page 353, 91 So.2d at page 217. (Italics added.) See Ex parte Hart, 240 Ala. 642, 200 So. 783; cf. Ex parte Driver, 255 Ala. 118, 50 So.2d 413. But we can discover nothing in the prior state cases which suggests that mandamus is the exclusive remedy for reviewing court orders after disobedience of them has led to contempt judgments. Nor, so far as we can find, do any of these prior decisions indicate that the validity of such orders can be drawn in question by way of certiorari only in instances where a defendant had no opportunity to apply for mandamus. Although the opinion below suggests no such distinction, the State now argues that this was in fact the situation in all of the earlier certiorari cases, because there the contempt adjudications, unlike here, had followed almost immediately the disobedience to the court orders. Even if that is indeed the rationale of the Alabama Supreme Court's present decision, such a local procedural rule, although it may now appear in retrospect to form part of a consistent pattern of procedures to obtain appellate review, cannot avail the State here, because petitioner could not fairly be deemed to have been apprised of its existence. Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights. Cf. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107.
15
That there was justified reliance here is further indicated by what the Alabama Supreme Court said in disposing of petitioner's motion for a stay of the first contempt judgment in this case. This motion, which was filed prior to the final contempt judgment and which stressed constitutional issues, recited that '(t)he only way in which the (Association) can seek a review of the validity of the order upon which the adjudication of contempt is based (is) by filing a petition for Writ of Certiorari in this Court.' In denying the motion, 265 Ala. 356, 357, 91 So.2d 220, 221, the Supreme Court stated:
16
'It is the established rule of this Court that the proper method of reviewing a judgment for civil contempt of the kind here involved is by a petition for common law writ of certiorari * * *.
17
'But the petitioner here has not applied for writ of certiorari, and we do not feel that the petition (for a stay) presently before us warrants our interference with the judgment of the Circuit Court of Montgomery County here sought to be stayed.'
18
We hold that this Court has jurisdiction to entertain petitioner's federal claims.
II.
19
The Association both urges that it is constitutionally entitled to resist official inquiry into its membership lists, and that it may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure by the State of their affiliation with the Association as revealed by the membership lists. We think that petitioner argues more appropriately the rights of its members, and that its nexus with them is sufficient to permit that it act as their representative before this Court. In so concluding, we reject respondent's argument that the Association lacks standing to assert here constitutional rights pertaining to the members, who are not of course parties to the litigation.
20
To limit the breadth of issues which must be dealt with in particular litigation, this Court has generally insisted that parties rely only on constitutional rights which are personal to themselves. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; Robertson and Kirkham, Jurisdiction of the Supreme Court (1951 ed.) § 293. This rule is related to the broader doctrine that constitutional adjudication should where possible be avoided. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (concurring opinion). The principle is not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court. See Barrows v. Jackson, 346 U.S. 249, 255—259, 73 S.Ct. 1031, 1034—1036, 97 L.Ed. 1586; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 183—187, 71 S.Ct. 624, 654—656, 95 L.Ed. 817 (concurring opinion).
21
If petitioner's rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert that rights, because it and its members are in every practical sense identical. The Association, which provides in its constitution that '(a)ny person who is in accordance with (its) principles and policies * * *' may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views. The reasonable likelihood that the Association itself through diminished financial support and membership may be adversely affected if production is compelled is a further factor pointing towards our holding that petitioner has standing to complain of the production order on behalf of its members. Cf. Pierce v. Society of Sisters, 268 U.S. 510, 534—536, 45 S.Ct. 571, 573—574, 69 L.Ed. 1070.
III.
22
We thus reach petitioner's claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner argues that in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. It contends that governmental action which, although not directly suppressing association, nevertheless carries this consequence, can be justified only upon some overriding valid interest of the State.
23
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138; Palko v. Connecticut, 302 U.S. 319, 324, 58 S.Ct. 149, 151, 82 L.Ed. 288; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.
24
The fact that Alabama, so far as is relevant to the validity of the contempt judgment presently under review, has taken no direct action, cf. De Jonge v. Oregon, supra; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, to restrict the right of petitioner's members to associate freely, does not end inquiry into the effect of the production order. See American Communications Ass'n v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925. In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action. Thus in Douds, the Court stressed that the legislation there challenged, which on its face sought to regulate labor unions and to secure stability in interstate commerce, would have the practical effect 'of discouraging' the exercise of constitutionally protected political rights, 339 U.S. at page 393, 70 S.Ct. at page 681, and it upheld that statute only after concluding that the reasons advanced for its enactment were constitutionally sufficient to justify its possible deterrent effect upon such freedoms. Similar recognition of possible unconstitutional intimidation of the free exercise of the right to advocate underlay this Court's narrow construction of the authority of a congressional committee investigating lobbying and of an Act regulating lobbying, although in neither case was there an effort to suppress speech. United States v. Rumely, 345 U.S. 41, 46—47, 73 S.Ct. 543, 546, 97 L.Ed. 770; United States v. Harriss, 347 U.S. 612, 625—626, 74 S.Ct. 808, 815—816, 98 L.Ed. 989. The governmental action challenged may appear to be totally unrelated to protected liberties. Statutes imposing taxes upon rather than prohibiting particular activity have been struck down when perceived to have the consequence of unduly curtailing the liberty of freedom of press assured under the Fourteenth Amendment. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292.
25
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Ass'n v. Douds, supra, 339 U.S. at page 402, 70 S.Ct. at page 686: 'A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.' Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United States v. Rumely, supra, 345 U.S. at pages 56 58, 73 S.Ct. at pages 550—551 (concurring opinion).
26
We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
27
It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner's members may have upon participation by Alabama citizens in petitioner's activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.
28
We turn to the final question whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner's members of their constitutionally protected right of association. See American Communications Ass'n v. Douds, supra, 339 U.S. at page 400, 70 S.Ct. at page 684; Schneider v. State,308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155. Such a '* * * subordinating interest of the State must be compelling,' Sweezy v. New Hampshire, 354 U.S. 234, 265, 77 S.Ct. 1203, 1219, 1 L.Ed.2d 1311 (concurring opinion). It is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.
29
It is important to bear in mind that petitioner asserts no right to absolute immunity from state investigation, and no right to disregard Alabama's laws. As shown by its substantial compliance with the production order, petitioner does not deny Alabama's right to obtain from it such information as the State desires concerning the purposes of the Association and its activities within the State. Petitioner has not objected to divulging the identity of its members who are employed by or hold official positions with it. It has urged the rights solely of its ordinary rank-and-file members. This is therefore not analogous to a case involving the interest of a State in protecting its citizens in their dealings with paid solicitors or agents of foreign corporations by requiring identifications. See Cantwell v. Connecticut, supra, 310 U.S. at page 306, 60 S.Ct. at page 904; Thomas v. Collins, supra, 323 U.S. at page 538, 65 S.Ct. at page 326.
30
Whether there was 'justification' in this instance turns solely on the substantiality of Alabama's interest in obtaining the membership lists. During the course of a hearing before the Alabama Circuit Court on a motion of petitioner to set aside the production order, the State Attorney General presented at length, under examination by petitioner, the State's reason for requesting the membership lists. The exclusive purpose was to determine whether petitioner was conducting intrastate business in violation of the Alabama foreign corporation registration statute, and the membership lists were expected to help resolve this question. The issues in the litigation commenced by Alabama by its bill in equity were whether the character of petitioner and its activities in Alabama had been such as to make petitioner subject to the registration statute, and whether the extent of petitioner's activities without qualifying suggested its permanent ouster from the State. Without intimating the slightest view upon the merits of these issues, we are unable to perceive that the disclosure of the names of petitioner's rank-and-file members has a substantial bearing on either of them. As matters stand in the state court, petitioner (1) has admitted its presence and conduct of activities in Alabama since 1918; (2) has offered to comply in all respects with the state qualification statute, although preserving its contention that the statute does not apply to it; and (3) has apparently complied satisfactorily with the production order, except for the membership lists, by furnishing the Attorney General with varied business records, its charter and statement of purposes, the names of all of its directors and officers, and with the total number of its Alabama members and the amount of their dues. These last items would not on this record appear subject to constitutional challenge and have been furnished, but whatever interest the State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome petitioner's constitutional objections to the production order.
31
From what has already been said, we think it apparent that People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184, cannot be relied on in support of the State's position, for that case involved markedly different considerations in terms of the interest of the State in obtaining disclosure. There, this Court upheld as applied to a member of a local chapter of the Ku Klux Klan, a New York statute requiring any unincorporated association which demanded an oath as a condition to membership to file with state officials copies of its '* * * constitution, by-laws, rules, regulations and oath of membership, together with a roster of its membership and a list of its officers for the current year.' N.Y. Laws 1923, c. 664, §§ 53, 56. In its opinion, the Court took care to emphasize the nature of the organization which New York sought to regulate. The decision was based on the particular character of the Klan's activities, involving acts of unlawful intimidation and violence, which the Court assumed was before the state legislature when it enacted the statute, and of which the Court itself took judicial notice. Furthermore, the situation before us is significantly different from that in Bryant, because the organization there had made no effort to comply with any of the requirements of New York's statute but rather had refused to furnish the State with any information as to its local activities.
32
We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from petitioner's refusal to comply with the production order in this respect must fall.
IV.
33
Petitioner joins with its attack upon the production order a challenge to the constitutionality of the State's ex parte temporary restraining order preventing it from soliciting support in Alabama, and it asserts that the Fourteenth Amendment precludes such state action. But as noted above, petitioner has never received a hearing on the merits of the ouster suit, and we do not consider these questions properly here. The Supreme Court of Alabama noted in its denial of the petition for certiorari that such petition raised solely a question pertinent to the contempt adjudication. 'The ultimate aim and purpose of the litigation is to determine the right of the state to enjoin petitioners from doing business in Alabama. That question, however, is not before us in this proceeding.' 265 Ala. at page 352, 91 So.2d at page 216. The proper method for raising questions in the state appellate courts pertinent to the underlying suit for an injunction appears to be by appeal, after a hearing on the merits and final judgment by the lower state court. Only from the disposition of such an appeal can review be sought here.
34
For the reasons stated, the judgment of the Supreme Court of Alabama must be reversed and the case remanded for proceedings not inconsistent with this opinion.
35
Reversed.
*
The Certificate of Incorporation of the Association provides that its '* * * principal objects * * * are voluntarily to promote equality of rights and eradicate caste or race prejudice among the citizens of the United States; to advance the interest of colored citizens; to secure for them impartial suffrage; and to increase their opportunities for securing justice in the courts, education for their children, employment according to their ability, and complete equality before the law.'
| 23
|
357 U.S. 386
78 S.Ct. 1280
2 L.Ed.2d 1405
McKinley E. GORE, Petitioner,v.UNITED STATES of America.
No. 668.
Argued May 19, 1958.
Decided June 30, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 13.
Messrs. Joseph L. Rauh, Jr. and James H. Heller, Washington, D.C., for petitioner.
Miss Beatrice Rosenberg, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a prosecution under an indictment containing six counts for narcotics offenses. Four counts were based on provisions of the Internal Revenue Code of 1954 and two counts on the Narcotic Drugs Import and Export Act, as amended. The first three counts derive from a sale on February 26, 1955, of twenty capsules of heroin and three capsules of cocaine; the last three counts derive from a sale of thirty-five capsules of heroin on February 28, 1955. Counts One and Four charged the sale of the drugs, on the respective dates, not 'in pursuance of a written order' of the person to whom the drugs were sold on the requisite Treasury form, in violation of § 4705(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4705(a). Counts Two and Five charged the sale and distribution of the drugs on the respective dates not 'in the original stamped package or from the original stamped package,' in violation of § 4704(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4704(a). Counts Three and Six charged facilitating concealment and sale of the drugs on the respective dates, with knowledge that the drugs had been unlawfully imported, in violation of § 2(c) of the Narcotic Drugs Import and Export Act,1 as amended by the Act of November 2, 1951, 65 Stat. 767. In short, Congress had made three distinct offenses in connection with the vending of illicit drugs, and the petitioner, having violated these three independent provisions, was prosecuted for all three as separate wrongdoings, despite the fact that these violations of what Congress had proscribed were compendiously committed in single transactions of vending. Duty tried before a jury, petitioner was convicted, and no question touching the conviction is before us. In controversy is the legality of the sentences imposed by the trial court. These were imprisonment for a term of one to five years, imposed on each count, the sentences on the first three counts to run consecutively, the sentences on the remaining three counts to run concurrently with those on the first three counts. Thus the total sentence was three to fifteen years. Petitioner moved, under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate the sentence, claiming that for all three counts a sentence as for only one count could be imposed. The motion was denied and the Court of Appeals affirmed, 100 U.S.App.D.C. 315, 244 F.2d 763, with expressions of doubt by two of the judges, who felt themselves bound by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. We brought the case here, 355 U.S. 903, 78 S.Ct. 335, 2 L.Ed.2d 259, in order to consider whether some of our more recent decisions, while not questioning Blockburger but moving in related areas may not have impaired its authority.
2
We adhere to the decision in Blockburger v. United States, supra. The considerations advanced in support of the vigorous attack against it have left its justification undisturbed, nor have our later decisions generated counter currents.
3
That the Blockburger opinion did not lay out with particularity the course of anti-narcotics legislation is scant basis for suggesting that the Court was unaware of it or did not duly heed the relevant criteria for statutory construction in dealing with the specific legislation before it. The Court was not an innocent in the history of narcotics legislation. Blockburger was not the first case that brought prosecutions under successive enactments dealing with the control of narcotics before the Court. At the time of Blockburger, it was not customary to make the whole legislative history connected with particular statutes in adjudication part of the conventional apparatus of an opinion. What is more to the point about the Blockburger decision is that the unanimous Court that rendered it then included three Justices conspicuous for their alertness in safeguarding the interests of defendants in criminal cases and in their insistence on the compassionate regard for such interests. Invidiousness is not implied in saying that Mr. Justice Brandeis, Mr. Justice Butler and Mr. Justice Roberts2 would not have joined in finding that Congress established independent curbs as tactical details in the strategy against illicit narcotics trade, if it could be reasonably maintained that what in fact Congress was doing was merely giving different labels to the same thing. The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic. In Blockburger, the offender was indicted, convicted, and cumulatively sentenced for two separate offenses: selling forbidden drugs not 'in the original stamped package' (now § 4704(a) of the Internal Revenue Code), and of selling such drugs not 'in pursuance of a written order of the person to whom such article is sold' (now § 4705(a) of the Internal Revenue Code). The petitioner here was likewise indicted, tried, convicted and cumulatively sentenced for the two foregoing offenses and, in addition, for violating the amended § 2(c) of the Narcotic Drugs Import and Export Act. And so while Blockburger was sentenced to ten years for the two offenses, petitioner was sentenced to a maximum of fifteen years. The Court of Appeals inevitably found the Blockburger case controlling.
4
We are strongly urged to reconsider Blockburger by reading the various specific enactments of Congress as reflecting a unitary congressional purpose to outlaw nonmedicinal sales of narcotics. From this the conclusion is sought to be drawn that since Congress had only a single purpose, no matter how numerous the violations by an offender, of the specific means for dealing with this unitary purpose, the desire should be attributed to Congress to punish only as for a single offense when these multiple infractions are committed through a single sale. We agree with the starting point, but it leads us to the opposite conclusion. Of course the various enactments by Congress extending over nearly half a century constitute a network of provisions, steadily tightened and enlarged, for grappling with a powerful, subtle and elusive enemy. If the legislation reveals anything, it reveals the determination of Congress to turn the screw of the criminal machinery—detection, prosecution and punishment—tighter and tighter. The three penal laws for which petitioner was convicted have different origins both in time and in design. The present § 2(c) of the Narcotic Drugs Import and Export Act derives from an enactment of February 9, 1909, § 2, 35 Stat. 614. The present § 4705(a) of the Internal Revenue Code of 1954 derives from the Act of December 17, 1914, § 2, 38 Stat. 785, 786. The present § 4704(a) of the Internal Revenue Code of 1954 derives from the Revenue Act of 1918, § 1006, 40 Stat. 1057, 1130 (1919).3 It seems more daring than convincing to suggest that three different enactments, each relating to a separate way of closing in on illicit distribution of narcotics, passed at three different periods, for each of which a separate punishment was declared by Congress, somehow or other ought to have carried with them an implied indication by Congress that if all these three different restrictions were disregarded but, forsooth, in the course of one transaction, the defendant should be treated as though he committed only one of these offenses.
5
This situation is toto coelo different from the one that led to our decision in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. That case involved application of the Mann Act, 18 U.S.C.A. § 2421,—a single provision making it a crime to transport a woman in interstate commerce for purposes of prostitution. We held that the transportation of more than one woman as a single transaction is to be dealt with as a single offense, for the reason that when Congress has not explicitly stated what the unit of offense is, the doubt will be judicially resolved in favor of lenity. It is one thing for a single transaction to include several units relating to proscribed conduct under a single provision of a statute. It is a wholly different thing to evolve a rule of lenity for three violations of three separate offenses created by Congress at three different times, all to the end of dealing more and more strictly with, and seeking to throttle more and more by different legal devices, the traffic in narcotics. Both in the unfolding of the substantive provisions of law and in the scale of punishments, Congress has manifested an attitude not of lenity but of severity toward violation of the narcotics laws. Nor need we be detained by two other cases relied on, United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 231, 97 L.Ed. 260, and Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. In the former we construed the record-keeping provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., as punishing 'a course of conduct.' Of the Prince case, it suffices to say that the Court was dealing there 'with a unique statute of limited purpose.' 352 U.S. at page 325, 77 S.Ct. at page 405.
