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357 U.S. 504
78 S.Ct. 1297
2 L.Ed.2d 1523
Vincent CICENIA, Petitioner,v.R. William LA GAY, Superintendent of New Jersey State Prison Farm at Rahway,New Jersey.
No. 177.
Argued April 2, 1958.
Decided June 30, 1958.
Mr. Dickinson R. Debevoise, Newark, N.J., for petitioner.
Mr. C. William Caruso, Newark, N.J., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
We are asked to reverse under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States a state conviction which was entered upon a plea of non vult to an indictment for first degree murder.
2
In the evening of March 17, 1947, Charles Kittuah, the owner of a small dry goods store in Newark, New Jersey, was shot and killed during the course of a robbery. The crime remained unsolved until December 17, 1949, when the Newark police obtained information implicating the petitioner and two others, Armando Corvino and John DeMasi. Petitioner lived with his parents at Orange, New Jersey. Apparently acting at the request of the Newark police, the Orange police sought to locate petitioner at his home. When told that her was out, the police left word that he was to report at the Orange police headquarters the following day. Petitioner sought the advice of Frank A. Palmieri, a lawyer, who advised him to report as requested. Petitioner did so, accompanied by his father and brother. Upon arrival at the Orange police station at 9 a.m. on December 18, petitioner was separated from the others and taken by detectives to the Newark police headquarters. At approximately 2 p.m. the same day petitioner's father, brother and Mr. Palmieri, the lawyer, arrived at the Newark station. Mr. Palmieri immediately asked to see petitioner, but this request was refused by the police. He repeated this request at intervals throughout the afternoon and well into the evening, but without success. During this period petitioner, who was being questioned intermittently by the police, asked to see his lawyer. These requests were also denied. Lawyer and client were not permitted to confer until 9:30 p.m., by which time petitioner had made and signed a written confession to the murder of Kittuah. The confession is not in the record.
3
Petitioner was arraigned the next day, December 19, and subsequently indicted, along with Corvino and DeMasi, both of whom had also confessed to the murder. Thereafter, petitioner moved in the Essex County Court for an order requiring the State to produce for inspection before trial his confession and the confessions of his co-defendants and, alternatively, for an order suppressing his confession on the ground that it had been illegally obtained. The County Court denied the motion. The Superior Court of New Jersey dismissed the appeal, State v. Cicenia, 9 N.J.Super. 135, 75 A.2d 476, and the Supreme Court of New Jersey affirmed the dismissal, with modifications. 6 N.J. 296, 78 A.2d 568. The State Supreme Court held that New Jersey had no procedure like that under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., by which inadmissible evidence could be suppressed before trial; that under New Jersey law criminal defendants did not have an absolute right to inspect their confessions in advance of trial; and that the trial judge in this instance did not abuse his discretion in disallowing such an inspection.
4
Following his failure to suppress or obtain inspection of his confession petitioner, on the advice of his attorney, offered to plead non vult to the indictment. In New Jersey such a plea is subject to discretionary acceptance by the trial court, State v. Martin, 92 N.J.L. 436, 106 A. 385, 17 A.L.R. 1090, and carries a maximum sentence of life imprisonment. Petitioner's plea was accepted by the trial court, as were the similar pleas of Corvino and DeMasi, whose cases are not before us. Petitioner and his two co-defendants were thereupon sentenced to life imprisonment at hard labor.
5
Thereafter petitioner commenced habeas corpus proceedings in the New Jersey courts, alleging that his plea of non vult was actuated by the existence of the confession, and that the conviction entered upon such plea was vitiated under both the State and Federal Constitutions because the confession was coerced and because it had been taken in derogation of his right to the assistance of counsel. The County Court, the Superior Court, and the Supreme Court of New Jersey in turn denied relief,1 and this Court denied certiorari. Cicenia v. State of New Jersey, 350 U.S. 925, 76 S.Ct. 215, 100 L.Ed. 809. Petitioner then commenced in the District Court for New Jersey the federal habeas corpus proceeding before us, attacking his conviction on the grounds stated above. The District Court discharged the writ, holding that petitioner had failed to establish the involuntariness of the confession and that the State's refusal to permit petitioner to communicate with counsel during the police inquiry did not deprive him of due process. Application of Cicenia, D.C., 148 F.Supp. 98. The Court of Appeals affirmed, 3 Cir., 240 F.2d 844, and we granted certiorari to consider the constitutional questions presented. Cicenia v. Lagay, 354 U.S. 908, 77 S.Ct. 1297, 1 L.Ed.2d 1426.2
6
An independent examination of the record satisfies us that the District Court was justified in concluding that petitioner failed to substantiate the charge that his confession was coerced. Petitioner does not now contend to the contrary. He continues to contend, however, that under the Fourteenth Amendment his confession, even though voluntary, was nevertheless vitiated by police refusal to permit him to confer with counsel during his detention at Newark police headquarters, and that because his plea of non vult was based on the confession, the conviction must fall as well.3
7
The contention that petitioner had a constitutional right to confer with counsel is disposed of by Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, decided today. There we held that California's failure to honor Crooker's request during a period of police interrogation to consult with a lawyer, as yet unretained, did not violate the Fourteenth Amendment. Because the present case, in which petitioner was denied an opportunity to confer with the lawyer whom he had already retained, sharply points up the constitutional issue involved, some additional observations are in order.
8
We share the strong distaste expressed by the two lower courts over the episode disclosed by this record. Cf. Stroble v. California, 343 U.S. 181, 197—198, 72 S.Ct. 599, 607, 96 L.Ed. 872. Were this a federal prosecution we would have little difficulty in dealing with what occurred under our general supervisory power over the administration of justice in the federal courts. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. But to hold that what happened here violated the Constitution of the United States is quite another matter.
9
The difficulties inherent in the problem require no extensive elaboration. Cf. Watts v. Indiana, 338 U.S. 49, 57—62, 69 S.Ct. 1347, 1351, 1359, 93 L.Ed. 1801 (opinion of Jackson, J.). On the one hand, it is indisputable that the right to counsel in criminal cases has a high place in our scheme of procedural safeguards. On the other hand, it can hardly be denied that adoption of petitioner's position would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases. A satisfactory formula for reconciling these competing concerns is not to be found in any broad pronouncement that one must yield to the other in all instances. Instead, as we point out in Crooker v. California, supra, this Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant's lack of counsel one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness. See House v. Mayo, 324 U.S. 42, 45—46, 65 S.Ct. 517, 519—520, 89 L.Ed. 739; Payne v. Arkansas, 356 U.S. 560, 567, 78 S.Ct. 844, 849, 2 L.Ed.2d 975.
10
In contrast, petitioner would have us hold that any state denial of a defendant's request to confer with counsel during police questioning violates due process, irrespective of the particular circumstances involved. Such a holding, in its ultimate reach, would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule. See McNabb v. United States, supra; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1256, 1 L.Ed.2d 1479. Still less should we impose this standard on each of the 48 States as a matter of constitutional compulsion.4 It is well known that law-enforcement problems vary widely from State to State, as well as among different communities within the same State. This Court has often recognized that it is of the 'very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.' Hoag v. New Jersey, 356 U.S. 464, 468, 78 S.Ct. 829, 833, 2 L.Ed.2d 913. See Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97. The broad rule sought here and in Crooker would require us to apply the Fourteenth Amendment in a manner which would be foreign both to the spirit in which it was conceived and the way in which it has been implemented by this Court.
11
Petitioner's remaining constitutional contention can be disposed of briefly. He argues that he was deprived of due process because New Jersey required him to plead to the indictment for murder without the opportunity to inspect his confession.
12
The Fourteenth Amendment does not reach so far. As stated by the Supreme Court of New Jersey in the earlier proceedings in this case, State v. Cicenia, 6 N.J. 296, at pages 299—301, 78 A.2d 568, at pages 570—571, the rule in that State is that the trial judge has discretion whether or not to allow inspection before trial. This is consistent with the practice in many other jurisdictions. See, e.g., State v. Haas, 188 Md. 63, 51 A.2d 647; People v. Skoyec, 183 Misc. 764, 50 N.Y.S.2d 438; State v. Clark, 21 Wash.2d 774, 153 P.2d 297. In Leland v. Oregon, 343 U.S. 790, 801—802, 72 S.Ct. 1002, 1008—1009, 96 L.Ed. 1302, this Court held that in the absence of a showing of prejudice to the defendant it was not a violation of due process for a State to deny counsel an opportunity before trial to inspect his client's confession. It is true that in Leland the confession was made available to the defense at the trial several days before its case was rested, whereas here petitioner pleaded non vult without an opportunity to see the confession. We think that the principle of that case is nonetheless applicable. As was said in Leland (343 U.S. at page 801, 72 S.Ct. at page 1008), although it may be the 'better practice' for the prosecution to comply with a request for inspection, we cannot say that the discretionary refusal of the trial judge to permit inspection in this case offended the Fourteenth Amendment. Cf. Application of Tune, 3 Cir., 230 F.2d 883, 890—892.
13
Affirmed.
14
Mr. Justice BRENNAN took no part in the consideration or decision of this case.
15
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
16
Petitioner, pursuant to a request left by the police at his home on Saturday, December 17, appeared at headquarters in Orange, New Jersey, at 9 a.m. on the 18th. He did so on the advice of his lawyer, Frank A. Palmieri. Petitioner's brother and father accompanied him on this visit but were separated from him on arrival at the headquarters. Shortly thereafter petitioner was taken to Newark where he was interrogated by the police until 9:30 p.m. when he confessed. Between 2 p.m. and 9:30 p.m. Mr. Palmieri asked over and again to see his client; but his requests were not granted. On this phase of the case the District Court said:
17
'Mr. Palmieri was not produced as a witness on the trial of this case, but his affidavit was admitted by stipulation. The contents of his affidavit and the testimony of petitioner's father and brother are at variance with the testimony of the Newark police as to the manner in which petitioner and his counsel were restrained from communicating with each other. According to petitioner's witnesses Palmieri's pleas were met with blunt refusals and remarks such as 'We're working on him.' The police claim to have been much more decorous. But whether it was done flippantly or courteously, the fact remains that for over seven hours the Newark police formed an insuperable barrier between an accused who wanted to see his counsel, and counsel who wanted to see his client. And it was during these seven hours that the police and an assistant prosecutor were able to obtain a detailed confession from petitioner.' 148 F.Supp. 98, 99—100.
18
The District Court reached 'without enthusiasm' the conclusion that petitioner's constitutional rights had not been impaired. Id., at page 104. The Court of Appeals evinced the same lack of enthusiasm for the result. 3 Cir., 240 F.2d 844. Both lower courts felt that any correction of this unjust result should come from us. I regret that we have not taken this case, and the companion cases, as the occasion to bring our decisions into tune with the constitutional requirement for fair criminal proceedings against the citizen. I would reverse the judgment for the reasons stated in my dissent in Crooker v. California, 357 U.S. 441, 78 S.Ct. 1293.
1
The opinions of the County Court and Superior Court are not reported. The State Supreme Court wrote no opinion.
2
Although the State does not contend that the case is not properly here, we have nevertheless felt obliged to consider our jurisdiction in view of the following circumstances: New Jersey has a rule that a defendant who pleads guilty waives the right to attack a confession on which such plea is based. See In re Domako, 20 N.J.Super. 314, 90 A.2d 30, affirmed 11 N.J. 591, 95 A.2d 505. Following that rule, the Essex County Court held that petitioner could not attack his conviction on habeas corpus. On appeal the Superior Court did not advert to that question, but affirmed the County Court on the ground that under New Jersey law petitioner had no constitutional right to counsel prior to arraignment. See State v. Grillo, 11 N.J. 173, 93 A.2d 328. The State Supreme Court gave no reasons for denying leave to appeal. Since the Superior Court had dealt with petitioner's constitutional claims on the merits, the two lower federal courts decided that they had the power to consider them. Cf. Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469; Hawk v. Olson, 326 U.S. 271, 278, 66 S.Ct. 116, 120, 90 L.Ed. 61. We agree that jurisdiction exists. In the absence of a definitive New Jersey ruling that the Domako waiver principle applies to a plea of non vult, we shall not assume that the New Jersey Supreme Court's decision denying leave to appeal was based on that nonfederal ground. Cf. Stembridge v. Georgia, 343 U.S. 541, 72 S.Ct. 834, 96 L.Ed. 1130. Our conclusion is strengthened by the fact that the Superior Court did not rely on the Domako rule, and by the absence of any challenge to our jurisdiction by the State.
3
Since we conclude that the police refusal to allow petitioner to consult with his lawyer did not violate the Fourteenth Amendment, we need not consider the State's further contention that petitioner was not denied due process because the confession was never 'used' against him, he having pleaded non vult to the indictment. But cf. Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.
4
New Jersey is not alone in its rule that an accused has no right to consult with counsel during the period between arrest and arraignment. See State v. Rogers, 143 Conn. 167, 120 A.2d 409; State of Utah v. Sullivan, 10 Cir., 227 F.2d 511; People v. Kelly, 404 Ill. 281, 89 N.E.2d 27. Most States have not had occasion to rule on the issue before us, and it is generally quite unclear in state law when the right to have counsel begins. See Beaney, The Right to Counsel in American Courts, 127—128; 3 A.L.R.2d 1003, 1032 et seq.
| 01
|
357 U.S. 349
78 S.Ct. 1275
2 L.Ed.2d 1377
Myron WIENER, Petitioner,v.UNITED STATES.
No. 52.
Argued Nov. 18, 1957.
Decided June 30, 1958.
Mr. I. H. Wachtel, New York City, for the petitioner.
Sol. Gen. J. Lee Rankin, Washington, D.C., for the respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a suit for back pay, based on petitioner's alleged illegal removal as a member of the War Claims Commission. The facts are not in dispute. By the War Claims Act of 1948, 62 Stat. 1240, 50 U.S.C.A. Appendix, § 2001 et seq., Congress established that Commission with 'jurisdiction to receive and adjudicate according to law,' § 3, claims for compensating internees, prisoners of war, and religious organizations, §§ 5, 6 and 7, who suffered personal injury or property damage at the hands of the enemy in connection with World War II. The Commission was to be composed of three persons, at least two of whom were to be members of the bar, to be appointed by the President, by and with the advice and consent of the Senate. The Commission was to wind up its affairs not later than three years after the expiration of the time for filing claims, originally limited to two years but extended by successive legislation first to March 1, 1951, 63 Stat. 112, and later to March 31, 1952, 65 Stat. 28. This limit on the Commission's life was the mode by which the tenure of the Commissioners was defined, and Congress made no provision for removal of a Commissioner.
2
Having been duly nominated by President Truman, the petitioner was confirmed on June 2, 1950, and took office on June 8, following. On his refusal to heed a request for his resignation, he was, on December 10, 1953, removed by President Eisenhower in the following terms: 'I regard it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection.' The following day, the President made recess appointments to the Commission, including petitioner's post. After Congress assembled, the President, on February 15, 1954, sent the names of the new appointees to the Senate. The Senate had not confirmed these nominations when the Commission was abolished, July 1, 1954, by Reorganization Plan No. 1 of 1954, 68 Stat. 1279, 5 U.S.C.A. § 133z—15 note, issued pursuant to the Reorganization Act of 1949, 63 Stat. 203, 5 U.S.C.A. § 133z et seq. Thereupon, petitioner brought this proceeding in the Court of Claims for recovery of his salary as a War Claims Commissioner from December 10, 1953, the day of his removal by the President, to June 30, 1954, the last day of the Commission's existence. A divided Court of Claims dismissed the petition, 142 F.Supp. 910, 135 Ct.Cl. 827. We brought the case here, 352 U.S. 980, 77 S.Ct. 382, 1 L.Ed.2d 364, because it presents a variant of the constitutional issue decided in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611.*
3
Controversy pertaining to the scope and limits of the President's power of removal fills a thick chapter of our political and judicial history. The long stretches of its history, beginning with the very first Congress, with early echoes in the Reports of this Court, were laboriously traversed in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, and need not be retraced. President Roosevelt's reliance upon the pronouncements of the Court in that case in removing a member of the Federal Trade Commission on the ground that 'the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection' reflected contemporaneous professional opinion regarding the significance of the Myers decision. Speaking through a Chief Justice who himself had been President, the Court did not restrict itself to the immediate issue before it, the President's inherent power to remove a postmaster, obviously an executive official. As of set purpose and not by way of parenthetic casualness, the Court announced that the President had inherent constitutional power of removal also of officials who have 'duties of a quasi-judicial character * * * whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control.' Myers v. United States, supra, 272 U.S. at page 135, 47 S.Ct. at page 31. This view of presidential power was deemed to flow from his 'constitutional duty of seeing that the laws be faithfully executed.' Ibid.
4
The assumption was short-lived that the Myers case recognized the President's inherent constitutional power to remove officials, no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure. The versatility of circumstances often mocks a natural desire for definitiveness. Within less than ten years a unanimous Court, in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, narrowly confined the scope of the Myers decision to include only 'all purely executive officers.' 295 U.S. at page 628, 55 S.Ct. at page 874. The Court explicitly 'disapproved' the expressions in Myers supporting the President's inherent constitutional power to remove members of quasi-judicial bodies. 295 U.S. at pages 626—627, 55 S.Ct. at pages 873—874. Congress had given members of the Federal Trade Commission a seven-year term and also provided for the removal of a Commissioner by the President for inefficiency, neglect of duty or malfeasance in office. In the present case, Congress provided for a tenure defined by the relatively short period of time during which the War Claims Commission was to operate—that is, it was to wind up not later than three years after the expiration of the time for filing of claims. But nothing was said in the Act about removal.
5
This is another instance in which the most appropriate legal significance must be drawn from congressional failure of explicitness. Necessarily this is a problem in probabilities. We start with one certainty. The problem of the President's power to remove members of agencies entrusted with duties of the kind with which the War Claims Commission was charged was within the lively knowledge of Congress. Few contests between Congress and the President have so recurringly had the attention of Congress as that pertaining to the power of removal. Not the least significant aspect of the Myers case is that on the Court's special invitation Senator George Wharton Pepper, of Pennsylvania, presented the position of Congress at the bar of this Court.
6
Humphrey's case was a cause celebre—and not least in the halls of Congress. And what is the essence of the decision in Humphrey's case? It drew a sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President's constitutional powers, and those who are members of a body 'to exercise its judgment without the leave or hindrance of any other official or any department of the government,' 295 U.S. at pages 625—626, 55 S.Ct. at page 873, as to whom a power of removal exists only if Congress may fairly be said to have conferred it. This sharp differentiation derives from the difference in functions between those who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference. 'For it is quite evident,' again to quote Humphrey's Executor, 'that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will.' 295 U.S. at page 629, 55 S.Ct. at page 874.
7
Thus, the most reliable factor for drawing an inference regarding the President's power of removal in our case is the nature of the function that Congress vested in the War Claims Commission. What were the duties that Congress confided to this Commission? And can the inference fairly be drawn from the failure of Congress to provide for removal that these Commissioners were to remain in office at the will of the President? For such is the assertion of power on which petitioner's removal must rest. The ground of President Eisenhower's removal of petitioner was precisely the same as President Roosevelt's removal of Humphrey. Both Presidents desired to have Commissioners, one on the Federal Trade Commission, the other on the War Claims Commission, 'of my own selection.' They wanted these Commissioners to be their men. The terms of removal in the two cases are identic and express the assumption that the agencies of which the two Commissioners were members were subject in the discharge of their duties to the control of the Executive. An analysis of the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq., left this Court in no doubt that such was not the conception of Congress in creating the Federal Trade Commission. The terms of the War Claims Act of 1948 leave no doubt that such was not the conception of Congress regarding the War Claims Commission.
8
The history of this legislation emphatically underlines this fact. The short of it is that the origin of the Act was a bill, H.R. 4044, 80th Cong., 1st Sess., passed by the House that placed the administration of a very limited class of claims by Americans against Japan in the hands of the Federal Security Administrator and provided for a Commission to inquire into and report upon other types of claims. See H.R.Rep.No.976, 80th Cong., 1st Sess. The Federal Security Administrator was indubitably an arm of the President. When the House bill reached the Senate, it struck out all but the enacting clause, rewrote the bill, and established a Commission with 'jurisdiction to receive and adjudicate according to law' three classes of claims, as defined by §§ 5, 6 and 7. The Commission was established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination 'not subject to review by any other official of the United States or by any court by mandamus or otherwise,' § 11. Awards were to be paid out of a War Claims Fund in the hands of the Secretary of the Treasury, whereby such claims were given even more assured collectability than adheres to judgments rendered in the Court of Claims. See S.Rep.No.1742, 80th Cong., 2d Sess. With minor amendment, see H.R.Rep.No.2439, 80th Cong., 2d Sess. 10—11 (Conference Report), this Senate bill became law.
9
When Congress has for distribution among American claimants funds derived from foreign sources, it may proceed in different ways. Congress may appropriate directly; it may utilize the Executive; it may resort to the adjudicatory process. See La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223. For Congress itself to have made appropriations for the claims with which it dealt under the War Claims Act was not practical in view of the large number of claimants and the diversity in the specific circumstances giving rise to the claims. The House bill in effect put the distribution of the narrow class of claims that it acknowledged into Executive hands, by vesting the procedure in the Federal Security Administrator. The final form of the legislation, as we have seen, left the widened range of claims to be determined by adjudication. Congress could, of course, have given jurisdiction over these claims to the District Courts or to the Court of Claims. The fact that it chose to establish a Commission to 'adjudicate according to law' the classes of claims defined in the statute did not alter the intrinsic judicial character of the task with which the Commission was charged. The claims were to be 'adjudicated according to law,' that is, on the merits of each claim, supported by evidence and governing legal considerations, by a body that was 'entirely free from the control or coercive influence, direct or indirect,' Humphrey's Executor v. United States, supra, 295 U.S. at page 629, 55 S.Ct. at page 874 of either the Executive or the Congress. If, as one must take for granted, the War Claims Act precluded the President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.
10
For such is this case. We have not a removal for cause involving the rectitude of a member of an adjudicatory body, nor even a suspensory removal until the Senate could act upon it by confirming the appointment of a new Commissioner or otherwise dealing with the matter. Judging the matter in all the nakedness in which it is presented, namely, the claim that the President could remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own appointees on such a Commission, we are compelled to conclude that no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it. The philosophy of Humphrey's Executor, in its explicit language as well as its implications, precludes such a claim.
11
The judgment is reversed.
12
Reversed.
*
An earlier quo warranto proceeding initiated by petitioner was dismissed; an appeal from this judgment was dismissed as moot by stipulation of the parties. The Government's contention that that judgment estops petitioner from relitigating certain issues in the present proceeding does not, in the special circumstances presented on this record, call for consideration on the merits. It was not urged, as in the particular situation it should have been, as a 'ground why the cause should not be reviewed by this court.' Rule 24(1) of the Revised Rules of the Supreme Court of the United States, 28 U.S.C.A. In thus disposing of the matter, we do not mean to imply any support on the merits of the Government's claim.
| 78
|
357 U.S. 426
78 S.Ct. 1354
2 L.Ed.2d 1443
Milda Hopkins ASHDOWN, Petitioner,v.STATE OF UTAH.
No. 158.
Argued April 1, 1958.
Decided June 30, 1958.
Mr. J. Vernon Erickson, Richfield, Utah, for petitioner.
Mr. Walter L. Budge, Salt Lake City, Utah, for respondent.
Mr. Justice BURTON delivered the opinion of the Court.
1
A jury in a Utah court found petitioner, Mrs. Ashdown, guilty of the first-degree murder of her husband and recommended a life sentence. The question before us is whether petitioner's oral confession was obtained in such a manner as to make its use in evidence a violation of the due process of law required by the Fourteenth Amendment to the Constitution of the United States. This issue was thoroughly considered by the trial court which made findings in relation to it. The Supreme Court of Utah reviewed the record in detail and upheld the admission of the confession. 5 Utah 2d 59, 296 P.2d 726. We granted certiorari. 353 U.S. 981, 77 S.Ct. 1286, 1 L.Ed.2d 1141. Our independent review of the record brings us to the same conclusion.
2
On July 5, 1955, Ray Ashdown, petitioner's husband, died suddenly in his home in Cedar City, Utah. Petitioner had summoned a doctor who arrived shortly before Ray Ashdown's death. The doctor testified that the deceased gave the appearance of having been poisoned and that he told the doctor just before he died that he had taken some bitter-tasting lemon juice about a half hour earlier. On being called, the sheriff made a thorough search of the Ashdown home but found no trace of any poison. An autopsy was performed, and the contents of the deceased's stomach was sent to the state chemist's office for analysis. The report, received by the sheriff on July 9, stated that the stomach of the deceased contained strychnine.
3
July 9 was the day of the funeral. Promptly after receipt of the chemist's report, the sheriff went to the cemetery, arriving just after the interment. Through petitioner's brother-in-law, the sheriff asked that petitioner come to the County and City Building. At about 4 p.m. she and her sister arrived at the sheriff's office. The sheriff asked to talk with petitioner privately and she consented. They went across the hall to an empty courtroom where the sheriff, a deputy sheriff and the district attorney, all people known by the petitioner, talked with her for the next five and one-half hours.
4
The sheriff told petitioner the results of the autopsy and the chemist's report. Within the first half hour, the district attorney advised her that she did not have to answer any questions and that she was entitled to consult with an attorney. She made no request for an attorney at that time. She said she did not think she could add anything to help the investigation, but she mentioned her husband had been despondent on several occasions. The officers let her talk freely on family matters without interruption and such conversation consumed about half the time spent in the interview. The sheriff attempted to direct her attention to discovering whether her husband's death might have been due to an accident. To impress her with the importance of the distinction between murder and manslaughter, the district attorney read her some of the statutes relating to those crimes. In addition, he told her about an experience he had in the Army in Europe. He said he had been accused of killing five men but, by cooperating with investigating officials, he had been cleared of all blame for those deaths.
5
The officers reviewed in detail the events of July 5. Petitioner admitted giving her husband a cup of lemon juice about a half hour before his death. She said she had put salt in the juice and denied that she might have mistakenly used poison instead of salt. The sheriff asked whether the deceased drank all of the lemon juice offered him. Petitioner replied that he had not, and that she had thrown out the remainder and put the cup, unwashed, on top of the Frigidaire. In their search of the house, the officers found the cup, washed, standing on the drainboard. When asked about it, petitioner said that, after she had gone for the second time to a neighbor's house to call the doctor (who arrived before she returned), she had washed the cup and placed it where the officers found it. Petitioner could not explain why she had walked past the doctor and her husband, who was at that moment in the last extremity, to wash a cup. Petitioner several times asked whether the officers wanted her to confess to something she had not done, and they repeatedly told her they did not.
6
Petitioner, at one point, stated that her husband had put the strychnine in the lemon juice. After a brief interrogation as to how he had done it, the sheriff told her he did not believe her husband had poisoned himself. Petitioner then confessed that she had put five or six grains of strychnine in the cup. She said she had planned to take it herself but later decided to give it to her husband. The sheriff testified that she was emotionally upset, crying and sobbing. The confession came about four and one-half hours after the questioning began. Petitioner hesitated to say where she had obtained the strychnine and suggested she should have an attorney. The sheriff did not respond to this request. He said merely that she had told them everything except where the poison came from, and she might as well tell that 'and get this over with.' She then told where she had obtained the strychnine.
7
Meanwhile, petitioner's father and uncle had come to the County and City Building. They asked to see petitioner and their request was denied, pending completion of the interview. They waited in the sheriff's office and, at his request, made several trips to the Ashdown home. From their position in the hall outside the courtroom, they heard petitioner crying and sobbing. After petitioner had confessed, the sheriff asked her whether she wanted to see her relatives. At first she refused, saying she was ashamed to face them, but the sheriff persisted and she eventually consented.
8
On the 10th, the sheriff prepared a written statement of what petitioner had said the day before and took it to her cell. She was told she could sign the statement or not as she wished, and she could make changes. She examined the statement carefully, made numerous changes, and signed it.