6
Finally, we have had pressed upon us that the Blockburger doctrine offends the constitutional prohibition against double jeopardy. If there is anything to this claim it surely has long been disregarded in decisions of this Court, participated in by judges especially sensitive to the application of the historic safeguard of double jeopardy. In applying a provision like that of double jeopardy, which is rooted in history and is not an evolving concept like that of due process, a long course of adjudication in this Court carries impressive authority. Certainly if punishment for each of separate offenses as those for which the petitioner here has been sentenced, and not merely different descriptions of the same offense, is constitutionally beyond the power of Congress to impose, not only Blockburger but at least the following cases would also have to be overruled: Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v. Michener, 331 U.S. 789, 67 S.Ct. 1509, 91 L.Ed. 1818; Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435.
7
Suppose Congress, instead of enacting the three provisions before us, had passed an enactment substantially in this form: 'Anyone who sells drugs except from the original stamped package and who sells such drugs not in pursuance of a written order of the person to whom the drug is sold, and who does so by way of facilitating the concealment and sale of drugs knowing the same to have been unlawfully imported, shall be sentenced to not less than fifteen years' imprisonment: Provided, however, That if he makes such sale in pursuance of a written order of the person to whom the drug is sold he shall be sentenced to only ten years' imprisonment: Provided further, That if he sells such drugs in the original stamped package he shall also be sentenced to only ten years' imprisonment: And provided further, That if he sells such drugs in pursuance of a written order and from a stamped package, he shall be sentenced to only five years' imprisonment.' Is it conceivable that such a statute would not be within the power of Congress? And is it rational to find such a statute constitutional but to strike down the Blockburger doctrine as violative of the double jeopardy clause?
8
In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzinowicz, The History of English Criminal Law: The Movement for Reform, 1750—1833, passim, these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them. See 7 Edw. VII, c. 23, § 4(3); 16 & 17 Geo. V, c. 15, § 2(4). This Court has no such power.
9
Affirmed.
10
Mr. Chief Justice WARREN, dissenting.
11
The problem of multiple punishment is a vexing and recurring one. It arises in one of two broad contexts: (a) a statute or a portion thereof proscribes designated conduct, and the question is whether the defendant's conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.
12
In every instance the problem is to ascertain what the legislature intended. Often the inquiry produces few if any enlightening results. Normally these are not problems that receive explicit legislative consideration. But this fact should not lead the judiciary, charged with the obligation of construing these statutes, to settle such questions by the easy application of stereotyped formulae. It is at the same time too easy and too arbitrary to apply a presumption for or against multiple punishment in all cases or even to do so one way in one class of cases and the other way in another. Placing a case in the category of unit-of-offense problems or the category of overlapping-statute problems may point up the issue, but it does not resolve it.
13
Where the legislature has failed to make its intention manifest, courts should proceed cautiously, remaining sensitive to the interests of defendant and society alike. All relevant criteria must be considered and the most useful aid will often be common sense. In this case I am persuaded, on the basis of the origins of the three statutes involved, the text and background of recent amendments to these statutes, the scale of punishments prescribed for second and third offenders, and the evident legislative purpose to achieve uniformity in sentences, that the present purpose of these statutes is to make sure that a prosecutor has three avenues by which to prosecute one who traffics in narcotics, and not to authorize three cumulative punishments for the defendant who consummates a single sale.
14
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
15
The first three counts of this indictment cover one sale of narcotics made on February 26, 1955. The one sale was broken down for purposes of the three counts into three crimes:
16
(1) petitioner made the sale 'not in pursuance of a written order' which is contrary to the requirement of 68A Stat. 551, 26 U.S.C. (Supp. V) § 4705(a), 26 U.S.C.A. § 4705(a);
17
(2) the narcotics were sold 'not in the original stamped package' which is contrary to the requirements of 68A Stat. 550, 26 U.S.C. (Supp. V) § 4704(a) 26 U.S.C.A. § 4704(a);
18
(3) petitioner 'facilitated the concealment and sale' which is in violation of 65 Stat. 767, 21 U.S.C. § 174, 21 U.S.C.A. § 174.
19
Another single sale, one made on February 28, 1955, was likewise broken down into three separate and distinct crimes.
20
Consecutive sentences were imposed for the three crimes resulting from the first sale. Sentences imposed for the three crimes resulting from the second sale were made to run concurrently with each other and with the sentences imposed for the three offenses resulting from the first sale.
21
Plainly, Congress defined three distinct crimes, giving the prosecutor on these facts a choice. But I do not think the courts were warranted in punishing petitioner three times for the same transaction. I realize that Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, holds to the contrary. But I would overrule that case.
22
I find that course necessary because of my views on double jeopardy, recently expressed in Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913. And see Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983. Once a crucial issue is litigated in a criminal case that issue may not be the basis of another prosecution. Here the same sale is made to do service for three prosecutions. The different evidence test, which was adopted without much analysis by the Court in Carter v. McClaughry, 183 U.S. 365, 394—395, 22 S.Ct. 181, 192—193, 46 L.Ed. 236 (cf. Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118), would permit the practice. Yet I agree with Bishop: '* * * in principle, and by the better judicial view, while the legislature may pronounce as may combinations of things as it pleases criminal, resulting not unfrequently in a plurality of crimes in one transaction or even in one act, for any one of which there may be a conviction without regard to the others, it is, in the language of Cockburn, C.J., 'a fundamental rule of law that out of the same facts a series of charges shall not be preferred."* 1 Criminal Law (9th ed. 1923) § 1060. I think it is time that the Double Jeopardy Clause was liberally construed in light of its great historic purpose to protect the citizen from more than one trial for the same act.
23
That analysis was adopted by the Court in Ballerini v. Aderholt, 5 Cir., 44 F.2d 352, 353, a case close on its facts to the present one. There two counts were charged from one sale: (1) a sale without registration and payment of the tax and (2) a sale without requiring a written order. The court said:
24
'The offense charged in each count was the unlawful sale of the same ounce of heroin. As there was but one sale, it would seem to follow that there was but one criminal act committed against the laws of the United States. The failure of appellant to register and pay the special tax, as charged in the first count, or to obtain a written order, as charged in the second count, could not have been the basis of a criminal prosecution. It was only in the event of a sale that such failure could become material. At last it was the sale, and not the failure to register, pay the tax, or secure the written order, that constituted the offense.'
25
Cf. Mr. Justice Rutledge concurring in District of Columbia v. Buckley, 75 U.S.App.D.C. 301, 305, 128 F.2d 17, 21.
26
I would read the three present statutes from that approach. I would hold that the prosecutor was given the choice of one of three prosecutions for this single sale. I would resist a reading which inferred that Congress intended multiple offenses from the same sale, for that would not make the statutes square with the Constitution.
27
Mr. Justice BRENNAN, dissenting.
28
Even assuming the vitality of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, I must dissent from the disposition of this case. In Blockburger the Court held that multiple punishment right be imposed as the consequence of a single sale of narcotics, provided that separate statutory offenses were involved in the same transaction. In determining whether there were separate statutory offenses the Court said:
29
'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.' 284 U.S. at page 304, 52 S.Ct. at page 182. (Emphasis added.)
30
The Court's decision today is inconsistent with the principles of Blockburger because it allows separate offenses to be proved and separate punishments to be imposed upon the proof of a single fact. The petitioner has been convicted of a sale of narcotics 'not from the original stamped package' in violation of 26 U.S.C. (Supp. V) § 4704(a), 26 U.S.C.A. § 4704(a), and for having 'facilitated the concealment and sale' of narcotics in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174. But § 4704(a) provides that 'the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found' and § 174 provides that 'whenever on trial for a violation of this subsection the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.'
31
Therefore under the statutes proof of the single fact of possession of unstamped narcotics suffices to convict the defendant of offenses under either § 4704(a) or § 174. Since under Blockburger punishment under separate sections can be sustained only if 'each provision requires proof of a fact which the other does not,' 284 U.S. at page 304, 52 S.Ct. at page 182, the decision of the court below should be reversed.
1
35 Stat. 614, as amended. This provision was subsequently amended, 70 Stat. 570, 21 U.S.C. (Supp. V) § 174, 21 U.S.C.A. § 174.
2
For typical expressions of the attitudes of these members of the Court, see, e.g., Horning v. District of Columbia, 254 U.S. 135, 139, 41 S.Ct. 53, 54, 65 L.Ed. 185 (dissenting opinion of Brandeis, J.); Burdeau v. McDowell, 256 U.S. 465, 476, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (same); Olmstead v. United States, 277 U.S. 438, 471, 485, 48 S.Ct. 564, 570, 575, 72 L.Ed. 944 (dissenting opinions of Brandeis and Butler, JJ.); Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 216, 77 L.Ed. 413 (separate opinion of Roberts, J., joined by Brandeis, J.); Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 123, 54 S.Ct. 330, 338, 78 L.Ed. 674 (dissenting opinion of Roberts, J., joined by Brandeis and Butler, JJ.); Palko v. State of Connecticut, 302 U.S. 319, 329, 58 S.Ct. 149, 153, 82 L.Ed. 288 (dissent of Butler, J.).
3
This statute, amendatory of the 1914 Act, supra, introduced the 'original stamped package' concept.
*
Regina v. Elrington, 9 Cox C.C. 86, 90, 1 B. & S. 688.
| 01
|
357 U.S. 573
78 S.Ct. 1380
2 L.Ed.2d 1547
John Robert JOINES, petitioner,v.UNITED STATES of America.
No. 387.
Supreme Court of the United States
June 30, 1958
Messrs. Judson E. Ruch and R. Palmer Ingram, for petitioner.
Solicitor General Rankin, Mr. Warren Olney, III, former Asst.Atty.Gen., and Beatrice Rosenberg, for the United States.
On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Third Circuit is vacated and the case is remanded for consideration in the light of Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, decided this day.
2
Mr. Justice BURTON and Mr. Justice CLARK dissent for the reasons set forth in the dissenting opinion in 357 U.S. 500, 78 S.Ct. 1258, decided this day.
| 01
|
357 U.S. 468
78 S.Ct. 1311
2 L.Ed.2d 1423
Max LERNER, Appellant,v.Hugh J. CASEY, William G. Fullen, Harris J. Klein, et al.
No. 165.
Argued March 4, 1958.
Decided June 30, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 12.
[Syllabus from pages 468-469 intentionally omitted]
Mr. Leonard B. Boudin, New York City, for appellant.
Mr. Daniel T. Scannell, New York City, for appellees.
Mrs. Ruth Kessler Toch, Albany, N.Y., for the State of New York, as amicus curiae, with consent of appellees.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case raises questions under the Fourteenth Amendment to the Constitution of the United States concerning the validity of appellant's dismissal from his position as a subway conductor in the New York City Transit System. The dismissal was pursuant to the Security Risk Law of the State of New York, N.Y.Laws 1951, c. 233, as amended, N.Y.Laws 1954, c. 105.
2
The Security Risk Law, enacted by New York in 1951,1 provides in pertinent part as follows: The State Civil Service Commission is authorized to classify any bureau or agency within the State as a 'security agency' (§ 3), defined as any unit of government '* * * wherein functions are performed which are necessary to the security or defense of the nation and the state * * *.' (§ 2.) The appointing authority in each such agency is given powers of suspension and dismissal as to any employee if, after investigation, it is found that, '* * * upon all the evidence, reasonable grounds exist for belief that, because of doubtful trust and reliability, the employment of such person * * * (in a security agency) would endanger the security or defense of the nation and the state' (§ 5). Such evidence is not to be restricted by normal rules prevailing in the courts, and the required finding may be based upon an employee's past conduct '* * * which may include, * * * but shall not be limited to evidence of * * * (d) membership in any organization or group found by the state civil service commission to be subversive' (§ 7).2 A discharged employee has a right of appeal to the Civil Service Commission, which may take further evidence (§ 6).
3
In November 1953 the Commission determined the New York City Transit Authority, which the appellees in this case constitute, to be a 'security agency,'3 and in March 1954 it listed the Communist Party of the United States as a 'subversive group,' adopting, as contemplated by the Security Risk Law, the similar listing of the State Board of Regents made under the provisions of the Feinberg Law, N.Y.Laws 1949, c. 360, after hearings at which the Party appeared by counsel. In September 1954 appellant was summoned to the office of the Commissioner of Investigation of the City of New York in the course of an investigation being conducted under the Security Risk Law.4 Appellant, who had been sworn, was asked whether he was then a member of the Communist Party, but he refused to answer and claimed his privilege against self-incrimination under the Fifth Amendment to the Federal Constitution.5 After he had been advised of the provisions of the Security Risk Law and given time to reconsider his refusal and to engage counsel, appellant, accompanied by counsel, made two further appearances in September and October before the Department of Investigation, on each of which he adhered to his initial position.
4
Appellees, informed of these events, thereupon adopted a resolution suspending appellant without pay and sent him a copy of the resolution with a covering letter. This letter notified appellant that his suspension followed a finding under § 5 of the Security Risk Law '* * * that, upon all the evidence, reasonable grounds exist for belief that, because of his doubtful trust and reliability * * *,' appellant's continued employment would endanger national and state security. This finding was based on appellant's refusal '* * * to answer questions as to whether or not he was a member of the Communist Party and (invocation of) the Fifth Amendment to the Constitution of the United States * * *.' Appellant was also advised, pursuant to § 5 of the Security Risk Law, that he had thirty days within which to submit statements or affidavits showing why he should be reinstated. At the expiration of this period appellees, having heard nothing further from appellant, dismissed him from his position by a resolution which confirmed the previous 'suspension' findings.
5
Appellant did not appeal to the Civil Service Commission, as was his statutory right, but brought this proceeding in the state courts for reinstatement. He attacked appellees' actions on various grounds, including the constitutional grounds asserted here. The State Supreme Court, assuming jurisdiction despite appellant's failure to exhaust his administrative remedies, upheld the Security Risk Law and its application to appellant as constitutional, ruled adversely to appellant's state law contentions, and dismissed the proceeding. 138 N.Y.S. 2d 777. The Appellate Division, 2d Dept., 2 A.D.2d 1, 154 N.Y.S.2d 461, and the Court of Appeals, 2 N.Y.2d 355, 161 N.Y.S.2d 7, 141 N.E.2d 533, both affirmed, each by a divided court. An appeal to this Court was brought under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), and we postponed to the hearing on the merits the question of our jurisdiction. 355 U.S. 803, 78 S.Ct. 19, 2 L.Ed.2d 27. As will appear from this opinion, we consider that the constitutional questions before us relate primarily, and more substantially, to the propriety of the findings made by appellees rather than to the validity of the provisions of the Security Risk Law. Accordingly, we think it the better course to dismiss the appeal, and to treat the papers as a petition for a writ of certiorari, which is hereby granted.6 28 U.S.C. § 2103. Cf. Sweezy v. State of New Hampshire by Wyman, 354 U.S. 234, 236, 77 S.Ct. 1203, 1204, 1 L.Ed.2d 1311.
6
We address ourselves initially to appellant's constitutional challenges to the Security Risk Law in its entirety or to certain of its provisions. It is said that New York's statute deprives him of procedural due process, in that it provides for dismissal of employees in the first instance without a statutory right to a hearing, opportunity for cross-examination, or disclosure of the evidence on which dismissal is based. However, appellant is in no position to complain of procedural defects in the statute. His own refusal to answer blocked proceedings at his appearances before the Department of Investigation, and more important he failed to pursue his administrative remedy by appealing to and obtaining a hearing before the State Civil Service Commission.7
7
Appellant further argues that the Security Risk Law could not be applied to him in 1954 since at that time no public emergency existed which could justify the law. But New York's right to enact legislation to protect its public service against the employment of persons fairly deemed untrustworthy and unreliable, and therefore security risks, can hardly be regarded as constitutionally dependent upon the existence of a public emergency, and we do not think it open to us to inquire into the motives which led the State Legislature to extend the Security Risk Law beyond its original effective period. Nor can we say that it was so irrational as to make it constitutionally impermissible for New York to apply this statute to one employed in the major artery of New York's transportation system, even though appellant's daily task was simply to open and shut subway doors. We are not here concerned with the wisdom, but solely with the constitutional validity, of the application of this statute to appellant.
8
Finally, the claim that the statute offends due process because dismissal of an employee may be based on mere present membership in the Communist Party, without regard to the character of such membership, cf. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, must also fail. Apart from the fact that the statute simply makes membership in an organization found to be subversive one of the elements which may enter into the ultimate determination as to 'doubtful trust and reliability,' appellant, as the Court of Appeals viewed the administrative proceedings and as we accordingly treat them here, was not discharged on grounds that he was a party member.
9
We come then to what we consider appellant's major constitutional claim, which goes to the manner in which the Security Risk Law was applied to him. It is contended that the administrative finding of reasonable grounds for belief that he was 'of doubtful trust and reliability,' and therefore a security risk, offends due process. The contention is (1) that the finding rests on an inference, that appellant was a member of the Communist Party, which was drawn from appellant's invocation of the Fifth Amendment, and that this inference lacked any rational connection with appellant's refusal to answer based on the exercise of this constitutional privilege; and (2) that the drawing of such an inference was in any event in derogation of the policy behind the Fifth Amendment privilege and contrary to the teaching of this Court's decision in Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. We think this contention both misconceives the basis on which the Court of Appeals sustained appellant's dismissal and assumes incorrectly the availability of the Fifth Amendment to appellant in these proceedings. Consequently it must be rejected in both its aspects.
10
As we read its opinion, the Court of Appeals held that appellant had been discharged neither because of any inference of Communist Party membership which was drawn from the exercise of the Fifth Amendment privilege nor because of the assertion of that constitutional protection, but rather because of the doubt created as to his 'reliability' by his refusal to answer a relevant question but by his employer, a doubt which the court held justifiable quite independently of appellant's reasons for his silence. In effect, the administrative action was interpreted to rest solely on the refusal to respond. The Court of Appeals said:
11
'(N)o inference of membership in (the Communist) party was drawn from (appellant's) refusal to reply to the question asked * * *. (Appellant) was not discharged for invoking the Fifth Amendment; he was discharged for creating a doubt as to his trustworthiness and reliability by refusing to answer the question as to Communist party membership.' 2 N.Y.2d at page 372, 161 N.Y.S.2d at page 20, 141 N.E.2d at page 542.
12
In other words, we read the court's opinion as meaning that a finding of doubtful trust and reliability could justifiably be based on appellant's lack of frankness, cf. Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, just as if he had refused to give any other information about himself which might be relevant to his employment. It was this lack of candor which provided the evidence of appellant's doubtful trust and reliability which under the New York statutory scheme constituted him a security risk. The Court of Appeals went on to reason that had appellant refused, without more, to answer the question, the finding of 'doubtful trust and reliability' would have undoubtedly been permissible, and that the basis for such a finding, in appellant's refusal to answer, was not destroyed by the claim of the Fifth Amendment privilege because the Commissioner was not required to accept that claim as an adequate explanation of the refusal.
13
Accepting, as we do, these premises of the state court's opinion, we find no constitutional block to its decision sustaining appellant's dismissal from employment. Postponing for the moment the question whether appellant was entitled to rely in this local investigation on the federal privilege, it seems clear that the discharge here in any event was unlike that in Slochower v. Board of Higher Education, supra, in that, as definitively interpreted by the Court of Appeals, it was not based on the fact that the employee had asserted Fifth Amendment rights. Further, in Slochower such a claim had been asserted in a federal inquiry having nothing to do with the qualifications of persons for state employment, and the Court in its opinion carefully distinguished that situation from one where, as here, a State is conducting an inquiry into fitness of its employees. Nor, as the Court of Appeals stressed, was the claim of possible self-incrimination made the basis for an inference that appellant was a Communist and therefore unreliable. Hence we are not faced here with the question whether party membership may rationally be inferred from a refusal to answer a question directed to present membership where the refusal rests on the belief that an answer might incriminate, cf. Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, or with the question whether membership in the Communist Party which might be 'innocent' can be relied upon as a ground for denial of state employment. Cf. Wieman v. Updegraff, supra; Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.
14
We think it scarcely debatable that had there been no claim of Fifth Amendment privilege, New York would have been constitutionally entitled to conclude from appellant's refusal to answer what must be conceded to have been a question relevant to the purposes of the statute and his employment, cf. Garner v. Board of Public Works, supra, that he was of doubtful trust and reliability. Such a conclusion is not 'so strained as not to have a reasonable relation to the circumstances of life as we know them.' Tot v. United States, 319 U.S. 463, 468, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519. This Court pointed out in Garner that a government employee can be required upon pain of dismissal to respond to inquiry probing into matters relevant to his employment, and that present membership in the Communist Party is such a matter. See also Beilan v. Board of Public Education, supra. Certainly it is not a controlling constitutional distinction that New York, rather than impose on employees, as in Garner and Beilan, an absolute duty to respond to permissible inquiry upon threat of dismissal for refusal, has in these proceedings held that an employee lacking in candor to his governmental employer evidences doubt as to his trust and reliability. Finally, unlike the situation involved in Konigsberg v. State Bar of California, supra, there is here no problem of inadequate notice as to the consequences of refusal to answer, for appellant was specifically notified that continued refusal might lead to his dismissal.
15
The fact that New York has chosen to base its dismissal of employees whom it finds to be of doubtful trust and reliability on the ground that they are in effect 'security risks' hardly requires a different determination. The classification is not so arbitrary that we would be justified in saying that it is constitutionally impermissible in its application to one in appellant's position. Neither the New York statute nor courts purported to equate this ground for dismissal with 'disloyalty.' That term, which carries a distinct connotation, was never relied upon by New York as justification for appellant's dismissal.
16
The issue then reduces to the narrow question whether the conclusion which could otherwise be reached from appellant's refusal to answer is constitutionally barred because his refusal was accompanied by the assertion of a Fifth Amendment privilege. We think it does not. The federal privilege against self-incrimination was not available to appellant through the Fourteenth Amendment in this state investigation. Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, decided today; Adamson v. People of State of California, supra. And we see no merit in appellant's suggestion that, despite the teachings of these cases, the plea was available to him in this instance because the State was acting as agent for, or in collaboration with, the Federal Government. This contention finds no support in the record. Hence we are not here concerned with the protection, as a matter of policy or constitutional requirement, to be accorded persons who under similar circumstances, in a federal inquiry, validly invoke the federal privilege. Cf. 18 U.S.C. § 3481; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650; Slochower v. Board of Higher Education, supra; Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. Under these circumstances, we cannot say that appellant's explanation for his silence precluded New York from concluding that his failure to respond to relevant inquiry engendered reasonable doubt as to his trustworthiness and reliability.
17
We hold that appellant's discharge was not in violation of rights assured him by the Federal Constitution.
18
Affirmed.
19
For concurring opinion of Mr. Justice FRANKFURTER, see 357 U.S. 399, 78 S.Ct. 1324.
20
For dissenting opinion of Mr. Chief Justice WARREN, see 357 U.S. 411, 78 S.Ct. 1325.
21
For dissenting opinion of Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, see 357 U.S. 411, 78 S.Ct. 1325.
22
For dissenting opinion of Mr. Justice BRENNAN, see 357 U.S. 417, 78 S.Ct. 1328.
1
The state statute was originally passed as an emergency measure and thereafter extended from year to year. The present terminal date is June 30, 1958.
2
A subversive organization is defined in § 8 as one which is found '* * * to advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or to advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine * * *.'
3
The New York Court of Appeals held that the Transit Authority was a state body corporate subject to classification under the Security Risk Law and sustained the Commission's determination that it was a 'security agency.' 2 N.Y.2d 355, 365 367, 161 N.Y.S.2d 7, 14—15, 141 N.E.2d 533, 538—539. We consider ourselves bound by these holdings.
4
The Court of Appeals held that the Commissioner of Investigation, although a city official, was authorized to act with respect to these matters arising under the Security Risk Law and to conduct these investigations.
5
Appellant did not specifically state that his refusal to answer was based on his belief that an answer might incriminate him but simply explained his silence by reference to the 'Fifth Amendment.' We consider this reference, without regard to the availability of the Fifth Amendment to appellant in this state investigation (see 357 U.S. 477, 78 S.Ct. 1316, infra), to be equivalent to an assertion of a claim of possible self-incrimination. See Quinn v. United States, 349 U.S. 155, 162 163, 75 S.Ct. 668, 673, 99 L.Ed. 964; Emspak v. United States, 349 U.S. 190, 194, 75 S.Ct. 687, 690, 99 L.Ed. 997.
6
For convenience, we shall continue to refer to the parties as appellant and appellees.
7
We must also reject the contention that appellant was denied due process in that the resolution made the basis for his dismissal noted not only his refusal to answer but also '* * * that further investigation has revealed activities on the part of (appellant) which give reasonable ground for belief that he is not a good security risk. * * *' These other activities were not revealed to appellant. But this issue is not before us, since the state court sustained the dismissal solely on the basis of appellant's refusal to answer. In any event had appellant pursued his administrative remedy, he could have sought disclosure and review of such evidence before the Civil Service Commission.
| 23
|
357 U.S. 399
78 S.Ct. 1317
2 L.Ed.2d 1414
Herman A. BEILAN, Petitioner,v.BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA.
No. 63.
Argued March 4, 1958.
Decided June 30, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 10.
Mr. John Rogers Carroll, Philadelphia, Pa., for petitioner.
Mr. C. Brewster Rhoads, Philadelphia, Pa., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
The question before us is whether the Board of Public Education for the School District of Philadelphia, Pennsylvania, violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States when the Board, purporting to act under the Pennsylvania Public School Code, discharged a public school teacher on the ground of 'incompetency,' evidenced by the teacher's refusal of his Superintendent's request to confirm or refute information as to the teacher's loyalty and his activities in certain allegedly subversive organizations. For the reasons hereafter stated, we hold that it did not.
2
On June 25, 1952, Herman A. Beilan, the petitioner, who had been a teacher for about 22 years in the Philadelphia Public School System, presented himself at his Superintendent's office in response to the latter's request. The Superintendent said he had information which reflected adversely on petitioner's loyalty and he wanted to determine its truth or falsity. In response to petitioner's suggestion that the Superintendent do the questioning, the latter said he would ask one question and petitioner could then determine whether he would answer it and others of that type. The Superintendent, accordingly, asked petitioner whether or not he had been the Press Director of the Professional Section of the Communist Political Association in 1944.1 Petitioner asked permission to consult counsel before answering and the Superintendent granted his request.
3
On October 14, 1952, in response to a similar request, petitioner again presented himself at the Superintendent's office. Petitioner stated that he had consulted counsel and that he declined to answer the question as to his activities in 1944. He announced he would also decline to answer any other 'questions similar to it,' 'questions of this type,' or 'questions about political and religious beliefs * * *.' The Superintendent warned petitioner that this 'was a very serious and a very important matter and that failure to answer the questions might lead to his dismissal.' The Superintendent made it clear that he was investigating 'a real question of fitness for (petitioner) to be a teacher or to continue in the teaching work.' These interviews were given no publicity and were attended only by petitioner, his Superintendent and the Assistant Solicitor of the Board.
4
On November 25, 1953, the Board instituted dismissal proceedings against petitioner under § 1127 of the Pennsylvania Public School Code of 1949.2 The only specification which we need consider3 charged that petitioner's refusal to answer his Superintendent's questions constituted 'incompetency' under § 1122 of that Code.4 The Board conducted a formal hearing on the charge. Petitioner was present with counsel but did not testify. Counsel for each side agreed that petitioner's loyalty was not in issue, and that evidence as to his disloyalty would be irrelevant.5 On January 7, 1954, the Board found that the charge of incompetency had been sustained and, by a vote of fourteen to one, discharged petitioner from his employment as a teacher.
5
On an administrative appeal, the Superintendent of Public Instruction of Pennsylvania sustained the local Board. However, on petitioner's appeal to the County Court of Common Pleas, that court set aside petitioner's discharge and held that the Board should have followed the procedure specified by the Pennsylvania Loyalty Act, rather than the Public School Code. Finally, on the Board's appeal, the Supreme Court of Pennsylvania, with two justices dissenting, reversed the Court of Common Pleas and reinstated petitioner's discharge. 386 Pa. 82, 98, 110, 125 A.2d 327, 334, 340. We granted certiorari. 353 U.S. 964, 77 S.Ct. 1047, 1 L.Ed.2d 913.
6
In addition to the Public School Code, Pennsylvania has a comprehensive Loyalty Act which provides for the discharge of public employees on grounds of disloyalty or subversive conduct. Purdon's Pa.Stat.Ann., 1941 (Cum.Ann.Pocket Pt., 1957), Tit. 65, §§ 211—225. Petitioner stresses the fact that the question asked of him by his Superintendent related to his loyalty. He contends that he was discharged for suspected disloyalty and that his discharge is invalid because of failure to follow the Loyalty Act procedure. However, the Pennsylvania Supreme Court held that the Board was not limited to proceeding under the Loyalty Act, even though the questions asked of petitioner related to his loyalty. We are bound by the interpretation thus given to the Pennsylvania statutes by the Supreme Court of Pennsylvania. Barsky v. Board of Regents, 347 U.S. 442, 448, 74 S.Ct. 650, 653, 98 L.Ed. 829; Chicago, M., St. P. & P.R. Co. v. Risty, 276 U.S. 567, 570, 48 S.Ct. 396, 397, 72 L.Ed. 703. The only question before us is whether the Federal Constitution prohibits petitioner's discharge for statutory 'incompetency' based on his refusal to answer the Superintendent's questions.6
7
By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.
8
'A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted.' Adler v. Board of Education, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517.
9
As this Court stated in Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317, 'We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service.'
10
The question asked of petitioner by his Superintendent was relevant to the issue of petitioner's fitness and suitability to serve as a teacher. Petitioner is not in a position to challenge his dismissal merely because of the remoteness in time of the 1944 activities. It was apparent from the circumstances of the two interviews that the Superintendent had other questions to ask. Petitioner's refusal to answer was not based on the remoteness of his 1944 activities. He made it clear that he would not answer any question of the same type as the one asked. Petitioner blocked from the beginning any inquiry into his Communist activities, however relevant to his present loyalty. The Board based its dismissal upon petitioner's refusal to answer any inquiry about his relevant activities—not upon those activities themselves. It took care to charge petitioner with incompetency, and not with disloyalty. It found him insubordinate and lacking in frankness and candor—it made no finding as to his loyalty.
11
We find no requirement in the Federal Constitution that a teacher's classroom conduct be the sole basis for determining his fitness. Fitness for teaching depends on a broad range of factors. The Pennsylvania tenure provision7 specifies several disqualifying grounds, including immorality, intemperance, cruelty, mental derangement and persistent and willful violation of the school laws, as well as 'incompetency.' However, the Pennsylvania statute, unlike those of many other States, contains no catch-all phrase, such as 'conduct unbecoming a teacher,'8 to cover disqualifying conduct not included within the more specific provisions. Consequently, the Pennsylvania courts have given 'incompetency' a broad interpretation. This was made clear in Horosko v. Mt. Pleasant School District, 335 Pa. 369, 371, 374 375, 6 A.2d 866, 868, 869—870:
12
'If the fact be that she 'now commands neither the respect nor the good will of the community' and if the record shows that effect to be the result of her conduct within the clause quoted, it will be conclusive evidence of incompetency. It has always been the recognized duty of the teacher to conduct himself in such way as to command the respect and good will of the community, though one result of the choice of a teacher's vocation may be to deprive him of the same freedom of action enjoyed by persons in other vocations. Educators have always regarded the example set by the teacher as of great importance * * *.
13
'The term 'incompetency' has a 'common and approved usage'. The context does not limit the meaning of the word to lack of substantive knowledge of the subjects to be taught. Common and approved usage give a much wider meaning. For example, in 31 C.J., with reference to a number of supporting decisions, it is defined: 'A relative term without technical meaning. It may be employed as meaning disqualification; inability; incapacity; lack of ability, legal qualifications, or fitness to discharge the required duty.' In Black's Law Dictionary, 3rd edition, page 945, and in 1 Bouv.Law Dict., Rawle's Third Revision, p. 1528, it is defined as 'Lack of ability or fitness to discharge the required duty.' Cases construing the word to the same effect are found in 4 Words and Phrases, First Series, page 3510, and 2 Words and Phrases, Second Series, page 1013.* Webster's New International Dictionary defines it as 'want of physical, intellectual, or moral ability; insufficiency; inadequacy; specif., want of legal qualifications or fitness.' Funk & Wagnalls Standard Dictionary defines it as 'General lack of capacity of fitness, or lack of the special qualities required for a particular purpose." In the Horosko case, a teacher was discharged for 'incompetency' because of her afterhours activity in her husband's beer garden, serving as a bartender and waitress, occasionally drinking beer, shaking dice with the customers for drinks and playing the pinball machine. Cf. Schwer's Appeal, 36 Pa.Dist. & Co. R. 531, 536.
14
In the instant case, the Pennsylvania Supreme Court has held that 'incompetency' includes petitioner's 'deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness.' 386 Pa. at page 91, 125 A.2d at page 331. This interpretation is not inconsistent with the Federal Constitution.
15
Petitioner complains that he was denied due process because he was not sufficiently warned of the consequences of his refusal to answer his Superintendent. The record, however, shows that the Superintendent, in his second interview, specifically warned petitioner that his refusal to answer 'was a very serious and a very important matter and that failure to answer the questions might lead to his dismissal.' That was sufficient warning to petitioner that his refusal to answer might jeopardize his employment. Furthermore, at petitioner's request, his Superintendent gave him ample opportunity to consult counsel. There was no element of surprise.