9
At the trial, the court held an extended hearing in the absence of the jury on the admissibility of petitioner's confessions. Petitioner took the stand during the preliminary hearing but testified only as to what the district attorney had said. She did not challenge any other statements of the sheriff, the deputy sheriff or the district attorney. The trial court ruled that all statements made by petitioner after her request for an attorney, including the written statement, should be excluded. Thus, only the oral confession was introduced in evidence before the jury.
10
Petitioner emphasizes the statement of the district attorney that he had once avoided a criminal charge by cooperating with the investigating officers. Petitioner argues that this statement was an implied promise of immunity or leniency to be exercised in return for a confession. We agree with the Supreme Court of Utah that, under the circumstances, this statement was not improper. It was made long before petitioner confessed and in connection with the search for an accidental explanation of the death. Moreover, petitioner was repeatedly told not to confess to something she had not done.
11
A study of the record as a whole convinces us that the interview with petitioner was temperate and courteous. The sheriff proceeded cautiously and acted with consideration for the feelings of petitioner. For example, he explained that the reason he did not seek a written statement until the day after the interview was that 'We thought we would talk to her on the 10th, she would be calm and wouldn't be excited and she would know what she was doing. We didn't want to feel like taking advantage of her.' Petitioner's emotional distress during the interview may be attributed to her remorse, rather than to any coercive conduct of the officers. There is nothing in the record which indicates that the sheriff chose to question petitioner immediately after her husband's funeral in order to capitalize on her feelings. Rather, he appears to have taken the first opportunity to talk with her after it had been established that her husband's death was caused by poisoning. The questioning was done by officers whom petitioners knew. She was not questioned in relays or made to repeat a story over and over while the interrogators searched for an inconsistency or flaw. She was allowed to talk without interruption about such matters as she chose. In sum, we find ample support in this record for a finding that the officers did not intend to take advantage of petitioner and that nothing they did had the effect of overbearing her will.
12
Accordingly, the judgment is affirmed.
13
Affirmed.
14
Mr. Justice BLACK dissents.
15
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
16
The uncle and the father of petitioner appeared at the sheriff's office shortly after petitioner was arrested. The uncle testified that he said, 'I don't think she has got a right to be questioned without her father's presence or some attorney.' The father testified that he said, 'I made the remark that it didn't look to me like a fair, square deal, to railroad that girl into that sheriff's office without counsel or friends of any description.'
17
The uncle and the father were denied admission. They were calmed by the assurance that the accused had a lawyer at her side to aid her under the questioning of the police which was not true.
18
The request of a next of kin or friend outside the jail that counsel be furnished the accused who was inside under examination should be demand enough. Certainly those on the outside would have calmer judgment than the accused. They should speak for her unless it is clear, as it was not in this case, that the accused had waived her right to a lawyer and had elected to talk instead. For the reasons stated in my dissent in Crooker v. California, 357 U.S. 441, 78 S.Ct. 1287. I would reverse this judgment of conviction.
| 01
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358 U.S. 1
78 S.Ct. 1401
3 L.Ed.2d 5
3 L.Ed.2d 19
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, Petitioners,v.John AARON et al.
No. 1
August Special Term, 1958.
Decided Sept. 29, 1958.
Concurring Opinion Oct. 6, 1958.
[Syllabus from Pages 1-3 intentionally left blank]
Note: The per curiam opinion announced on September 12, 1958, and printed in a footnote, post, p. 5, applies not only to this case but also to No. 1, Misc., August Special Term, 1958, Aaron et al. v. Cooper et al., on application for vacation of order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate, for stay of order of the United States District Court for the Eastern District of Arkansas, and for such other orders as petitions may be entitled to, argued August 28, 1958.
Mr. Richard C. Butler, Little Rock, Ark., for petitioners.
Mr. Thurgood Marshall, New York City, for respondents.
Mr. J. Lee Rankin, Sol. Gen., Washington, D. C., as amicus curiae by invitation of the Court.
Opinion of the Court by The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS, Mr. Justice BURTON, Mr. Justice CLARK, Mr. Justice HARLAN, Mr. Justice BRENNAN, and Mr. Justice WHITTAKER.
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
The case was argued before us on September 11, 1958. On the following day we unanimously affirmed the judgment of the Court of Appeals for the Eighth Circuit, 257 F.2d 33, which had reversed a judgment of the District Court for the Eastern District of Arkansas, 163 F.Supp. 13. The District Court had granted the application of the petitioners, the Little Rock School Board and School Superintendent, to suspend for two and one-half years the operation of the School Board's court-approved desegregation program. In order that the School Board might know, without doubt, its duty in this regard before the opening of school, which had been set for the following Monday, September 15, 1958, we immediately issued the judgment, reserving the expression of our supporting views to a later date.* This opinion of all of the members of the Court embodies those views.
The following are the facts and circumstances so far as necessary to show how the legal questions are presented.
On May 17, 1954, this Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686. The Court postponed, pending further argument, formulation of a decree to effectuate this decision. That decree was rendered May 31, 1955. Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 756. In the formulation of that decree the Court recognized that good faith compliance with the principles declared in Brown might in some situations 'call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision.' 349 U.S. at page 300, 75 S.Ct. at page 756. The Court went on to state:
'Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
'While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.' 349 U.S. at pages 300-301, 75 S.Ct. at page 756.
Under such circumstances, the District Courts were directed to require 'a prompt and reasonable start toward full compliance,' and to take such action as was necessary to bring about the end of racial segregation in the public schools 'with all deliberate speed.' Ibid. Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the Court should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.
On May 20, 1954, three days after the first Brown opinion, the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled 'Supreme Court Decision—Segregation in Public Schools.' In this statement the Board recognized that
'It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when the Supreme Court of the United States outlines the method to be followed.' Thereafter the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1955, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades 10 through 12) as the first stage. Desegregation at the junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in the fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963. Following the adoption of this plan, the Superintendent of Schools discussed it with a large number of citizen groups in the city. As a result of these discussions, the Board reached the conclusion that 'a large majority of the residents' of Little Rock were of 'the belief * * * that the Plan, although objectionable in principle,' from the point of view of those supporting segregated schools, 'was still the best for the interests of all pupils in the District.'
Upon challenge by a group of Negro plaintiffs desiring more rapid completion of the desegregation process, the District Court upheld the School Board's plan, Aaron v. Cooper, 143 F.Supp. 855. The Court of Appeals affirmed, 8 Cir., 243 F.2d 361. Review of that judgment was not sought here.
While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose 'in every Constitutional manner the Un-constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court,' Ark.Const.Amend. 44, and, through the initiative, a pupil assignment law, Ark.Stats. §§ 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark.Stats. § 80-1525, and a law establishing a State Sovereignty Commission, Ark.Stats. §§ 6-801 to 6-824, were enacted by the General Assembly in February 1957.
The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September 1957 to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth transition of this first stage of desegregation, were undertaken.
On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school 'off limits' to colored students. As found by the District Court in subsequent proceedings, the Governor's action had not been requested by the school authorities, and was entirely unheralded. The findings were these:
'Up to this time [September 2], no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.' Aaron v. Cooper, 156 F.Supp. 220, 225.
The Board's petition for postponement in this proceeding states: 'The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and from that date hostility to the Plan was increased and criticism of the officials of the [School] District has become more bitter and unrestrained.' The Governor's action caused the School Board to request the Negro students on September 2 not to attend the high school 'until the legal dilemma was solved.' The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board's request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.
On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school but, as the District Court later found, units of the Arkansas National Guard 'acting pursuant to the Governor's order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students * * * from entering,' as they continued to do every school day during the following three weeks. 156 F.Supp. at page 225.
That same day, September 4, 1957, the United States Attorney for the Eastern District of Arkansas was requested by the District Court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the District Court's direction to carry out the desegregation program. Three days later, September 7, the District Court denied a petition of the School Board and the Superintendent of Schools for an order temporarily suspending continuance of the program.
Upon completion of the United States Attorney's investigation, he and the Attorney General of the United States, at the District Court's request, entered the proceedings and filed a petition on behalf of the United States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard from further attempts to prevent obedience to the court's order. After hearings on the petition, the District Court found that the School Board's plan had been obstructed by the Governor through the use of National Guard troops, and granted a preliminary injunction on September 20, 1957, enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at Central High School, and from otherwise obstructing or interfering with the orders of the court in connection with the plan. 156 F.Supp. 220, affirmed, Faubus v. United States, 8 Cir., 254 F.2d 797. The National Guard was then withdrawn from the school.
The next school day was Monday, September 23, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. 163 F.Supp. at page 16. On September 25, however, the President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year.
We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out the Board's desegregation program be postponed for a period later suggested by the Board to be two and one-half years.
After a hearing the District Court granted the relief requested by the Board. Among other things the court found that the past year at Central High School had been attended by conditions of 'chaos, bedlam and turmoil'; that there were 'repeated incidents of more or less serious violence directed against the Negro students and their property'; that there was 'tension and unrest among the school administrators, the class-room teachers, the pupils, and the latters' parents, which inevitably had an adverse effect upon the educational program'; that a school official was threatened with violence; that a 'serious financial burden' had been cast on the School District; that the education of the students had suffered 'and under existing conditions will continue to suffer'; that the Board would continue to need 'military assistance or its equivalent'; that the local police department would not be able 'to detail enough men to afford the necessary protection'; and that the situation was 'intolerable.' 163 F.Supp., at pages 20-26.
The District Court's judgment was dated June 20, 1958. The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court's judgment. At the same time they filed a petition for certiorari in this Court asking us to review the District Court's judgment without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court for a stay. That we declined to do. 357 U.S. 566, 78 S.Ct. 1189, 2 L.Ed.2d 1544. The Court of Appeals did not act on the petition for a stay but on August 18, 1958, after convening in special session on August 4 and hearing the appeal, reversed the District Court, 257 F.2d 33. On August 21, 1958, the Court of Appeals stayed its mandate to permit the School Board to petition this Court for certiorari. Pending the filing of the School Board's petition for certiorari, the Negro respondents, on August 23, 1958, applied to Mr. Justice Whittaker, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeals withholding its own mandate and also to stay the District Court's judgment. In view of the nature of the motions, he referred them to the entire Court. Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, see Aaron v. Cooper, 357 U.S. 566, 567, 78 S.Ct. 1189, 1190, we convened in Special Term on August 28, 1958, and heard oral argument on the respondents' motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals' judgment was clearly correct on the merits, and urged that we vacate its stay forthwith. Finding that respondents' application necessarily involved consideration of the merits of the litigation, we entered an order which deferred decision upon the motions pending the disposition of the School Board's petition for certiorari, and fixed September 8, 1958, as the day on or before which such petition might be filed, and September 11, 1958, for oral argument upon the petition. The petition for certiorari, duly filed, was granted in open Court on September 11, 1958, 358 U.S. 29, 78 S.Ct. 1398, and further arguments were had, the Solicitor General again urging the correctness of the judgment of the Court of Appeals. On September 12, 1958, as already mentioned, we unanimously affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the outset of this opinion.
In affirming the judgment of the Court of Appeals which reversed the District Court we have accepted without reservation the position of the School Board, the Superintendent of Schools, and their counsel that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequence of events which has been outlined. We likewise have accepted the findings of the District Court as to the conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to continue.
The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court's decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: 'The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.'
One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but, regardless of the Board's good faith, the actions of the other state agencies responsible for those conditions compel us to reject the Board's legal position. Had Central High School been under the direct management of the State itself, it could hardly be suggested that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult of impossible by the actions of other state officials. The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State.
The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: 'It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.' Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149. Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.
The controlling legal principles are plain. The command of the Fourteenth Amendment is that no 'State' shall deny to any person within its jurisdiction the equal protection of the laws. 'A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, * * * denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.' Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676. Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Com. of Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; or whatever the guise in which it is taken, see Derrington v. Plummer, 5 Cir., 240 F.2d 922; Department of Conservation and Development v. Tate, 4 Cir., 231 F.2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously.' Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85 L.Ed. 84.
What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.
Article VI of the Constitution makes the Constitution the 'supreme Law of the Land.' In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as 'the fundamental and paramount law of the nation,' declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that 'It is emphatically the province and duty of the judicial department to say what the law is.' This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States 'any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶3 'to support this Constitution.' Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' 'anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. * * *' Ableman v. Booth, 21 How. 506, 524, 16 L.Ed. 169.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: 'If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery * * *.' United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, 'it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases * * *.' Sterling v. Constantin, 287 U.S. 378, 397-398, 53 S.Ct. 190, 195, 77 L.Ed. 375.
It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.
Concurring opinion of Mr. Justice FRANKFURTER.
While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake.
By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirements of this Court's decree in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. The Little Rock School Board had embarked on an educational effort 'to obtain public acceptance' of its plan. Thus the process of the community's accommodation to new demands of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, Amend. 14, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted:
'14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.' 156 F.Supp. 220, 225.
All this was disrupted by the introduction of the state militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or non-action the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty.
The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain law but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board's and the State's constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court.
We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness and lawlessness if not checked is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signalled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system but of the presuppositions of a democratic society. The State 'must * * * yield to an authority that is paramount to the State.' This language of command to a State is Mr. Justice Holmes', speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler and Mr. Justice Stone. State of Wisconsin v. State of Illinois, 281 U.S. 179, 197, 50 S.Ct. 266, 267, 74 L.Ed. 799.
When defiance of law, judicially pronounced, was last sought to be justified before this Court, views were expressed which are now especially relevant:
'The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights, pt. 1, art. 30, he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
'But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L.J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit'. So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for.' United States v. United Mine Workers, 330 U.S. 258, 307-309, 67 S.Ct. 677, 703, 91 L.Ed. 884 (concurring opinion).
The duty to abstain from resistance to 'the supreme Law of the Land,' U.S.Const., Art. VI, ¶2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is 'the supreme Law of the Land.' See President Andrew Jackson's Message to Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 ed.), 610, 623. Particularly is this so where the declaration of what 'the supreme Law' commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the formulation of the merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters. Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law.
The process of ending unconstitutional exclusion of pupils from the common school system—'common' meaning shared alike—solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose—violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim—nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.
For carrying out the decision that color alone cannot bar a child from a public school, this Court has recognized the diversity of circumstances in local school situations. But is it a reasonable hope that the necessary endeavors for such adjustment will be furthered, that racial frictions will be ameliorated, by a reversal of the process and interrupting effective measures toward the necessary goal? The progress that has been made in respecting the constitutional rights of the Negro children, according to the graduated plan sanctioned by the two lower courts, would have to be retraced, perhaps with even greater difficulty because of deference to forcible resistance. It would have to be retraced against the seemingly vindicated feeling of those who actively sought to block that progress. Is there not the strongest reason for concluding that to accede to the Board's request, on the basis of the circumstances that gave rise to it, for a suspension of the Board's non-segregation plan, would be but the beginning of a series of delays calculated to nullify this Court's adamant decisions in the Brown case that the Constitution precludes compulsory segregation based on color in state-supported schools?
That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. This is the lesson to be drawn from the heartening experience in ending enforced racial segregation in the public schools in cities with Negro populations of large proportions. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.
Lincoln's appeal to 'the better angels of our nature' failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.
*
The following was the Court's per curiam opinion, 78 S.Ct. 1399:
'PER CURIAM.
'The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, 257 F.2d 33, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course.
'It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F.2d 33, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, 163 F.Supp. 13, be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, 143 F.Supp. 855, and September 3, 1957, enforcing the School Board's plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.
'The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas.'
| 12
|
358 U.S. 27
78 S.Ct. 1397
3 L.Ed.2d 1
John AARON et al., petitioners,v.William G. COOPER et al.
No. 1, Misc.
Supreme Court of the United States
August 28, 1958
Having considered the oral arguments, the Court is in agreement with the view expressed by counsel for the respective parties and by the Solicitor General that petitioners' present application respecting the stay of the mandate of the Court of Appeals and of the order of the District Court of June 21, 1958, necessarily involves consideration of the merits of the Court of Appeals decision reversing the order of Judge Lemley. The Court is advised that the opening date of the High School will be September 15. In light of this, and representations made by counsel for the School Board as to the Board's plan for filing its petition for certiorari, the Court makes the following order:
1. The School Board's petition for certiorari may be filed not later than September 8, 1958.
2. The briefs of both parties on the merits may be filed not later than September 10, 1958.
3. The Solicitor General is invited to file a brief by September 10, 1958, and to present oral argument if he is so advised.
4. The Rules of the Court requiring printing of the petition, briefs, and record are dispensed with.
5. Oral argument upon the petition for certiorari is set for September 11, 1958, at twelve o'clock noon.
6. Action on the petitioners' application addressed to the stay of the mandate of the Court of Appeals and to the stay of the order of the District Court of June 21, 1958, is deferred pending the disposition of the petition for certiorari duly filed in accordance with the foregoing schedule.
Mr. Thurgood Marshall, New York City, for petitioners.
Mr. Richard C. Butler, Little Rock, Ark., for respondents.
1
Mr. Solicitor General, J. Lee Rankin, Washington, D. C., for the United States.
| 12
|
358 U.S. 31
79 S.Ct. 2
3 L.Ed.2d 24
John Henry MOORE, Petitioner,v.TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation.
No. 208.
Decided Oct. 13, 1958.
Mr. Roberts P. Elam, for petitioner.
Mr. Lyman J. Bishop, for respondent.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the Supreme Court of Missouri is reversed and the case is remanded for proceedings in conformity with this opinion. We hold that the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the petitioner's injury. Rogers v. Missouri Pacific Ed.2d 493; Webb v. Illinois Central R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L. 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, 2 L.Ed.2d 380; Ferguson v. St. Louis-San Francisco R. Co., 356 U.S. 41, 78 S.Ct. 671, 2 L.Ed.2d 571.
2
Reversed and remanded.
3
Mr. Justice HARLAN concurs in the result for the reasons given in his memorandum in Gibson v. Thompson, 355 U.S. 18, 19, 78 S.Ct. 2, 3, 2 L.Ed.2d 1. See also his dissenting opinion in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 332, 78 S.Ct. 758, 763, 2 L.Ed.2d 799.
4
For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice FRANKFURTER is of the view that the writ of certiorari is improvidently granted.
5
Mr. Justice WHITTAKER, with whom Mr. Justice BURTON joins, dissenting.
6
In my view the record does not contain any evidence of negligence by respondent, but instead it affirmatively shows that the sole cause of petitioner's injury was his own negligent act. Hence, I think the Supreme Court of Missouri was right in holding that there was nothing to submit to a jury.
7
The undisputed facts, principally physical facts, are these. Respondent's tracks run in pairs to the south from a point just outside the waiting room of its Union Station in St. Louis. Between each pair of tracks is a concrete loading platform designed for the use of passengers in walking, and of respondent's employees in transporting baggage, to and from trains. The platform between tracks numbered 4 and 5 is the scene of this occurrence. It is about 18 inches high, 14 feet 1 3/8 inches wide and 1,800 feet long. It is under a roof supported by metal posts 14 inches in diameter located down the center of the platform at 30-foot intervals. At the time of this occurrence a train was standing on track 4 abutting the west side of the platform, and an incoming train was being backed north toward the waiting room along the east side of the platform on track 5. Petitioner, who was employed by respondent as a baggage handler, was on this platform for the purpose of transporting baggage from the incoming train. He was using a hand cart, referred to in the evidence as a 'flat wagon,' which was 14 feet 8 inches long (including the handlebars at either end), 3 feet 8 inches wide, and supported in the center by an axle riding on two 26-inch wheels, operating both as a fulcrum and a pivot. Being some distance south of the point at which the baggage car was to be stopped for unloading, petitioner started pulling his cart to the north along the east side of the platform and adjacent to the moving train. After so proceeding a short way, he observed a 4-wheel wagon standing on the east side of the platform, slightly north and east of one of the roof supports, making it necessary for him to turn his cart to the left and to pass on the west half of the platform. At that time another hand cart, a few feet to the left and ahead of him, was also being moved to the north over the west half of the platform. In changing the course of his cart, petitioner pulled its north end to the west at such an angle as caused its south end to be pivoted and swung to the east against the third car of the moving train which, in turn, caused him to be thrown to the west against a car standing on track 4 and to be injured. Other wagons were on the platform but were either some distance behind or ahead of petitioner and had no connection with this occurrence.
8
It cannot be, and is not, denied that the casualty resulted solely from the collision of the cart with the moving train. What caused this to happen? Petitioner admits that it was the turn of the cart that did so. He also admits that the turn was made by his own hand. How then may it be said that any act of respondent caused or contributed to cause the south end of the cart to collide with the moving train? Petitioner attempts to attribute his conduct in some way to the presence of the other hand cart which was being pulled to the north a few feet ahead and to the west of him, saying that except for its presence he 'could have made that turn easy.' Yet he admits not only that there was no contact between that cart and his, but also that it was moving ahead and away from him. Surely the presence of that moving cart at that place did not constitute negligence. Do not these admitted and indisputable physical facts show that the casualty was not one 'resulting in whole or in part from the negligence of' respondent? Do they not show that the casualty was one 'resulting in whole? from the negligence of petitioner? The Federal Employers' Liability Act does not create liability without fault. Liability under the Act is predicated on both negligence and causation. By the plain words of § 1 of the Act a railroad is made liable for injuries to its employees 'resulting in whole or in part from (its) negligence.' (Emphasis added.) 53 Stat. 1404, 45 U.S.C. § 51, 45 U.S.C.A. § 51. 'The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be 'in whole or in part' the cause of the injury.' Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572. I submit that the simple facts recited do not show even a 'scintilla' or an 'iota' of evidence, to say nothing of any substantial evidence, of negligence by respondent. Instead, I insist, they affirmatively show that it was petitioner's own act in turning the cart at such an angle as brought its south end into collision with the moving train that was exclusively 'the cause of the injury.' Ibid.
9
To hold that these facts are sufficient to make a jury case of negligence under the Act is in practical effect to say that a railroad is an insurer of its employees. Such is not the law. For these reasons I dissent.
| 78
|
358 U.S. 51
79 S.Ct. 94
3 L.Ed.2d 47
WIRL TELEVISION CORPORATION, petitioner,v.UNITED STATES of America, Federal Communications Commission, Illiway Television, Inc., et al.
No. 242.
Supreme Court of the United States
October 20, 1958
Mr. Timothy W. Swain, for petitioner.
1
Solicitor General Rankin, Assistant Attorney General Hansen, Messrs. Warren E. Baker and Richard A. Solomon, for the United States and Federal Communications Commission.
2
Messrs. James A. McKenna, Jr. and Vernon L. Wilkinson, for respondent American Broadcasting-Paramount Theatres, Inc.
3
Mr. Jack P. Blume, for respondent West Central Broacasting Co.
4
On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
5
PER CURIAM.
6
The petition for writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for appropriate action in the light of the matter called to this Court's attention on page 7 of the Solicitor General's brief in No. 235, supra.
7
Mr. Justice CLARK and Mr. Justice HARLAN dissent. The matters referred to by the Court were not presented in the Court of Appeals and are not presented by this petition. Agreeing with the Solicitor General that denial of the petition for writ of certiorari would not foreclose appropriate consideration thereof by the Court of Appeals, we see no reason for vacating the Court of Appeals' judgments and, therefore, dissent from this disposition of the matter by the Court.
| 78
|
358 U.S. 49
79 S.Ct. 94
3 L.Ed.2d 47
SANGAMON VALLEY TELEVISION CORPORATION, petitioner,v.UNITED STATES of America, Federal Communications Commission, Signal Hill Telecasting Corporation, et al.
No. 235.
Supreme Court of the United States
October 20, 1958
Messrs. D. M. Patrick and E. Barrett Prettyman, Jr., for petitioner.
1
Solicitor General Rankin, Assistant Attorney General Hansen, Messrs. Warren E. Baker and Richard A. Solomon, for the United States and Federal Communications Commission.
2
Messrs. Monroe Oppenheimer and James H. Heller, for respondent Signal Hill Telecasting Corporation.
3
Messrs. James A. McKenna, Jr. and Vernon L. Wilkinson, for respondents American Broadcasting-Paramount Theatres, Inc. and others.
4
On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
5
PER CURIAM.
6
The petition for writ of certiorari is granted. In view of the representations in the Solicitor General's brief on pages 7 and 8, concerning testimony given before the Subcommittee of Legislative Oversight of the House Committee on Interstate and Foreign Commerce subsequent to the decision by the Court of Appeals in this case, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for such action as it may deem appropriate.
7
Mr. Justice CLARK and Mr. Justice HARLAN dissent. The matters referred to by the Court were not presented in the Court of Appeals and are not presented by this petition. Agreeing with the Solicitor General that denial of the petition for writ of certiorari would not foreclose appropriate consideration thereof by the Court of Appeals, we see no reason for vacating the Court of Appeals' judgments and, therefore, dissent from this disposition of the matter by the Court.
| 78
|
358 U.S. 55
79 S.Ct. 114
3 L.Ed.2d 48
W O R Z., Inc., petitioner,v.FEDERAL COMMUNICATIONS COMMISSION.
No. 349.
Supreme Court of the United States
October 27, 1958
Mr. Eliot C. Lovett, for petitioner.
Solicitor General Rankin, Assistant Attorney General Hansen, Messrs. Charles H. Weston, John L. Fitzgerald and Richard A. Solomon, for Federal Communications Commission.
On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
PER CURIAM.
1
The petition for writ of certiorari is granted. In view of the representations in the Solicitor General's brief on pages 4 and 5, concerning testimony given before the Subcommittee on Legislative Oversight of the House Committee on Interstate and Foreign Commerce subsequent to the decision by the Court of Appeals in this case, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for such action as it may deem appropriate.
2
Mr. Justice CLARK and Mr. Justice HARLAN dissent. The matters referred to by the Court were not presented in the Court of Appeals and are not presented by this petition. Agreeing with the Solicitor General that denial of the petition for writ of certiorari would not foreclose appropriate consideration thereof by the Court of Appeals, we see no reason for vacating the Court of Appeals' judgment and, therefore, dissent from this disposition of the matter by the Court.
| 78
|
358 U.S. 57
79 S.Ct. 1
3 L.Ed.2d 28
Earl R. DEEN, Petitioner,v.Honorable J. E. HICKMAN, Chief Justice and Honorable W. St. John Garwood, etal., Associate Justices of the Supreme Court of Texas.
No. 133 Misc.
Decided Oct. 27, 1958.
Messrs. David C. McCord and Robert Lee Guthrie, for petitioner.
Mr. Luther Hudson, for respondent Gulf, Colorado & Santa Fe Railway Co.
PER CURIAM.
1
In Deen v. Gulf, Colorado & Santa Fe R. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721, this Court, having held 'that the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the petitioner's injury,' reversed the judgment of the Texas Court of Civil Appeals, 275 S.W.2d 529. On remand, that court held that the question of negligence was foreclosed by this Court's decision and affirmed a judgment in favor of the petitioner on condition that petitioner accept a remittitur. Tex.Civ.App., 306 S.W.2d 171. On review, the Texas Supreme Court, 312 S.W.2d 933, 942, remanded the case to the Court of Civil Appeals 'with directions * * * to adjudicate, upon its own independent evaluation of the evidence and wholly apart from the judgment of the Supreme Court of the United States, whether or not the jury finding of negligence of the defendant * * * is so against the weight and preponderance of the evidence as to require a new trial in the interest of justice and, upon the basis of its said adjudication, to either affirm the judgment of the trial court or grant a new trial.' The determination of that issue was foreclosed by Deen v. Gulf, Colorado & Santa Fe R. Co., supra. The motion for leave to file a petition requesting this Court to mandamus the Texas Supreme Court to conform its decision to our mandate in that case is granted. Assuming as we do that the Supreme Court of Texas will of course conform to the disposition we now make, we do not issue the writ of mandamus.