16
Our recent decisions in Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, are distinguishable. In each we envisioned and distinguished the situation now before us. In the Slochower case, 350 U.S. at page 558, 76 S.Ct. at page 641, the Court said:
17
'It is one thing for the city authorities themselves to inquire into Slochower's fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, or government of the city, or * * * official conduct of city employees.' In this respect the present case differs materially from Garner (Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317), where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.'
18
In the Konigsberg case, supra, 353 U.S. at pages 259—261, 77 S.Ct. at pages 726—727, this Court stressed the fact that the action of the State was not based on the mere refusal to answer relevant questions—rather, it was based on inferences impermissibly drawn from the refusal. In the instant case, no inferences at all were drawn from petitioner's refusal to answer. The Pennsylvania Supreme Court merely equated refusal to answer the employing Board's relevant questions with statutory 'incompetency.'
19
Inasmuch as petitioner's dismissal did not violate the Federal Constitution, the judgment of the Supreme Court of Pennsylvania is affirmed.
20
Affirmed.
21
For concurring opinion of Mr. Justice FRANKFURTER, see 357 U.S. 399, 78 S.Ct. 1324.
22
For dissenting opinion of Mr. Chief Justice WARREN, see 357 U.S. 411, 78 S.Ct. 1325.
23
For dissenting opinion of Mr. Justice DOUGLAS with whom Mr. Justice BLACK concurs, see 357 U.S. 411, 78 S.Ct. 1325.
24
For dissenting opinion of Mr. Justice BRENNAN, see 357 U.S. 417, 78 S.Ct. 1328.
25
Mr. Justice FRANKFURTER, concurring.
26
Although I join the opinion of the Court in both these cases, a word of emphasis is appropriate against finding that New York and Pennsylvania—for the highest courts of those States are for our purposes the States—have violated the United States Constitution by attributing to them determinations that they have not made and have carefully avoided making. Such a finding would rest, as I understand it, on the theory that although the States, with a due sense of responsibility, have not made these determinations, they may be attributed to them because persons who do not make distinctions that are important in law and the conduct of government may loosely infer them.
27
The services of two public employees have been terminated because of their refusals to answer questions relevant, or not obviously irrelevant, to an inquiry by their supervisors into their dependability. When these two employees were discharged, they were not labeled 'disloyal.' They were discharged because governmental authorities, like other employers, sought to satisfy themselves of the dependability of employees in relation to their duties. Accordingly, they made inquiries that, it is not contradicted, could in and of themselves be made. These inquiries were balked. The services of the employees were therefore terminated.
28
Because the specific questions put to these employees were part of a general inquiry relating to what is compendiously called subversion and to conduct that on due proof may amount to disloyalty, every part of the process of inquiry is given the attribute of an inquiry into disloyalty and every resulting severance from service is deemed a finding of disloyalty. The argument runs, in essence, that because such an inquiry may in certain instances lead to a determination of disloyalty, the refusal to answer any questions in this process and dismissal therefor themselves establish disloyalty. To make such an attribution to a State, to draw such an inference from a carefully limited exercise of state power, to disallow state action because there are those who may draw inferences that the State itself has not drawn and has avoided drawing, is a curbing of the States through the Fourteenth Amendment that makes of that Amendment an instrument of general censorship by this Court of state action. In refusing to put the Fourteenth Amendment to such a use, I am of course wholly unconcerned with what I may think of the wisdom or folly of the state authorities. I am not charged with administering the transportation system of New York or the school system of Pennsylvania. The Fourteenth Amendment does not check foolishness or unwisdom in such administration. The good sense and right standards of public administration in those States must be relied upon for that, and ultimately the electorate.
29
Mr. Chief Justice WARREN, dissenting.
30
I believe the facts of record in No. 63 compel the conclusion that Beilan's plea of the Fifth Amendment before a subcommittee of the House Committee on Un-American Activities was so inextricably involved in the Board's decision to discharge him that the validity of the Board's action cannot be sustained without consideration of this ground. The clearest indication of this is the fact that for 13 months following petitioner's refusal to answer the Superintendent's questions, he was retained as a school teacher and continually rated 'satisfactory,' yet five days after his appearance before the House subcommittee petitioner was suspended. Since a plea of the Fifth Amendment before a congressional committee is an invalid basis for discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, I would reverse the judgment approving petitioner's dismissal.
31
I cannot agree that the invalidity of the Board's action is cured by the Pennsylvania Supreme Court's conclusion that the dismissal was 'justified' if any charge against petitioner was sustained. Whether the first refusal alone would 'justify' the discharge we need not decide. This Court has previously held that where a conclusion of guilt may rest on a constitutionally impermissible basis, the adjudication must be set aside, notwithstanding a state court's conclusion that permissible bases existed on which the decision might have rested. Stromberg v. People of State of California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; see also Williams v. State of North Carolina, 317 U.S. 287, 292, 63 S.Ct. 207, 210, 87 L.Ed. 279. There may be exceptions to the application of this principle to the full range of state administrative action. Nevertheless, on the particular facts of this case, the invalid basis of the State's action is too critical to be ignored.
32
For these reasons Mr. Justice BLACK, Mr. Justice DOUGLAS and I dissent in No. 63. I also dissent in No. 165 for the reasons stated in the dissenting opinion of Mr. Justice BRENNAN.
33
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
34
The holding of the Court that the teacher in the Beilan case and the subway conductor in the Lerner case could be discharged from their respective jobs because they stood silent when asked about their Communist affiliations cannot, with due deference, be squared with out constitutional principles.
35
Among the liberties of the citizens that are guaranteed by the Fourteenth Amendment are those contained in the First Amendment. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302. These include the right to believe what one chooses, the right to differ from his neighbor, the right to pick and choose the political philosophy that he likes best, the right to associate with whomever he chooses, the right to join the groups he prefers, the privilege of selecting his own path to salvation. The Court put the matter succinctly in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641—642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628:
36
'We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
37
'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'
38
We deal here only with a matter of belief. We have no evidence in either case that the employee in question ever committed a crime, ever moved in treasonable opposition against this country. The only mark against them—if it can be called such is a refusal to answer questions concerning Communist Party membership. This is said to give rise to doubts concerning the competence of the teacher in the Beilan case and doubts as to the trustworthiness and reliability of the subway conductor in the Lerner case.
39
Our legal system is premised on the theory that every person is innocent until he is proved guilty. In this country we have, however, been moving away from that concept. We have been generating the belief that anyone who remains silent when interrogated about his unpopular beliefs or affiliations is guilty. I would allow no inference of wrongdoing to flow from the invocation of any constitutional right. I would not let that principle bow to popular passions. For all we know we are dealing here with citizens who are wholly innocent of any wrongful action. That must indeed be our premise. When we make the contrary assumption, we part radically with our tradition.
40
If it be said that we deal not with guilt or innocence but with frankness, the answer is the same. There are areas where government may not probe. Private citizens, private clubs, private groups may make such deductions and reach such conclusions as they choose from the failure of a citizen to disclose his beliefs, his philosophy, his associates. But government has no business penalizing a citizen merely for his beliefs or associations. It is government action that we have here. It is government action that the Fourteenth and First Amendments protect against. We emphasized in N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, that freedom to associate is one of those liberties protected against governmental action and that freedom from 'compelled disclosure of affiliation with groups engaged in advocacy' is vital to that constitutional right. We gave protection in the N.A.A.C.P. case against governmental probing into political activities and associations of one dissident group of people. We should do the same here.
41
If we break with tradition and let the government penalize these citizens for their beliefs and associations, the most we can assume from their failure to answer is that they were Communists. Yet, as we said in Wieman v. Updegraff, 344 U.S. 183, 190, 73 S.Ct. 215, 218, 97 L.Ed. 216, membership in the Communist Party 'may be innocent.' The member may have thought that the Communist movement would develop in the parliamentary tradition here, or he may not have been aware of any unlawful aim, or knowing it, may have embraced only the socialist philosophy of the group, not any political tactics of violence and terror. Many join associations, societies, and fraternities with less than full endorsement of all their aims.
42
We compound error in these decisions. We not only impute wrongdoing to those who invoke their constitutional rights. We go further and impute the worst possible motives to them.
43
As Judge Fuld said in dissent in the Lerner case, 'It is a delusion to think that the nation's security is advanced by the sacrifice of the individual's basic liberties. The fears and doubts of the moment may loom large, but we lose more than we gain if we counter with a resort to alien procedures or with a denial of essential constitutional guarantees.' 2 N.Y.2d 355, 378, 161 N.Y.S.2d 7, 25, 141 N.E.2d 533, 546.
44
Our initial error in all this business (see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137) was our disregard of the basic principle that government can concern itself only with the actions of men, not with their opinions or beliefs. As Thomas Jefferson said in 1779:
45
'* * * the opinions of men are not the object of civil government, nor under its jurisdiction; * * * it is time enough for the rightful purposes of civil government for its officers to interfere when principles bread out into overt acts against peace and good order.'1
46
The fitness of a subway conductor for his job depends on his health, his promptness, his record for reliability, not on his politics or philosophy of life. The fitness of a teacher for her job turns on her devotion to that priesthood, her education, and her performance in the library, in the laboratory, and the classroom, not on her political beliefs. Anyone who plots against the government and moves in treasonable opposition to it can be punished. Governmentrightly can concern itself with the actions of people. But it's time we called a halt to government penalizing people for their beliefs. To repeat, individuals and private groups can make any judgments they want. But the realm of belief—as opposed to action—is one which the First Amendment places beyond the long arm of government.
47
A teacher who is organizing a Communist cell in a schoolhouse or a subway conductor who is preparing the transportation system for sabotage would plainly be unfit for his job. But we have no such evidence in the records before us. As my Brother BRENNAN points out, to jump to those conclusions on these records is to short-cut procedural due process.
48
In sum, we have here only a bare refusal to testify; and the Court holds that sufficient to show that these employees are unfit to hold their public posts. That makes qualification for public office turn solely on a matter of belief—a notion very much at war with the Bill of Rights.
49
When we make the belief of the citizen the basis of government action, we move toward the concept of total security. Yet total security is possible only in a totalitarian regime2—the kind of system we profess to combat.
50
Mr. Justice BRENNAN, dissenting.
51
It is instructive on occasion to ask why particular cases are brought before this Court for review. The Court has said again and again that the incorrectness of a decision of a court below—and especially of a state court—is not sufficient reason for us to exercise our discretionary power to bring the case here. There must be 'special and important reasons therefor.' Sup.Ct.Rule 19(1), 28 U.S.C.A. We must, therefore, ask ourselves the question: What special character and importance of the right asserted justified our taking these cases for review?
52
The Court treats the cases as though the only right involved were the right of an unreliable subway conductor and an incompetent schoolteacher to hold their jobs. But if that were really all that was involved in these cases, I fail to see why it should take some nine pages in each case to justify the State's action. I can scarcely believe thats such concern would be displayed if the question were whether there was evidence to show that Lerner was unreliable about getting the subway doors opened promptly at each station, or that Beilan was incompetent as an algebra teacher. It is obvious that more is at stake here than the loss of positions of public employment for unreliability or incompetence. Rather, it is the simultaneous public labeling of the employees as disloyal that gives rise to our concern.
53
New York and Pennsylvania have publicly announced that the subway conductor and teacher are disloyal Americans. This consequence of the States' actions is devastating beside the loss of employment. In each case a man's honor and reputation are indelibly stained. 'There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy.' Wieman v. Updegraff, 344 U.S. 183, 190—191, 73 S.Ct. 215, 218, 97 L.Ed. 216. The petitioners thus not only lose their present jobs, but their standing in the community is so undermined as doubtless to cost them most opportunities for future jobs.
54
Moreover, the States' actions touch upon important political rights which have ever warranted the special attention of the courts. It may be stated as a generality that government is never at liberty to be arbitrary in its relations with its citizens, and close judicial scrutiny is essential when state action infringes on the right of a man to be accepted in his community, to express his ideas in an atmosphere of calm decency, and to be free of the dark stain of suspicion and distrust of his loyalty on account of his political beliefs and associations. N.A.A.C.P. v. State of Alamama, 357 U.S. 449, 78 S.Ct. 1163. It is these rights which stand before the bar today, and it is in the awareness of their implications that these cases must be decided.
55
The people of New York and Pennsylvania have voiced through their legislatures their determination that the stain of disloyalty shall not be impressed upon a state employee without fair procedures in which the State carries the burden of proving specific charges by a fair preponderance of evidence. Cf. Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. In the New York Security Risk Law and the Pennsylvania Loyalty Act, 65 P.S. § 211 et seq., the States have endeavored to provide the traditional Anglo-American standards of procedural due process for the ascertainment of guilt. Yet this Court today finds no denial of due process in the palpable evasion of these standards of fair play by administrative officials. This Court refuses to pierce the transparent denials that each of these employees was publicly branded disloyal. The Court holds that we are bound by the definition of state law pronounced by the States' high courts that the dismissals were for unreliability and incompetency. Of course, we accept state law as the high court of a State pronounces it, but certainly our duty to secure to the individual the safeguards, embodied in due process, against a State's arbitrary exercise of power is no less when the state courts refuse to recognize what his in fact occurred. Cf. Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. See also Broad River Power Co. v. State of South Carolina ex rel. Daniel, 281 U.S. 537, 540, 50 S.Ct. 401, 402, 74 L.Ed. 1023. In my view the judgments in both cases must be reversed because each petitioner has been branded a disloyal American without the due process of law required of the States by the Fourteenth Amendment. 'Strict adherence to required legal procedures, especially where one's loyalty is being impugned, affords the greatest and, in last analysis, the ultimate assurance of the inviolability of our freedoms as we have heretofore known them in this Country. Least of all, should they be impaired or trenched upon by procedural shortcuts.' Board of Public Education School District of Philadelphia v. Beilan, 386 Pa. 82, 99, 125 A.2d 327, 335 (Jones, J., dissenting).
LERNER V. CASEY
56
In response to the outbreak of hostilities in Korea in 1950 the New York Legislature, early in its next session, enacted its Security Risk Law, Laws 1951, c. 233. Section 1 of the Act is a declaration of legislative finding that the Korean hostilities had brought about the existence 'of a serious public emergency in this state' and that 'the employment of members of subversive groups and organizations by government presents a grave peril to the national security.' Section 5 of the Act provides that the appointing officer may transfer or suspend a person occupying a position within a 'security agency' of the State after a finding based 'upon all the evidence' that, 'because of doubtful trust and reliability, the employment of such person in such position would endanger the security or defense of the nation and the state.' Pursuant to § 3 of the Act the State Civil Service Commission determined in 1953 that the New York Transit Authority is a 'security agency' for purposes of the Act. In 1954, appellant Lerner, a subway conductor, was directed to appear before the Department of Investigation of the City of New York. On this and a subsequent appearance he refused to answer the question whether he was then a member of the Communist Party on the grounds that his answer might tend to incriminate him.
57
When this information was brought to the attention of the Transit Authority they sent a notice to appellant advising him that he was suspended under § 5 of the Security Risk Law because 'reasonable grounds exist for belief that, because of doubtful trust and reliability, your employment in the position of Conductor will endanger the security or defense of the nation and state.' The Transit Authority specified the grounds for this belief: (Y)ou refused to answer questions as to whether you were then a member of the Communist Party and invoked the Fifth Amendment to the Constitution of the United States.' Appellant brought this action in the New York state courts alleging, inter alia, that the finding that he was a security risk within the meaning of the New York statute is wholly without evidence and therefore violative of the Due Process Clause of the Fourteenth Amendment. The New York courts dismissed this contention by the following reasoning: (1) appellant's refusal to answer whether he was then a member of the Communist Party proves a lack of candor; (2) the lack of candor proves that he was of doubtful trust and reliability; and (3) doubtful trust and reliability proves further that appellant was a security risk within the meaning of the Act. This Court, without discussion, follows this chain of reasoning. But careful analysis, I believe, shows that it is fallacious and leads to an arbitrary result.
58
The proper consideration of this case requires, I repeat, that the true issue be stated with clarity. We are concerned with far more than, in the Court's phrase, 'the validity of appellant's dismissal from his position as a subway conductor in the New York City Transit System.' The issue is, rather, the validity of his dismissal as a security risk. The difference is profound, as I have suggested, for the label 'security risk' inevitably invites in the public mind the deep suspicion of disloyalty, namely, that he is, in the words of the statute, a threat to 'the security or defense of the nation and the state.'
59
Of course, the term 'security risk' is not synonymous with 'disloyal.' In certain positions—such as those involving access to secret information, for instance—an employee who is an alcoholic or merely too talkative may well be considered a risk to security. But this is not such a case. Lerner handled no secrets. Common sense tells us that if a subway conductor is a security risk at all while at work he is such because he may engage in sabotage. Indeed, the record makes clear that it was just this danger that motivated the New York authorities in extending the Security Risk Law to the Transit System.
60
The only evidence relied upon to show that Lerner is a disloyal person is his refusal to answer the question whether he was a member of the Communist Party. It might be conceded that the question was relevant to his qualifications for his job and therefore properly asked. But once the propriety of the question was established, the New York Court of Appeals approved treating the nature of the question as though it were irrelevant to the determination of the ultimate fact of disloyalty. And this Court too says that the finding that Lerner is a security risk could be based on a refusal to 'give any other information about himself which might be relevant to his employment.' 78 S.Ct. 1316. But can we suppose that a subway conductor would be branded a security risk if he refused to answer a question about his health? Of course the answer is no, although the question is plainly relevant to his qualifications for employment. It may well be that in such a case the State would be fully justified in discharging the employee as 'untrustworthy and unreliable.' But one would hardly stretch reason so far as further to label him a 'security risk.' To do so would be arbitrary in the extreme. It is equally arbitrary here, for New York and this Court expressly disavow the drawing of any inferences from the nature of the question asked or from Lerner's refusal to answer it. Nonetheless, by invoking the formalized procedures of its Security Risk Law, New York has publicly announced that it possesses the evidence required by the terms of that statute to justify the conclusion that Lerner is in fact a disloyal American. Yet the record is wholly devoid of the essential requisite of evidence to support the ultimate finding of disloyalty. Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. In this plainly arbitrary manner, Lerner is gratuitously defamed, his honor and reputation indelibly stained. And the wound is far deeper than the occasion demands, for certainly New York cannot lack procedures under which he could have been discharged without blemishing his name.
BEILAN V. BOARD OF PUBLIC EDUCATION.
61
Here also, the Court has not, in my opinion, stated or decided the true issue of due process tendered by this case. I doubt that a meritorious question for our review would be presented if the issue was, as the Court says, the constitutional validity of a dismissal solely for refusal of the teacher to answer the relevant questions asked by the School Superintendent in private interviews. I might agree that the Due Process Clause imposes no restraint against dismissal of a teacher who refuses to answer his superior's questions asked in the privacy of his office and related to the teacher's fitness to continue in his position.
62
But in reality Beilan was not dismissed by the Pennsylvania school authorities upon that ground. The question whether he had been an officer in the Communist Party in 1944 was first asked of Beilan by the Superintendent at a private interview on June 25, 1952. Beilan did not refuse at that time to answer but asked permission to consult counsel. The Superintendent summoned him again on October 14, 1952, and it was on that date that Beilan advised the Superintendent that he declined to answer that or similar questions. The Superintendent had told Beilan at the first interview that the question was asked because the Superintendent had information which reflected on Beilan's loyalty. Almost fourteen months elapsed before Beilan was suspended and the charges preferred which led to his dismissal. In that interval Beilan's superiors had twice rated him in the high satisfactory range of competency. Had the authorities seriously regarded Beilan as incompetent because of his refusal to answer the Superintendent's question they would hardly have waited so long before suspending him. The record is clear that proceedings were actually initiated not because of that refusal to answer but because on November 18, 1953, Beilan asserted the privilege against self-incrimination under the Fifth Amendment when interrogated at a publicly televised hearing held in Philadelphia by a Subcommittee of the Committee on Un-American Activities of the House of Representatives. Beilan testified at that hearing that he was not then a member of the Communist Party and had never advocated the overthrow of the Government by force or violence but pleaded the protection of the Fifth Amendment when asked questions directed to past party membership and activities. Five days later, on November 23, 1953, the Superintendent notified Beilan that he had been rated 'unsatisfactory' because he had refused to answer the Superintendent's question and also because '(y)ou invoked the Fifth Amendment of the Federal Constitution' when questioned as to 'past associations with organizations of doubtful loyalty' by the Subcommittee. The opinion on Beilan's administrative appeal which sustained his dismissal by the Board of Education makes it clear that the authorities viewed Beilan's invocation of the Fifth Amendment before the Subcommittee as an admission of disloyalty. The opinion states: '(B)y all the concepts of logic and reason the teacher admits that he has done something for which he might be prosecuted criminally.' It is this administrative record which Beilan must present to his next employer. Cf. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503.
63
The Court of Common Pleas found that the administrative proceedings were actually concerned solely with the question of Beilan's suspected disloyalty and reversed upon the ground that 'the legislature intended to deal with the matter of loyalty solely by the method of procedure provided in the (Pennsylvania) Loyalty Act.'
64
The Pennsylvania Supreme Court, however, did not pass upon the question of the propriety of the inference of disloyalty drawn by the administrative authorities from Beilan's invocation of the Fifth Amendment before the Subcommittee. That question is, therefore, not before us. The Pennsylvania Supreme Court held that the action of the authorities might be sustained solely because Beilan had refused to answer the Superintendent's question. But this is to sustain a finding of Beilan's disloyalty without competent evidence of the fact. As in Lerner the inference of disloyalty is arbitrary in the extreme. Yet Pennsylvania, like New York in the Lerner case, publicly announces contrary to the fact that it possesses competent evidence justifying the conclusion that Beilan is in fact a disloyal American. In my view Beilan also is, in that arbitrary manner, denied due process of law in violation of the Fourteenth Amendment.
65
I would reverse both judgments.
1
The Communist Political Association was the predecessor organization of the Communist Party of the United States. See Yates v. United States, 354 U.S. 298, 304, note 5, 77 S.Ct. 1064, 1069, 1 L.Ed.2d 1356.
2
Pa.Laws 1949, No. 14, Purdon's Pa.Stat.Ann., 1950, Tit. 24, § 11—1127.
3
Petitioner's refusal to answer his Superintendent was also charged as persistent and willful violation of the school laws, another statutory ground for dismissal. See note 4, infra.
On November 18, 1953, petitioner had been called to testify as a witness in a Philadelphia hearing of a Subcommittee of the United States House Committee on Un-American Activities. There he was asked to confirm or refute several reports as to his alleged subversive activities in 1949 and earlier years. He declined to answer, relying upon the Fifth Amendment to the Federal Constitution. That invocation of the Fifth Amendment was specified by the Board as a further ground of 'incompetency.' All charges were sustained on the administrative level.
The Pennsylvania Supreme Court found that petitioner's refusal to answer his Superintendent evidenced a statutory 'incompetency' sufficient to support his dismissal and, therefore, found it unnecessary to pass on the other grounds for dismissal. 386 Pa. 82, 94, 125 A.2d 327, 333. It is suggested that petitioner has a right to the initial judgment of the administrative authorities on whether refusal to answer the Superintendent, independent of the other charges, would support the dismissal. Under the Pennsylvania Public School Code, Common Pleas Courts exercise de novo review of dismissals. Purdon's Pa.Stat.Ann., 1950 (Cum.Ann.Pocket Pt., 1957), Tit. 24, § 11—1132(b). A dismissal can be sustained if the court finds support for any one of the multiple grounds relied upon by the dismissing school board. Cf. Brown Case, 347 Pa. 418, 32 A.2d 565, affirming 151 Pa.Super. 522, 30 A.2d 726, reported sub nom. Appeal of School District of City of Bethlehem, 347 Pa. 418, 32 A.2d 565. This allocation of functions between the Pennsylvania courts and administrative agencies does not violate due process. Accordingly, it is necessary for us to consider only the one ground relied upon by the Pennsylvaia Supreme upon by the Pennsylvania Supreme only jurisdiction is over the Pennsylvania Supreme Court, as the highest court of the State.
4
Section 1122 of that Code, in 1952 and 1953, provided that 'The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, * * * persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe.' (Emphasis supplied.) Pa.Laws 1949, No. 14, as amended, Pa.Laws 1951, No. 463, § 16; Purdon's Pa.Stat.Ann., 1950 (Cum.Ann.Pocket Pt., 1957), Tit. 24, § 11—1122.
As enacted in 1949, § 1122 had contained, after the words 'mental derangement,' the clause, 'advocation of or participating in un-American or subversive doctrines.' Pa.Laws 1949, No. 14. That clause, however, was deleted by § 16 of the Pennsylvania Loyalty Act, approved December 22, 1951, effective March 1, 1952. Pa.Laws 1951, No. 463.
5
Counsel for the Board, at the outset of the hearing, stated:
'It is my contention, and it has been the thought of your counsel since these proceedings were initiated, that these are not proceedings brought against these respondents charging them with disloyalty. If that were the situation we would have a completely different record, a completely different set of facts, a completely different section under which the charges would be made, if made at all.
'Now, so far as I am concerned, sir, and so far as my presentation of testimony is concerned, I don't think whether this man is loyal or disloyal has anything to do with this case. And if your counsel's advice were being asked in the matter, I should say that any testimony directed toward present loyalty or disloyalty is completely out of this case.
'So far as this case is concerned, we are not delving into present or past loyalty.'
Counsel for petitioner stated: Mr. President, if you please, I have no intention of seeking this proceeding become a loyalty hearing. Mr. Rhoads (counsel for the Board) has stated that it is not. I agree with him completely.'
6
There is no showing that the statute was discriminatorily applied. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.
7
See note 4, supra.
8
E.g., Baldwin's Ky.Rev.Stat.Ann., 1955, § 161.790(1), 'conduct unbecoming a teacher,' 'during good behavior.'
Mass.Ann.Laws, 1953 (Cum.Supp., 1957), c. 71, § 42, 'conduct unbecoming a teacher,' 'or other good cause.'
West's Ann.Cal.Code, Education, § 13521(a), (e), 'unprofessional conduct,' 'Evident unfitness for service.'
Smith-Hurd's Ill.Ann.Stat., 1946 (Cum.Ann.Pocket Pt., 1957), c. 122, § 6—36, S.H.A., 'other sufficient cause.'
Burns' Ind.Ann.Stat., 1948 Replacement Vol., § 28—4308, 'other good and just cause.'
*
See 20 Words and Phrases, Incompetency, p. 532.
1
2 Papers of Thomas Jefferson (Boyd ed. 1950) 546.
2
In an analogous situation, Judge Pope stated the problem for the Court of Appeals in Parker v. Lester, 9 Cir., 227 F.2d 708, 721:
'It cannot be said that in view of the large problem of protecting the national security against sabotage and other acts of subversion we can sacrifice and disregard the individual interest of these merchant seamen because they are comparatively few in number. It is not a simple case of sacrificing the interests of a few to the welfare of the many. In weighing the considerations of which we are mindful here, we must recognize that if these regulations may be sustained, similar regulations may be made effective in respect to other groups as to whom Congress may next choose to express its legislative fears. No doubt merchant seamen are in a sensitive position in that the opportunities for serious sabotage are numerous. If it can be said
that a merchant seaman notwithstanding his being on board might sink the ship loaded with munitions for Korea, it is plain that many persons other than seamen would be just as susceptible to security doubts. The enginemen and trainmen hauling the cargo to the docks, railroad track and bridge inspectors, switchmen and dispatchers, have a multitude of opportunities for destruction. Dangerous persons might infiltrate the shipping rooms of factories where the munitions are being packed for shipment to Korea with opportunities for inserting bombs appropriately timed for explosion on board ship. All persons who are in factories making munitions and material for the armed forces have opportunities for sabotage, and the same may be said of all operators of transportation facilities, not to mention workers upon the docks.
'It may be possible that we have reached an age when our system of constitutional freedom and individual rights cannot hold its own against those who, under totalitarian discipline are prepared to infiltrate nor only our public services, but our civilian employments as well. In the event of war we may have to anticipate Balck Tom explosions on every waterfront, poison in our water systems, and sand in all important industrial machines. But the time has not come when we have to abandon a system of liberty for one modeled on that of the Communists. Such a system was not that ordained by the framers of our Constitution. It is the latter we are sworn to uphold.'
| 23
|
357 U.S. 357
78 S.Ct. 1268
2 L.Ed.2d 1383
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.UNITED STEELWORKERS OF AMERICA, CIO, and NuTone, Inc. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AVONDALE MILLS.
Nos. 81 and 289.
Argued Jan. 29, 1958.
Decided June 30, 1958.
Mr. Dominick L. Manoli, Washington, D.C., for petitioner.
Mr. David E. Feller, Washington, D.C., for respondent, United Steelworkers of America, CIO.
No appearance for respondent NuTone, Inc.
Mr. Frank A. Constangy, Atlanta, Ga., for respondent Avondale Mills.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
These two cases, argued in succession, are controlled by the same considerations and will be disposed of in a single opinion. In one case the National Labor Relations Board ruled that it was not an unfair labor practice for an employer to enforce against his employees a no-solicitation rule, in itself concededly valid, while the employer was himself engaged in anti-union solicitation in a context of separate unfair labor practices. This ruling was reversed by a Court of Appeals.1 In the second case the Board on the basis of similar facts, except that the employer's anti-union solicitation by itself constituted a separate unfair labor practice, found the enforcement of the rule to have been an unfair labor practice, but another Court of Appeals denied enforcement of the Board's order. We brought both cases here because of the importance of the question they present in the administration of the Taft-Hartley Act, and because of the apparent conflict in the decisions in the Courts of Appeals. 353 U.S. 921, 77 S.Ct. 682, 1 L.Ed.2d 719; 355 u.S. 811, 78 S.Ct. 46, 2 L.Ed.2d 29.
2
No. 81.—In April of 1953 the respondent Steelworkers instituted a campaign to organize the employees of respondent NuTone, Inc., a manufacturer of electrical devices. In the early stages of the campaign, supervisory personnel of the company interrogated employees and solicited reports concerning the organizational activities of other employees. Several employees were discharged; the Board later found that the discharges had been the result of their organizational activities. In June the company began to distribute, through its supervisory personnel, literature that, although not coercive, was clearly anti-union in tenor. In August, while continuing to distribute such material, the company announced its intention of enforcing its rule against employees' posting signs or distributing literature on company property or soliciting or campaigning on company time. The rule, according to these posted announcements, applied to 'all employees whether they are for or against the union.' Later the same month a representation election was held, which the Steelworkers lost.
3
In a proceeding before the Board commenced at the instance of the Steelworkers, the company was charged with a number of violations of the Act alleged to have taken place both before and after the election, including the discriminatory application of the no-solicitation rule. The Board found that the pre-election interrogation and solicitation by supervisory personnel and the discharge of employees were unfair labor practices; it also found that the company had, in violation of the Act, assisted and supported an employee organization formed after the election. However, the Board dismissed the allegation that the company had discriminatorily enforced its no-solicitation rule. 112 N.L.R.B. 1153. The Steelworkers sought review of this dismissal in the United States Court of Appeals for the District of Columbia Circuit, and the Board petitioned for enforcement of its order in the same court. The Court of Appeals concluded that it was an unfair labor practice for the company to prohibit the distribution of organizational literature on company property during non-working hours while the company was itself distributing anti-union literature; and it directed that the Board's order be modified accordingly and enforced as modified. 100 U.S.App.D.C. 170, 243 F.2d 593.
4
No. 289.—In the fall of 1954 the Textile Workers conducted an organizational campaign at several of the plants of respondent Avondale Mills. A number of individual employees were called before supervisory personnel of the company, on the ground that they had been soliciting union membership, and informed that such solicitation was in violation of plant rules and would not be tolerated in the future. The rule had not been promulgated in written form, but there was evidence that it had been previously invoked in a non-organizational context. During this same period, both in these interviews concerning the rule and at the employees' places of work, supervisory personnel interrogated employees concerning their organizational views and activities and solicited employees to withdraw their membership cards from the union. This conduct was in many cases accompanied by threats that the mill would close down or that various employee benefits would be lost if the mill should become organized. Subsequently three employees, each of whom had been informed of the no-solicitation rule, were laid off and eventually discharged for violating the rule.
5
As a result of charges filed with the Board by the Textile Workers, a complaint was brought against the company alleging that it had committed a number of unfair labor practices, including the discriminatory invocation of the no-solicitation rule and the discharge of employees for its violation. The Board found that the interrogation, solicitation and threatening of employees by the company's supervisory personnel were unfair labor practices. Moreover, it found that resort to the no-solicitation rule and discharge of the three employees for its violation were discriminatory and therefore in violation of the Act; it further held that, even if the rule had not been invoked discriminatorily, the discharge of one of the employees had resulted solely from his organizational activities apart from any violation of the rule and was therefore an unfair labor practice. The Board ordered the cessation of these practices and the reinstatement of the discharged employees. 115 N.L.R.B. 840. Upon the Board's petitioning for enforcement in the Court of Appeals for the Fifth Circuit, the company contested only the portions of the Board's findings and order relating to the rule and the discharges. The court enforced the uncontested portions of the order but, finding insufficient evidence of discrimination in the application of the no-solicitation rule, denied enforcement to the portion of the order relating to the rule and to two of the discharges. As to the third discharge, the court agreed with the Board that it was the result of discrimination unrelated to a violation of the rule, and the court enforced the portion of the Board's order directing the employee's reinstatement. 242 F.2d 669.
6
Employer rules prohibiting organizational solicitation are not in and of themselves violative of the Act, for they may duly serve production, order and discipline. See Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975. In neither of the cases before us did the party attacking the enforcement of the no-solicitation rule contest its validity. Nor is the claim made that an employer may not, under proper circumstances, engage in non-coercive anti-union solicitation; indeed, his right to do so is protected by the so-called 'employer free speech' provision of § 8(c) of the Act.2 Contrariwise, as both cases before us show, coercive anti-union solicitation and other similar conduct run afoul of the Act and constitute unfair labor practices irrespective of the bearing of such practices on enforcement of a no-solicitation rule. The very narrow and almost abstract question here derives from the claim that, when the employer himself engages in anti-union solicitation that if engaged in by employees would constitute a violation of the rule—particularly when his solicitation is coercive or accompanied by other unfair labor practices—his enforcement of an otherwise valid no-solicitation rule against the employees is itself an unfair labor practice. We are asked to rule that the coincidence of these circumstances necessarily violates the Act, regardless of the way in which the particular controversy arose or whether the employer's conduct to any considerable degree created an imbalance in the opportunities for organizational communication. For us to lay down such a rule of law would show indifference to the responsibilities imposed by the Act primarily on the Board to appraise carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases and in light of the Board's special understanding of these industrial situations.