2
Mr. Justice STEWART took no part in the consideration or decision of this case.
| 78
|
358 U.S. 65
79 S.Ct. 116
3 L.Ed.2d 106
Maxine K. HINKLE, Administratrix of the Estate of W. Max Hinkle, Deceased, and Maxine K. Hinkle, petitioners,v.NEW GENGLAND MUTUAL LIFE INSURANCE COMPANY OF BOSTON, MASSACHUSETTS.
No. 28.
Supreme Court of the United States
November 10, 1958
Rehearing Denied Jan. 12, 1959.
See 358 U.S. 938, 79 S.Ct. 310.
Mr. Leland S. Forrest, for petitioners.
Mr. Phineas M. Henry (Mr. Vincent V. R. Booth, on the brief), for respondent.
On writ of certiorari to the United States Court of Appeals for the Eighth Circuit.
PER CURIAM.
1
The writ of certiorari in this case is dismissed as improvidently granted. See Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712; Estate of Spiegel v. Commissioner of Internal Revenue, 335 U.S. 701, 707-708, 69 S.Ct. 301, 93 L.Ed. 330; General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 100 L.Ed. 1055.
| 89
|
358 U.S. 64
79 S.Ct. 116
3 L.Ed.2d 106
STATE OF CALIFORNIA, plaintiff,v.STATE OF WASHINGTON.
No. 12, Original.
Supreme Court of the United States
November 10, 1958
Rehearing Denied Dec. 15, 1958.
See 358 U.S. 923, 79 S.Ct. 285.
Mr. Wallace Howland, Asst. Atty. Gen. of California (Messrs. Edmund G. Brown, Atty. Gen. and Leonard M. Sperry, Jr., Deputy Atty. Gen., on the brief), for plaintiff.
Messrs. John J. O'Connell, Atty. Gen. of Washington and Thomas R. Carlington (Mr. Franklin K. Thorp, Asst. Atty. Gen., on the brief), for defendant.
Messrs. Louis J. Lefkowitz, Atty. Gen. and Paxton Blair, Sol. Gen. for State of New York, as amicus curiae.
On motion for leave to file bill of complaint.
PER CURIAM.
1
The motion for leave to file bill of complaint is denied. U.S.Const. Amend. XXI, § 2; Indianapolis Brewing Co. v. Liquor Control Commission, 305 U.S. 391, 59 S.Ct. 254, 83 L.Ed. 243; Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395, 59 S.Ct. 256, 83 L.Ed. 246; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38.
| 1011
|
358 U.S. 59
79 S.Ct. 104
3 L.Ed.2d 30
James E. PEURIFOY, Paul V. Stines, Betty O. Stines, et al., Petitioners,v.COMMISSIONER OF INTERNAL REVENUE.
No. 46.
Argued Oct. 16, 20, 1958.
Decided Nov. 10, 1958.
Rehearing Denied Dec. 8, 1958.
See 358 U.S. 913, 79 S.Ct. 227.
Mr. Daniel R. Dixon, Raleigh, N.C., for the petitioner.
Mr. Earl E. Pollock, Washington, D.C., for the respondent pro hac vice by special leave of Court.
PER CURIAM.
1
The petitioners were employed as construction workers at a site in Kinston, North Carolina, for continuous periods of 20 1/2 months, 12 1/2 months, and 8 1/2 months, respectively, ending in the year 1953. Each of the petitioners maintained a permanent residence elsewhere in North Carolina. In reporting his adjusted gross income for 1953 each petitioner deducted amounts expended for board and lodging at Kinston during the period of employment there, and for transportation from Kinston to his permanent residence upon leaving that employment. These deductions were disallowed by the respondent. Ensuing Tax Court proceedings resulted in a decision in favor of the petitioners. 27 T.C. 149. The Court of Appeals reversed. 254 F.2d 483. We granted certiorari 356 U.S. 956, 78 S.Ct. 996, 2 L.Ed.2d 1065, to consider certain questions as to the application of § 23(a)(1)(A) of the Internal Revenue Code of 1939* raised by the course of decisions in the lower courts since our decision in Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203. However, as the case has been presented to us we have found it inappropriate to consider such questions.
2
The issue is whether the amounts in question constituted allowable deductions under § 23(a)(1)(A). Generally, a taxpayer is entitled to deduct unreimbursed travel expenses under this subsection only when they are required by 'the exigencies of business.' Commissioner of Internal Revenue v. Flowers, supra (326 U.S. 465, 66 S.Ct. 254). Application of this general rule would require affirmance of the judgment of the Court of Appeals in the present case.
3
To this rule, however, the Tax Court has engrafted an exception which allows a deduction for expenditures of the type made in this case when the taxpayer's employment is 'temporary' as contrasted with 'indefinite' or 'indeterminate.' Compare Schurer v. Commissioner, 3 T.C. 544; Leach v. Commissioner, 12 T.C. 20; Albert v. Commissioner, 13 T.C. 129, with Warren v. Commissioner, 13 T.C. 205; Whitaker v. Commissioner, 24 T.C. 750. The respondent does not in the present case challenge the validity of this exception to the general rule.
4
Resolution of this case as presented to us turns, therefore, upon a narrow question of fact—Was the petitioners' employment 'temporary' or 'indefinite'? The Tax Court, stating that 'each case must be decided upon the basis of its own facts and circumstances,' 27 T.C. at page 157, found that their employment was temporary. The Court of Appeals, also recognizing that the question was 'one of fact,' held that on the record the Tax Court's finding of temporary employment was 'clearly erroneous.' 254 F.2d at page 487.
5
In reviewing the Tax Court's factual determination, the Court of Appeals has made a fair assessment of the record. 26 U.S.C. (Supp. V) § 7482, 26 U.S.C.A. § 7482; Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A.; cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. That being so, this Court will not intervene. Federal Trade Commission v. Standard Oil Co., 355 U.S. 396, 400—401, 78 S.Ct. 369, 371—372, 2 L.Ed.2d 359; National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 502—503, 71 S.Ct. 453, 455—456, 95 L.Ed. 479.
6
Affirmed.
7
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice WHITTAKER concur, dissenting.
8
As Commissioner of Internal Revenue v. Flowers,1 indicated, the prerequisites to a deduction for travel expenses under § 23(a)(1)(A)2 are threefold: The expenses must be reasonable and necessary,3 they must be incurred while 'away from home,' and there must be a 'direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.' (Emphasis supplied.) 326 U.S. at page 470, 66 S.Ct. at page 252. I think the taxpayers in this case have met those conditions and should be allowed the claimed deductions.
9
The meaning of 'home' was expressly left undecided in Flowers but is squarely presented in the instant case.4 I disagree with the Commissioner's contention that 'home' is synonymous with the situs of the employer's business. Such a construction means that the taxpayer who is forced to travel from place to place to pursue his trade must carry his home on his back regardless of the fact that he maintains his family at an abode which meets all accepted definitions of 'home.' I do not believe that Congress intended such a harsh result when it provided a deduction for traveling expenses. These construction workers do not have a permanent locus of employment as does the merchant or factory worker. They are required to travel from job to job in order to practice their trade. It would be an intolerable burden for them to uproot their families whenever they change jobs, if those jobs happen to take them to a different locality. When they do not undertake this burden they are living 'away from home'5 for the duration of the term of the jobs.6
10
We have, then, not a question of fact which should be resolved below rather than here. We have a mixed question of law and fact. The facts will turn largely on the resolution of the question of law. The error below was mainly in assuming (albeit silently) a narrow construction of the statutory term 'home.'
*
'§ 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, including * * * traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; * * *.' 26 U.S.C. (1952 ed.) § 23(a)(1)(A), 26 U.S.C.A. § 23(a)(1)(A).
1
326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203.
2
§ 162(a)(2) of the 1954 Internal Revenue Code, 26 U.S.C.(Supp. V), § 162(a)(2), 26 U.S.C.A. § 162(a)(2).
3
There is no contention made that the expenses here were not reasonable and necessary.
4
The Court's opinion does not reach this question because it decides the case on a ground not raised by the respondent. See note 6, infra. Instead it affirms the Court of Appeals decision as relying on a factual determination. The Court of Appeals reversed the Tax Court because it thought the latter tribunal had unwarrantedly extended the 'exception' to the Flowers case for expenses while 'temporarily' away from home. Both courts agreed that taxpayers were away from their actual homes, but the Court of Appeals thought the absence of such duration precluded a deduction. Nowhere in the statute or in Flowers is a distinction made between 'temporary' and 'indefinite' absences from home, and in fact such a distinction improperly emphasizes duration of the absence as the determinative factor in deciding where the taxpayer's 'home' actually is.
5
This definition of 'home' will not permit any taxpayer who lives apart from his family to deduct his maintenance expenses, no matter what the nature of his trade or his employer's business. If the expenses are necessary and appropriate to neither the employer's business nor the employee's trade, they are personal expenses under § 24(a)(1) (§ 262 of the 1954 Internal Revenue Code, 26 U.S.C.A. § 262). And of course the facts may show that a taxpayer has in fact abandoned his original 'home' as his principal place of residence.
6
The Flowers case does not hold, as the Court suggests, that the deduction is necessarily unavailable if not required by the exigencies of the employer's business. In that case a traveling expense deduction was denied a lawyer employed by a railroad who chose to maintain his home in Jackson, Mississippi, although, as the Court found, the permanent place of his business was in Mobile, Alabama. The Court held the expenses of traveling between Jackson and Mobile were not appropriate or necessary to the railroad's business. In the present case, however, the expenses incurred were necessary, not to the business of the contractor for whom the taxpayers worked, but for the taxpayers themselves in order to carry on their chosen trade. Flowers did not decide that, because expenses are not required by the employer's business, they can never be justified as necessary to the employee's trade. The Government does not here contend that the expenses were nondeductible because inappropriate to the trade or business of the employer, the ground of decision in Flowers. Such a contention was not assigned as a reason for disallowance of the deduction nor presented to the courts below.
| 1112
|
358 U.S. 68
79 S.Ct. 107
3 L.Ed.2d 34
BOSTON & MAINE RAILROAD CO. et al., Petitioners,v.UNITED STATES of America et al. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. et al., Petitioners, v. BOSTON & MAINE RAILROAD CO. et al.
Nos. 310, 322.
Decided Nov. 17, 1958.
No. 310:
Messrs. Richard Swan Buell, Wm. T. Griffin, Otto M. Buerger, Carl E. Newton, New York, for appellants.
Messrs. S. R. Brittingham, Jr., Chicago, J. Lee Rankin, Solicitor General, Washington, D.C., for appellees.
No. 322:
Mr. S. R. Brittingham, Jr., Chicago, for appellants.
Mr. J. Lee Rankin, Solicitor General of the U.S., Washington, D.C., for appellees.
PER CURIAM.
1
These cases concern the range of the Interstate Commerce Commission's power over rates for car hire in railroading. Because they predominantly originate freight, long-haul trunk-line railroads own most of the freight cars in the industry. Short-haul terminal railroads, on the other hand, mainly terminate freight; to avoid needless duplication, they hire the cars of the long-haul roads rather than replace them with their own. The compensation to be paid for use of another's cars has, for the most part, been fixed by the railroads themselves, originally in terms of the mileage which borrowed cars traveled over the using road, later in the form of a flat per diem rate. Since September 1, 1947, the amount of the per diem has been adjusted in accordance with an agreement prepared by the Association of American Railroads (AAR). Prior to this litigation, the rates so established were followed by railroads generally, signers and nonsigners of the agreement alike.
2
In March 1951 the New York, Susquehanna & Western Railroad announced that it would no longer comply with the then applicable per diem. Other terminal roads soon followed suit. In response, nineteen Class I long-haul roads filed a complaint with the Commission against five short-haul roads of the same Class and six short-line roads in Classes II and III. Additional roads intervening on one side or the other brought the total number involved to just over one hundred.
3
The complainants specifically declined to invoke the Commission's recognized rule-making power over car-hire rates conferred by § 1(14)(a) of the Interstate Commerce Act, 40 Stat. 101, as amended, 41 Stat. 476, 49 U.S.C. § 1(14)(a), 49 U.S.C.A. § 1(14)(a). Instead, they asked the Commission to declare that the various per diems in effect since November 1, 1949, were just and reasonable and that the public interest required uniform observance of those rates by all members of the industry. Relying on the power to issue declaratory orders granted by § 5(d) of the Administrative Procedure Act, 60 Stat. 240, 5 U.S.C. § 1004(d), 5 U.S.C.A. § 1004(d), the Commission held each per diem not in excess of reasonable compensation. Accordingly, it entered an order discontinuing the proceeding.
4
The terminal roads then brought an action before a statutory three-judge District Court to have this order set aside. As the court below noted, the effect of the Commission's action was 'to require the respondent (terminal) carriers, and, indeed, as a practical matter all others, to pay the charges for car-use found to be reasonably compensatory * * *.' 162 F.Supp. 289, 292—293, note 4. The terminal roads contended that determination of a uniform rate to be applied throughout the industry was beyond the Commission's adjudicatory jurisdiction and lay exclusively within its § 1(14)(a) rule-making power.
5
This contention, which forms the basis of the appeal in No. 310, was rejected by the District Court, one judge dissenting. Nonetheless, that court set aside the Commission's order on the merits. It pointed out that the Commission had erred in considering the repairs, depreciation and 'car day divisor' components of the per diem. But it rested decision on the Commission's summary rejection of an alternative method of compensation, which would introduce a mileage factor into the per diem, advocated by certain of the terminal roads. In the Commission's view, that plan like the other 'suggested plans for varying per diem charges could not be put into effect without an extensive investigation either by this Commission or by the A.A.R. The facts and arguments here presented are not persuasive that plans of this kind are desirable.' 297 I.C.C. 291, 296. The District Court, on the other hand, thought the mileage factor approach had much to recommend it on its face and ruled:
6
'In advance of a more thorough study we do not see the basis for the Commission's broad conclusion that the plan is both impractical and undesirable. To perform our function in the face of the persuasive evidence that the plan is both desirable and feasible we must have at least some inkling of the basis for the Commission's general conclusions to the contrary. In short we think the Commission erred in brushing aside a matter of such importance to so many vital links in our transportation system with little more than a casual wave of the hand.' 162 F.Supp. at page 298.
7
In its memorandum before this Court, the Commission has expressed its readiness to 'proceed in accordance with the terms of the remand.' As a result, we find the question raised by No. 310—whether the Commission has adjudicatory jurisdiction to determine a rate of uniform application throughout the industry or must engage in what the District Court characterized as the 'full scale investigation' accompanying promulgation of a rule under § 1(14) (a)—prematurely presented for decision. The Commission here recognizes the 'further investigation' and 'more detailed findings' will be requisite to compliance with the District Court's remand. Should such proceedings lead the Commission to reconsider its estimate of the desirability of a per diem embracing a mileage factor, the result might well be not a declaration that the present per diem is just and reasonable but the establishment of a new rate. If, conversely, the Commission adheres to its original view, it will be in the light of new findings derived from its further investigation. In either event, the proceedings on remand may lose the characteristics of a § 5(d) declaration and take on those of a § 1(14)(a) rule-making procedure, thereby causing the question now sought to be reviewed to disappear. As the Commission has appropriately observed, the record now presents what is essentially only 'an interim ruling.'
8
These considerations lead us to dismiss the appeal in No. 310 without prejudice to raising the 'adjudicatory' issue again, if it survives the further Commission proceedings. This also disposes of No. 322, which is a cross appeal by the long-haul roads challenging the scope of the District Court's review. It is so ordered.
9
Appeal dismissed without prejudice.
| 78
|
358 U.S. 99
79 S.Ct. 150
3 L.Ed.2d 143
HOTEL EMPLOYEES LOCAL NO. 255, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, et al., Petitioners,v.Boyd LEEDOM, Individually and as Chairman, National Labor Relations Board, et al.
No. 21.
Argued Nov. 10, 1958.
Decided Nov. 24, 1958.
Mr. J. W. Brown, for petitioners.
Mr. Dominick L. Manoli, Washington, D.C., for respondents.
PER CURIAM.
1
We believe that dismissal of the representation petition on the sole ground of the Board's 'long standing policy not to exercise jurisdiction over the hotel industry' as a class, is contrary to the principles expressed in Office Employes International Union, Local No. 11, AFLCIO v. National Labor Relations Board, 1957, 353 U.S. 313, 318—320, 77 S.Ct. 799, 802 803, 1 L.Ed.2d 846. The judgment is therefore reversed and the case remanded to the Court of Appeals for proceedings not inconsistent herewith.
2
Judgment reversed and case remanded with directions.
| 89
|
358 U.S. 74
79 S.Ct. 136
3 L.Ed.2d 125
James Clifton HAWKINS, Petitioner,v.UNITED STATES of America.
No. 20.
Argued Oct. 14, 1958.
Decided Nov. 24, 1958.
Messrs. Kenneth R. King and Byron Tunnell, Tyler, Tex., for petitioner.
Mr. Kirby W. Patterson, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner was convicted and sentenced to five years imprisonment by a United States District Court in Oklahoma on a charge that he violated the Mann Act, 18 U.S.C. § 2421, 18 U.S.C.A. § 2421, by transporting a girl from Arkansas to Oklahoma for immoral purposes. Over petitioner's objection the District Court permitted the Government to use his wife as a witness against him.1 Relying on Yoder v. United States, 80 F.2d 665, the Court of Appeals for the Tenth Circuit held that this was not error. 249 F.2d 735. As other Courts of Appeals have followed a long-standing rule of evidence which bars a husband or wife from testifying against his or her spouse,2 we granted certiorari. 355 U.S. 925, 78 S.Ct. 383, 2 L.Ed.2d 356.
2
The common-law rule, accepted at an early date as controlling in this country, was that husband and wife were incompetent as witnesses for or against each other. The rule rested mainly on a desire to foster peace in the family and on a general unwillingness to use testimony of witnesses tempted by strong self-interest to testify falsely. Since a defendant was barred as a witness in his own behalf because of interest, it was quite natural to bar his spouse in view of the prevailing legal fiction that husband and wife were one person. See 1 Coke, Commentary upon Littleton (19th ed. 1832), 6. b. The rule yielded to exceptions in certain types of cases, however. Thus, this Court in Stein v. Bowman, 13 Pet. 209, 10 L.Ed. 129, while recognizing the 'general rule that neither a husband nor wife can be a witness for or against the other,' noted that the rule does not apply 'where the husband commits an offence against the person of his wife.' 13 Pet. at page 221. But the Court emphasized that no exception left spouses free to testify for or against each other merely because they so desired. 13 Pet. at page 223.3
3
Aside from slight variations in application, and despite many critical comments, the rule stated in Stein v. Bowman was followed by this and other federal courts until 1933 when this Court decided Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369.4 That case rejected the phase of the commonlaw rule which excluded testimony by spouses for each other. The Court recognized that the basic reason underlying this exclusion of evidence had been the practice of disqualifying witnesses with a personal interest in the outcome of a case. Widespread disqualifications because of interest, however, had long since been abolished both in this country and in England in accordance with the modern trend which permitted interested witnesses to testify and left it for the jury to assess their credibility. Certainly, since defendants were uniformly allowed to testify in their own behalf, there was no longer a good reason to prevent them from using their spouses as witnesses. With the original reason for barring favorable testimony of spouses gone the Court concluded that this aspect of the old rule should go too.
4
The Funk case, however, did not criticize the phase of the common-law rule which allowed either spouse to exclude adverse testimony by the other, but left this question open to further scrutiny. 290 U.S. at page 373, 54 S.Ct. at page 212; Griffin v. United States, 336 U.S. 704, 714—715, 69 S.Ct. 814, 818—819, 93 L.Ed. 993. More recently, Congress has confirmed the authority asserted by this Court in Funk to determine admissibility of evidence under the 'principles of the common law as they may be interpreted * * * in the light of reason and experience.' Fed.Rules Crim.Proc., 26, 18 U.S.C.A. The Government does not here suggest that authority, reason or experience requires us wholly to reject the old rule forbidding one spouse to testify against the other. It does ask that we modify the rule so that while a husband or wife will not be compelled to testify against the other, either will be free to do so voluntarily. Nothing in this Court's cases supports such a distinction between compelled and voluntary testimony, and it was emphatically rejected in Stein v. Bowman, supra, a leading American statement of the basic principles on which the rule rests. 13 Pet. at page 223. Consequently, if we are to modify the rule as the Government urges, we must look to experience and reason, not to authority.
5
While the rule forbidding testimony of one spouse for the other was supported by reasons which time and changing legal practices had undermined, we are not prepared to say the same about the rule barring testimony of one spouse against the other. The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. Such a belief has never been unreasonable and is not now. Moreover, it is difficult to see how family harmony is less disturbed by a wife's voluntary testimony against her husband than by her compelled testimony. In truth, it seems probable that much more bitterness would be engendered by voluntary testimony than by that which is compelled. But the Government argues that the fact a husband or wife testifies against the other voluntarily is strong indication that the marriage is already gone. Doubtless this is often true. But not all marital flare-ups in which one spouse wants to hurt the other are permanent. The widespread success achieved by courts throughout the country in conciliating family differences is a real indication that some apparently broken homes can be saved provided no unforgivable act is done by either party. Adverse testimony given in criminal proceedings would, we think, be likely to destroy almost any marriage.
6
Of course, cases can be pointed out in which this exclusionary rule has worked apparent injustice. But Congress or this Court, by decision or under its rule-making power, 18 U.S.C. § 3771, 18 U.S.C.A. § 3771, can change or modify the rule where circumstances or further experience dictates. In fact, specific changes have been made from time to time. Over the years the rule has evolved from the Common-law absolute disqualification to a rule which bars the testimony of one spouse against the other unless both consent. See Stein v. Bowman, supra; Funk v. United States, supra; Benson v. United States, 146 U.S. 325, 331—333; United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1008. In 1887 Congress enabled either spouse to testify in prosecutions against the other for bigamy, polygamy or unlawful cohabitation. 24 Stat. 635. See Miles v. United States, 103 U.S. 304, 315—316, 26 L.Ed. 481. Similarly, in 1917, and again in 1952, Congress made wives and husbands competent to testify against each other in prosecutions for importing aliens for immoral purposes. 39 Stat. 878 (1917), re-enacted as 66 Stat. 230, 8 U.S.C. § 1328 (1952), 8 U.S.C.A. § 1328.
7
Other jurisdictions have been reluctant to do more than modify the rule. English statutes permit spouses to testify against each other in prosecutions for only certain types of crimes. See Evidence of Spouses in Criminal Cases, 99 Sol.J. 551. And most American States retain the rule, though many provide exceptions in some classes of cases.5 The limited nature of these exceptions shows there is still a widespread belief, grounded on present conditions, that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences. Under these circumstances we are unable to subscribe to the idea that an exclusionary rule based on the persistent instincts of several centuries should now be abandoned. As we have already indicated, however, this decision does not foreclose whatever changes in the rule may eventually be dictated by 'reason and experience.'
8
Notwithstanding the error in admitting the wife's testimony, we are urged to affirm the conviction upon the alternative holding of the Court of Appeals that her evidence was harmless to petitioner. See Fed.Rules Crim.Proc., 52(a). But after examining the record we cannot say that her testimony did not have substantial influence on the jury. See Kotteakos v. United States, 328 U.S. 750, 764—765, 66 S.Ct. 1239, 1247—1248, 90 L.Ed. 1557. Interstate transportation of the prosecutrix between Arkansas and Oklahoma was conceded, and the only factual issue in the case was whether petitioner's dominant purpose in making the trip was to facilitate her practice of prostitution in Tulsa, Oklahoma.6 The prosecutrix testified that petitioner agreed to take her to Tulsa where she could earn money by working as a prostitute with a woman called 'Jane Wilson.' Petitioner denied any intention on his part that the prosecutrix engage in such activity and testified, in effect, that her transportation was only an accommodation incidental to a business trip he was making to Oklahoma City, Oklahoma. Petitioner's dominant purpose for the trip was thus a sharply contested issue of fact which, on the evidence in the record, the jury could have resolved either way depending largely on whether it believed the prosecutrix or the petitioner. The Government placed 'Jane Wilson' on the stand. In response to questions by the Assistant United States Attorney she swore that she was petitioner's wife and that she was a prostitute at the time petitioner took the prosecutrix to Tulsa. Not wholly satisfied with this testimony the prosecutor brought out for the first time on redirect examination that 'Jane Wilson' had been a prostitute before she married petitioner. The mere presence of a wife as a witness against her husband in a case of this kind would most likely impress jurors adversely. When to this there is added her sworn testimony that she was a prostitute both before and after marriage we cannot be sure that her evidence, though in part cumulative, did not tip the scales against petitioner on the close and vital issue of whether his prime motivation in making the interstate trip was immoral. See Krulewitch v. United States, 336 U.S. 440, 444—445, 69 S.Ct. 716, 718—719, 93 L.Ed. 790. At least, use of the wife's testimony was a strong suggestion to the jury that petitioner was probably the kind of man to whom such a purpose would have been perfectly natural.
9
Reversed.
10
Mr. Justice STEWART concurring.
11
The rule of evidence we are here asked to re-examine has been called a 'sentimental relic.'1 it was born of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against him. Compare Stein v. Bowman, 13 Pet. 209, 10 L.Ed. 129; Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617; Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369.2
12
Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny.3 Surely 'reason and experience' require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity.4
13
In the present case, however, the Government does not argue that this testimonial privilege should be wholly withdrawn. We are asked only to hold that the privilege is that of the witness and not the accused. Under such a rule the defendant in a criminal case could not prevent his wife from testifying against him, but she could not be compelled to do so.
14
A primary difficulty with the Government's contention is that this is hardly the case in which to advance it. A supplemental record filed subsequent to the oral argument shows that before 'Jane Wilson' testified, she had been imprisoned as a material witness and released under $3,000 bond conditioned upon her appearance in court as a witness for the United States. These circumstances are hardly consistent with the theory that her testimony was voluntary. Moreover, they serve to emphasize that the rule advanced by the Government would not, as it argues, create 'a standard which has the great advantage of simplicity.' On the contrary, such a rule would be difficult to administer and easy to abuse. Seldom would it be a simple matter to determine whether the spouse's testimony were really voluntary, since there would often be ways to compel such testimony more subtle than the simple issuance of a subpoena, but just as cogent. Upon the present record, and as the issues have been presented to us, I therefore concur in the Court's decision.
1
While the wife had been placed under bond to appear in District Court, she offered no objection in court to testifying against her husband.
2
See e.g., Paul v. United States, 3 Cir., 79 F.2d 561; Brunner v. United States 6 Cir., 168 F.2d 281; United States v. Walker, 2 Cir., 176 F.2d 564.
3
Stein v. Bowman was a civil action involving testimony of a wife about conversations she had with her husband. The opinion shows, however, that the Court was concerned with the broader question here involved.
4
See, e.g., Miles v. United States, 103 U.S. 304, 305, 26 L.Ed. 481; Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021; Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214. Compare Benson v. United States, 146 U.S. 325, 331—333, 13 S.Ct. 60, 61—62, 36 L.Ed. 991. For criticism of the rule, see 7 Bentham, Rationale of Judicial Evidence (Bowring ed. 1843), 480—486; 2 Wigmore, Evidence (3d ed. 1940), §§ 600—620; 8 id., §§ 2227—2245; Hutchins and Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn.L.Rev. 675.
5
See 2 Wigmore, Evidence (3d ed. 1940), § 488; 8 id., § 2240; Note, 38 Va.L.Rev. 359, 362—367.
6
The Mann Act, 18 U.S.C. § 2421, 18 U.S.C.A. § 2421, provides: 'Whoever knowingly transports in interstate or foreign commerce * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose * * *
'Shall be find not more than $5,000 or imprisoned not more than five years, or both.'
In construing this Act, we have held: 'The statute thus aims to penalize only those who us interstate commerce with a view toward accomplishing the unlawful purposes. * * * An intention that the women or girls shall engage in the conduct outlawed by Section 24 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement. And the transportation must be designed to bring about such result. Without that necessary intention and motivation, immoral conduct during or following the journey is insufficient to subject the transporter to the penalties of the Act.