7
There is no indication in the record in either of these cases that the employees, or the union on their behalf, requested the employer, himself engaging in anti-union solicitation, to make an exception to the rule for pro-union solicitation. There is evidence in both cases that the employers had in the past made exceptions to their rules for charitable solicitation. Notwithstanding the clear anti-union bias of both employers, it is not for us to conclude as a matter of law—although it might well have been open to the Board to conclude as a matter of industrial experience—that a request for a similar qualification upon the rule for organizational solicitation would have been rejected. Certainly the employer is not obliged voluntarily and without any request to offer the use of his facilities and the time of his employees for pro-union solicitation. He may very well be wary of a charge that he is interfering with, or contributing support to, a labor organization in violation of § 8(a)(2) of the Act.3
8
No attempt was made in either of these cases to make a showing that the no-solicitation rules truly diminished the ability of the labor organizations involved to carry their message to the employees. Just as that is a vital consideration in determining the validity of a no-solicitation rule, see Republic Aviation Corp. v. National Labor Relations Board, supra, 324 U.S. at pages 797—798, 65 S.Ct. at pages 985—986; National Labor Relations Board v. Babcock & Wilcox Co., supra, 351 U.S. at page 112, 76 S.Ct. at page 684, it is highly relevant in determining whether a valid rule has been fairly applied. Of course the rules had the effect of closing off one channel of communication; but the Taft-Hartley Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it. Cf. Bonwit Teller, Inc., v. National Labor Relations Board, 2 Cir., 197 F.2d 640, 646; National Labor Relations Board v. F. W. Woolworth Co., 6 Cir., 214 F.2d 78, 84 (concurring opinion). No such mechanical answers will avail for the solution of this non-mechanical, complex problem in labor-management relations. If, by virtue of the location of the plant and of the facilities and resources available to the union, the opportunities for effectively reaching the employees with a pro-union message, in spite of a no-solicitation rule, are at least as great as the employer's ability to promote the legally authorized expression of his anti-union views, there is no basis for invalidating these 'otherwise valid' rules. The Board, in determining whether or not the enforcement of such a rule in the circumstances of an individual case is an unfair labor practice, may find relevant alternative channels, available for communications on the right to organize. When this important issue is not even raised before the Board and no evidence bearing on it adduced, the concrete basis for appraising the significance of the employer's conduct is wanting.
9
We do not at all imply that the enforcement of a valid no-solicitation rule by an employer who is at the same time engaging in anti-union solicitation may not constitute an unfair labor practice. All we hold is that there must be some basis, in the actualities of industrial relations, for such a finding. The records in both cases—the issues raised in the proceedings—are barren of the ingredients for such a finding. Accordingly the judgment in No. 81 is reversed, insofar as it sets aside and requires the Board to modify its order, and the cause is remanded to the Court of Appeals for proceedings not inconsistent with this opinion; in all other respects, it is affirmed. The judgment in No. 289 is affirmed.
10
It is so ordered.
11
Judgment in No. 81 reversed in part and affirmed in part and cause remanded with directions; judgment in No. 289 affirmed.
12
Mr. Justice BLACK and Mr. Justice DOUGLAS would affirm the judgment in No. 81 for the reasons set forth in the opinion of the Court of Appeals, 100 U.S.App.D.C. 170, 243 F.2d 593.
13
Mr. Justice BLACK and Mr. Justice DOUGLAS join in the dissent in No. 289, National Labor Relations Board v. Avondale Mills.
14
Mr. Chief Justice WARREN dissenting in part and concurring in part.
15
These two cases concern the issue of whether the enforcement of company rules preventing union solicitation or distribution is an unfair labor practice when concurrent with this enforcement the employer embarks on a program of advocacy against the union. Contrary to what is stated in the opinion of the Court, I do not believe that both these cases are controlled by the same considerations. The pivotal distinction is that in National Labor Relations Board v. Avondale Mills the employer's antiunion activities were coercive in nature, while in National Labor Relations Board v. United Steelworkers they were not. I dissent from the judgment in No. 289, Avondale Mills, and concur in the result in No. 81, United Steelworkers.
16
In Avondale Mills this Court affirms the judgment of the Court of Appeals, which refused to enforce that portion of an order of the National Labor Relations Board which held that enforcement of the company's rule against solicitation on the premises during working hours was an unfair labor practice contrary to Section 8(a)(1) of the National Labor Relations Act. I cannot agree with the conclusion of the majority that the record is insufficient to sustain the action of the Board. Their conclusion depends on two circumstances. The first is the failure of the union or the employees to request the employer not to enforce his antisolicitation rule during the union organizing campaign. This is a slender reed. Union membership cards were first distributed to employees in November 10, 1954. On the very next day certain employees were summoned to the office of a management representative, who read the following statement:
17
'It has come to our attention that you are attempting to solicit union membership in this plant during working hours, while the employees that you are attempting to solicit are at work. This is a violation of plant rules and any future instances of this sort will result in prompt dismissal.'
18
Immediately thereafter the company's supervisory personnel engaged in a series of personal confrontations with union members and other employees, threatening loss of jobs and other benefits in case the organizing campaign continued or the plant became unionized. Furthermore, there was substantial evidence from which the Board was able to conclude that prior to November 11, 1954, there was in fact no rule against solicitation on the premises during working hours and that the rule was invoked solely as an antiunion measure. None of these conclusions was disturbed by the court below, which merely held that the invocation of the rule under these facts was part of the employer's right to oppose the union. The majority thus attaches significance, where the Board did not, to the fact that the union failed to request the company to grant for the union's benefit an exception to a rule that was promulgated to keep the union out.
19
The second circumstance on which the majority relies is the failure of the Board to make findings that reasonable alternatives were not open to the union in the face of the no-solicitation rule. Admittedly, evidence and findings of this nature were elements in cases where the validity of employer no-solicitation and no-distribution rules was in issue. See National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975; Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. However, there has heretofore been no indication that such evidence and findings were indispensable elements to every csae in which these employer rules were being examined.1 In contrast to Babcock and Republic Aviation we are not concerned here with the validity of these rules per se. The no-solicitation rule under examination here may well be valid if fairly applied. But the Board held that it was not fairly applied on account of its link to the company's campaign of coercion, and the evidence and findings on that issue are far more relevant to this case than a discussion of the site of the plant, the nature of the surrounding area, and the places of residence of the workers.
20
While praising 'the Board's special understanding of these industrial situations,' the majority opinion reverses the Board on the very sort of issues that are within its special competence. An examination of the record shows that the Board has already carefully apprized itself of the interests of both sides in this controversy. An employer has forbidden his employees to engage in union solicitation within the plant during working hours. He contemporaneously engages in a campaign of coercive antiunion solicitation during those same working hours. The validity of both practices—the enforcement of the no-solicitation rule and the coercive antiunion solicitation comes into question, for they are not separable. Under one set of circumstances the no-solicitation rule may be valid. However, the determination as to whether an employer's antiunion activities are an unfair labor practice depends on the context in which those activities occur,2 and no-solicitation rules are to be subjected to the same kind of scrutiny. Employees during working hours are the classic captive audience. At the very moment the employees in this case were under the greatest degree of control by their employer, they were forced to listen to denunciations of the union coupled with clear references to the personal disasters that would ensue if the union succeeded or if the particular employee continued to solicit for the union. These threats were themselves held to be unfair labor practices by the Board, and that holding was enforced by the Court of Appeals and is not in issue here. During this same working time the unionized employees, who under Section 7 of the National Labor Relations Act have a right to engage in concerted activity, were unable, due to their employer's own rule, to try to overcome the effect of his activities even though those activities were in violation of Section 8(a)(1) of the Act. It is not necessary to suggest that in all circumstances a union must have the same facilities and opportunity to solicit employees as the employer has in opposing the union. However, the plant premises and working time are such decisive factors during a labor dispute that when an employer denies them to the union and at the same time pursues his own program of coercion on the premises and during working hours, this denial is by itself an interference with the rights guaranteed in Section 7 of the Act and hence contrary to Section 8(a)(1).
21
There is no issue in this case of balancing the employee's rights under Section 7 with the employer's right to promote 'the legally authorized expression of his anti-union views.' The only expression of views carried on by Avondale Mills was a series of threats against the union. Far from being 'legally authorized,' this expression of views constituted an unfair labor practice by itself. Thus we are not concerned in this case with the possibility of curtailing legitimate employer expression in violation of either the First Amendment or Section 8(c) of the National Labor Relations Act. Moreover, it is no aid to the company that all the activities here involved occurred on plant property and during working hours. When a choice has been required between an employer's rights in his premises and the rights that Congress has protected under Section 7, this Court has not hesitated to give effect to the congressional will. Republic Aviation Corp. v. National Labor Relations Board, supra; National Labor Relations Board v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 93 L.Ed. 638; cf. National Labor Relations Board v. Babcock & Wilcox Co., supra.
22
In United Steelworkers, I concur in the result. The National Labor Relations Board declined to hold that the enforcement of an employer's no-distribution rule against a union was an unfair labor practice even though it was coupled with an antiunion campaign. The Court of Appeals reversed the Board on this point, modifying the Board's order accordingly. This Court sustains the Board. It is conceded that the enforcement of this no-distribution rule against the union is not by itself an unfair labor practice. The Board determined that the employer's expressions of his antiunion views were noncoercive in nature. This fact creates a vital distinction between this case and Avondale Mills. Being noncoercive in nature, the employer's expressions were protected by Section 8(c) of the National Labor Relations Act3 and so cannot be used to show that the contemporaneous enforcement of the no-distribution rule was an unfair labor practice.4
1
The statutory basis for the decision that this conduct constituted an unfair labor practice was § 8(a)(1) of the National Labor Relations Act, 49 Stat. 449, 452, as amended by 61 Stat. 136, 140, 29 U.S.C. § 158(a)(1), 29 U.S.C.A. § 158(a)(1), which provides:
'(a) It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; * * *.' Section 7, 29 U.S.C.A. § 157, provides that '(e)mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).'
2
49 Stat. 449, 452, as amended by 61 Stat. 136, 142, 29 U.S.C. § 158(c), 29 U.S.C.A. § 158(c):
'The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.'
3
49 Stat. 449, 452, as amended by 61 Stat. 136, 140, 29 U.S.C. § 158(a)(2), 29 U.S.C.A. § 158(a)(2).
1
In the opinion in Republic Aviation all that appears is that the company was a large nonurban manufacturer, many of whose employees lived at distances greater than walking distance from the plant in the Long Island area. 324 U.S. at page 800, 65 S.Ct. at page 986. The opinion goes on to note that in both the Republic Aviation case and its companion Le Tourneau Co. case, 'No evidence was offered that any unusual conditions existed in labor relations, the plant location or otherwise to support any contention that conditions at this plant differed from those occurring normally at any other large establishment.' Supra, 324 U.S. at page 801, 65 S.Ct. at page 987. Evidence anf findings now required by this Court were similarly absent in Matter of Peyton Packing Co., 49 N.L.R.B. 828, quoted with approval in Republic Aviation, supra, 324 U.S. at page 803, 65 S.Ct. at page 988, note 10.
2
Cf. National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348; International Ass'n of Machinists, etc. v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50.
3
'The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.'
4
See H.R.Rep. No. 245, 80th Cong., 1st Sess. 8, 33; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 45. See also the remarks of Senator Taft during the Senate debate on the Act. 93 Cong.Rec. 6443—6444, 6446—6447, 6859—6860.
| 67
|
357 U.S. 433
78 S.Ct. 1287
2 L.Ed.2d 1448
John Russell CROOKER, Jr., Petitioner,v.STATE OF CALIFORNIA.
No. 178.
Argued April 2, 1958.
Decided June 30, 1958.
Rehearing Denied Oct. 13, 1958.
See 79 S.Ct. 12.
Mr. Robert W. Armstrong, Los Angeles, Cal., for petitioner.
Mr. William E. James, Los Angeles, Cal., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner, under sentence of death for the murder of his paramour, claims that his conviction in a California court violates Fourteenth Amendment due process of law because (1) the confession admitted into evidence over his objection had been coerced from him by state authorities, and (2) even if his confession was voluntary it occurred while he was without counsel because of the previous denial of his request therefor. The Supreme Court of California affirmed the conviction. 47 Cal.2d 348, 303 P.2d 753. Certiorari was granted because of the serious due process implications that attend state denial of a request to employ an attorney. 1957, 354 U.S. 908, 77 S.Ct. 1300, 1 L.Ed.2d 1426.1 We conclude, however, that no violation of constitutional right has occurred.
2
The record here clearly reveals that prior to petitioner's confession he asked for and was denied opportunity to call his lawyer. We first consider that denial in connection with petitioner's contention that his subsequent confession was involuntary in nature.
3
It is well established that the Fourteenth Amendment prohibits use of coerced confessions in state prosecutions. E.g., Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Watts v. State of Indiana, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. As in Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863, and Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975, we consider the undisputed facts in the record to ascertain whether the confession resulted from police coercion or the exercise of petitioner's own free will.
4
The victim's son discovered her body the morning of July 5, 1955, stabbed and strangled to death in the bedroom of her Los Angeles home. She was last known to be alive about 1 a.m. the same day, when she talked with a friend by telephone.
5
Petitioner was arrested in his apartment at 1:30 that afternoon and subsequently was charged with the murder. He was then 31 years of age, a college graduate who had attended the first year of law school. While going to law school he had been a house boy in the home of the victim. That position led to an illicit relationship with her, which she had attempted several times to terminate in the month preceding her death. The week of her death, after telling petitioner they had been found out, she had requested, and he had agreed, that he would never see her again.
6
Despite this understanding, he returned to her house late in the afternoon of July 4. Finding no one at home, he did nearby for the ostensible purpose of discovering who was 'threatening' her. From his hiding place he watched the victim return home with an escort around midnight. Shortly thereafter he saw the escort leave and watched the victim talk on the telephone. He claims that he then left the vicinity to return to his apartment, never having entered the house that evening.
7
At the time of his arrest, petitioner was questioned about scratches that were evident on his neck and hands. He attributed the former to shaving and the latter to a traffic mishap on his way to the beach on July 4. However he refused to reveal where the accident occurred. After his apartment was searched, petitioner was taken to the Los Angeles Police Station, where he was photographed and asked to take a lie detector test. He refused to submit to the test, and indicated that he wanted to call an attorney. At no time, however, does it appear that petitioner was offered the use of a telephone. Aside from sporadic questioning at his apartment, petitioner was interrogated for the first time from 8:30—9:30 p.m., the questioning being conducted by four officers and centering around his refusal of the lie detector test. During this time he asked for an opportunity to get a lawyer, naming a specific attorney whom he thought might represent him, but was told that 'after (the) investigation was concluded he could call an attorney.'
8
At 9:30 p.m. petitioner was transferred to the West Los Angeles Police Station, where five officers questioned him from 11 p.m. until shortly after midnight. He then was formally 'booked,' and given a physical examination by a police physician. The third and last questioning period was conducted by the same five men from approximately 1—2 a.m. July 6. For the next hour petitioner wrote and signed a detailed confession of the murder. Afterward, he was taken to the victim's home to re-enact the crime. At 5 a.m. he was put in jail and permitted to sleep.
9
That afternoon, a full day after his arrest, he was taken to the office of the Los Angeles County District Attorney to orally repeat the written confession. Petitioner balked at doing so and again asked that his attorney be called. Thereupon the District Attorney placed the call for him and listened to the conversation while petitioner talked on an extension phone with the attorney. Neither petitioner nor his attorney was aware that a tape recording was being made of everything that transpired in the office. The District Attorney interrupted at one point to deny that petitioner was forced to answer police questions, and later to advise that the most convenient time for the attorney to see petitioner would be at 7 p.m. back at the West Los Angeles Police Station. After the phone call, petitioner was returned to jail to meet his attorney that evening. From that time forward, through both arraignment and trial, he was represented by his own counsel.
10
In the 14 hours between his arrest and confession, petitioner was given coffee and allowed to smoke whenever he liked. He also was given milk and a sandwich a few hours after his arrest. Before being transferred to the West Los Angeles Police Station he was advised by a police lieutenant, 'You don't have to say anything that you don't want to,' and he in fact refused to answer many questions both before and after the transfer. At such times he simply stated he 'would rather not answer, or rather not make a statement about that.'
11
The bare fact of police 'detention and police examination in private of one in official state custody' does not render involuntary a confession by the one so detained. Brown v. Allen, 1953, 344 U.S. 443, 476, 73 S.Ct. 397, 417, 97 L.Ed. 469. Neither does an admonition by the police to tell the truth, Spraf v. United States, 1895, 156 U.S. 51, 55—56, 15 S.Ct. 273, 275, 39 L.Ed. 343, nor the failure of state authorities to comply with local statutes requiring that an accused promptly be brought before a magistrate.2 Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.
12
Petitioner's claim of coercion, then, depends almost entirely on denial of his request to contact counsel.3 This Court has not previously had occasion to determine the character of a confession obtained after such a denial. But we have held that confessions made by indigent defendants prior to state appointment of counsel are not thereby rendered involuntary, even in prosecutions where conviction without counsel would violate due process under the Fourteenth Amendment. Borwn v. Allen, 1953, 344 U.S. 443, 474—476, 73 S.Ct. 397, 416—417, 97 L.Ed. 469; Stroble v. State of California, 1952, 343 U.S. 181, 196—198, 72 S.Ct. 599, 606—607; Gallegos v. State of Nebraska, 1951, 342 U.S. 55, 64—68, 72 S.Ct. 141, 147—149, 96 L.Ed. 86. To be sure, coercion seems more likely to result from state denial of a specific request for opportunity to engage counsel than it does from state failure to appoint counsel immediately upon arrest. That greater possibility, however, is not decisive. It is negated here by petitioner's age, intelligence, and education. While in law school he had studied criminal law; indeed, when asked to take the lie detector test, he informed the operator that the results of such a test would not be admissible at trial absent a stipulation by the parties. Supplementing that background is the police statement to petitioner well before his confession that he did not have to answer questions. Moreover, the manner of his refusals to answer indicates full awareness of the right to be silent. On this record we are unable to say that petitioner's confession was anything other than voluntary.
13
We turn now to the contention that even if the confession be voluntary, its use violates due process because it was obtained after denial of petitioner's request to contact his attorney. Petitioner reaches this position by reasoning first that he has been denied a due process right to representation and advice from his attorney,4 and secondly that the use of any confession obtained from him during the time of such a denial would itself be barred by the Due Process Clause, even though freely made. We think petitioner fails to sustain the first point, and therefore we do not reach the second.
14
The right of an accused to counsel for his defense, though not firmly fixed in our common-law heritage, is of significant importance to the preservation of liberty in this country. See 1 Cooley's Constitutional Limitations (8th ed. 1927) 696—700; 2 Story on the Constitution (4th ed. 1893) § 1794. That right, secured in state prosecutions by the Fourteenth Amendment guaranty of due process, includes not only the right to have an attorney appointed by the State in certain cases, but also the right of an accused to 'a fair opportunity to secure counsel of his own choice.' Powell v. State of Alabama, 1932, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158; Chandler v. Fretag, 1954, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4.
15
Under these principles, state refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits, Chandler v. Fretag, supra, but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of 'that fundamental fairness essential to the very concept of justice.' Lisenba v. People of State of California, 1941, 314 U.S. 912, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. Cf. Moore v. State of Michigan, 1957, 355 U.S. 155, 160, 78 S.Ct. 191, 194, 2 L.Ed.2d 167. The latter determination necessarily depends upon all the circumstances of the case.
16
In House v. Mayo, 1945, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739, an uneducated man in his twenties, a stranger to the area, was brought before a court to be sentenced on two convictions previously returned against him. He was there presented for the first time with a burglary information filed by the State, asked for and was denied opportunity to engage counsel, and finally pleaded guilty to the information, thereby obviating any necessity for trial of the charge on the merits. We held that a due process right to counsel was denied.
17
In contrast, the sum total of the circumstances here during the time petitioner was without counsel is a voluntary confession by a college-educated man with law school training who knew of his right to keep silent. Such facts, while perhaps a violation of California law,5 do not approach the prejudicial impact in House v. Mayo, supra, and do not show petitioner to have been so 'taken advantage of,' Townsend v. Burke, 1948, 334 U.S. 736, 739, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690, as to violate due process of law.
18
Petitioner, however, contends that a different rule should determine whether there has been a violation of right to counsel. He would have every state denial of a request to contact counsel be an infringement of the constitutional right without regard to the circumstances of the case. In the absence of any confession, plea or waiver—or other event prejudicial to the accused—such a doctrine would create a complete anomaly, since nothing would remain that could be corrected on new trial Refusal by state authorities of the request to contact counsel necessarily would then be an absolute bar to conviction. On the other hand, where an event has occurred while the accused was without his counsel which fairly promises to adversely affect his chances, the doctrine suggested by petitioner would have a lesser but still devastating effect on enforcement of criminal law, for it would effectively preclude police questioning—fair as well as unfair—until the accused was afforded opportunity to call his attorney. Due process, a concept 'less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,' Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, demands no such rule.6
19
Affirmed.
20
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
21
When petitioner was first arrested, and before any real interrogation took place, he asked that his attorney be present. 'I had no objection to talking with them about whatever they had to talk about, but * * * I wanted counsel with me * * *. I wanted an attorney with me before I would talk with them.' That was petitioner's testimony; and it is verified by the testimony of Sergeant Gotch of the police.
22
'A. I stated to him that after our investigation was concluded he could call an attorney, and if he didn't have funds to hire an attorney, when he went to Court's public defender would be assigned to handle his case.
23
'He then stated that he had a friend who had been an instructor at Pepperdine College that would probably handle the case for him. I asked him who the name was, and he said it was a man by the name of Simpson, who lived in Long Beach.
24
'Q. He asked you if he could call an attorney at that time, and you told him that he could call after your investigation was completed, is that right?
25
'A. I told him, after I was through with the investigation, he could make a call.'
26
This demand for an attorney was made over and again prior to the time a confession was extracted from the accused. Its denial was in my view a denial of that due process of law guaranteed the citizen by the Fourteenth Amendment.
27
The Court finds no prejudice from the denial of the right to consult counsel; and it bases that finding on the age, intelligence, and education of petitioner. But it was said in Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' That was a federal prosecution. But what is true of the need for counsel is federal case is equally true in a state case.
28
Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, held that in a state criminal trial the request of the accused for counsel can be denied and a judgment of conviction sustained as not in violation of due process, where the offense is not a capital one, Cf. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398, and the Court on review determines there was no fundamental unfairness resulting from the denial of counsel. The rule of Betts v. Brady, which never applied to a capital case, see Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, is now made to do so. Assuming that Betts v. Brady was properly decided, there is no basis in reason for extending it to the denial of a request for counsel when the accused is arrested on a capital charge.
29
The Court properly concedes that the right to counsel extends to pretrial proceedings as well as to the trial itself. The need is as great then as at any time. The right to have counsel at the pretrial stage is often necessary to give meaning and protection to the right to be heard at the trial itself. See Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4. It may also be necessary as a restraint on the coercive power of the police. The pattern of the third degree runs through our cases: a lone suspect unrepresented by counsel against whom the full coercive force of a secret inquistion is brought to bear. See Lisenba v. State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. The third degree flourishes only in secrecy. One who feels the need of a lawyer and asks for one is asking for some protection which the law can give him against a coerced confession. No matter what care is taken innocent people are convicted of crimes they did not commit, see Borchard, Convicting the Innocent (1932); Frank and Frank, Not Guilty (1957). We should not lower the barriers and deny the accused any procedural safeguard against coercive police practices.1 The trial of the issue of coercion is seldom helpful. Law officers usually testify one way, the accused another. The citizen who has been the victim of these secret inquisitions has little chance to prove coercion. The mischief and abuse of the third degree will continue as long as an accused can be denied the right to counsel at this the most critical period of his ordeal.2 For what takes place in the secret confines of the police station may be more critical than what takes place at the trial.
30
'If at any time, from the time of his arrest to final determination of his guilt or innocence, an accused really needs the help of an attorney, it is in the pre-trial period. * * * Indeed, the pre-trial period is so full of hazards for the accused that, if unaided by competent legal advice, he may lose any legitimate defense he may have long before he is arraigned and put on trial.' Note, Criminal Procedure—Right to Counsel Prior to Trial, 44 Ky.L.J. 103—104.
31
Or as stated by a Committee headed by Prof. Zechariah Chafee, 'A person accused of crime needs a lawyer right after his arrest probably more than at any other time.'3
32
The Court speaks of the education of this petitioner and his ability to take care of himself. In an opinion written by Mr. Justice Sutherland the Court said, 'Even the intelligent and educated layman has small and sometimes no skill in the science of law. * * * He requires the guiding hand of counsel at every step in the proceedings against him.' Powell State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158. Mr. Justice Sutherland spoke of the trial itself. But what is true of the trial is true of the preparation for trial and of the period commencing with the arrest of the accused. No matter how well educated, and how well trained in the law an accused may be, he is sorely in need of legal advice once he is arrested for an offense that may exact his life. The innocent as well as the guilty may be caught in a web of circumstantial evidence that is difficult to break. A man may be guilty of indiscretions but not of the crime. He may be implicated by ambiguous circumstances difficult to explain away. He desperately needs a lawyer to help extricate him if he's innocent. He has the right to receive the benefit of the advice of his own counsel at the trial, as we held in Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4. That same right should extend to the pretrial stage.
33
The need of a lawyer in the pretrial investigation, if the constitutional rights of the accused are to be preserved, was stated by Mr. Justice BLACK, dissenting, in In re Groban, 352 U.S. 330, 340—343, 77 S.Ct. 510, 517, 1 L.Ed.2d 376:
34
'The witness has no effective way to challenge his interrogator's testimony as to what was said and done at the secret inquisition. The officer's version frequently may reflect an inaccurate understanding of an accused's statements or, on occasion, may be deliberately distorted or falsified. While the accused may protest against these misrepresentations, his protestations will normally be in vain. This is particularly true when the officer is accompanied by several of his assistants and they all vouch for his story. But when the public, or even the suspect's counsel, is present the hazards to the suspect from the officer's misunderstanding or twisting of his statements or conduct are greatly reduced.
35
'The presence of legal counsel or any person who is not an executive officer bent on enforcing the law provides still another protection to the witness. Behind closed doors he can be coerced, tricked or confused by officers into making statements which may be untrue or may hide the truth by creating misleading impressions. While the witness is in the custody of the interrogators, as a practical matter, he is subject to their uncontrolled will. * * * Nothing would be better calculated to prevent misuse of official power in dealing with a witness or suspect than the scrutiny of his lawyer or friends or even of disinterested bystanders.'
36
The demands of our civilization expressed in the Due Process Clause require that the accused who wants a counsel should have one at any time after the moment of arrest.4
1
The grant of certiorari was limited to two questions:
'1. Was the defendant denied due process of law by the refusal of the investigation officers to allow him to consult with an attorney upon demand being made to do so while he was in custody?
'2. Was the defendant denied due process of law by the admission into evidence of a confession which was taken from him while in custody and after he had been in such custody for fourteen hours and had not been allowed to consult with his attorney?'
2
Section 849 of the California Penal Code provides that a person arrested without a warrant must be brought before the nearest or most accessible magistrate in the county of arrest 'without unnecessary delay.' Cal.Penal Code, 1956, § 849.
3
Even if within the scope of the limited grant of certiorari, claims of physical violence—'third degree' methods were denied by witnesses for the State, and hence are not part of the undisputed portions of the record which we consider here. The ambiguous reply by one police officer, 'I don't think we hurt you,' in response to petitioner's assertion in the District Attorney's office that the officer struck him, cannot alter the contradicted state of the evidence when the same officer categorically denied the claim on cross-examination at the trial.
4
At times petitioner appears to urge 'a rule' barring use of a voluntary confession obtained after state denial of a request to contact counsel regardless of whether any violation of a due process right to counsel occurred. That contention is simply an appeal to the supervisory power of this Court over the administration of justice in the federal courts. See McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, which, significantly enough, petitioner cites. The short answer to such a contention here is that this conviction was had in a state, not a federal, court.
5
Section 825 of the California Penal Code provides that after an arrest, an attorney 'may at the request of the prisoner or any relative of such prisoner, visit the person so arreted.' Any officer in charge of the prisoner who wilfully refuses to let the attorney see the prisoner is made guilty of a misdemeanor. Cal.Penal Code, 1956, § 825.
6
It is suggested that this decision extends the rule of Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, to a capital case, thereby overruling, I should suppose, Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and related cases. But those decisions involve another problem, trial and conviction of the accused without counsel after state refusal to appoint an attorney for him. What due process requires in one situation may not be required in another, and this, of course, because the least change of circumstances may provide or eliminate fundamental fairness. The ruling here that due process does not always require immediate honoring of a request to obtain one's own counsel in the hours after arrest, hardly means that the same concept of fundamental fairness does not require state appointment of counsel before an accused is put to trial, convicted and sentenced to death.
1
The use of techniques that make man admit crimes they did not commit and embrace ideas they oppose is told in Communist Interrogation, Indoctrination and Exploitation of American Military and
Civilian Prisoners, S.Rep. No. 2832, 84th Cong., 2d Sess.
Prof. Sam Bass Warner wrote in How Can The Third Degree Be Eliminated? 1 Bill of Rights Rev. 24, 25 (1940) 'Everywhere the formula for successful detective work is that laid down by former Captain Fiaschetti of the New York City police: 'You get a bit of information, and then you grab the suspect and break him down. That is how detective work is done—a general formula."
See Report of Committee on Lawless Enforcement of Law, Am.Bar Assn., 1 Am.J. Police Sci. 575; The Third Degree, 4 Report to the National Commission on Law Observance and Enforcement (1931) 13; The Report of the President's Committee on Civil Rights (1947) 25 et seq.
2
Dean Roscoe Pound wrote in 1934 as follows about this problem: 'In the United States the feeling of police and prosecutors that they ought to be able to interrogate suspected persons long ago led to a systematic development of extra-legal or downright illegal examinations by officials, with every external appearance of legality. These examinations have become so much a matter of course that we may read in every morning paper how police or prosecutor examined (the word usually chosen is 'grilled') so and so for anywhere from ten to forty-eight or more consecutive hours, going at him in relays to wear him out and break him down. They are now taken to be the established practice. Prosecutors often conduct them with a pretence of authority when those subjected to them are ignorant, unadvised as to their rights, insignificant, or without means of employing counsel. Indeed, so bold have those who resort to those practices become, that we now read in the newspapers how this man or that was held 'incommunicado' in a police station or jail while the grilling process was going on. * * *
'No amount of thundering against the third degree and its derivatives and analogues will achieve anything. The temper of the public will not permit of strengthening the constitutional safeguards
of the accused. For some time to come the tendency is likely to be in the opposite direction. Indeed, a feeling that the public are with them is largely behind the boldness with which highhanded, secret, extra-legal interrogations of persons held incommunicado are constantly carried on.
'My proposition is that the remedy for the third degree and its derivatives is to satisfy the reasonable demands of the police and the prosecutors for an interrogation of suspected persons and thus do away with the excuse for extralegal questionings.
'I submit that there should be express provision for a legal examination of suspected or accused persons before a magistrate; that those to be examined should be allowed to have counsel present to safeguard their rights; that provision should be made for taking down the evidence so as to guarantee accuracy. As things are, it is not the least of the abuses of the system of extra-legal interrogation that there is a constant conflict of evidence as to what the accused said and as to the circumstances under which he said or was coerced into saying it.' 24 J.Crim.L. & C. 1014, 1016, 1017.
As recently stated by T. B. Smith, a distinguished Scottish lawyer:
'The opportunities for exerting pressure on a suspect to confess are greatest when there is no judicial supervision, no legal representation and no public scrutiny. If anccused at his trial seeks to retract a confession allegedly extorted If an accused at his trial seeks to stand alone against several police witnesses who may be expected to deny improper pressure. It is well known that in the totalitarian states extra-judicial pressure by brain-washing can eventually convince even the accused that he has committed the most improbable offenses, but when a confession has been extorted by less through third-degree methods it is likely to be retracted at the trial. The accused may, nevertheless, by then have damaged his position irreparably.' 32 Tulane L.Rev. 349, 354.
3
See Chafee, Documents on Fundamental Human Rights, Pamphlets 1—3 (1951—1952), p. 541.
The Scots view was recently stated by the Lord Justice General in Chalmers v. H. M. Advocate, 1954 Sess.Cas. 66, 78: 'The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice.'
4
Quite a few of the States provide that procedural safeguard against coercive police practices. The California Penal Code, § 825, provides:
'The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; and after such arrest, any attorney at law entitled to practice in the courts of record of California, may at the request of the prisoner or any relative of such prisoner, visit the person so arrested. Any officer having charge of the prisoner so arrested who wilfully refuses or neglects to allow such attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow any attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of five hundred dollars, to be recovered by action in any court of competent jurisdiction.'
Another type of statute is that contained in Kan.Gan.Stat., 1949, § 62—1304a, which provides:
'That any person held in restraint of his liberty pending trial or held for investigation in any jail or other place of confinement in this state, shall be permitted upon request to immediately confer privately with an attorney of his choice in the same room with such attorney and without any barriers between such person and his attorney, and without any listening in or recording devices.'