'* * * What Congress has outlawed by the Mann Act * * * is the use of interstate commerce as a calculated means for effectuating sexual immorality.' Mortensen v. United States, 322 U.S. 369, 374—375, 64 S.Ct. 1037, 1040—1041, 88 L.Ed. 1331. See Cleveland v. United States, 329 U.S. 14, 19—20, 67 S.Ct. 13, 15 16, 91 L.Ed. 12. Cf. Hansen v. Haff, 291 U.S. 559, 563, 54 S.Ct. 494, 495, 78 L.Ed. 968.
1
See Comment, Rule 23(2) of the Uniform Rules of Evidence.
2
We are not dealing here with the quite different aspect of the marital privilege covering confidential communications between husband and wife. See Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617.
3
Apparently some nineteen States have either abolished or substantially modified this privilege. See Note, 38 Va.L.Rev. 359, 365. In England the process has been a selective one, accomplished by legislation. See Evidence of Spouses in Criminal Cases, 99 Sol.J. 551. In 1938, the American Bar Association's Committee on Improvements in the Law of Evidence favored the abolition of the privilege on the part of the accused, 63 A.B.A.Rep. 595.
4
The facts in the present case illustrate how unrealistic the Court's basic assumption may be. At the time of the acts complained of the petitioner's wife was living apart from him under an assumed name. At the time she testified they were also living apart. In his testimony the petitioner referred to her as his 'exwife,' explaining when his counsel corrected him that he and his wife had never lived together very much.
Before assuming that a change in the present rule would work such a wholesale disruption of domestic felicity as the Court's opinion implies, it would be helpful to know the experience in those jurisdictions where the rule has been abandoned or modified. It would be helpful also to have the benefit of the views of those in the federal system most qualified by actual experience with the operation of the present rule—the district judges and members of the practicing bar. The Judicial Conferences of the several Circuits would provide appropriate forums for imparting that kind of experience. 28 U.S.C. § 333, 28 U.S.C.A. § 333.
It is obvious, however, that all the data necessary for an intelligent formulation 'in the light of reason and experience' could never be provided in a single litigated case. This points to the wisdom of establishing a continuing body to study and recommend uniform rules of evidence for the federal courts, as proposed by at least two of the Circuit Judicial Conferences. See Annual Report of the Proceedings of the Judicial Conference of the United States, September 18—20, 1957, p. 43. See Joiner, Uniform Rules of Evidence for the Federal Courts. 20 F.R.D. 429.
| 01
|
358 U.S. 101
79 S.Ct. 221
3 L.Ed.2d 145
Ruby Fredricka SHUTTLESWORTH, by her Next Friend, F. L. Shuttlesworth, et al., appellants,v.BIRMINGHAM BOARD OF EDUCATION OF JEFFERSON COUNTY, ALABAMA.
No. 341.
Supreme Court of the United States
November 24, 1958
Mr. James M. Nabrit, Jr., for appellants.
Messrs. Ormond Somerville, Reid B. Barnes and Jos. F. Johnston, for appellee.
PER CURIAM.
1
The motion to affirm is granted and the judgment is affirmed upon the limited grounds on which the District Court rested its decision. 162 F.Supp. 372, 384.
| 12
|
358 U.S. 84
79 S.Ct. 141
3 L.Ed.2d 132
FEDERAL HOUSING ADMINISTRATION, Appellant,v.The DARLINGTON, Inc.
No. 13.
Argued Oct. 13, 1958.
Decided Nov. 24, 1958.
Rehearing Denied Jan. 12, 1959.
See 358 U.S. 937, 79 S.Ct. 310.
Mr. Alan S. Rosenthal, Washington, D.C., for appellant.
Mr. J. C. Long, Charleston, S.C., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case involves a construction of § 608 of the National Housing Act, 56 Stat. 303, 12 U.S.C. § 1743, as amended by § 10 of the Veterans' Emergency Housing Act of 1946, 60 Stat. 207, 214, 12 U.S.C.A. § 1743, and the Regulations issued thereunder. The aim of the Act as stated in § 608(b)(2) is to provide housing for veterans of World War II and their immediate families. That end is to be achieved by authorizing the Federal Housing Administration to insure mortgages covering those projects. § 608(a). Mortgagors, eligible for insurance, are to be approved by the agency, which is empowered to require them 'to be regulated or restricted as to rents or sales, charges, capital structure, rate of return, and methods of operation.' § 608(b)(1).
2
Appellee is a South Carolina corporation formed in 1949 to obtain FHA mortgage insurance for an apartment house to be constructed in Charleston. The insurance issued and the apartment was completed. The Regulations, promulgated under the Act (24 CFR § 280 et seq.), provide that the mortgaged property shall be 'designed principally for residential use, conforming to standards satisfactory to the Commissioner, and consisting of not less than eight (8) rentable dwelling units on one site * * *.' § 280.34. The Regulations further provide:
3
'No charge shall be made by the mortgagor for the accommodations offered by the project in excess of a rental schedule to be filed with the Commissioner and approved by him or his duly constituted representative prior to the opening of the project for rental, which schedule shall be based upon a maximum average rental fixed prior to the insurance of the mortgage, and shall not thereafter be changed except upon application of the mortgagor to, and the written approval of the change by, the Commissioner.' § 280.30(a).
4
Veterans and their families are given preference in the rentals; and discrimination against families with children is prohibited. § 280.24.
5
Appellee submitted to FHA its schedule of monthly rates for its different types of apartments. No schedule of rates for transients was supplied. Indeed there was no representation to FHA that any of the apartments would be furnished. But an affiliate of appellee without FHA knowledge furnished a number of apartments; and some were leased to transients on a daily basis at rentals never submitted to nor approved by FHA, part of the rental going to the affiliate as 'furniture rental.' Though appellee, as required by the Regulations (§ 280.30(f)), made reports to FHA, it made no disclosure to the agency that it had either furnished some apartments or rented them to transients. But it continued to rent furnished apartments to transients both before and after 1954 when § 513 was added to the Act. 68 Stat. 610, 12 U.S.C. (Supp. V) § 1731b, 12 U.S.C.A. § 1731b. The new section contained in subsection (a) the following declaration of congressional purpose:
6
'The Congress hereby declares that it has been its intent since the enactment of the National Housing Act that housing built with the aid of mortgages insured under that Act is to be used principally for residential use; and that this intent excludes the use of such housing for transient or hotel purposes while such insurance on the mortgage remains outstanding.' And see H.R.Rep. No. 1429, 83d Cong., 2d Sess., p. 17; S.Rep. No. 1472, 83d Cong., 2d Sess., p. 31.1
7
Appellee persisted in its rental of space to transients. Appellant FHA persisted in maintaining that the practice was not authorized. In 1955 appellee brought this suit for a declaratory judgment that so long as it operates its property 'principally' for residential use, keeps apartments available for extended tenancies, and complies with the terms of the Act in existence at the time it obtained the insurance, it is entitled to rent to transients. The District Court gave appellee substantially the relief which it demanded. 142 F.Supp. 341. On appeal, we remanded the cause for consideration by a three-judge court pursuant to 28 U.S.C. § 2282, 28 U.S.C.A. § 2282. 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363. On the remand a three-judge court adopted the earlier findings and conclusions of the single judge, 154 F.Supp. 411, attaching however certain conditions to the decree unnecessary to discuss here. It held that rental to transients was not barred by § 608 and that § 513(a) as applied to respondent was unconstitutional. The case is here on direct appeal. 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.
8
We take a different view. We do not think the Act gave mortgagors the right to rent to transients. There is no express provision one way or the other; but the limitation seems fairly implied. We deal with legislation passed to aid veterans and their families,2 not with a law to promote the hotel to motel business. To be sure, the Regulations speak of property 'designed principally for residential use' (§ 280.34)—words that by themselves would not preclude transient rentals. But those words as the Senate Report on the 1954 Amendment indicates,3 were evidently used so as not to preclude some commercial rentals. Moreover, the Regulation goes on to describe the property that is insured as 'dwelling units.' Id. The word 'dwelling' in common parlance means a permanent residence. A person can of course take up permanent residence even in a motel or hotel. But those who come for a night or so have not chosen it as a settled abode. Yet the idea of permanency pervades the concept of 'dwelling.' That was the construction given to § 608 by FHA in 1947 when it issued its book Planning Rental Housing Projects. 'Housing' was there interpreted to mean 'dwelling quarters for families—quarters which offer complete facilities for family life.' There again the quality of permanency is implicit.4 And if the provisions of appellee's charter are deemed relevant, it is not without interest to note the requirement that 'Dwelling accommodations of the corporation shall be rented at a maximum average rental per room per month * * *.' Again the focus is on permanency.
9
In 1946 FHA made provisions in its application forms for estimates of annual operating expenses of the project. None of the expenses incident to transient accommodations—such as linen supply and cleaning expenses—were listed. Once more we may infer that the insurance program was not designed in aid of transients.
10
In a letter to field offices in 1951 explaining the criteria to be considered in passing on rent schedules and methods of operation, the FHA instructed them to: '* * * bear in mind that the objective of this Administration is the production of housing designed for occupancy of a relatively permanent nature and that transient occupancy is contrary to policy. No approval will be granted with respect to a proposal anticipating transient occupancy.' That interpretation of the Act is clear and unambiguous, and, taken with the Regulations, indicates that the authority charged with administration of the statute construed it to bar rental to transients.
11
Moreover, as already mentioned, prior approval by FHA of all rental schedules was always required by § 280.30 of the Regulations and appellee never obtained nor sought approval of a schedule of rents for transients.
12
It is true that FHA felt it had the authority to approve rental schedules for transients. It gave such approval in a dozen or more instances where it felt the public interest required it. We need not stop to inquire whether FHA had that authority.5 We have said enough to indicate that no right or privilege to rent to transients is expressly included in the Act nor fairly implied. The contemporaneous construction of the Act by the agency entrusted with its administration is squarely to the contrary. In circumstances no more ambiguous than the present we have allowed contemporaneous administrative construction to carry the day against doubts that might exist from a reading of the bare words of a statute. See United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796. When Congress passed the 1954 Amendment, it accepted the construction of the prior Act which bars rentals to transients. Subsequent legislation which declares the intent of an earlier law is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction. See United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 67 L.Ed. 358; Sioux Tribe v. United States, 316 U.S. 317, 329—330, 62 S.Ct. 1095, 1100—1101, 86 L.Ed. 1501. The purpose of the Act, its administrative construction, and the meaning which a later Congress ascribed to it all point to the conclusion that the housing business to be benefited by FHA insurance did not include rental to transients.
13
If the question be less clear and free from doubt than we think, it is still one that lies in the periphery where vested rights do not attach. If we take as our starting point what the Court said in the Sinking-Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496—'Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt'—we do not see how it can be said that the 1954 Act is unconstitutional as applied. Appellee is not penalized for anything it did in the past. The new Act applies prospectively only. So there is no possible due process issue on that score. As stated in Fleming v. Rhodes, 331 U.S. 100, 107, 67 S.Ct. 1140, 1144, 91 L.Ed. 1368, 'Federal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Immunity from federal regulation is not gained through forehanded contracts.'6
14
Moreover, one has to look long and hard to find even a semblance of a contractual right rising to the dignity of the one involved in lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434. The Constitution is concerned with practical, substantial rights, not with those that are unclear and gain hold by subtle and involved reasoning. Congress by the 1954 Act was doing no more than protecting the regulatory system which it had designed. Those who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end. Cf. Viex v. Sixth Ward Ass'n, 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061; Keefe v. Clark, 322 U.S. 393, 64 S.Ct. 1072, 88 L.Ed. 1346. Invocation of the Due Process Clause to protect the rights asserted here would make the ghost of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, walk again.
15
Reversed.
16
Mr. Justice STEWART took no part in the consideration or decision of this case.
17
Mr. JUSTICE FRANKFURTER, dissenting.
18
Here we have not the application of some broad, generalized legal conception, either of a statutory nature, like "restraint of trade" in the Sherman Law, or a constitutional provision, like "due process of law" or "the equal protection of laws." Such conceptions do not carry contemporaneous fixity. By their very nature they imply a process of unfolding content.
19
Our immediate problem is quite different. The pre-1954 Housing Act does not leave us at large for judicial application of a generalized legislative policy in light of developing circumstances. The pre-1954 statute deals with a particularized problem in a particularized way. It presents the usual question of statutory construction where language is not clear enough to preclude human ingenuity from creating ambiguity. It is outside the judicial function to add to the scope of legislation. The task is imaginatively to extrapolate the contemporaneous answer that the Legislature would have given to an unconsidered question; here, whether rentals to transients were totally prohibited. It was not until 1954 that the Congress did deal with the question of the right of apartment-house owners to rent even a small number of apartments to transients without even remotely seeking to evade or to disadvantage the interests of veterans in whose behalf the Government, through the Federal Housing Administration, insured the mortgages of private owners. The opinions of the District Court and my brother HARLAN seem to me compelling on the construction of the pre-1954 legislation.
20
This brings me to the validity of the 1954 enactment which presents for me a much more difficult question than that of the problem of statutory construction just considered. This is so because of the very weighty presumption of constitutionality that I deem it essential to attribute to any Act of Congress. This case falls between such cases sustaining the retroactive validity of legislation adversely affecting an existing interest as Paramino Co. v. Marshall, 309 U.S. 370, 60 S.Ct. 600, 84 L.Ed. 814, and Fleming v. Rhodes, 331 U.S. 100, 67 S.Ct. 1140, 91 L.Ed. 1368, on the one hand, and Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, on the other. While, to be sure, differentiation between 'remedy' and 'right' takes us into treacherous territory, the difference is not meaningless. The two earlier cases cited may fairly be deemed to sustain retroactive remedial modifications even though they affect existing 'rights,' while the Lynch case is a clear instance of the complete wiping out of what Mr. Justice Brandeis, in his opinion for the Court, called 'vested rights.' 292 U.S. at page 577, 54 S.Ct. at page 842. Insofar as the 1954 Act applied to the earlier Darlington mortgage, it did not completely wipe out 'vested rights.' But on the proper construction of § 608, in the circumstances found by the District Court and not here challenged, the unavoidable application of the 1954 Act to the Darlington mortgage did substantially impair the 'vested rights' of respondent. I would be less than respecting the full import of the Lynch case did I not apply it to the present situation.
21
Accordingly, I join Mr. Justice HARLAN'S opinion.
22
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
23
The question in this case is whether appellee Darlington is entitled to rent to transients (that is, so far as this case is concerned, for periods of less than 30 days) a small number of apartments in its building, which is covered by a mortgage insured by the FHA. Darlington's FHA mortgage was consummated and insured in December 1949. At that time neither the controlling statute, § 608 of the National Housing Act, 56 Stat. 303, as amended, 12 U.S.C. § 1743, 12 U.S.C.A. § 1743, nor the regulations issued thereunder, 24 CFR § 280 et seq., contained any provision prohibiting rentals to transients. Such provisions are found for the first time in § 513 of the Housing Act of 1954, 68 Stat. 610, 12 U.S.C. (Supp. V) § 1731b, 12 U.S.C.A. § 1731b, passed some five years after this mortgage was made.
24
A three-judge District Court, largely adopting the findings and conclusions of the single district judge before whom this case was originally heard, held that as the law stood in 1949, when the mortgage here involved was issued, Darlington was not forbidden to make occasional transient rentals, and that the Federal Housing Administrator may not now prohibit such rentals since that would involve an unconstitutional retroactive application of the relevant provisions of the Housing Act of 1954.1 This Court now holds that under the statute and regulations as they stood in 1949 Darlington was never entitled to make any transient rentals, and that in any event the prohibitory provisions of the 1954 Act may be applied to prevent such rentals. From these holdings I must dissent.
25
In construing the earlier statute the Court, in my opinion, has proceeded on an erroneous premise. The Court holds that 'no right or privilege to rent to transients is expressly included in the (pre-1954) Act nor fairly implied.' In my view, however, the true issue is not whether the statute under which Darlington's mortgage was insured gave the right to an FHA-insured mortgagor to make such rentals, but rather whether it prohibited such a mortgagor from making them. Given this as the issue, it seems to me that the record is compelling against the Court's conclusion as to § 608, that the provisions of the 1954 Act cannot be applied to one in Darlington's position, and that the decision below was clearly right.
26
1. As already noted, § 608 and the regulations implementing it were barren of any provision excluding rentals to transients at the time Darlington's mortgage was insured by the FHA.
27
2. The District Court found that (1) Darlington's rentals to transients even at the height of Charleston's transient season constituted no more than ten percent of the building's total available occupancy; (2) 'no person entitled to priority has ever been rejected, and no one desiring so-called 'permanent' occupancy of an apartment has been required to wait any time to obtain same'; and (3) Darlington 'does not advertise as a hotel, has no license as such, and no signs appear indicating its willingness to accept transients.' 142 F.Supp. at page 349. According the utmost effect to the conceded purpose of § 608 to provide housing for World War II veterans and their families, and to the recitals in the regulations to the effect that property subject to FHA mortgages shall be 'designed principally for residential use' (italics supplied), I am unable to understand why Darlington's practices, as found by the lower court, should be regarded as violative of either the letter or spirit of these statutory or regulatory provisions. Not until the passage of the 1954 Act do we find any suggestion that the words 'designed principally for residential use' were, in the language of the Court, 'evidently used so as not to preclude some commercial (as distinguished from transient) rentals.'
28
3. As the FHA conceded and the District Court found, nothing in Darlington's charter, bylaws, mortgage or mortgage note, all of which were subject to the FHA's advance approval, expressly restricted its right 'to lease apartments in its project for periods of less than thirty (30) days.' The only period of rental limitation appearing in any of these instruments was the following, contained in Darlington's charter: 'Dwelling accommodations of the (appellee) shall not be rented for a period in excess of three years * * *.' 142 F.Supp. at page 346. It is too much to attribute to the word 'dwelling,' as the Court now in effect does, an implied prohibition of less-than-30-days rentals.
29
4. The FHA had in a number of instances before 1954 actually given specific approval to less-than-30-days rentals by insured mortgagors where veteran demand for housing had fallen off, and when in 1955 Darlington inquired of the FHA the basis of its position that less-than-30-days rentals by such mortgagors were not permissible the agency simply referred appellee to the provisions of the Housing Act of 1954. These events conclusively show that the Housing Administration did not construe the statute or regulations before 1954 to prohibit transient rentals altogether.
30
5. There is nothing in this record to indicate that Darlington was engaged in any kind of a scheme to subvert the purposes of this federal housing legislation. Its occasional transient rentals seem to have been nothing more than an effort to plug the gap in its revenues left by a falling off of the demand for long-term apartment space, and do not depict a sub rosa hotel operation.
31
Upon these undisputed facts, which are reinforced by other factors detailed in the two opinions below, I can find no basis for impugning the soundness of the District Court's holding that under the law as it existed at the time Darlington embarked upon this project nothing prohibited it from making the occasional transient rentals shown by this record. The 1954 Act was new, and not merely confirmatory, legislation.
32
Hence I consider that the FHA's position in this case must stand or fall on whether the less-than-30-days rental provision of the 1954 Act, which in terms applies to mortgagors insured before as well as after the Act's effective date (see 12 U.S.C. (Supp. V) § 1731b(b), 12 U.S.C.A. § 1731b(b)), can be given application to Darlington to increase the obligations assumed by it under its 1949 contract with the United States. I do not think it can. As the District Court correctly put it: 'When the United States enters into contractual relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.' 142 F.Supp. at page 351. See Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434; Sinking-Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496. What was said in the Lynch case as to contracts of war-risk insurance applies here: 'As Congress had the power * * * to issue them, the due process clause prohibits the United States from annulling them, unless, indeed, the action taken falls within the federal police power or some other paramount power.' 292 U.S. at page 579, 54 S.Ct. at page 843. I do not understand the Housing Administration to contend that the United States possesses general regulatory power over appellee outside the contractual relationship, and the Court has pointed to no such 'paramount power' by which the imposition of the 1954 Act's prohibitions might be justified in this case. Under these circumstances I see no reason for disregarding the principles set forth in the cases cited, particularly when the District Court with ample justification found that 'the 1954 Act is designed to afford relief for private interests, as distinguished from public purposes * * *.' 142 F.Supp. at page 353.2 Indeed the Court's treatment of this case seems to reinforce my view about the 1954 Act; else why all this straining to bring the matter under the pre-1954 statute?
1
The Act provides that, except for certain exceptions not relevant here, no new or existing multifamily housing with respect to which a mortgage is insured by the FHA shall be operated for transient purposes. § 513(b). The Commissioner is authorized to define 'rental for transient or hotel purposes' but in any event rental for any period less than 30 days constitutes rental for such purposes. § 513(e).
2
S.Rep. No. 1130, 79th Cong., 2d Sess.; H.R.Rep. No. 1580, 79th Cong., 2d Sess.
3
S.Rep. No. 1472, 83d Cong., 2d Sess., p. 31, states:
'Your committee does not believe the spirit of this intent is violated by the operation of a commercial establishment included to serve the needs of families residing in rental projects operated as permanent residential housing projects (as distinguished from those operated to provide transient accommodations) but it firmly believes that the operation of such establishments should not be conducted in such a manner as to convert the use of all or any portion of the housing units in the project from permanent residential use to a project furnishing transient accommodations * * *.'
4
The same tone is exhibited in the Committee Reports on the various amendments to § 608. For instance, in reporting the Veterans' Emergency Housing Act of 1946 the Senate Committee on Banking and Currency stated:
'Since a main purpose of these provisions (authorizations of additional insurance) is to reduce the risks assumed by builders in order to encourage a large volume of housing, the committee calls special attention to the fact that this portion of the bill places emphasis upon rental housing. It is the specific intent of the committee that those in charge of the program shall make every reasonable effort to obtain a substantial volume of rental housing or in any event housing held for rental during the emergency through the operation of title VI, both with respect to multifamily units and individual units. While home ownership is to be encouraged, a large percentage of veterans do not yet possess the certainty of income or of location, or the financial means, to purchase homes at this time. The bill as approved by the House of Representatives included this attention to rental housing.' S.Rep. No. 1130, 79th Cong., 2d Sess., p. 8. (Italics added.)
5
The 1954 Amendment expressly gave FHA that power in certain limited situations. See § 513(b).
6
In Fleming a landlord had obtained a judgment of eviction in a state court prior to the enactment of the Price Control Extension Act, under which the Administrator had promulgated rules prohibiting removal of the tenants from the leased premises on the grounds asserted by the landlord. It was held that the landlord could be enjoined from evicting the tenants under the state judgment, as any 'vested' rights by reason of the state judgment were acquired subject to the possibility of their dilution through Congress' exercise of its paramount regulatory power.
1
The opinion of the district judge who first heard this case is reported at 142 F.Supp. 341. Subsequent references to the decision below are to that opinion.
The three-judge District Court's opinion is reported at 154 F.Supp. 411. Its decree imposed on Darlington (plaintiff) the following conditions:
'(a) The plaintiff shall not lease, or make available for ieasing, for terms of less than thirty days more than 15% of the total number of apartments in the project.
'(b) The plaintiff shall not increase its schedule of rents and charges now in effect for rentals of apartments for less than thirty days and for furnishings and other incidentals offered or supplied in connection therewith.
'(c) The plaintiff shall not advertise itself as a 'hotel', nor shall it through the use of any advertising medium, the circulation of letters, the maintenance of signs, or otherwise solicit the business of transients for less than thirty days occupancy, or advise the general public of its willingness to provide accommodations for transients for periods of less than thirty days occupancy.
'(d) The plaintiff shall not provide occupants of its project with food or beverage room service, or maintain regular bell boy service.'
The District Court retained jurisdiction of the cause for the purpose of effectuating its decree.
2
This fact is demonstrated by the rather unusual provision of the 1954 Act which gives hotel operators and owners the right to seek federal court injunctions against violations of the transient rental prohibition of the statute. 68 Stat. 611, 12 U.S.C.(Supp. V) § 1731b(i), 12 U.S.C.A. § 1731b(i). See also the testimony of Arthur J. Packard and Earl M. Johnson, respectively Chairman of the Board and Treasurer of the American Hotel Association, before the congressional committees considering the bills which became the Housing Act of 1954. Hearings before the Senate Committee on Banking and Currency, 83d Cong., 2d Sess., on S. 2889, S. 2938, S. 2949, pp. 654—661; Hearings before the House Committee on Banking and Currency, 83d Cong., 2nd Sess., on H.R. 7839, pp. 507—515.
| 78
|
358 U.S. 103
79 S.Ct. 194
3 L.Ed.2d 153
UNITED GAS PIPE LINE COMPANY, Petitioner,v.MEMPHIS LIGHT, GAS AND WATER DIVISION et al. FEDERAL POWER COMMISSION, Petitioner, v. MEMPHIS LIGHT, GAS AND WATER DIVISION et al. TEXAS GAS TRANSMISSION CORPORATION and Southern Natural Gas Company, Petitioners, v. MEMPHIS LIGHT, GAS AND WATER DIVISION et al.
Nos. 23, 25, 26.
Argued Oct. 20, 21, 1958.
Decided Dec. 8, 1958.
Rehearing Denied Jan. 19, 1959.
See 358 U.S. 942, 79 S.Ct. 344.
Solicitor General J. Lee Rankin, Washington, D.C., for petitioner Federal Power Commission.
[Syllabus intentionally omitted]
Mr. Ralph M. Carson, New York City, for other petitioners.
Messrs. George E. Morrow, Memphis, Tenn., and Reuben Goldberg, Washington, D.C., for respondents.
[Amicus Curiae intentionally omitted]
Mr. Justice HARLAN delivered the opinion of the Court.
1
We review a judgment of the Court of Appeals for the District of Columbia Circuit which directed the Federal Power Commission to reject certain rate schedules for natural gas filed with it by petitioner United Gas Pipe Line Company (United) under § 4(d) of the Natural Gas Act of 1938, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq., 15 U.S.C.A. § 717 et seq.
2
United, a regulated natural gas pipeline company, supplies gas to Texas Gas Transmission Corporation (Texas Gas), Southern Natural Gas Company (Southern Gas), and Mississippi Valley Gas Company (Mississippi),1 under a number of long-term service agreements made and filed with the Commission prior to September 30, 1955, each of which contains the following pricing provision:2
3
'All gas delivered hereunder shall be paid for by Buyer under Seller's Rate Schedule (the appropriate rate schedule designation is inserted here), or any effective superseding rate schedules, on file with the Federal Power Commission. This agreement in all respects shall be subject to the applicable provisions of such rate schedules and to the General Terms and Conditions attached thereto and filed with the Federal Power Commission which are by reference made a part hereof.' (Italics supplied.) On September 30, 1955, United, proceeding under § 4(d) of the Natural Gas Act, filed with the Commission new rate schedules, together with supporting data, increasing its prices for gas as of November 1, 1955, by amounts estimated to yield total additional annual revenues of $9,978,000 from sales under the agreements here involved and from other sales also subject to the Commission's jurisdiction. Exercising its powers under § 4(e) of the Act, the Commission ordered a hearing as to the propriety of the new rates, and, except as to those relating to sales of gas for resale for industrial use only, suspended their effectiveness from November 1, 1955, to April 1, 1956, the maximum period of suspension authorized by the statute.3 Thereafter Texas Gas, Southern Gas, Mississippi, Memphis, and others claiming an interest in the proceedings were permitted to intervene, and on February 6, 1956, the Commission commenced the taking of evidence as to the lawfulness of United's new rates under the 'just and reasonable' standard of § 4(e).
4
On February 27, 1956, this Court announced its decision in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, in which it was held that United could not escape a contract obligation to furnish Mobile with natural gas at a single specified price for a term of years by unilaterally filing an increased rate schedule under § 4(d) of the Natural Gas Act. Following that decision the respondents in the present case for the first time moved the Commission to reject United's new rate schedules, claiming that their filing constituted an attempt on the part of United to change unilaterally the terms of its service agreements with Texas Gas, Southern, and Mississippi, and that such an attempt ran afoul of our decision in Mobile. Construing these agreements as in effect constituting undertakings by the purchasers to pay United's 'going' rates, as established from time to time in accordance with the procedures prescribed by the Natural Gas Act, the Commission refused to reject United's filings. It distinguished Mobile on the ground that the contract there involved specified a single fixed rate for the gas to be supplied under it which United was contractually foreclosed from changing without the agreement of the purchaser. 16 F.P.C. 19, 15 P.U.R.3d 279.
5
The Court of Appeals reversed. Accepting for the purposes of its decision the Commission's interpretation of United's service agreements, the Court of Appeals held that nonetheless the Commission lacked 'jurisdiction' to consider under § 4(e) the lawfulness of United's new rate schedules. The court regarded Mobile as establishing that § 4(e) applies only to rate changes whose specific amount has been mutually agreed upon between a seller and purchaser, and that where a purchaser has not so agreed, a rate change can be effected only by action of the Commission under § 5(a) of the Act.4 Since the rates set forth in United's new schedules had not been agreed to by its customers, the Court of Appeals therefore held that the Commission had no jurisdiction to proceed under § 4(e) to examine them, and that accordingly United's filings under § 4(d) should have been rejected. 102 U.S.App.D.C. 77, 250 F.2d 402. We granted certiorari because of the claim that the Court of Appeals misinterpreted our decision in Mobile, and on the suggestion that its judgment seriously frustrates the proper administration of the Natural Gas Act. 355 U.S. 938, 78 S.Ct. 429, 2 L.Ed.2d 420.
6
It is apparent that the Court of Appeals misconceived the import of our decision in Mobile. The contract before the Court in that case required United to furnish natural gas to Mobile at a single fixed price of 10.7 cents per MCF (thousand cubic feet) for a period of 10 years. The contract contained no provision for any different rate, or for changing the agreed rate during the term of the agreement. It was argued by United that the Natural Gas Act gave it the right to abrogate this unqualified contract obligation and increase at will its price of gas to Mobile by filing new rate schedules under § 4(d), subject only to the Commission's approval of such schedules under § 4(e). In rejecting that contention this Court held that the Natural Gas Act, unlike the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., 'evinces no purpose to abrogate private rate contracts as such,' that the Act did not 'empower natural gas companies to change their contracts unilaterally,' and that in this respect regulated natural gas companies stood in no different position under the Act than they would have in the absence of the Act. 350 U.S. at pages 338, 340, 343, 76 S.Ct. at pages 378, 379, 380, 100 L.Ed. 373. Since United had contractually bound itself to furnish gas to Mobile throughout the contract term at a particular price, we held that its obligation could be abrogated only by the Commission, in the exercise of its paramount regulatory authority under § 5(a). Ibid., 350 U.S. at pages 344—345, 76 S.Ct. at pages 380, 381.
7
The United contract now before us, as construed by the Federal Power Commission and as viewed by the Court of Appeals for the purposes of decision, is vitally different from that in Mobile. On this view of the contract United bound itself to furnish gas to these customers during the life of the agreements not at a single fixed rate, as in Mobile, but at what in effect amounted to its current 'going' rate. Contractually this left United free to change its rates from time to time, subject, of course, to the procedures and limitations of the Natural Gas Act. In such circumstances there is nothing in Mobile which suggests that United was not entitled to file its new schedules under § 4(d), or that the Commission had no jurisdiction to consider them under § 4(e). On the contrary we said in Mobile (350 U.S. at page 343, 76 S.Ct. at page 380):
8
'* * * except as specifically limited by the Act, the rate-making powers of natural gas companies were to be no different from those they would possess in the absence of the Act: to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer. No more is necessary to give full meaning to all the provisions of the Act: consistent with this, § 4(d) means simply that no change—neither a unilateral change to an ex parte rate nor an agreed-upon change to a contract—can be made by a natural gas company without the proper notice to the Commission. * * *'
9
The Court of Appeals therefore erred in reading Mobile as limiting the procedures prescribed by § 4(d) and (e) to instances where the parties by mutual agreement had 'reformed' a rate contract. The reason these procedures were unavailable to United in Mobile was because the company had bargained away by contract the right to change its rates unilaterally, and not because § 4 does not apply to such rate changes whether made pursuant to or in the absence of a contract.
10
Moreover, we find nothing in the scheme of the Natural Gas Act which would justify the restrictive application which the Court of Appeals' decision gives to § 4(d) and (e). Section 4(c) requires every natural gas company initially to file with the Commission its rates for any 'sale subject to the jurisdiction of the Commission, * * * together with all contracts which in any manner affect or relate to such rates * * *.' Section 4(d) provides for the giving of notice of any change 'in any such rate * * * or contract relating thereto * * *' by finding new rate schedules with the Commission and keeping them open for public inspection.5 And § 4(e) authorizes Commission review of the lawfulness of any such changed rate.6 The record before us affirmatively shows that United in the filings here at issue has complied with all the duties which these sections in terms impose upon it, and there is nothing in these sections which even remotely implies that § 4(d) and (e) procedures are applicable to the filing and review of only those rate changes whose amount has been agreed upon by the seller and buyer.7
11
The important and indeed decisive difference between this case and Mobile is that in Mobile one party to a contract was asserting that the Natural Gas Act somehow gave it the right unilaterally to abrogate its contractual undertaking, whereas here petitioner seeks simply to assert, in accordance with the procedures specified by the Act, rights expressly reserved to it by contract. Mobile makes it plain that '§ 4(d) on its face indicates no more than that otherwise valid changes cannot be put into effect without giving the required notice to the Commission.' 350 U.S. at pages 339—340, 76 S.Ct. at pages 378. (Italics supplied.) The necessary corollary of this proposition is that changes which in fact are 'otherwise valid' in the light of the relationship between the parties can be put into effect under § 4(d) by a seller through giving the required notice to the Commission. Mobile expressly notes that in the absence of any contractual relationship rates determined ex parte by the seller may be filed under § 4(d). 350 U.S. at page 343, 76 S.Ct. at page 380. We perceive no tenable basis of distinction between the filing of such a rate in the absence of contract and a similar filing under an agreement which explicitly permits it.
12
Thus Mobile, properly understood, affirmatively establishes United's right to proceed under § 4 in the circumstances of this case. As we there said, 'The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act.' 350 U.S. at page 343, 76 S.Ct. at page 380. United, like the seller of an unregulated commodity, has the right in the first instance to change its rates as it will, unless it has undertaken by contract not to do so. The Act comes into play as to rate changes only in (1) imposing upon the seller the procedural requirement of filing timely notice of change, (2) giving the Commission authority to review such changes, and (3) authorizing the Commission, in the case of rates for sales of gas for other than exclusively industrial use, to suspend the new rates for a five-month period and thereafter to require the posting of a refund bond pending a determination of the lawfulness of the rates as changed. (See § 4(d), (e), at note 3, supra.)
13
It seems plain that Congress, in so drafting the statute, was not only expressing its conviction that the public interest requires the protection of consumers from excessive prices for natural gas, but was also manifesting its concern for the legitimate interests of natural gas companies in whose financial stability the gas-consuming public has a vital stake. Business reality demands that natural gas companies should not be precluded by law from increasing the prices of their product whenever that is the economically necessary means of keeping the intake and outgo of their revenues in proper balance; otherwise procurement of the vast sums necessary for the maintenance and expansion of their systems through equity and debt financing would become most difficult, if not impossible. This concern was surely a proper one for Congress to take into account in framing its regulatory scheme for the natural gas industry, cf. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603, 64 S.Ct. 281, 88 L.Ed. 333, and we think that it did so not only by preserving the 'integrity' of private contractual arrangements for the supply of natural gas, 350 U.S. at page 344, 76 S.Ct. at page 380 (subject of course to any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.
14
What has been said disposes of the question whether anything in the Natural Gas Act forbids a seller to change its rates pursuant to § 4 procedures simply because its customers have not agreed to the amount of the rate as changed. There remains the question whether United's service agreements reserved to it the power to make rate changes in this manner. The Commission found that the agreements so intended, but on its view of the case the Court of Appeals found it unnecessary to decide the question. We think it would be both unnecessary and dilatory for us to remand the case to the Court of Appeals for consideration of that issue, which involves matters peculiarly within the area of the Commission's special competence and as to which we could hardly be aided by a further examination of the record by the Court of Appeals. Indeed neither side suggests such a course, even alternatively, both asking us to decide the case in its present posture.
15
After scrutinizing the record we are satisfied that the Commission's determination as to the meaning of the service agreements here involved was amply supported both factually and legally. There is no necessity for us to embark upon a detailed discussion of the various contentions made by the parties, none of which appears to have been overlooked or misapprehended by the Commission. It seems sufficient to say that the record shows that these agreements are typical of the 'tariff-and-service' arrangements contemplated by Commission Order No. 144, 18 CFR § 154.1 et seq.;8 that until this case no one connected with the industry seems to have thought that agreements of this sort precluded natural gas companies from changing their rates in accordance with and subject to § 4(d) and (e) procedures;9 and that the respondents' present contrary contentions had their sole genesis in a mistaken view of our decision in the Mobile case. Beyond this, we find nothing in these agreements, as interpreted by the Federal Power Commission, which is hostile to any of the provisions or purposes of the Natural Gas Act.10
16
For the reasons given we hold that the Court of Appeals was in error in concluding that in the circumstances of this case United could not proceed to change its rates by filing under § 4(d) of the statute.
17
Reversed.
18
Mr. Justice CLARK took no part in the consideration or decision of these cases.
19
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
20
This decision marks, I think, a retreat from our holding in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373. In every case the facts are, of course, different from those in the precedents. But here the difference does not seem to me to be fundamental. The contract rate in the Mobile case which was sought to be changed unilaterally was fixed in a service agreement. Here the contract rate which was changed unilaterally was in the seller's rate schedule on file with the Commission.1
21
I thought the essence of our ruling in the Mobile case was in the words: 'the Natural Gas Act does not empower natural gas companies unilaterally to change their contracts.' 350 U.S. at page 344, 76 S.Ct. at page 380. That was emphasized over and again especially in the discussion of when unilateral and bilateral changes in rates were permissible:
22
'to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer.' 350 U.S. at page 343, 76 S.Ct. at page 380.
23
Like the judges of the Court of Appeals, I thought that this meant that all § 4(d) rates had to be rates agreed upon by the parties to the contract. That is the reason, I thought, why Congress made the control of the Commission over such rates so slight. That the supervision is restricted is evidenced by two elements in § 4(e): first, the Commission can suspend those agreed-upon changes for no more than five months; second, no power of suspension whatsoever is given to rates 'for resale for industrial use only.'2
24
But now we are told that the requirement of bilateral rate making is satisfied by the provision in the contract that the controlling rate is the 'effective' rate and an 'effective' rate is one which the selling company alone chooses to fix and file under § 4.
25
I find insuperable difficulties with that view. The contract does not say that the buyer will consent to any rate increase which the seller may file. It is an agreement to pay whatever may be the 'effective' rate; it is not an agreement to the establishment of that new rate. The construction of this tariff is a question of law (see Great Northern R. Co. v. Merchants' Elevator Co., 259 U.S. 285, 290, 42 S.Ct. 477, 66 L.Ed. 943) which we should resolve in light of the regulatory system that Congress has imposed on the industry.
26
The construction adopted by the Court has dire consequences. It makes a shambles of the Act so far as consumer interests are concerned; and they are the ones the Act was designed to protect.3 The ruling sacrifices these interests in the cause of those who exploit this field. Now the regulatory agency is left powerless to prevent a selling company, after the 30-day waiting period, from making consumers pay immediately whatever rate the company fixes. There is power in the Commission to suspend the new rate for five months; but in case of industrial rates even that limited power of suspension is absent. If the Commission should ultimately decide in a § 4(e) proceeding that the new rates are not just and reasonable, the victory for the consumers may be an illusory one, for administrative difficulties make it doubtful that they will receive the benefit of any refunds.4 And if the increases are in industrial rates, it appears that the Commission has no authority to require a refund of any unjustified increase collected before its order setting aside the increase. Even when the Commission catches up with the new high rate fixed by the selling company at its will and strikes it down, its action promises to have only a fleeting effect. The pipeline company can now in its unfettered discretion raise the rates again simply by filing a new rate; and if it is an industrial rate, it cannot even be suspended.5
27
I would not construe the Act so as to produce such destructive consequences. I would allow the § 4 rates to embrace only the 'rates agreed upon' by the pipeline and the customer, as we stated in the Mobile case, applying § 5 to all other cases. I fear that our failure to do so turns the real regulation over to the pipeline companies. I cannot imagine that the Congress that passed this Act envisaged any such tragic result for consumers; and we are not driven to it by unambiguous terms of the Act.
1
Mississippi, a natural gas distributing company, also purchases gas from Texas Gas and Southern Gas. Respondent Memphis Light, Gas and Water Division, an agency of the City of Memphis engaged in the distribution of natural gas, purchases gas from Texas Gas, and has no direct contract relations with United. However, it is obligated to reimburse Texas Gas for any increase in the latter's cost of gas acquired from United.
2
Originally there were seven such agreements, of which five contained the provision quoted in the text. However, the other two were found by the Commission, and assumed by the Court of Appeals, to contain the equivalent of that provision, and one of the two was replaced by a superseding agreement explicitly containing the provision very shortly after the filing here at issue.
3
Sections 4(d) and 4(e) of the National Gas Act read as follows:
§ 4(d): 'Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such (filed) rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.'
§ 4(e): 'Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, or State commission, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or
service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect: Provided, That the Commission shall not have authority to suspend the rate, charge, classification, or service for the sale of natural gas for resale for industrial use only; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the naturalgas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.'
The Commission did not suspend the rates applicable to sales for resale for industrial use only, as it has always taken the view that under the statute it is without power to suspend the effectiveness of these rates.
4
§ 5(a): 'Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or
that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates.'
5
See note 3, supra.
6
See note 3, supra.
7
A majority of the court below thought that such a limitation should be imported into the Act to fend against 'debilitating Section 5(a)' by making it possible for a seller to reserve by contract the right to avoid 'the delay and the more stringent proof requirements of Section 5(a)' through utilizing § 4 procedures. 102 U.S.App.D.C. at page 82, note 3, 250 F.2d at page 407, note 3. Apart from the fact that this approach seems to assume a negative answer to the very question at issue—whether Congress intended that natural gas companies should be permitted, so far as the statute is concerned, to file rate changes under § 4(d) without securing prior customer agreement to the changed rate it may be pointed out that the Commission appears consistently to have viewed the proof requirements under §§ 4(e) and 5(a) as equally 'stringent.' See FPC, Thirty-fifth Annual Report (1955), at 106; Thirty-fourth Annual Report (1954), at 106; Thirty-third Annual Report (1953), at 99.
8
When the Natural Gas Act became law in 1938, natural gas companies were permitted to file their existing sales contracts as rate schedules under § 4(c). Schedules in this form were extremely lengthy, unwieldy, and otherwise unsatisfactory in that it was most difficult for customers, competitors, and the Commission itself to ascertain whether rates to various customers were unduly discriminatory or otherwise unreasonable. The Commission therefore proposed regulations requiring the conversion of rate contracts into a 'tariff-and-service-agreement' system, and these regulations were promulgated in October 1948 as Order No. 144. Under the tariff-and-service-agreement system, the agreement between buyer and seller does not itself contain a price term, but rather refers to rate schedules of general applicability on file with the Commission. It is noteworthy that Order No. 144 expressly contemplates that a seller may reserve the 'privilege' of filing rate changes under § 4 of the Act. 18 CFR § 154.38(d)(3).
9
Between the date of the Mobile decision and that of the court below it appears that only three purchasers of natural gas under service agreements similar to those here involved (one of them Mississippi, a respondent here) moved to dismiss changed rate schedules on the ground that the agreements did not permit their filing, although some 600 such purchasers were affected by rate changes filed during that period.
10
Respondents argue that the 'effective superseding rate' clause of the agreements must be read as referring only to superseding rates established after a § 5(a) proceeding, because it would be unreasonable to find that the buyer-signatories to the agreements had intended to authorize United to change its 'industrial' rates by a § 4(d) filing in light of the fact that such rates are not subject to suspension and refund under the statute. Apart from the circumstances that (1) United's 'industrial' sales under these agreements appear to have been a relatively minor factor; (2) the clause would be entirely superfluous if construed as respondents would have it, since as a matter of law rate changes ordered by the Commission after a § 5(a) proceeding would have been incorporated into the agreements, Northern Pacific R. Co. v. St. Paul & Tacoma Lumber Co., 9 Cir., 1925, 4 F.2d 359, appeal dismissed 269 U.S. 535, 46 S.Ct. 105, 70 L.Ed. 399; Market Street R. Co. v. Pacific Gas & Electric Co., D.C.N.D.Cal.1925, 6 F.2d 633, appeal dismissed 271 U.S. 691, 46 S.Ct. 487, 70 L.Ed. 1154, and (3) the 'industrial' rates of United have consistently been below its other rates, the force of respondents' contention is wholly destroyed by the fact that it appears that the buyer-signatories to the agreements are entitled by contract with their customers to pass on any rate increases effected by United. Under these circumstances it can hardly be said to be inconceivable, or even unlikely, that the buyers would have been willing to authorize United to change its 'going' rates to them under § 4(d).
1
At the time the contract in Mobile was entered into the industry practice was to set rates in the service contracts which were filed with the Commission as the rate schedules. But in 1948 the Commission promulgated Order 144 requiring the conversion of all rate contracts into tariff-and-service agreement form. From that time on rates have not been included in the service contracts; rather, they are included in rate schedules of general applicability on file with the Commission to which reference is made in the individual service agreements. See 18 CFR § 154.1 et seq. Hence the difference in the price provision in the contracts involved here from that involved in Mobile.
2
Section 4(e) provides in part:
'Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, or State commission, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect: Provided, That the Commission shall not have authority to suspend the rate, charge, classification, or service for the sale of natural gas for resale for industrial use only * * *.'
3
See Federal Power Com'n v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 88 L.Ed. 333. Protection of the consumer interest was to be done through occupying a field from which the States had been barred. H.R.Rep. No. 709, 75th Cong., 1st Sess., p. 2.
4
In its 1953 report to Congress the Commission recognized that 'the collection of higher rates under bond, while providing protection to the pipeline company against ultimate loss in revenues, is unsatisfactory, burdensome, and presents many difficult problems for the company as well as for the distribution utilities which must pay the higher rates. The problem of distributing impounded funds to consumers in the event that proposed rate increases are denied even in part is time-consuming and expensive.' Report, Federal Power Commission, 1953, p. 101.
5
As stated by the State of Washington, amicus curiae, 'By the legally available expedient of filing another schedule of increased rates under § 4(d), any relief obtained by a Commission order after review could be effectively nullified 30 days after it was obtained.'
| 78
|
358 U.S. 121
79 S.Ct. 203
3 L.Ed.2d 165
UNITED STATES of America, Appellant,v.A & P TRUCKING COMPANY and Hopla Trucking Company.
No. 32.
Argued Oct. 20, 1958.
Decided Dec. 8, 1958.
Mr. Ralph S. Spritzer, Washington, D.C., for appellant.
Mr. Anthony J. Cioffi, Jersey City, N.J., for appellees.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case raises issues similar to those involved in United States v. American Freightways Co., 352 U.S. 1020, 77 S.Ct. 588, 1 L.Ed.2d 595, where a dismissal of an information charging a partnership entity with violations of 18 U.S.C. § 835, 18 U.S.C.A. § 835 was affirmed by an equally divided Court.
2
Appellees, two partnerships, were charged, as entities, in separate informations with violations of 18 U.S.C. § 835, 18 U.S.C.A. § 835, which makes it criminal knowingly to violate Interstate Commerce Commission regulations for the safe transportation in interstate commerce of 'explosives and other dangerous articles.' Appellee A & P Trucking Company was also charged with numerous violations of 49 U.S.C. § 322(a) 49 U.S.C.A. § 322(a) (§ 222(a) of the Motor Carrier Act of 1935).1 The District Court dismissed, on motion, the informations on the ground that a partnership entity cannot be guilty of violating the statutes involved. The Government appealed directly to this Court under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, and we noted probable jurisdiction. 356 U.S. 917, 78 S.Ct. 700, 2 L.Ed.2d 712. For reasons set forth below we hold that the informations were erroneously dismissed.
3
49 U.S.C. § 322(a), 49 U.S.C.A. § 322(a), the comprehensive misdemeanor provision of the Motor Carrier Act, provides that 'any person knowingly and willfully violating any provision of this chapter (Part II of the Interstate Commerce Act), or any rule, regulation, requirement, or order (of the Interstate Commerce Commission) thereunder, or any term or condition of any certificate, permit, or license, for which a penalty is not otherwise herein provided, shall, upon conviction thereof, be fined * * *.' The Motor Carrier Act also contains its own definition of the word 'person': 'The term 'person' means any individual, firm, copartnership, corporation, company, association, or joint-stock association; * * *.' (Italics supplied.) 49 U.S.C. § 303(a), 49 U.S.C.A. § 303(a).
4
18 U.S.C. § 835, 18 U.S.C.A. § 835 provides that 'whoever knowingly violates any such regulation (ICC regulations pertaining to the safe transport of dangerous articles) shall be fined not more one year, or both; * * *.' The section one year, or both; * * * .' The section makes such regulations binding on 'all common carriers' engaged in interstate commerce. And 1 U.S.C. § 1, 1 U.S.C.A. § 1, part of a chapter entitled 'Rules of Construction' and in light of which § 835 must be read, provides that 'in determining the meaning of any Act of Congress, unless the context indicates otherwise—* * * the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; * * *.' (Italics supplied.) The word 'whoever' in 18 U.S.C. § 835, 18 U.S.C.A. § 835 must, therefore, be construed to include partnerships 'unless the context indicates otherwise.'2
5
We think that partnerships as entities may be proceeded against under both § 322(a) and § 835. The purpose of both statutes is clear: to ensure compliance by motor carriers, among others, with safety and other requirements laid down by the Interstate Commerce Commission in the exercise of its statutory duty to regulate the operations of interstate carriers for hire. In the effectuation of this policy it certainly makes no difference whether the carrier which commits the infraction is organized as a corporation, a joint stock company, a partnership, or an individual proprietorship. The mischief is the same, and we think that Congress intended to make the consequences of infraction the same.
6
True, the common law made a distinction between a corporation and a partnership, deeming the latter not a separate entity for purposes of suit. But the power of Congress to change the common-law rule is not to be doubted. See United States v. Adams Express Co., 229 U.S. 381, 33 S.Ct. 878, 57 L.Ed. 1237. We think it beyond dispute that it has done so in § 322(a) for, as we have seen, 'person' in that section is expressly defined in the Motor Carrier Act to include partnerships. We think it likewise has done so in § 835, since we find nothing in that section which would justify our not applying to the word 'whoever' the definition given it in 1 U.S.C. § 1, 1 U.S.C.A. § 1, which includes partnerships. Section 835 makes regulations promulgated by the ICC for the transportation of dangerous articles binding on all common carriers. In view of the fact that many motor carriers are organized as partnerships rather than as corporations, the conclusion is not lightly to be reached that Congress intended that some carriers should not be subject to the full gamut of sanctions provided for infractions of ICC regulations merely because of the form under which they were organized to do business.3 More particularly, we perceive no reason why Congress should have intended to make partnership motor carriers criminally liable for infractions of § 322(a), but not for violations of § 835.4
7
It is argued that the words 'knowingly' (§ 835) and 'knowingly and willfully' (§ 322(a)) by implication eliminate partnerships from the coverage of the statutes, because a partnership, as opposed to its individual partners, cannot so act. But the same inability so to act in fact is true, of course, with regard to corporations and other associations; yet it is elementary that such impersonal entities can be guilty of 'knowing' or 'willful' violations of regulatory statutes through the doctrine of respondent superior. Thus in United States v. Adams Express Co., supra, in which the Adams Express Co., a joint stock association, was indicted for 'wilfully' receiving sums for expressage in excess of its scheduled rates, Mr. Justice Holmes said, 229 U.S. at pages 389—390, 33 S.Ct. at page 879:
8
'It has been notorious for many years that some of the great express companies are organized as joint stock associations, and the reason for the amendment hardly could be seen unless it was intended to bring those associations under the act. As suggested in the argument for the government, no one, certainly not the defendant, seems to have doubted that the statute now imposes upon them the duty to file schedules of rates. * * * But if it imposes upon them the duties under the words 'common carrier,' as interpreted, it is reasonable to suppose that the same words are intended to impose upon them the penalty inflicted on common carriers in case those duties are not performed. * * *
9
'The power of Congress hardly is denied. The constitutionality of the statute as against corporations is established, (New York Central & Hudson River R.R. Co. v. United States, 212 U.S. 481, 492, 29 S.Ct. 304, (306), 53 L.Ed. 613, 621,) and no reason is suggested why Congress has not equal power to charge the partnership assets with a liability and to personify the company so far as to collect a fine by a proceeding against it by the company name. That is what we believe that Congress intended to do. * * *'
10
The policy to be served in this case is the same. The business entity cannot be left free to break the law merely because its owners, stockholders in the Adams case, partners in the present one, do not personally participate in the infraction. The treasury of the business may not with impunity obtain the fruits of violations which are committed knowingly by agents of the entity in the scope of their employment.5 Thus pressure is brought on those who own the entity to see to it that their agents abide by the law.6
11
We hold, therefore, that a partnership can violate each of the statutes here in question quite apart from the participation and knowledge of the partners as individuals. The corollary is, of course, that the conviction of a partnership cannot be used to punish the individual partners, who might be completely free of personal guilt. As in the case of corporations, the conviction of the entity can lead only to a fine levied on the firm's assets.
12
Reversed.
13
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice FRANKFURTER, and Mr. Justice WHITTAKER concur, dissenting in part.
14
18 U.S.C. § 835, 18 U.S.C.A. § 835, unlike the Motor Carrier Act, has not explicitly subjected partnerships to criminal liability, and I do not think that such liability should be implied, for we are dealing with a penal statute which should be narrowly construed.
15
As Chief Justice Marshall wrote in United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37, 'The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment in vested in the legislative, not in the judicial department.'
16
With that approach we would not allow this criminal sanction to attach under 18 U.S.C. § 835, 18 U.S.C.A. § 835. A corporation is an artificial, legally created entity that can have no 'knowledge' itself and it said to have 'knowledge' only through its employees. On the other hand a partnership means A, B, and C the individuals who compose it. In this country the entity theory has not in general been extended to the partnership. Judge Learned Hand summarized the history in Helvering v. Smith, 2 Cir., 90 F.2d 590, 591—592. If Dean Ames had had his way, the mercantile or entity theory of the partnership would have prevailed. But those who took up the drafting of the Uniform Partnership Act after his death adhered to the common-law attitude toward a partnership—that it is an aggregation of individuals. That is to say, the Act adopted the aggregate rather than the entity theory. And that Act is in force in about three-fourths of the States. One who combs the reports today can find cases espousing the entity theory. But they are in the minority and consciously reject the other theory. As Professor Williston has shown, the main stream of American partnership law follows the British course of treating the partnership in the pluralistic sense. The Uniform Partnership Act, 63 U. of Pa.L.Rev. 196, 208. We should therefore assume that this criminal statute, written against that background, reflects the conventional aggregate, not the exceptional entity, theory of the partnership.
17
We are dealing with a statute where liability depends on 'culpable intent,' as stated in Boyce Motor Lines, Inc., v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367. The partners could not be held criminally responsible for the acts of their employees. Gordon v. United States, 347 U.S. 909, 74 S.Ct. 473, 98 L.Ed. 1067. The partnership, being no more than the aggregate of the partners, should stand on the same footing, unless Congress explicitly provides otherwise. Title 1 U.S.C. § 1,1 U.S.C.A. § 1 defines 'person' in any Act of Congress to include a partnership, 'unless the context indicates otherwise.' The context of 18 U.S.C. § 835, 18 U.S.C.A. § 835 does indicate otherwise for the Act punishes only those who knowingly violate it. The aggregate theory of partnership law teaches that there can be no vicarious criminal liability where no partner is culpable
18
If the rule of strict construction of a criminal statute is to obtain, 18 U.S.C. § 835, 18 U.S.C.A. § 835 must be read narrowly to reflect the prevailing view of partnership law. If the entity theory is to be applied for the purpose of imposing criminal penalties on partnership assets, where the partners are wholly innocent of any wrongful act, it should be done only on the unequivocal command of Congress, as is the case under the Motor Carrier Act.