For statutes similar to the Kansas Act see Colo.Rev.Stat.Ann., 1953 (Cum.Supp.1957), c. 39—1—1; Ill.Rev.Stat., 1955, c. 38, § 449.1; Vernon's Ann.Mo.Stat., 1953, § 544.170; Mont.Rev.Codes, 1947, § 93—2117; N.H.Rev.Stat.Ann., 1955, c. 594:16; N.C.Gen.Stat., 1953 (Cum.Supp.1957), § 15—47; Page's Ohio Rev.Code Ann., 1954, § 2935.16. See also § 37 of the A.L.I. Model Code of Criminal Procedure.
| 01
|
357 U.S. 568
78 S.Ct. 1380
2 L.Ed.2d 1546
FIRST METHODIST CHURCH OF SAN LEANDRO and First Unitarian Church of Berkeley, appellants,v.Russell C. HORSTMANN, as Assessor of the County of Alameda, California; Edwin Meese, Jr., as Tax Collector of the County of Alameda, California, et al.
No. 485.
Supreme Court of the United States
June 30, 1958
Messrs.Stanley A. Weigel, Lawrence Speiser and Frank B. Frederick, for appellants.
Mr. J. F. Coakley, for appellees.
Mr. Arthur M. Carden, for appellee City of San Leandro.
PER CURIAM.
1
The judgment is reversed. First Unitarian Church of Los Angeles v. County of Los Angeles et al., (Valley Unitarian-Universalist Church, Inc., v. County of Los Angeles et al.), 357 U.S. 545, 78 S.Ct. 1350; Speiser v. Randall (Prince v. City and County of San Francisco), 357 U.S. 513, 78 S.Ct. 1332, decided this day.
2
Mr. Justice CLARK dissents for the reasons set forth in his dissenting opinions in 357 U.S. 545, 78 S.Ct. 1350, decided this day.
3
The CHIEF JUSTICE took no part in the consideration or decision of this case.
| 23
|
357 U.S. 480
78 S.Ct. 1245
2 L.Ed.2d 1503
Veto GIORDENELLO, Petitioner,v.UNITED STATES of America.
No. 549.
Argued May 21, 1958.
Decided June 30, 1958.
Mr. William F. Walsh, Houston, Tex., for petitioner.
Mr. John L. Murphy, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner was convicted of the unlawful purchase of narcotics, see 26 U.S.C. (Supp. V) § 4704, 26 U.S.C.A. § 4704, after a trial without a jury before the Federal District Court for the Southern District of Texas. A divided Court of Appeals affirmed. 5 Cir., 241 F.2d 575. We granted certiorari to consider petitioner's challenge to the legality of his arrest and the admissibility in evidence of the narcotics seized from his person at the time of the arrest. 355 U.S. 811, 78 S.Ct. 66, 2 L.Ed.2d 30.
2
Agent Finley of the Federal Bureau of Narcotics obtained a warrant for the arrest of petitioner from the United States Commissioner in Houston, Texas, on January 26, 1956. This warrant, issued under Rules 3 and 4 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. (see note 3, infra), was based on a written complaint, sworn to by Finley, which read in part:
3
'The undersigned complainant (Finley) being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.
4
'And the complainant further states that he believes that _ _ _ _ are material witnesses in relation to this charge.'
5
About 6 o'clock in the afternoon of the following day, January 27, Finley saw petitioner drive up to his residence in a car and enter the house. He emerged shortly thereafter and drove away in the same car, closely followed in a second car by a person described by Finley as a 'well-known police character.' Finley pursued the cars until they stopped near another residence which was entered by petitioner. When petitioner left this residence, carrying a brown paper bag in his hand, and proceeded towards his car, Finley executed the arrest warrant and seized the bag, which proved to contain a mixture of heroin and other substances. Although warned of his privilege to remain silent, petitioner promptly admitted purchasing the heroin in Chicago and transporting it to Houston.
6
On January 28 petitioner appeared with counsel before a United States Commissioner. He waived the preliminary examination contemplated by Rule 5 of the Rules of Criminal Procedure, see 357 U.S. 483, 78 S.Ct. 1249, infra, and was arraigned on the complaint upon which the arrest warrant had been issued on January 26.1 Prior to trial petitioner, alleging for the first time that his arrest and the coincident seizure from his person of the paper bag were illegal, moved to suppress for use as evidence the heroin found in the bag. This motion was denied by the District Court, and petitioner's conviction and its affirmance by the Court of Appeals followed.
7
In this Court petitioner argues, as he did below, that Finley's seizure of the heroin was unlawful, since the warrant of arrest was illegal and the seizure could be justified only as incident to a legal arrest, and that consequently the admission of the heroin into evidence was error which requires that his conviction be set aside. The Government contends that petitioner waived his right to challenge the legality of his arrest, and hence to object to the admissibility of this evidence, by failing to question the sufficiency of the warrant at the time he was brought before the United States Commissioner. It further asserts that the arrest warrant satisfied the Federal Rules of Criminal Procedure, and, alternatively, that the arrest can be sustained apart from the warrant because Finley had probable cause to believe that petitioner had committed a felony. The Government recognizes that since Finley had no search warrant, the heroin was admissible in evidence only if its seizure was incident to a lawful arrest, see United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653, and that if the arrest was illegal the admission of this evidence was reversible error.
I.
8
We think it clear that petitioner, by waiving preliminary examination before the United States Commissioner, did not surrender his right subsequently to contest in court the validity of the warrant on the grounds here asserted. A claim of this nature may involve legal issues of subtlety and complexity which it would be unfair to require a defendant to present so soon after arrest, and in many instances, as here, before his final selection of counsel.
9
In addition, examination of the purpose of the preliminary examination before a Commissioner makes evident the unsoundness of the Government's position. Rule 5(c) of the Federal Rules of Criminal Procedure provides in part:
10
'If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed, it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him.'
11
By waiving preliminary examination, a defendant waives no more than the right which this examination was intended to secure him—the right not to be held in the absence of a finding by the Commissioner of probable cause that he has committed an offense.
12
By the same token, the Commissioner here had no authority to adjudicate the admissibility at petitioner's later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a defendant aggrieved by an unlawful search and seizure may '* * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * *' the arrest warrant was defective on any of several grounds. This was the procedural path followed by petitioner, and we hold it proper to put in issue the legality of the warrant. Cf. Albrecht v. United States, 273 U.S. 1, 9—11, 47 S.Ct. 250, 253, 71 L.Ed. 505.
II.
13
Petitioner challenges the sufficiency of the warrant on two grounds: (1) that the complaint on which the warrant was issued was inadequate because the complaining officer, Finley, relied exclusively upon hearsay information rather than personal knowledge in executing the complaint; and (2) that the complaint was in any event defective in that it in effect recited no more than the elements of the crime charged, namely the concealment of heroin with knowledge of its illegal importation in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174.2
14
It appears from Finley's testimony at the hearing on the suppression motion that until the warrant was issued on January 26 his suspicions of petitioner's guilt derived entirely from information given him by law enforcement officers and other persons in Houston, none of whom either appeared before the Commissioner or submitted affidavits. But we need not decide whether a warrant may be issued solely on hearsay information, for in any event we find this complaint defective in not providing a sufficient basis upon which a finding of probable cause could be made.
15
Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon a written and sworn complaint (1) setting forth 'the essential facts constituting the offense charged,' and (2) showing 'that there is probable cause to believe that (such) an offense has been committed and that the defendant has committed it * * *.'3 The provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that '* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * * the persons or things to be seized * * *,' of course applies to arrest as well as search warrants. See Ex parte Burford, 3 Cranch 448, 2 L.Ed. 495; McGrain v. Daugherty, 273 U.S. 135, 154—157, 47 S.Ct. 319, 323, 71 L.Ed. 580. The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint '* * * be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.
16
When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster because it does not provide any basis for the Commissioner's determination under Rule 4 that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made. We think these deficiencies could not be cured by the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer. The insubstantiality of such an argument is illustrated by the facts of this very case, for Finley's testimony at the suppression hearing clearly showed that he had no personal knowledge of the matters on which his charge was based. In these circumstances, it is difficult to understand how the Commissioner could be expected to assess independently the probability that petitioner committed the crime charged. Indeed, if this complaint were upheld, the substantive requirements would be completely read out of Rule 4, and the complaint would be of only formal significance, entitled to perfunctory approval by the Commissioner. This would not comport with the protective purposes which a complaint is designed to achieve.
17
It does not avail the Government to argue that because a warrant of arrest may be issued as of course upon an indictment, this complaint was adequate since its allegations would suffice for an indictment under Federal Rule of Criminal Procedure 7(c). A warrant of arrest can be based upon an indictment because the grand jury's determination that probable cause existed for the indictment also establishes that element for the purpose of issuing a warrant for the apprehension of the person so charged. Here, in the absence of an indictment, the issue of probable cause had to be determined by the Commissioner, and an adequate basis for such a finding had to appear on the face of the complaint.
III.
18
In the two lower courts the Government defended the legality of petitioner's arrest by relying entirely on the validity of the warrant.4 In this Court, however, its principal contention has been that the arrest was justified apart from the warrant. The argument is that Texas law permits arrest without a warrant upon probable cause that the person arrested has committed a felony; that in the absence of a controlling federal statute, as in the case here, federal officers turn to the law of the State where an arrest is made as the source of their authority to arrest without a warrant, cf. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210; Johnson v. United States, supra, 333 U.S. at page 15, 68 S.Ct. at page 369; and that Finley, on the basis of the facts he testified to before the District Court, must be deemed, within the standards of Texas law, to have had the probable cause necessary to arrest petitioner without a warrant.
19
We do not think that these belated contentions are open to the Government in this Court and accordingly we have no occasion to consider their soundness. To permit the Government to inject its new theory into the case at this stage would unfairly deprive petitioner of an adequate opportunity to respond. This is so because in the District Court petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine Finley or to adduce evidence of his own to rebut the contentions that the Government makes here for the first time.
20
Nor do we think that it would be sound judicial administration to send the case back to the District Court for a special hearing on the issue of probable cause which would determine whether the verdict of guilty and the judgment already entered should be allowed to stand. The facts on which the Government now relies to uphold the arrest were fully known to it at the time of trial, and there are no special circumstances suggesting such an exceptional course. Cf. United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234. This is not to say, however, that in the event of a new trial the Government may not seek to justify petitioner's arrest without relying on the warrant.
21
We hold that the seizure in this case was illegal, that the seized narcotics should therefore not have been admitted into evidence, and that petitioner's conviction accordingly must be set aside. The judgment of the Court of Appeals is reversed.
22
Reversed.
23
Mr. Justice CLARK, with whom Mr. Justice BURTON and Mr. Justice WHITTAKER concur, dissenting.
24
I agree that petitioner did not waive his right to attack the complaint by his waiver of preliminary examination. But I cannot agree to other conclusions of the Court which, for all practical purposes, free another narcotics peddler, this time on the ground that the complaint did not provide 'a sufficient basis upon which a finding of probable cause could be made.'
25
The complaint stated that petitioner 'on or about January 26, 1956, at Houston, Texas * * * did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation,' citing the statute violated. Petitioner contends that these allegations did not meet the 'essential facts' requirement of Rule 3 of the Federal Rules of Criminal Procedure. The Court does not pass on this contention, but instead reverses on Rule 4, reasoning that the complaint was deficient because it contained 'no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; (did) not indicate any sources for the complainant's belief; and (did) not set forth any other sufficient basis upon which a finding of probable cause could be made.' I note that petitioner, in his 39-page brief, does not rely on Rule 4, satisfying himself with contentions under Rule 3.
26
The Court is entirely in error in advancing the Rule 4 ground. The complaint alleged an actual occurrence which under the law constituted a prima facie offense—possession of narcotics. Unlawful importation is presumed. 35 Stat. 614, as amended, 21 U.S.C. § 174, 21 U.S.C.A. § 174. See Casey v. United States, 1928, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632. Petitioner's contention is that the complaint imported personal knowledge when in fact it was based in part on information. It thus appears strange for the Court to say that 'deficiencies' in the complaint 'could not be cured by the Commissioner's reliance upon a presumption * * * (of) personal knowledge.' Implicit in petitioner's entire argument is the fact that no presumption was indulged. The complaint was positive and absolute in alleging that petitioner on a certain day and at a specific place 'did receive (and) conceal' heroin. Therefore, the Court's first objection, i.e., absence of an allegation of personal knowledge, is manifestly untenable. As to the second, concerning 'sources for the complainant's belief,' that is something never required in a complaint. In fact, as the Court well knows, sources are considered confidential in narcotics cases and divulgence is seldom required. Such a requirement is a wholly unnecessary and unwarranted extension of Rule 4. Finally, the catchall objection that the complaint did 'not set forth any other sufficient basis' constituting probable cause overlooks the fact that Agent Finley directly and explicitly stated under oath that petitioner 'did receive (and) conceal' heroin. It therefore follows as the night does the day that 'probable cause' existed, and the Commissioner had no recourse other than to issue the warrant. Neither the Court nor petitioner points out what more must be alleged.
27
The caveat that the Commissioner 'should not accept without question the complainant's mere conclusion' is not applicable here. If the statement that petitioner did 'receive' and 'conceal' narcotic drugs is a conclusion, it is also a fact. Unlike other criminal offenses, narcotics violations require no specific intent, and there is no need to spell out facts tending to show such intent. The distinction the Court draws between conclusions and facts is untenable because there is no need here for inferences, unlike ordinary criminal cases. If the accused has 'possession' he has committed an offense, absent satisfactory explanation therefor. And certainly one cannot 'receive' and 'conceal' without having 'possession.' Relating the purpose served by a complaint to that of an application for a search warrant, as the Court does here, citing Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, is most unfortunate. The obliteration of valid distinctions between the two can have little effect on narcotics cases, because subsequent to the arrest here the Congress authorized officers to make arrests without a warrant where there are 'reasonable grounds to believe that the person to be arrested has committed or is committing' a narcotics offense. 70 Stat. 570, 26 U.S.C. (Supp. V) § 7607, 26 U.S.C.A. § 7607. But in other fields of criminal law enforcement it increases the great burden already placed on officers and, like the requirement as to 'sources' and 'other evidentiary facts,' only beclouds what was clear as to the requisites of a complaint. The considerations underlying arrest are not apposite to those of search. As we have seen, arrests can be made in narcotics cases without a warrant where 'reasonable grounds' are present. Prior to this Federal Act, state law was applicable and in Texas permitted arrests without a warrant on 'probable cause' to believe a narcotics offense had been committed. See Giacona v. State, Tex.Cr.R., 298 S.W.2d 587, 588—589; Thomas v. State, 163 Tex.Cr.R. 68, 69—70, 288 S.W.2d 791, 792. Search warrants, on the other hand, are required by the Fourth Amendment 'notwithstanding facts unquestionably showing probable cause.' Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145.* The Court does not strike down this complaint directly on the Fourth Amendment, but merely on an extension of Rule 4. It is unfortunate that through this byplay the constitutional limitations surrounding search and seizure are extended to the long-recognized powers of arrest.
28
Until petitioner came here he in no way attacked the complaint on the ground that it 'recited no more than the elements of the crime charged.' The Court admits as much. See footnote 2 in the majority opinion. Nevertheless, in the face of this admission and without either of the parties depending on Rule 4, much less briefing and arguing it, the Court strikes down this conviction on that ground. In the same breath it tags as 'belated' and refuses on that account to pass on the unanswerable position of the Government, which was fully briefed and argued, that the arrest may be upheld under state law, United States v. Di Re, 1948, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210, as one on probable cause without a warrant. United States v. Rabinowitz, 1950, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653. I cannot subscribe to such a double standard. I ask, how in fairness can the Court consider and decide the case on a point not relied on below by petitioner and at the same time throw out the Government's claim as belated? And particularly so since the Court of Appeals recognized that claim in this language:
29
'Moreover, there was enough in the record to make it clear that an honest official might well have thought he was fully observing the legal restraints placed upon his actions, and that he had good cause for arrest even if the warrant already obtained was invalid since he believed he saw a felony being committed in his presence * * *.' (Emphasis added.) 241 F.2d 575, 579.
30
But assuming that the claim is belated, it states the law and our duty is to apply it. Such purblindness may set petitioner free, but it shackles law enforcement. I dissent.
1
The indictment returned against petitioner did not refer to the crime charged in the complaint but was based on two related offenses. One, charging possession of unlawfully imported narcotics, 21 U.S.C. § 174, 21 U.S.C.A. § 174, was dropped by the Government prior to trial. The other, charging unlawful purchase of narcotics, 26 U.S.C. (Supp. V) § 4704, 26 U.S.C.A. § 4704, resulted in petitioner's conviction.
2
It appears that in the courts below petitioner relied primarily, if not entirely, on the first of these grounds. That of course does not prevent him from relying here also on the second ground, which raises simply a question of law as to the sufficiency of the complaint. See United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973; Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 547, 54 L.Ed. 793; Fed.Rules Crim.Proc., Rule 52(b).
3
Rule 3: 'The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a commissioner or other officer empowered to commit persons charged with offenses against the United States.'
Rule 4(a): '* * * If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any offecer authorized by law to execute it. * * *'
4
The Government asked the District Court to take judicial notice that petitioner was arrested on a 'complaint and warrant.' In addition, Finley's testimony and the 'return' of the United States Marshal to the warrant leave no room for doubt that in fact the warrant constituted the basis for petitioner's arrest.
*
Searches incident to a valid arrest are, of course, excepted.
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