1
The information as to appellee A & P Trucking Company charged in one count an offense under 18 U.S.C. § 835, 18 U.S.C.A. § 835 through the transportation by truck of chromic acid without the markings or placardings prescribed by 49 CFR § 77.823(a). It charged in 34 other counts offenses under 49 U.S.C. § 322(a), 49 U.S.C.A. § 322(a), consisting of failure to comply with 49 CFR § 191.8, which prescribes physical examinations and certificates for drivers of trucks (one count), violation of 49 CFR, 1958 Cum. Pocket Supp., § 193.95(a), which requires that common-carrier trucks be equipped with fire extinguishers (one count), and violation of 49 U.S.C. § 306(a), 49 U.S.C.A. § 306(a), which forbids the operation of a common-carrier truck in interstate commerce without a certificate of convenience and necessity (32 counts). The information as to appellee Hopla Trucking Company charged two violations of 18 U.S.C. § 835, 18 U.S.C.A. § 835, in that Hopla shipped methanol, a flammable liquid, without properly marking or placarding the truck as required by 49 CFR § 77.823(a), and without its driver having in his possession a paper showing the prescribed labels required for the outside containers of the methanol as required by 49 CFR § 77.817.
Subsequent to the filing of the information against A & P Trucking Company, 49 U.S.C. § 322(a), 49 U.S.C.A. § 322(a) was amended to increase the fines provided for its violation. See 49 U.S.C. (Supp. V) § 322(a), 49 U.S.C.A. § 322(a).
2
It is significant that the definition of 'whoever' in 1 U.S.C. § 1, 1 U.S.C.A. § 1 was first enacted into law as part of the very same statute which enacted into positive law the revised Criminal Code. 62 Stat. 683, 859 (1948). The connection between 1 U.S.C. § 1, 1 U.S.C.A. § 1 and the Criminal Code, which includes § 835, is thus more than a token one, the very same statute which creates the crime admonishing that 'whoever' is to be liberally interpreted.
3
Congress has specifically included partnerships within the definition of 'person' in a large number of regulatory Acts, thus showing its intent to treat partnerships as entities. See e.g., Civil Aeronautics Act, 52 Stat. 979, 49 U.S.C. § 401(27), 49 U.S.C.A. § 401(27); Federal Communications Act, 48 Stat. 1066, 47 U.S.C. § 153(i), 47 U.S.C.A. § 153(i); Shipping Act, 39 Stat. 729, 46 U.S.C. § 801, 46 U.S.C.A. § 801; Tariff Act, 46 Stat. 708, 19 U.S.C. § 1401(d), 19 U.S.C.A. § 1401(d).
4
The fact that § 835 provides for imprisonment, as well as fine, for its violation, whereas § 322(a) provides only for fines, does not lead to a different conclusion. Cf. United States v. Union Supply Co., 215 U.S. 50, 30 S.Ct. 15, 54 L.Ed. 87.
5
Since the two informations were held insufficient on their face, we must, for present purposes, accept as true their allegations that the offenses charged were not inadvertently committed.
6
Gordon v. United States, 347 U.S. 909, 74 S.Ct. 473, 98 L.Ed. 1067, relied on by appellees, is not the contrary. That case held merely that individual partners could not be convicted of 'willfully' violating the Defense Production Act of 1950, 50 U.S.C.A.Appendix, § 2133, without a showing that they had knowledge of the criminal acts of their agents. Cf. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48. Here the Government does not seek to hold the individual partners, but only the partnerships as entities.
| 78
|
358 U.S. 184
79 S.Ct. 180
3 L.Ed.2d 210
Boyd S. LEEDOM, et al., Individually and as Chairman and Members of and Constituting the National Labor Relations Board, Petitioners,v.William KYNE, Individually and as President of Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America, a Voluntary Unincorporated Labor Organization.
No. 14.
Argued Oct. 23, 1958.
Decided Dec. 15, 1958.
Mr. Norton J. Come, New York City, for petitioner.
Mr. Jonas Silver, New York City, for respondent pro hac vice by special leave of Court.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Section 9(b)(1) of the National Labor Relations Act, § 9, 49 Stat. 453, 61 Stat. 143, 29 U.S.C. § 159(b)(1), 29 U.S.C.A. § 159(b)(1), provides that, in determining the unit appropriate for collective bargaining purposes, 'the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.' The Board, after refusing to take a vote among the professional employees to determine whether a majority of them would 'vote for inclusion in such unit,' included both professional and nonprofessional employees in the bargaining unit that it found appropriate. The sole and narrow question presented is whether a Federal District Court has jurisdiction of an original suit to vacate that determination of the Board because made in excess of its powers.
2
The facts are undisputed. Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America, a voluntary unincorporated labor organization, hereafter called the Association, was created for the purpose of promoting the economic and professional status of the nonsupervisory professional employees of Westinghouse Electric Corporation at its plant in Cheektowaga, New York, through collective bargaining with their employer. In October 1955, the Association petitioned the National Labor Relations Board for certification as the exclusive collective bargaining agent of all nonsupervisory professional employees, being then 233 in number, of the Westinghouse Company at its Cheektowaga plant, pursuant to the provisions of § 9 of the Act, 29 U.S.C. § 159, 29 U.S.C.A. § 159. A hearing was held by the Board upon that petition. A competing labor organization was permitted by the Board to intervene. It asked the Board to expand the unit to include employees in five other categories who performed technical work and were thought by it to be 'professional employees' within the meaning of § 2(12) of the Act, 29 U.S.C. § 152(12), 29 U.S.C.A. § 152(12). The Board found that they were not professional employees within the meaning of the Act. However, it found that nine employees in three of those categories should nevertheless be included in the unit because they 'share a close community of employment interests with (the professional employees, and their inclusion would not) destroy the predominantly professional character of such a unit.' The Board, after denying the Association's request to take a vote among the professional employees to determine whether a majority of them favored 'inclusion in such unit,' included the 233 professional employees and the nine nonprofessional employees in the unit and directed an election to determine whether they desired to be represented by the Association, by the other labor organization, or by neither. The Association moved the Board to stay the election and to amend its decision by excluding the nonprofessional employees from the unit. The Board denied that motion and went ahead with the election at which the Association received a majority of the valid votes cast and was thereafter certified by the Board as the collective bargaining agent for the unit.
3
Thereafter respondent, individually, and as president of the Association, brought this suit in the District Court against the members of the Board, alleging the foregoing facts and asserting that the Board had exceeded its statutory power in including the professional employees, without their consent, in a unit with nonprofessional employees in violation of § 9(b)(1) which commands that the Board 'shall not' do so, and praying, among other things, that the Board's action be set aside. The defendants, members of the Board, moved to dismiss for want of jurisdiction and, in the alternative, for a summary judgment. The plaintiff also moved for summary judgment. The trial court found that the Board had disobeyed the express command of § 9(b)(1) in including nonprofessional employees and professional employees in the same unit without the latter's consent, and in doing so had acted in excess of its powers to the injury of the professional employees, and that the court had jurisdiction to grant the relief prayed. It accordingly denied the Board's motion and granted the plaintiff's motion and entered judgment setting aside the Board's determination of the bargaining unit and also the election and the Board's certification. 148 F.Supp. 597.
4
On the Board's appeal it did not contest the trial court's conclusion that the Board, in commingling professional with nonprofessional employees in the unit, had acted in excess of its powers and had thereby worked injury to the statutory rights of the professional employees. Instead, it contended only that the District Court lacked jurisdiction to entertain the suit. The Court of Appeals held that the District Court did have jurisdiction and affirmed its judgment. 101 App.D.C. 398, 249 F.2d 490. Because of the importance of the question and the fact that it has been left open in our previous decisions, we granted certiorari, 355 U.S. 922, 78 S.Ct. 366, 2 L.Ed.2d 353.
5
Petitioners, members of the Board, concede here that the District Court had jurisdiction of the suit under § 24(8) of the Judicial Code, 28 U.S.C. § 1337, 28 U.S.C.A. § 1337, unless the review provisions of the National Labor Relations Act destroyed it. In American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 303, 84 L.Ed. 347, this Court held that a Board order in certification proceedings under § 9 is not 'a final order' and therefore is not subject to judicial review except as it may be drawn in question by a petition for enforcement or review of an order, made under § 10(c) of the Act, restraining an unfair labor practice. But the Court was at pains to point out in that case that '(t)he question (there presented was) distinct from * * * whether petitioners are precluded by the provisions of the Wagner Act from maintaining an independent suit in a district court to set aside the Board's action because contrary to the statute * * *.' Id., 308 U.S. at page 404, 60 S.Ct. at page 302. The Board argued there, as it does here, that the provisions of the Act, particularly § 9(d), have foreclosed review of its action by an original suit in a District Court. This Court said: 'But that question is not presented for decision by the record before us. Its answer involves a determination whether the Wagner Act, in so far as it has given legally enforceable rights, has deprived the district courts of some portion of their original jurisdiction conferred by § 24 of the Judicial Code. It can be appropriately answered only upon a showing in such a suit that unlawful action of the Board has inflicted an injury on the petitioners for which the law, apart from the review provisions of the Wagner Act, affords a remedy. This question can be properly and adequately considered only when it is brought to us for review upon a suitable record.' Id., 308 U.S. at page 412, 60 S.Ct. at page 305. (Emphasis added.)
6
The record in this case squarely presents the question found not to have been presented by the record in American Federation of Labor v. National Labor Relations Board, supra. This case, in its posture before us, involves 'unlawful action of the Board (which) has inflicted an injury on the (respondent).' Does the law, 'apart from the review provisions of the * * * Act,' afford a remedy? We think the answer surely must be yes. This suit is not one to 'review,' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act. Section 9(b)(1) is clear and mandatory. It says that, in determining the unit appropriate for the purposes of collective bargaining, 'the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.' (Emphasis added.) Yet the Board included in the unit employees whom it found were not professional employees, after refusing to determine whether a majority of the professional employees would 'vote for inclusion in such unit.' Plainly, this was an attempted exercise of power that had been specifically withheld. It deprived the professional employees of a 'right' assured to them by Congress. Surely, in these circumstances, a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right so given.
7
In Texas & New Orleans R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 549, 50 S.Ct. 427, 74 L.Ed. 1034, it was contended that, because no remedy had been expressly given for redress of the congressionally created right in suit, the Act conferred 'merely an abstract right which was not intended to be enforced by legal proceedings.' Id., 281 U.S. at page 558, 50 S.Ct. at page 429. This Court rejected that contention. It said: 'While an affirmative declaration of duty contained in a legislative enactment may be of imperfect obligation because not enforceable in terms, a definite statutory prohibition of conduct which would thwart the declared purpose of the legislation cannot be disregarded * * *. If Congress intended that the prohibition, as thus construed, should be enforced, the courts would encounter no difficulty in fulfilling its purpose * * *. The definite prohibition which Congress inserted in the act can not therefore be overriden in the view that Congress intended it to be ignored. As the prohibition was appropriate to the aim of Congress, and is capable of enforcement, the conclusion must be that enforcement was contemplated.' Id., 281 U.S. at pages 568, 569, 50 S.Ct. at page 433. And compare Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789.
8
In Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, this Court held that the District Court did not have jurisdiction of an original suit to review an order of the National Mediation Board determining that all yardmen of the rail lines operated by the New York Central system constituted an appropriate bargaining unit, because the Railway Labor Board had acted within its delegated powers. But in the course of that opinion the Court announced principles that are controlling here. 'If the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control. That was the purport of the decisions of this Court in Texas & New Orleans R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034, and Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. In those cases it was apparent that but for the general jurisdiction of the federal courts there would be no remedy to enforce the statutory commands which Congress had written into the Railway Labor Act. The result would have been that the 'right' of collective bargaining was unsupported by any legal sanction. That would have robbed the Act of its vitality and thwarted its purpose.' Id., 320 U.S. at page 300, 64 S.Ct. at page 97.
9
Here, differently from the Switchmen's case, 'absence of jurisdiction of the federal courts' would mean 'a sacrifice or obliteration of a right which Congress' has given professional employees, for there is no other means, within their control (American Federation of Labor v. National Labor Relations Board, supra), to protect and enforce that right. And 'the inference (is) strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.' 320 U.S. at page 300, 64 S.Ct. at page 97. This Court cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers. Cf. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90.
10
Where, as here, Congress has given a 'right' to the professional employees it must be held that it intended that right to be enforced, and 'the courts * * * encounter no difficulty in fulfilling its purpose.' Texas & New Orleans R. Co. v. Brotherhood of Railway & S. S. Clerks, supra, 281 U.S. at page 568, 50 S.Ct. at page 433.
11
The Court of Appeals was right in holding, in the circumstances of this case, that the District Court had jurisdiction of this suit, and its judgment is affirmed.
12
Affirmed.
13
Mr. Justice BRENNAN, whom Mr. Justice FRANKFURTER joins, dissenting.
14
The legislative history of the Wagner Act,1 and of the Taft-Hartley amendments,2 shows a considered congressional purpose to restrict judicial review of National Labor Relations Board representation certifications to review in the Courts of Appeals in the circumstances specified in § 9(d), 29 U.S.C. § 159(d), 29 U.S.C.A. § 159(d). The question was extensively debated when both Acts were being considered, and on both occasions Congress concluded that, unless drastically limited, time-consuming court procedures would seriously threaten to frustrate the basic national policy of preventing industrial strife and achieving industrial peace by promoting collective bargaining.
15
The Congress had before it when considering the Wagner Act the concrete evidence that delays pending time-consuming judicial review could be a serious hindrance to the primary objective of the Act—bringing employers and employees together to resolve their differences through discussion. Congress was acutely aware of the experience of the predecessor of the present Labor Board3 under the National Industrial Recovery Act, which provided that investigations and certifications by the Board could be brought directly to the courts for review. Such direct review was determined by the Congress to be 'productive of a large measure of industrial strife * * *.'4 and was specifically eliminated in the Wagner Act. Although Congress recognized that it was necessary to determine employee representatives before collective bargaining could begin, Congress concluded that the chance for industrial peace increased correlatively to how quickly collective bargaining commenced. For this reason Congress ordained that the courts should not interfere with the prompt holding of representation elections or the commencement of collective bargaining once an employee representative has been chosen.5 Congress knew that if direct judicial review of the Board's investigation and certification of representatives was not barred, 'the Government can be delayed indefinitely before it takes the first step toward industrial peace.'6 Therefore, § 9(d) was written to provide 'for review in the courts only after the election has been held and the Board has ordered the employer to do something predicated upon the results of the election.'7 After the Wagner Act was passed, a proposed amendment to allow judicial review after an election but before an unfair labor practice order was specifically rejected.8 In short, Congress set itself firmly against direct judicial review of the investigation and certification of representatives, and required the prompt initiation of the collective-bargaining process after the Board's certification, because of the risk that time-consuming review might defeat the objectives of the national labor policy. See American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 409—411, 60 S.Ct. 300, 304—305, 84 L.Ed. 347; Madden v. Brotherhood and Union of Transit Employees, 4 Cir., 147 F.2d 439, 158 A.L.R. 1330.
16
When the Taft-Hartley amendments were under consideration, employers complained that because § 9(d) allowed judicial review to an employer only when unfair labor practice charges were based in whole or in part upon facts certified following an investigation of representatives, these 'cumbersome proceedings' meant that the employer could have review only by committing an unfair labor practice 'no matter how much in good faith he doubted the validity of the certification.'9 A House amendment therefore provided for direct review in the Courts of Appeals of Board certifications on appeal of any person interested, as from a final order of the Board.10 Opponents revived the same arguments successfully employed in the Wagner Act debates: 'Delay would be piled upon delay, during which time collective bargaining would be suspended pending determination of the status of the bargaining agent. Such delays can only result in industrial strife.'11 Both sides recognized that the House amendment would produce a fundamental change in the law.12 The Senate rejected the House amendment; the amendments proposed by that body continued only the indirect and limited review provided in original § 9(d). In conference, the Senate view prevailed.13 Senator Taft reported:14
17
'Subsection 9(d) of the conference agreement conforms to the Senate amendment. The House bill contained a provision which would have permitted judicial review of certifications even before the entry of an unfair labor practice order. In receding on their insistence on this portion, the House yielded to the view of the Senate conferees that such provision would permit dilatory tactics in representation proceedings.
18
The Court today opens a gaping hole in this congressional wall against direct resort to the courts. The Court holds that a party alleging that the Board was guilty of 'unlawful action' in making an investigation and certification of representatives need not await judicial review until the situation specified in § 9(d) arises, but has a case immediately cognizable by a District Court under the 'original jurisdiction' granted by 28 U.S.C. § 1337, 28 U.S.C.A. § 1337 of 'any civil action or proceeding arising under any Act of Congress regulating commerce.' The Court, borrowing a statement from Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 300, 64 S.Ct. 95, 88 L.Ed. 61, finds that, in such case 'the inference (is) strong that Congress intended the statutory provisions governing the general jurisdiction of those (District) courts to control.'
19
There is nothing in the legislative history to indicate that the Congress intended any exception from the requirement that collective bargaining begin without awaiting judicial review of a Board certification or the investigation preceding it. Certainly nothing appears that an exception was intended where the attack upon the Board's action is based upon an alleged misinterpretation of the statute. The policy behind the limitation of judicial review applies just as clearly when the challenge is made on this ground. Plainly direct judicial review of a Board's interpretation of the statute is as likely to be as drawn out, and thus as frustrative of the national policy, as is review of any other type of Board decision. That appears from the timetable in Inland Empire District Council, etc. v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877. That case also involved a challenge in a District Court to a statutory interpretation by the Board in a representation proceeding. The Court held that it was not necessary to reach the question of the District Court's jurisdiction since it had not been shown that the Board's interpretation of the pertinent statute was erroneous. But over two years elapsed while the question was being litigated. The hearing which led to the certification was held in May 1943 and this Court's decision was announced on June 11, 1945.
20
If there be error in the Board's statutory interpretation here, although there was none in Inland Empire Council, I ask, again, where even a scintilla of evidence is to be found that Congress intended an exception to permit direct judicial review for Board errors in statutory interpretation, obvious or debatable? Of course, there is none. Indeed the evidence to the contrary that Congress intended only limited review is so compelling that I can see no escape from the conclusion reached by the Fourth Circuit Court of Appeals: 'It is hardly possible that Congress should have intended to permit review by District Courts of 9(c) proceedings while so carefully limiting review of such proceedings in the Circuit Courts of Appeals to cases in which an order under 10(c) has been entered.' Madden v. Brotherhood and Union of Transit Employees, 147 F.2d 439, 442, 158 A.L.R. 1330.
21
I daresay that the ingenuity of counsel will, after today's decision, be entirely adequate to the task of finding some alleged 'unlawful action,' whether in statutory interpretation or otherwise, sufficient to get a foot in a District Court door under 28 U.S.C. § 1337, 28 U.S.C.A. § 1337. Even when the Board wins such a case on the merits, as in Inland Empire Council, while the case is dragging through the courts the threat will be ever present of the industrial strife sought to be averted by Congress in providing only drastically limited judicial review under § 9(d). Both union and management will be able to use the tactic of litigation to delay the initiation of collective bargaining when it suits their purposes. A striking example of this was recently disclosed to the Select Committee of the Senate on Improper Activities in the Labor or Management Field.15 A union, by challenging Board certification proceedings in the District Courts,16 was able to extend a representation proceeding to over six months, even though only seven employees were involved and they did not support the union. By the time that the Board was able to certify a representative of the employees, the industrial strife of those six months had forced the employer out of business. Thus collective bargaining was prevented, the basic purpose of the LMRA was frustrated, and the result was serious hardship to both the employer and employees. I fear that today the Court fashions a major setback for the goals of the national labor policy, at least until the Congress enacts new language to express a will which I think is already crystal clear.
22
It is no support for the Court's decision that the respondent union may suffer hardship if review under 28 U.S.C. § 1337, 28 U.S.C.A. § 1337 is not open to it. The Congress was fully aware of the disadvantages and possible unfairness which could result from the limitation on judicial review enacted in § 9(d). The House proposal for direct review of Board certifications in the Taft-Hartley amendments was based in part upon the fact that, under the Wagner Act, the operation of § 9(d) was 'unfair to * * * the union that loses, which has no appeal at all no matter how wrong the certification may be; (and to) the employees, who also have no appeal * * *.'17 Congress nevertheless continued the limited judicial review provided by § 9(d) because Congress believed the disadvantages of broader review to be more serious than the difficulties which limited review posed for the parties. Furthermore, Congress felt that the Board procedures and the limited review provided in § 9(d) were adequate to protect the parties.18
23
The Court supports its decision by stating that Switchmen's Union of North America v. National Mediation Board, supra, 'announced principles that are controlling here.' This is true, but I believe that those principles lead to, indeed compel, a result contrary to that reached by the Court. In that case, the Switchmen's Union sought to challenge in a District Court the certification of an employee representative by the National Mediation Board under the Railway Labor Act, 45 U.S.C.A. § 151 et seq. The Board certified the Brotherhood of Railroad Trainmen as representative for all the yardmen of the rail lines operated by the New York Central system. The Switchmen's Union contended that yardmen of certain designated parts of the system should be permitted to vote for separate representatives instead of being compelled to take part in a system-wide election. The Board rejected this contention of the Switchmen's Union upon the ground that the Railway Labor Act did not authorize the Board to determine a unit of less than the entire system. The Board's interpretation was that the 'Railway Labor Act vests the Board with no discretion to split a single carrier * * *.' Switchmen's case, 320 U.S. at page 309, 64 S.Ct. at page 101. This Court held that the action of the Switchmen's Union was not cognizable in a District Court. The Court held that the Railway Labor Act, read in the light of its history, disclosed a congressional intention to bar direct review in the District Courts of certifications by the Mediation Board. This was held notwithstanding the fact that the certification was based on an alleged misinterpretation of the Act.
24
This same reasoning has striking application in this case. The National Labor Relations Act provides that the Labor Board 'shall decide in each case * * * the unit appropriate for the purposes of collective bargaining,' § 9(b), but also provides that the Board 'shall not * * * decide that any unit is appropriate * * * if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit * * *.' § 9(b)(1). The Board, in making the certification in dispute, has interpreted these provisions as requiring the approval of the professional employees of a mixed bargaining unit of professionals and nonprofessionals only when the professionals are a minority in the unit, since only in such a case would they need this protection against the ignoring of their particular interests. This interpretation is the basis of respondent union's complaint in its action under 28 U.S.C. § 1337, 28 U.S.C.A. § 1337 in the District Court. But an alleged error in statutory construction was also the basis of the District Court action in the Switchmen's case. Thus the two cases are perfectly parallel. And just as surely as in the case of the Mediation Board under the Railway Labor Act, the Congress has barred District Court review of National Labor Relations Board certifications under the Labor Management Relations Act. The history of the controversy over direct judicial review which I have canvassed shows with a clarity perhaps not even as true of the Mediation Board that the National Labor Relations Board was the 'precise machinery,' 320 U.S. at page 301, 64 S.Ct. at page 97, selected by Congress for the purpose of determining a certification and that 'there was to be no dragging out of the controversy into other tribunals of law.' Id., 320 U.S. at page 305, 64 S.Ct. at page 99. Congress evidenced its will definitely and emphatically 'by the highly selective manner in which Congress * * * provided for judicial review of administrative orders or determinations under the Act.' Id., 320 U.S. at page 305, 64 S.Ct. at page 99. Review is confined to review in a Court of Appeals in the circumstances specified in § 9(d).
25
The Court seizes upon the language in Switchmen's, 'If the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.' 320 U.S. at page 300, 64 S.Ct. at page 97. But the holding in Switchmen's was that in creating the Mediation Board and vesting that Board with power to decide certification controversies, Congress had provided its own tribunal for protection of the 'right' it created, thus precluding any basis for an inference that Congress intended the general jurisdiction of the District Courts to control. The Court found that Congress intended protection of the 'right' to be confined to the Board's exercise of power conferred for the purpose. Therefore, the Court held 'review by the federal district courts of the Board's determination is not necessary to preserve or protect that 'right'. Congress for reasons of its own decided upon the method for the protection of the 'right' which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end. * * * All constitutional questions aside, it is for Congress to determine how the rights which it creates shall be enforced.' 320 U.S. at page 301, 64 S.Ct. at page 97. The Court used the 'sacrifice or obliteration' language solely to distinguish the situation where Congress created a 'right' but no tribunal for its enforcement. This was the case in Texas & New Orleans R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034, and Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. In the Texas case, the employer was attempting to prevent the organization of its employees in violation of § 2 of the Railway Labor Act, which provided that the employees could select representatives 'without interference, influence, or coercion' (281 U.S. 548, 50 S.Ct. 433) by the employer. There was no agency designated to enforce this policy of the Act, and unless the courts provided sanctions against the outlawed activity, there would be no official sanctions to prevent it. Similarly in the Virginian R. Co. case, a union asked the Court to order an employer to obey the commands of the Railway Labor Act because without such relief the employer would have been free to ignore the Act, since at that time the Railway Labor Act provided no agency for enforcement of the right. Thus when the Court in Switchmen's talked about 'the absence of jurisdiction of the federal courts' meaning 'a sacrifice or obliteration of a right which Congress had created' it referred to the situations in the Texas and Virginian R. Co. cases. See Switchmen's case, 320 U.S. at page 300, 64 S.Ct. at page 97.
26
But here, as the Congress provided the Mediation Board under the Railway Labor Act, the Congress has provided an agency, the NLRB, to protect the 'right' it created under the National Labor Relations Act. Congress has in addition enacted 'an appropriate safeguard and opportunity to be heard'19 in procedures to be followed by the Board. It has indeed gone further than in the Railway Labor Act. Whereas no judicial review of any kind was there provided, some, although limited, judicial review is provided under § 9(d). This was considered by Congress as 'a complete guarantee against arbitrary action by the Board.'20 Plainly we have here a situation where it may be said precisely as in Switchmen's that 'Congress for reasons of its own decided upon the method for protection of the 'right' it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end.'
27
Cases such as Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503, and Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, cited by the Court, merely indicate that congressionally created rights may be judicially enforced unless the Act that creates the rights indicates the contrary. Each case must turn on an interpretation of the statute that creates the right. As this Court said in Stark v. Wickard itself: 'even where a complainant possesses a claim to executive action beneficial to him, created by federal statute, it does not necessarily follow that actions of administrative officials, deemed by the owner of the right to place unlawful restrictions upon his claim, are cognizable in appropriate federal courts of first instance.' 321 U.S. at page 306, 64 S.Ct. at page 569. The statutes under consideration in those cases do not have the common purposes and scheme of the National Labor Relations Act and Railway Labor Act. Furthermore, the general statutory scheme and the legislative history of those statutes simply did not demonstrate the intent to limit the judicial enforcement of the rights created, so compellingly demonstrated in this case, and in Switchmen's Union of North America v. National Mediation Board.
28
I would reverse and remand the case to the District Court with instructions to dismiss the complaint for lack of jurisdiction of the subject matter.
1
49 Stat. 449.
2
61 Stat. 136.
3
The first National Labor Relations Board was created by Public Resolution 44 of June 19, 1934, 48 Stat. 1183, to administer § 7(a) of the National Industrial Recovery Act, 48 Stat. 198.
4
H.R.Rep. No. 1147, 74th Cong., 1st Sess., p. 7.
5
See H.R.Rep. No. 1147, supra, p. 23.
6
S.Rep. No. 573, 74th Cong., 1st Sess., p. 6.
7
79 Cong.Rec. 7658.
8
See Hearings before Senate Committee on Education and Labor on S. 1000 et al., 76th Cong., 1st Sess., pp. 584—587.
9
H.R.Rep. No. 245, 8th Cong., 1st Sess., p. 43.
10
H.R. 3020, 80th Cong., 1st Sess., § 10(f); see H.R.Rep. No. 245, supra, pp. 59—60.
11
H.R.Rep. No. 245, supra, p. 94 (minority report). It was conservatively estimated that one year would be the average time required for judicial review of a Board certification. Ibid.
12
See, e.g., H.R.Rep. No. 245, supra, p. 43.
13
See H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., pp. 56 57.
14
93 Cong.Rec. 6444.
15
See Testimony of Boyd Leedom, Chairman of the National Labor Relations Board, before the Select Committee of the Senate on Improper Activities in the Labor or Management Field, November 20, 1958.
16
In this general connection, the Chairman of the NLRB testified: 'We are experiencing now, I think, more than any time within my experience * * * a tendency of the United States District Courts to move into the area where we think we have exclusive jurisdiction, so that in recent months we have had several District Courts interfering with our election processes.'
17
H.R.Rep. No. 245, supra, p. 43.
18
See notes 19, 20, infra.
19
H.R.Rep. No. 1147, supra, p. 23.
20
S.Rep. No. 573, supra, p. 14.
| 89
|
358 U.S. 153
79 S.Ct. 160
3 L.Ed.2d 188
Arthur S. FLEMMING, Secretary of Health, Education, and Welfare, Petitioner,v.FLORIDA CITRUS EXCHANGE, Frank R. Schell, et al.
No. 27.
Argued Nov. 17, 1958.
Decided Dec. 15, 1958.
Rehearing Denied Jan. 26, 1959.
See 358 U.S. 948, 79 S.Ct. 349.
[Syllabus from pages 153-154 intentionally omitted]
Mr. William W. Goodrich, New York City, for petitioner.
Messrs. J. Hardin Peterson, Lakeland, Fla., and J. Lewis Hall, Tallahassee, Fla., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Commercially grown Florida and Texas oranges have for many years been colored with a red coal-tar color. In 1939 the Food and Drug Administration, after testing and pursuant to § 406(b) of the Federal Food, Drug, and Cosmetic Act,1 certified this color, FD&C Red No. 32 (hereafter Red 32), to be harmless and suitable for use in food. However, the Secretary of Health, Education, and Welfare, on November 10, 1955, ordered Red 32 and two other coaltar colors to be removed from the certified list, after new tests in 1951—1953 cast doubt whether Red 32 was harmless, and after public hearings were held upon the matter on notice published in the Federal Register. The consequence of the Secretary's order was that under § 402(c) of the Act2 any food bearing or containing such colors would be deemed to be adulterated.
2
The validity of the Secretary's order was attacked in petitions under § 701(f) of the Act3 filed in several Courts of Appeals4 by persons and organizations claiming to be adversely affected. The Court of Appeals for the Second Circuit sustained the order against a general attack. Certified Color Industry Committee v. Secretary of Health, Education and Welfare, 236 F.2d 866. In the instant case,5 however, the Court of Appeals for the Fifth Circuit, by a divided vote, set aside the order6 insofar as it removed the certification of Red 32 as harmless and suitable for use as external coloring on Florida and Texas oranges. 246 F.2d 850.
3
The Secretary did not determine that Red 32 in the quantities used in color-added oranges was harmful for human consumption, but rather determined on the basis of the 1951—1953 tests only that Red 32 and the other suspect coal-tar colors were toxic and therefore not 'harmless and suitable for use in food.' The Court of Appeals held that the 1939 finding that Red 32 was harmless 'should not be supplanted' by a contrary finding 'unless there is evidence that, in the amounts used, and in the manner of use, oranges colored with Red 32 are unsafe for human consumption.' 246 F.2d at pages 861—862. The word 'harmless' was construed to be a term 'of relation,' preventing the Secretary from denying the continued use of Red 32 in the quantities used in color-added oranges in the absence of evidence that such quantities could not be consumed 'without risk of injury or harm.' Id., at page 858. The Court of Appeals held further that in light of its premise that 'harmless' was a term of relation and because two congressional Committees had found that the practice of adding the color to oranges was an economic necessity, it would be incumbent upon the Secretary to determine whether the use of the color was 'required in the production' of food within the meaning of § 406(a),7 and if so, promulgate a safe tolerance for Red 32 on oranges pursuant to that section. Until such a tolerance was promulgated, the court held that the Secretary was required to certify Red 32 as a safe color for use on oranges without one. Id., at pages 860 862. We granted certiorari to determine this controversial question of construction of this important statute designed for the protection of the public health. Folsom v. Florida Citrus Exchange, 356 U.S. 911, 78 S.Ct. 669, 2 L.Ed.2d 585.
4
Senate and House Committees have reported that the practice of adding color is an economic necessity in the production of Florida and Texas oranges for market.8 When mature oranges are removed from the tree, their skins, for botanical reasons unnecessary to detail here, are frequently green in color. Since the consumer would be prone incorrectly to interpret this greenness as a sign of immaturity, oranges are put through a 'degreening' process which involves exposure to ethylene gas. In the case of certain California oranges, this gas process is sufficient to turn a green orange into one of the desired orange color. But the degreening process does not produce the desired color in Florida and Texas oranges; a light yellow shade results. The more desired color is therefore produced by immersing the oranges in, or spraying them with, a solution containing Red 32. The evidence at the hearings held by the Secretary was that the process infuses the peel of an orange with 0.0017% to 0.0034% of Red 32. Other evidence indicated that oranges taken as a whole, and candied peel, marmalade and orange juice would contain less—in many cases, much less—of the coal-tar color. It is conceded by the Secretary that there is no evidence that the level of ingestion of Red 32 involved in human consumption of color-added oranges is harmful.
5
However, the evidence at the Secretary's hearing did indicate that Red 32 had a poisonous effect on animals. Feeding the color to rats in quantities as small as 0.1% of their diet was deleterious and often fatal, with liver damage and enlargement of the heart in evidence. In larger quantities, 1.0% and 2.0% of the diet, ingestion of Red 32 by rats caused death within twelve days and a week, respectively. The health of dogs taking 0.2% of the color in their diets deteriorated rapidly; that of those taking 0.04% somewhat more slowly, but definitely; and ill effects were indicated at a feeding level as low as 0.01% of the diet. No safe level of administration of Red 32 to the test animals was established. These and similar tests, involving the administration of Red 32 and the other coal-tar colors involved to test animals generally as an item of diet, were the basis on which the Secretary's order rested.
6
The Secretary argues that the legislative history and the consistent administrative interpretation of the Act establish that his authority to list or continue the listing of coal-tar colors is confined to his authority under § 406(b) to certify 'harmless' coal-tar colors, those which are wholly innocuous and demonstrated to be without adverse physiological effect. The argument runs that a toxic coal-tar color, such as the Court of Appeals agreed that Red 32 was, was to be prohibited completely without regard to whether it might possibly be used in safe amounts on a particular food product. The Secretary argues further that since Congress made known its will specifically and precisely in § 406(b) that a toxic coal-tar color, that is, one not 'harmless,' was not to be certified under any circumstances, the tolerance provisions of § 406(a) have no relevance to the validity of his order.
7
We are of the opinion that the Court of Appeals erred and that its judgment cannot stand.
8
First. The provisions of §§ 402(c) and 406(b) dealing expressly with coal-tar colors were innovations in the Federal Food, Drug, and Cosmetic Act of 1938; there were no counterpart provisions in the original 1906 food and drug legislation. By these provisions, Congress carefully distinguished the treatment to be given by the Secretary to toxic coal-tar colors. The original Act dealt generally with poisonous and other deleterious substances in food, as are now treated under § 402(a), but it did not deal specifically with coal-tar colors. Section 7 of the original Food and Drugs Act, 34 Stat. 769, provided that an article of food should be deemed adulterated 'If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health * * *.' This Court held in United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 34 S.Ct. 337, 58 L.Ed. 658, following the 'plain meaning' of the statutory language, that this placed the burden upon the Government of establishing that the added substance was such as might render the food to which it was added injurious to health. This rule applied without distinction where coal-tar colors were involved. Congress was aware of the difficulties of this test which required that the questioned food product be evaluated as a whole, and of the existence in this area of an informal certification practice under the 1906 Act under which not food products but the coal-tar colors themselves were subjected to test to determine their poisonous or harmful character. Cf. S.Rep. No. 361, 74th Cong., 1st Sess., pp. 7—8. Of course, when litigation occurred, the Lexington Mill standard was applied. See W.B. Wood Manufacturing Co. v. United States, 7 Cir., 286 F. 84, 86—87.
9
It was against this background that the 1938 statute was proposed and enacted. It is obvious to us that an approach different from the rule in Lexington Mill was intended by Congress when in § 402(c)9 and § 406(b) it addressed itself to the severable and narrow problem of coal-tar colors. The language involved in Lexington Mill survived generally in the Act's broadest and most general test of food adulteration, § 402(a)(1).10 Section 402(c) provided a separate test: that a food should be deemed adulterated 'If it bears or contains a coal-tar color other than one from a batch that has been certified in accordance with regulations as provided by section 406 * * *.' Plainly Congress banned any addition to foods of coal-tar colors not certified by the Secretary. The standard established for the Secretary was set forth in § 406(b): 'The Secretary shall promulgate regulations providing for the listing of coal-tar colors which are harmless and suitable for use in food and for the certification of batches of such colors * * *.' There appears in Senator Copeland's memorandum on the first of the bills which led to the 1938 Act, S. 1944, 73d Cong., 1st Sess., which contained new provisions on coal-tar colors similar to the ones in the Act as finally passed, a clear indication that one of the purposes of these provisions was to do away, in this area, with the Lexington Mill approach. 77 Cong.Rec. 5721. This had the effect of making the certification system, in which analysis concentrated on the color substances themselves, rather than an examination of the effect of the use of the colors in the context of the food products involved, the conclusive test of adulteration. Thus it is that the test of certification laid down in § 406(b) concentrates on the color substance itself; it is to be listed only if it is harmless. The Secretary is to address himself to the harmless character of the substance first; once this is assured, the statutory plan is that it may be freely used in foods, subject to the provisions of the other sections of the Act. Clearly such a plan is a rational one to ascribe to Congress. It is true that the ultimate purpose here concerned of the adulteration provisions of the Act is to protect health, and that no one makes the color substances by themselves an item of diet. But it certainly was competent for Congress, in the light of what were recognized problems to health in the use of such added colors, to adopt a rule of caution in treating this recognized and definable problem area. This rule of caution is here one which relieves the Secretary from the burden of showing in each case that a food containing them raises a possibility of injury to health, and requires that the color stuffs, whose positive values are only visual and which are not naturally found in foods, not be added unless they could pass a higher standard.
10
The significance of such an approach is demonstrated here. No safe level for ingestion of Red 32 has been established, either in respect of humans or of animals. No one contends that it is impossible that ill effects will be experienced in human beings if unrestricted use of the substance is permitted in articles of food. On the other hand, no instance of a harmful use of Red 32 in a particular food was established in the record.11 These questions present broad inquiries, difficult of proof, and doubtless apt to be more long-drawn-out in investigation than even the ones which the Secretary pursued. Yet it has been shown that the color of itself has poisonous properties. In the light of the overall purpose of the Act, cf. United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136, 88 L.Ed. 48, and the specific terms here involved, it seems to us that Congress did not intend that a verdict of 'not proven' on the questions mentioned should preclude the Government from preventing the use of substances like the one in question when they were shown to have poisonous effects by themselves.
11
We are not persuaded by the respondents' argument, adopted by the Court of Appeals, that the words 'harmless' and 'poisonous' are relative words, referring not to the effect of a substance in vacuo, but to its effect taken in a particular way and in particular quantities, on an organic system. Of course this is so, but the question before us certainly does not depend on it. This is not a case like the examples put which remind us that pure water would be deleterious if taken at the rate of four gallons an hour or common table salt at several ounces. The color substances appear to have been administered at toxicologically significant levels; they played a relatively small part in the diets of the test animals, generally less, and frequently much less, than 1%.12 Obviously if the color substances themselves are made an item of diet in the trifling percentages used on the test animals, their effect is poisonous.13 Congress may have intended 'harmless' in a relative sense, but we think it was in relation to such laboratory tests as the ones the Secretary performed that Congress was speaking when it required that coal-tar colors be 'harmless.' We do not believe that Congress required the Secretary first to attempt to analyze the uses being made of the colors in the market place, and then feed them experimentally only in the proportions in which they appeared in certain of the food products in which the colors were used. This appears to be the very procedure on which Congress turned its back in the 1938 Act.
12
The respondents contend that since the Secretary himself maintains various lists of certified colors, one containing colors harmless and suitable for all food, drug and cosmetic uses, another of colors harmless and suitable for general use in drugs and cosmetics, and a third of colors harmless and suitable for external use in drugs and cosmetics, 21 CFR §§ 9.3, 9.4, 9.5, he has recognized that 'harmless,' as used in the statute, does not bear the 'absolute' meaning he is alleged to give it. From this it is said to follow that the Secretary must, in forbidding the use of colors in foods, restrict his prohibition to specific food uses in which the color is shown to be capable of a deleterious effect. We do not draw this inference. Provisions similar to those dealing with the use of coal-tar colors in foods are repeated in the portions of the Act dealing with drugs and with cosmetics. Section 501(a)(4), 52 Stat. 1049, 21 U.S.C. § 351(a)(4), 21 U.S.C.A. § 351(a)(4), proscribes the use of uncertified colors in drugs for the purpose of coloring, and refers to § 504, 52 Stat. 1052, 21 U.S.C. § 354, 21 U.S.C.A. § 354, which authorizes the listing and certification of coal-tar colors which are 'harmless and suitable for use in drugs.' Comparable provisions are found with respect to cosmetics in §§ 601(e) and 604, 52 Stat. 1054, 1055, 21 U.S.C. §§ 361(e), 364, 21 U.S.C.A. §§ 361(e), 364. It is clear from these provisions that Congress contemplated that a color might be harmless in respect of drugs or cosmetics but not of foods. And the fact that the Secretary has established a further category, distinguishing between colors intended for external and for general use, we do not think inconsistent with our interpretation of the Act. These distinctions can be established through tests run on the color substance as such, in the way in which the Secretary has conducted the tests in the matter before us. It is a far cry from saying that the Act permits a generic distinction capable of laboratory proof, between external and internal uses of a color, to say that it commands that the colors cannot be inquired of at all except in the specific contexts of their use in food, drug and cosmetic products.
13
Second. But even if the Secretary's approach of viewing the harmlessness of coal-tar colors in terms of the colors themselves, rather than in their specific applications, is correct, the respondents insist, as the court below indicated, that the Secretary should establish tolerances for the use of colors in food, even though not found to be 'harmless.' The respondents point to § 406(a) of the Act which allows the Secretary to establish tolerances for poisonous substances added to food where the substance is 'required in the production' of the food or 'cannot be avoided by good manufacturing practice.' They argue that this provision should be used by the Secretary to establish a maximum tolerance for the application of Red 32 to the skins of oranges, either because it applies by its own terms or it is applicable by analogy.14 The Secretary contends that he is without power to permit the use of harmful coal-tar colors in specific foods through a system of tolerances. We believe he is correct.
14
The Federal Food, Drug, and Cosmetic Act is a detailed and thorough piece of legislation. Its treatment of many public health and food problems is quite specific, and of course it is the duty of the courts in construing it to be mindful of its approach in terms of draftsmanship. Here again, in our construction of this explicit Act, we must be sensitive to what Congress has written, and recall that 'It is for us to ascertain—neither to add nor to subtract, neither to delete nor to distort.' 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566. Section 406(a), which provides for the system of tolerances, constitutes by its terms a definition of the term 'unsafe,' which appears in § 402(a)(2), a prohibition of foods which bear or contain 'any added poisonous or added deleterious substance which is unsafe within the meaning of section 406.' This is a prohibition entirely separate and distinct from the prohibitions of § 402(c) on foods containing or bearing uncertified coal-tar colors. The existence of a tolerance is specifically stated in § 406(a) only to give sanction to what would otherwise amount to adulteration within the terms of § 402(a)(1). Accordingly, it is obvious from the language of the statute that the provisions authorizing the establishment of tolerances apply only to § 402(a)(1) and (2) and do not apply to § 402(c)'s flat prohibition against the use of uncertified colors. Respondents do not direct us to any substantial contrary indication in the legislative history. Nor can the tolerance provisions be applied to coal-tar colors through some form of analogy. The command of the statute is plain: where a coal-tar color is not harmless, it is not to be certified; if it is not certified, it is not to be used at all. In this regard also, an approach in terms of the toxicity of the coloring ingredient, rather than of the food product as a whole was chosen by Congress. It evidently took the view that unless coaltar colors were harmless, the considerations of the benefits of visual appeal that might be urged in favor of their use should not prevail, in the light of the considerations of the public health. In the case of other sorts of added poisons, though only where they were required in the production of the food concerned or could not under good manufacturing practice be avoided, a different congressional policy was expressed in the 1938 enactment. It is the duty of the Secretary to give effect to this distinction; he has done so with apparent substantial uniformity and has done so here.
15
Third. After the promulgation of the Secretary's order, Congress afforded temporary relief to those economically interested in the coloring or oranges with Red 32. Legislation was enacted in the summer of 1956 to afford a period of approximately three years (until March 1, 1959) during which use of the color would be allowed solely in application to the skins of oranges.15 The statute does not, in our view, affect the situation presented to the courts for judicial review; the Secretary's order remains to be tested under the permanent provisions of the Act, insofar as they will affect respondents after March 1, 1959. The statute accordingly operates as a legislatively ordained stay of the Secretary's order insofar as it affects the present respondents and those similarly situated. See H.R.Rep.No.1982, p. 3, and S.Rep.No. 2391, p. 3, 84th Cong., 2d Sess., 2 U.S. Code Cong. & Adm.News, 1956, p. 3055. In view of the very temporary nature of this legislative 'stay,' the automatic resumption of the status quo upon its expiration, and the effect of the order on the respondents, even during the legislative stay, we agree with the parties that the matter before us is not moot. The Secretary's order was the promulgation of a general rule, prospective in operation, and the facts of the respondents' business are such that if the order is upheld, there will be a practical effect on them even during the span of the temporary legislation. Accordingly, the respondents remain persons adversely affected by the Secretary's order, and it is proper for us now to determine the legal situation in regard to them when the temporary legislation expires. Under the permanent provisions of §§ 402 and 406 the Secretary's order was lawful, and the respondents present no grounds on which they can legally object to its application to them. The judgment of the Court of Appeals, setting the Secretary's order aside in part, must be reversed.
16
Reversed.
1
The Act, as amended, is 52 Stat. 1040, 21 U.S.C. § 301 et seq. 21 U.S.C.A. § 301 et seq. Section 406(b), 21 Stat. 1049, 21 U.S.C. § 346(b), 21 U.S.C.A. § 346(b) provides:
'The Secretary shall promulgate regulations providing for the listing of coaltar colors which are harmless and suitable for use in food and for the certification of batches of such colors, with or without harmless diluents.'
2
Section 402(c), 52 Stat. 1047, 21 U.S.C. § 342(c), 21 U.S.C.A. § 342(c), provides that a food shall be deemed to be adulterated 'If it bears or contains a coal-tar color other than one from a batch that has been certified in accordance with regulations as provided by section 406 * * *.'
Section 301 of the Act prohibits the introduction or delivery for introduction into interstate commerce, or the receipt in interstate commerce, and the delivery thereof, of adulterated food, or the adulteration of food in interstate commerce. 52 Stat. 1042, 21 U.S.C. § 331, 21 U.S.C.A. § 331. Sanctions for the prohibited acts, in the form of injunction proceedings, criminal prosecutions, and seizure actions, are provided in §§ 302—304, 52 Stat. 1043, 1044, 21 U.S.C. §§ 332—334, 21 U.S.C.A. §§ 332—334.
3
'In a case of actual controversy as to the validity of any order under subsection (e), any person who will be adversely affected by such order if placed in effect may at any time prior to the ninetieth day after such order is issued file a petition with the United States Court of Appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such order. The summons and petition may be served at any place in the United States. The Secretary, promptly upon service of the summons and petition, shall certify and file in the court the transcript of the proceedings and the record on which the Secretary based his order.' 52 Stat. 1055, 21 U.S.C. § 371(f), 21 U.S.C.A. § 371(f).
4
Review was sought in three Courts of Appeals in all. In the Court of Appeals for the Seventh Circuit, a petition was dismissed before it was adjudicated.
5
The persons and firms who are respondents here are all engaged in the growing, packing or marketing of Florida or Texas oranges. One is also interested in the patented process whereby the Red 32 color is applied to the skins of oranges.
6
The Court of Appeals set aside the order:
'* * * in so far as said order removes the coal-tar color FD&C Red No. 32 from the list of colors which may be certified for use in coloring the skin of oranges meeting minimum maturity standards prescribed in the State of Florida and Texas; provided, that nothing herein or in the judgment of this Court entered pursuant hereto shall restore said coal-tar color to the list of colors which may be certified for unrestricted use in food, drugs, and cosmetics but shall operate to authorize the certification of batches of said color conforming to the specifications for the color appearing at 21 C.F.R. 135.3 (1949 ed.) for the purpose of coloring the skin of mature oranges only; provided further, that the Secretary shall be required to certify only sufficient batches of FD&C Red No. 32 as may be necessary to color the skin of mature oranges from time to time; provided further, that the certificates issued for batches of FD&C Red. No. 32 may be limited by their certificate for use in coloring mature oranges only; and provided further, that nothing herein or in the judgment of this Court entered pursuant hereto shall be deemed to restrict the Secretary from making further investigations and conducting hearings for a determination of whether the use of Red 32 is required in the production of oranges and to determine the tolerances, if any, that are safe and harmless, as harmless is herein construed and defined.' 246 F.2d at page 862.
7
52 Stat. 1049, 21 U.S.C. § 346(a), 21 U.S.C.A. § 346(a), which provides:
'(a) Any poisonous or deleterious substance added to any food, except where such substance is required in the production thereof or cannot be avoided by good manufacturing practice shall be deemed to be unsafe for purposes of the application of clause (2) of section 402(a); but when such substance is so required or cannot be so avoided, the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for purposes of the application of clause (2) of section 402(a). While such a regulation is in effect limiting the quantity of any such substance in the case of any food, such food shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated within the meaning of clause (1) of section 402(a). In determining the quantity of such added substance to be tolerated in or on different articles of food the Secretary shall take into account the extent to which the use of such substance is required or cannot be avoided in the production of each such article, and the other ways in which the consumer may be affected by the same or other poisonous or deleterious substances.'
8
S.Rep. No. 2391, 84th Cong., 2d Sess., p. 1; H.R.Rep. No. 1982, 84th Cong., 2d Sess., p. 2, 2 U.S.Code Cong. & Adm. News 1956, p. 3055.
9
The 1938 enactment contained a proviso to § 402(c) '* * * That this paragraph shall not apply to citrus fruit bearing or containing a coal-tar color if application for listing of such color has been made under this Act and such application has not been acted on by the Secretary, if such color was commonly used prior to the enactment of this Act for the purpose of coloring citrus fruit.' 52 Stat. 1047, 21 U.S.C. § 342(c), 21 U.S.C.A. § 342(c). Respondents suggest that this proviso somehow suggests a congressional intent to deal with their color more leniently under the present circumstances, but we can draw no such inference.
10
Section 402(a)(2), with its reference to § 406, see note 7, supra, revised the rule of the Lexington Mill case substantially in its own factual context, that of added poisonous substances in food. Section 402(a)(2) has been the subject of subsequent revisions itself, the latest one of which is § 3 of the Food Additives Amendment of 1958, Public Law 85—929, September 6, 1958, 7 Stat. 1784. See note 12, infra.
11
Considerably more of the color was regularly produced before the entry of the Secretary's order than could be accounted for as actually being on the skins of oranges. Neither the Government nor the respondents account for the difference more than speculatively. The Government urges that the difference must have been used in other food products. Respondents emphasize the inevitable waste of quantities of the color during the orange-coloring process. To us this underlines the approach of the provisions in question; where a color is found to be harmless in itself, no further inquiry can be made of it; if it is harmful, none need be.
12
A single dose of 100 milligrams of the color substance (0.0035 oz. avoirdupois, or 1/3 the weight of a standard aspirin tablet) produced a rapid diarrheic effect in test dogs.
13
One respondent assails the validity, even within the framework of the Secretary's interpretation of the statute, of the tests performed on the experimental animals. The Court of Appeals found that the evidence justified the Secretary's finding that the color was poisonous, 246 F.2d at page 859, and we are in agreement.
14
The Court of Appeals' judgment had the effect of staying the Secretary's order in toto as it affected orange coloring until he developed a tolerance. The Secretary argues here that even if he is authorized to establish a tolerance for the use of Red 32 on oranges, his order should stand until he has established it. In the view of the case that we take, we do not reach this contention.
15
The Act of July 9, 1956, c. 530, 70 Stat. 512, added the following proviso to § 402(c) of the Act:
'Provided further, That this paragraph shall not apply to oranges meeting minimum maturity standards established by or under the laws of the States in which the oranges were grown and not intended for processing (other than oranges designated by the trade as 'packing house elimination'), the skins of which have been colored at any time prior to March 1, 1959, with the coal-tar color certified prior to the enactment of this proviso as F.D. & C. Red 32, or certified after such enactment as External D. & C. Red 14 in accordance with section 21, Code of Federal Regulations, part 9: And provided further, That the preceding proviso shall have no further effect if prior to March 1, 1959, another coaltar color suitable for coloring oranges is listed under section 406.'
| 89
|
358 U.S. 133
79 S.Ct. 170
3 L.Ed.2d 172
AMERICAN TRUCKING ASSOCIATIONS, Inc., et al., Appellants,v.FRISCO TRANSPORTATION COMPANY. RAILWAY LABOR EXECUTIVES' ASSOCIATION et al., Appellants, v. FRISCO TRANSPORTATION COMPANY. INTERSTATE COMMERCE COMMISSION, Appellant, v. FRISCO TRANSPORTATION COMPANY.
Nos. 15, 16, 19.
Argued Oct. 13, 1958.
Decided Dec. 15, 1958.
Mr. Robert W. Ginnane, New York City, for appellant Interstate Commerce Commission.
Mr. Peter T. Beardsley, Washington, D.C., for appellants American Trucking Ass'ns et al.
Mr. Ernest D. Grinnell, Jr., St. Louis, Mo., for appellee.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The issue here is whether the Interstate Commerce Commission has the power to modify certificates of public convenience and necessity containing inadvertent errors, and, if so, whether, in the circumstances of these cases, the Commission could modify certificates which had inadvertently authorized the performance of unrestricted motor carrier services by a wholly owned subsidiary of a railroad.
2
Appellee, a wholly owned subsidiary of the St. Louis-San Francisco Railway Company, is a common carrier by motor vehicle engaged primarily in the transportation of property in interstate and intrastate commerce. The greater part of appellee's motor carrier system was acquired in 1938 and 1939 by the purchase of existing independent motor carriers. These purchases were made pursuant to the predecessor of § 5(2)(b) of the Interstate Commerce Act, 49 U.S.C. § 5(2)(b), 49 U.S.C.A. § 5(2)(b), which permits the acquisition by a rail carrier of the rights and properties of a motor carrier if the Interstate Commerce Commission finds that the acquisition 'will be consistent with the public interest and will enable such (rail) carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.'1 In 1938, appellee began seeking permission to operate as a motor carrier over substantial mileage in seven States including routes in issue here. On some of the routes eventually acquired by appellee, the Commission authorized it to carry on unrestricted operations. On others, the Commission imposed restrictions limiting service to points within ten miles of the rail stations of appellee's parent corporation or to transportation of shipments from, to, or through certain cities. In addition, on some routes the Commission imposed additional restrictions to assure that appellee's service would be 'auxiliary or supplementary' to the services performed by its corporate parent.2
3
This case concerns four of appellee's routes aggregating some 284 miles. Prior to appellee's purchase, each of the routes was serviced by an independent motor carrier which engaged in unrestricted motor carrier operations. During 1938 and 1939, appellee made application to the Commission for permission to purchase the properties and operating rights of these independent carriers. Finance hearings were held before a Commission examiner to determine whether the acquisitions met the applicable statutory standards. Although appellee sought to continue the acquired carriers' unrestricted operations, it represented to the Commission in each of its applications that acquisition of the carriers would enable it to establish coordinated truck service with the train service of its parent railroad along these routes. A number of motor carriers opposed appellee's applications, but the hearing examiner recommended approval of each, subject to various conditions. Among these was the recommendation that the authority granted be subject 'to such further limitations, restrictions, or modifications as the Commission may hereafter find necessary to impose, in order to insure that the service shall be auxiliary or supplementary to the train service of the (parent) railroad, and shall not unduly restrain competition.' The protestant motor carriers filed exceptions to the hearing examiner's report on one of the purchases and all went to Division 5 of the Commission for action. It reviewed the reports and adopted the examiner's recommendations including the above-quoted condition. Although appellee had asked for authority to operate unrestricted service, it took no exceptions to the Division reports and did not ask for review by the full Commission. Rather, it notified the Commission that it would consummate the approved purchases subject to the terms prescribed, and, within thirty days of the reports, it did consummate the transactions and commence operations.
4
Thereafter, in 1939, compliance orders issued to appellee in connection with the four routes in question. These informed appellee that certificates of convenience and necessity authorizing it to engage in interstate and foreign commerce as a common carrier according to specifications set forth in the orders would be issued as soon as appellee complied with applicable statutory requirements, including the filing of rate publications and evidence of security for the protection of the public. The specifications in the compliance orders did not include the condition adopted by Division 5 reserving the right to the Commission to take steps to insure that appellee's service would be 'auxiliary or supplementary' to its parent's rail services.
5
In 1941, prior to the issuance of certificates covering the four routes, a complaint was filed by various competing motor carriers which charged that appellee was performing unauthorized motor carrier service which was independent of its parent's rail services. During the course of this proceeding, a number of certificates of convenience and necessity issued to appellee. Those concerning the four routes in question contained no reservations of authority similar to the ones stated in the finance hearing orders issued by Division 5. On August 1, 1944, Division 5 entered findings in that proceeding stating that appellee was performing unauthorized direct motor carrier service which it had not been authorized to perform by the original acquisition orders. The Division further stated that appellee's original authorization had been limited to services 'auxiliary or supplementary' to the rail service of its parent. Because appellee had acquired unconditional certificates, however, the Division did not enter an order, but indicated that the acquisition proceedings would be reopened to determine what, if any, conditions should be imposed in appellee's certificates.3 Subsequently, the Commission disapproved the Division's findings that appellee had engaged in operations unauthorized by its certificates, but it stated that the conditions, if any, which should be imposed would be considered in the reopened proceedings.4
6
The reopened proceedings commenced on motion of the Division in 1945. All parties to the proceeding were served with an examiner's proposed report based on the records of the Commission. This report stated that the Commission had approved appellee's acquisitions subject to the right to impose conditions to assure that appellee's operations would be auxiliary or supplementary to the rail service of its parent, but that such a reservation inadvertently had been omitted from the certificates issued to appellee. The report proposed specific conditions to effectuate the original purpose of the Commission—i.e., to assure that appellee's services were solely 'auxiliary or supplementary.'
7
Appellee filed exceptions to the proposed report and requested hearings. Thereupon, the Division reopened the proceedings for further hearings which were held in 1946, after which the matter was referred to examiners for further appropriate proceedings. In an exhaustive report, the examiners discussed the history of appellee's operations and the circumstances surrounding the issuance of the unconditioned certificates. They concluded that the certificates could not authorize operations broader than those approved by the Commission in the finance proceedings and that the certificates inadvertently had omitted relevant restrictions. The Division, in its report, reviewed the Commission's administrative procedures and practices and pointed out how the error probably had occurred. It showed that certificates are prepared by a staff section of the Commission which, after a prescribed lapse of time from the adoption of reports or orders by the Commission authorizing the issuance of certificates, inserts on mimeographed forms containing stock paragraphs the authority described in the findings of the report. It further stated that, under the Commission rules, this staff section has no discretion to alter anything contained in the reports and is charged with the sole responsibility of transposing the Commission findings into certificate form. Different action, if any, which might be desired can only be taken by the Commission or a Division through a formal supplemental report. The certificates are reviewed by a supervisor, who is also without discretionary authority to make changes, and are then issued. The Division reasoned that as no supplemental report had issued between the conclusion of the finance hearings and the issuance of the certificates, the staff section of certificates obviously had made an inadvertent error in transposing the relevant findings.
8
The full Commission, after oral arguent, stressed another aspect of the matter in affirming the action of the Division. In its view, the findings of the finance proceedings which specifically authorized appellee's purchases, subject to the stated limitations, could not be changed to eliminate such limitations without a formal proceeding at which opponents of the unlimited application could be heard. Each opinion within the Commission thus found that the omission from the certificates of the stated reservations had been due to clerical inadvertence which should be corrected. These corrections were ordered, and in addition specified conditions were imposed consistent with the reservations.
9
Appellee, dissatisfied with the Commission's final order, commenced an action before a specially convened three-judge District Court to have the order set aside. 28 U.S.C. § 2321 et seq., 28 U.S.C.A. § 2321 et seq. Appellee argued, and a majority of the court concluded, over a dissent of one of its members, that under United States v. Watson Bros. Transportation Co., 350 U.S. 927, 76 S.Ct. 302, 100 L.Ed. 810, the Commission was without power to order modification of the unconditional certificates issued to appellee. Further, the court held that the record lacked substantial evidence to support the Commission finding that the relevant restrictions were omitted from the certificates due to inadvertency. Frisco Transportation Co. v. U.S., D.C., 153 F.Supp. 572. We disagree with both of these conclusions.
I.
10
It is well settled that the Commission has the power to reserve in certificates issued to a rail-affiliated motor carrier the right to impose specific conditions to assure that the carrier's operations will be 'auxiliary or supplementary' to the rail services of its affiliate. United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391.5 In that case a certificate, which contained a reservation similar to the one at question here, was issued in 1941.
11
The reason for the reservation is obvious. Congress, in § 5(2)(b) of the Interstate Commerce Act, 49 U.S.C. 5(2)(b), 49 U.S.C.A. § 5(2)(b),6 has limited the acquisition of motor carrier franchises by rail carriers or their affiliates to situations where the acquisition will enable the rail carrier to use service by motor carrier to public advantage. The Commission has long interpreted this mandate to confine such acquisitions to 'operations which are auxiliary or supplementary to train service,' at least in the absence of special circumstances which might justify less restricted operations. American Trucking Ass'ns v. United States, 355 U.S. 141, 148, note 8, 78 S.Ct. 165, 169. To accomplish this congressional purpose, the Commission can either state in the certificate the conditions necessary to provide the limitation or reserve the right to impose conditions should the necessity arise. United States v. Rock Island Motor Transit Co., supra.
12
Here, as the record shows, appellee sought the right to carry on unrestricted operations over all the routes which it was acquiring. In some instances, the Commission approved unconditioned operations for reasons which do not appear in the record. In others, however, including the four routes here at issue, approval of only conditional service was granted. Such approval was consistent with appellee's representations that acquisition of the routes would enable it to give service which supplemented the operations of its rail-carrier parent. In fact, the limited approval did not appear inconsistent with appellee's plans, for it took no appeal from the Division report adopting the order of the Commission examiner which clearly stated that the Commission reserved the right to impose future conditions. And appellee consummated the proposed purchases within thirty days of the Division report. Undoubtedly, therefore, at the time of the finance proceedings, the Commission authorized limited operations on the routes in question, to which appellee acceded.
13
Between two and four years later, the Commission issued certificates to appellee which did not contain the reservation. The question arises, therefore, whether the omission of the restrictions from the certificates was due to a conscious policy choice on the part of the Commission or, as found by it, to error in the administrative process of fashioning the certificates. Certainly a conclusion must be based on one or the other of these alternatives because, as is obvious from the findings of Division 5 as well as the full Commission, the staff section of the Commission which prepared the certificates could not exercise discretion in changing the findings, orders and authorizations contained in the Commission reports.
14
The majority below concluded that the omissions resulted from a policy change, and that the subsequent reopening of the proceedings and conditioning of the certificates was an attempt to restrict appellee's operation on the basis of newly developed policies. The record does not support this conclusion. The District Court believed it significant that Division 5 only adopted the recommendations of a hearing examiner rather than authoring approval orders of its own. Additionally, the court found special meaning in the fact that one of the certificates issued to appellee contained the relevant reservation while the ones in issue did not.7 Further, the court viewed the issuance of unrestricted certificates after the commencement of the related carrier proceedings in 1941 as especially important. Viewing these facts, the court refused to accept the majority conclusion of inadvertence.
15
In our view, however, the Commission conclusion is well supported. First, we see no special significance in the fact that Division 5 adopted, without modification, the hearing examiner's recommendations. Under the practices of the Commission, this is not unusual, see, e.g., 53 M.C.C. 97; 53 M.C.C. 117; 46 M.C.C. 328; and the hearing examiner's report made it clear that appellee's operations were to be circumscribed. Second, there is nothing in the record or in the dissenting opinions of the Commission to indicate that the Commission, or a Division, or any Commissioner instructed the staff to delete the restrictions and increase the scope of appellee's operations. This factor militates strongly in favor of the Commission's conclusion that the reservations inadvertently were omitted, particularly when it would have been improper for the Commission to change its decision without notice to the protestants who had appeared before the hearing examiner in opposition at the original finance proceedings and had taken exception to at least one of the purchases. 49 U.S.C. § 5(2)(b), 49 U.S.C.A. § 5(2)(b); 5 U.S.C. § 1004, 5 U.S.C.A. § 1004. Cf. Federal Communications Comm. v. National Broadcasting Co. (KOA), 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374. Third, the issuance of one restricted certificate is not inconsistent with the Commission finding because, had the Commission changed its policies, it likely would have treated the route there involved similarly to the four routes in question. In fact, the issuance of this restricted certificate really supports the conclusion that the others were not issued because of a change of policy. Also, the Commission's exposition of its internal procedures shows how the error could easily have occurred. Finally, as the dissent below points out, at the time these certificates were issued, the staff sections of the Commission normally dealt with certificates authorizing unrestricted service by non-rail-affiliated motor carriers. The certificates issued here were, therefore, unusual, and it is easy to see how the restrictions were omitted. 153 F.Supp. 572, 578—579. Under all these circumstances, the conclusion of the Commission was compelled by the record.
16
Appellee complains that the Commission, or at least Division 5, improperly took official notice of the internal administrative practices and procedures of the Commission. The first full exposition of these procedures appeared in the report of Division 5 in the reopened proceedings, although certain of them had been mentioned in the hearing examiners' reports. Appellee claims that the Commission had to disclose these procedures at the hearing so that it would have a chance to rebut unfavorable inferences which might be drawn from them. But we fail to see what prejudice could have accrued from taking official notice of the practices, for appellee had adequate opportunity to rebut inferences drawn from them on its argument to the full Commission. United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821. Particularly is this true where there is no showing that the procedures were misstated to appellee's prejudice. This is not a case like Ohio Bell Telephone Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, or United States v. Abilene & Southern R. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016, where the 'facts' officially noticed were in doubt or controverted or were discussed for the first time in the final decision of the Commission.
II.
17
The remaining question is whether the Commission has the power to modify certificates issued due to inadvertence. This Court has, on one occasion, reserved this question in a case where it determined that inadvertence was not the reason for the failure to issue a proper certificate. United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396. And on another occasion, in affirming the decision of a three-judge court, we ruled that the power, if any, may only be exercised after proper opportunity for notice and hearing. United States v. Watson Bros. Transportation Co., 350 U.S. 927, 76 S.Ct. 302, 100 L.Ed. 810.
18
It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake. Gagnon v. United States, 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745. Rule 60(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., recognizes this power and specifically provides that '(c)lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.' A similar power is vested in the Interstate Commerce Commission. Section 17(3) of the Act creating the Commission, 49 U.S.C. § 17(3), 49 U.S.C.A. § 17(3), provides that: 'The Commission shall conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice.' This broad enabling statute, in our opinion, authorizes the correction of inadvertent ministerial errors. To hold otherwise would be to say that once an error has occurred the Commission is powerless to take remedial steps. This would not, as Congress provided, 'best conduce to the ends of justice.' In fact, the presence of authority in administrative officers and tribunals to correct such errors has long been recognized—probably so well recognized that little discussion has ensued in the reported cases. Bell v. Hearne, 19 How. 252, 15 L.Ed. 614.8
19
Of course, the power to correct inadvertent ministerial errors may not be used as a guise for changing previous decisions because the wisdom of those decisions appears doubtful in the light of changing policies. Such was the case in United States v. Seatrain Lines, supra, where it was apparent that the Commission had not reopened prior proceedings to correct a mistake in the issuance of a certificate but to execute a subsequently adopted policy. Cf. Watson Bros. Transportation Co. v. United States, D.C.Neb., 132 F.Supp. 905, affirmed 350 U.S. 927, 76 S.Ct. 302, 100 L.Ed. 810. To allow the reopening of proceedings in such a case under the pretext of correction would undercut the obvious purpose of § 212 of the Interstate Commerce Act, 49 U.S.C. § 312, 49 U.S.C.A. § 312, which makes the issuance of a certificate the final step in the administrative process. But nothing in that Section prohibits the correction of inadvertent errors. Here, as we have shown, the certificates issued to appellee mistakenly omitted an intended provision, and the Commission's subsequent action was not the execution of a newly adopted policy but, as it found in a proceeding in which appellants participated after notice, merely the correction of the inadvertence.
20
The judgment of the District Court is reversed.
21
Reversed.
22
Mr. Justice WHITTAKER, believing that the evidence does not support the Commission's finding that omission of restrictions from the four certificates of convenience and necessity involved was due to mere inadvertent clerical errors of the Commission's staff, would affirm the judgment of the District Court. 153 F.Supp. 572.
23
Mr. Justice STEWART took no part in the consideration or decision of these cases.
1
The Motor Carrier Act of 1935, § 213, 49 Stat. 556, conditioned acquisitions as follows: 'Provided, however, That if a carrier other than a motor carrier is an applicant, or any person which is controlled by such a carrier other than a motor carrier or affiliated therewith within the meaning of section 5(8) of part I, the Commission shall not enter such an order unless it finds that the transaction proposed will promote the public interest by enabling such carrier other than a motor carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.'
2
The Commission has long interpreted the language of § 5(2)(b), quoted above, to confine acquisitions of motor carriers by railroads or their affiliates to operations which are auxiliary or supplementary to the train service of the railroad. See American Trucking Ass'ns v. United States, 355 U.S. 141, 148, 78 S.Ct. 165, 169, 2 L.Ed.2d 158.
3
Campbell Sixty-Six Express, Inc., v. Frisco Transportation Co., 43 M.C.C. 641.
4
Campbell Sixty-Six Express, Inc., v. Frisco Transportation Co., 46 M.C.C. 222.
5
The appellants in Nos. 15 and 16, American Trucking Associations, Inc., and Railway Labor Executives' Association, urge us to hold that the Commission was without power to issue unconditioned certificates to appellee because of the requirements of § 5(2)(b) and, therefore, the certificates issued to appellee were void. We have not had occasion to rule definitively whether that Section states rigid requirements that operations of rail-affiliated motor carriers be auxiliary or supplementary to train service. Cf. American Trucking Ass'ns v. United States, 355 U.S. 141, 78 S.Ct. 165, 169. As resolution of the question is unnecessary for the present decision, we intimate no position with regard to it.
6
See Motor Carrier Act of 1935, § 213, 49 Stat. 556.
7
The reopened proceedings originally involved six routes. The certificate coverning one of these contained a reservation of authority, and conditions imposed in connection with that route are not at issue here. On another route, the Commission's original approval was unconditional as was the certificate issued in connection with it. The Commission has abandoned efforts to impose new conditions on this route.
8
See also Davis, Administrative Law (1951), 600. And the agencies have presumed the existence of such power. See Kenosha Auto Transport Corporation—Interpretation of Certificate, 53 M.C.C. 85; Petroleum Carrier Corp. v. R. Q. Black, doing business as Superior Trucking Co., 51 M.C.C. 717; Greyhound Corporation Extension of Operations—Slidell, La., 47 M.C.C. 103; Santa Fe Trail Transportation Company Extension of Operations—New Mexico Points, 46 M.C.C. 775; Pan American Airways, Inc., North Atlantic Route Amendments, 7 C.A.B. 849.
| 78
|
358 U.S. 147
79 S.Ct. 191
3 L.Ed.2d 183
Abram FLAXER, Petitioner,v.UNITED STATES of America.
No. 60.
Argued Nov. 19, 1958.
Decided Dec. 15, 1958.
Mr. David Rein, Washington, D.C., for petitioner.
Mr. William Hitz, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner was found guilty, after jury trial, of failure to produce, pursuant to a subpoena duces tecum issued by a Subcommittee of a Senate Committee,1 records of a union2 showing the names and addresses of members of that organization who were employed either by the United States or by any state, county, or municipal government in the country.3 The District Court denied a motion for acquittal or new trial. 112 F.Supp. 669. The Court of Appeals, sitting en banc, affirmed by a divided vote. 98 U.S.App.D.C. 324, 235 F.2d 821. On petition for a writ of certiorari we vacated and remanded for consideration in light of Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, an intervening decision. 354 U.S. 929, 77 S.Ct. 1392, 1 L.Ed.2d 1533. The Court of Appeals, sitting en banc, once more affirmed by a divided vote. 103 U.S.App.D.C. 319, 258 F.2d 413. We again granted certiorari. 357 U.S. 904, 78 S.Ct. 1149, 2 L.Ed.2d 1154.
2
The Senate Committee on the Judiciary or a duly authorized Subcommittee was authorized4 to investigate the administration, operation, and enforcement of the Internal Security Act of 1950.5 The Committee created a Subcommittee which adopted a resolution to the effect that a single member would constitute a quorum for the purpose of taking testimony.
3
Petitioner was head of the union under investigation. The Chairman issued a subpoena duces tecum directing him to produce, inter alia, the names and addresses of the union members mentioned above. Petitioner appeared before Senator Watkins, sitting as the Subcommittee, and produced some of the records of the union; but he failed to produce the membership lists. He made several objections to disclosure of them, maintaining that they were protected by a right of privacy. He did not maintain that the lists were unavailable to him. Indeed, he responded to further interrogation, giving the approximate number of members and indicating that about 5 percent were in the employ of the Federal Government, the balance being in state, county, and municipal governments. He also named the federal agencies where the bulk of the 5 percent were employed. But he persisted in his refusal to produce the lists. At this point in the interrogation Senator Watkins said: 'You are directed by the committee to produce those records according to the terms of the subpena.'
4
Petitioner continued to state his objections.
5
Committee counsel asked petitioner how long it would take him to prepare the lists. Petitioner finally said, 'I imagine it could be done in a week.'
Committee counsel then said:
6
'I respectfully suggest to the chairman that the witness be ordered to produce the information and transmit it to the subcommittee in 10 days' time.'
Senator Watkins replied:
7
'Since you have made the reply that it could be done in a week, that will be the order of the committee, that you submit that information as requested by counsel for the committee within 10 days from this date. The record will show that you of course have been given that notice and that requirement has been made, and the order has been made.'
8
Petitioner continued to object to any order of production. Then the colloquy continued as follows:
9
'Senator Watkins. Whatever your argument is, that is the order now, and, as I understand it, you refuse to do so on the ground you set forth. I want to make the record clear.
10
'Mr. Flaxer. I haven't got them. I don't feel capable of producing them.
11
'Senator Watkins. You said you could do it within a week.
12
'Mr. Flaxer. No; that was not the question he asked. He asked could the list be compiled within a week and I said it could.
13
'Mr. Arens. The information is available to you?
14
'Mr. Flaxer. Yes.
15
'Mr. Arens. But you have declined to produce it; is that correct?
16
'Mr. Flaxer. I haven't produced them.
17
'Mr. Arens. Will you produce it pursuant to the order of the chairman of this session within 10 days from today?
18
'Mr. Flaxer. I will have to take that under consideration.
19
'Senator Watkins. That is the order, and of course we will have to take whatever steps are necessary if at the end of the time you have not produced them.'
20
These events transpired on October 5, 1951. That was the return date of the subpoena duces tecum. And each of the two counts of the indictment named October 5, 1951, as the date of petitioner's willful default.
21
We read the record as showing no default on that date. As we read the colloquy, petitioner, though adamant in his position, was given 10 days from October 5, 1951, to deliver the lists. It does not appear whether at the end of that 10-day period any additional steps were taken against him. Yet, for all we know, a witness who was adamant and defiant on October 5 might be meek and submissive on October 15.
22
We stated in Watkins v. United States, 354 U.S. 178, 208, 77 S.Ct. 1173, 1 L.Ed.2d 1273, in reference to prosecutions for contempt under this Act that 'the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases.' One of these guarantees is proof beyond a reasonable doubt that the refusal of the witness was deliberate and intentional, as Quinn v. United States, 349 U.S. 155, 165, 75 S.Ct. 668, 99 L.Ed. 964, holds. In the Quinn case the witness was 'never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt.' Id., 349 U.S. at page 166, 75 S.Ct. at page 675. The rulings were so imprecise as to leave the witness 'to guess whether or not the committee had accepted his objection.' Ibid.
23
In the present case, the position of the Committee was clear in one respect: it was plain it wanted the membership lists. But, to say the least, there was ambiguity in its ruling on the time of performance. The witness could well conclude, we think, that he had 10 days more to consider the matter, 10 days to face the alternative of compliance as against contempt. Certainly we cannot say that petitioner could tell with a reasonable degree of certainty that the Committee demanded the lists this very day, not 10 days hence.
We repeat what we said in the Quinn case:
24
'Giving a witness a fair apprisal of the committee's ruling on an objection recognizes the legitimate interests of both the witness and the committee. Just as the witness need not use any particular form of words to present his objection, so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain. And adherence to this traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation.' 349 U.S. at page 170, 75 S.Ct. at page 677.
25
On this record the District Court should have directed an acquittal.
26
Reversed.
1
Subcommittee on Internal Security of the Senate Committee on the Judiciary. The Senate voted to certify the committee report of the failure to produce the records to the United States Attorney for the purpose of initiating a contempt proceeding. S.Res. 295, 82d Cong., 2d Sess.; 98 Cong.Rec. 2500.
2
United Public Workers of America.
3
2 U.S.C. § 192, 2 U.S.C.A. § 192, provides:
'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.'
4
S.Res. 366, 81st Cong., 2d Sess.; 96 Cong.Rec. 16872.
5
64 Stat. 987, 50 U.S.C.A. § 781 et seq.
| 23
|
358 U.S. 202
79 S.Ct. 178
3 L.Ed.2d 222
O. Z. EVERS et al., Appellants,v.John T. DWYER et al.
No. 382.
Decided Dec. 15, 1958.
Messrs. Robert L. Carter, New York, H. T. Lockhard, Memphis, Tenn., for appellants.
Messrs. Frank B. Gianotti, Jr., City Atty., Walter Chandler, Memphis, Tenn., Allison B. Humphreys, Nashville, Tenn., Edward P. Russell, Charles M. Crump, Memphis, Tenn., for appellees.
PER CURIAM.
1
Appellant, a Negro resident of Memphis, Tennessee, brought this class action in the Western Division of the United States District Court for the Western District of Tennessee, seeking a declaration as to his claimed constitutional right, and that of others similarly situated, to travel on buses within that City without being subjected, as required by Tenn. Code Ann., 1955, §§ 65—1704 through 65—1709, to segregated seating arrangements on account of race. An injunction against enforcement of this statute or any other method of state-enforced segregation on Memphis transportation facilities was also sought. Various officials and officers of the City of Memphis, the Memphis Street Railway Company, and one of that Company's employees were named as defendants. After a hearing a three-judge District Court, without reaching the merits, dismissed the complaint on the ground that no 'actual controversy' within the intendment of the Declaratory Judgment Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, had been shown, in that appellant had ridden a bus in Memphis on only one occasion and had 'boarded the bus for the purpose of instituting this litigation,' and was thus not 'representative of a class of colored citizens who do use the buses in Memphis as a means of transportation.'
2
Of course, the federal courts will not grant declaratory relief in instances where the record does not disclose an 'actual controversy.' Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, this Court said: 'The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' In the present case we think that the record establishes the existence of an actual controversy which should have been adjudicated by the lower court.
3
The District Court found that when appellant boarded a Memphis bus on April 26, 1956, and seated himself at the front of the vehicle, the driver told him he must move to the rear, 'stating that the law required it because of (his) color'; that following appellant's refusal to comply, two police officers shortly thereafter boarded the bus and 'ordered (appellant) to go to the back of the bus, get off, or be arrested'; and that thereupon appellant left the bus. The record further shows that the appellees intend to enforce this state statute until its unconstitutionality has been finally adjudicated. We do not believe that appellant, in order to demonstrate the existence of an 'actual controversy' over the validity of the statute here challenged, was bound to continue to ride the Memphis buses at the risk of arrest if he refused to seat himself in the space in such vehicles assigned to colored passengers. A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability. See Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming the decision of a three-judge District Court reported at 142 F.Supp. 707. That the appellant may have boarded this particular bus for the purpose of instituting this litigation is not significant. See Young v. Higbee Co., 324 U.S. 204, 214, 65 S.Ct. 594, 599, 89 L.Ed. 890; Doremus v. Board of Education, 342 U.S. 429, 434—435, 72 S.Ct. 394, 397—398, 96 L.Ed. 475.
4
We hold that the court below erred in not proceeding to the merits. Accordingly, the judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
5
It is so ordered.
6
Reversed and remanded.
| 12
|
358 U.S. 169
79 S.Ct. 209
3 L.Ed.2d 199
Lovander LADNER, Petitioner,v.UNITED STATES of America.
No. 2.
Argued Oct. 22, 1958.
Decided Dec. 15, 1958.
Mr. Harold Rosenwald, Boston, Mass., for the petitioner.
Mr. Leonard B. Sand, Washington, D.C., for the respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The petitioner was convicted in the United States District Court for the Southern District of Mississippi of assaulting two federal officers with a deadly weapon in violation of former 18 U.S.C. § 254.1 The court sentenced the petitioner to the maximum punishment of 10 years' imprisonment on each conviction of assault, the sentences to run consecutively.2 Upon completion of the first 10-year sentence, the petitioner made a motion in the District Court, under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to correct the second, and consecutive, sentence. He supported his motion by allegations that the evidence at his trial showed that he fired a single discharge from a shotgun into the front seat of an automobile and that the pellets wounded the two federal officers, who were transporting an arrested prisoner. He contended that in this circumstance he was guilty of but one 'assault' within the meaning of former § 254 and accordingly was subject to only one punishment. The District Court denied his motion and the Court of Appeals for the Fifth Circuit affirmed. 230 F.2d 726. Both courts held that the wounding of two federal officers by the single discharge of a shotgun would constitute a separate offense against each officer under the statute. We granted certiorari, 352 U.S. 907, 77 S.Ct. 151, 1 L.Ed.2d 116, to consider the construction of § 254 in light of principles applied to construe the federal criminal statutes involved in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905; United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260, and Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. We affirmed the Court of Appeals by an equally divided Court, 355 U.S. 282, 78 S.Ct. 336, 2 L.Ed.2d 270, but vacated our judgment, and set the case for reargument, when a petition for rehearing was granted. 356 U.S. 969, 78 S.Ct. 1004, 2 L.Ed.2d 1075. Reargument was had this Term.
2
It is suggested that the remedy under § 2255 is not available to the petitioner in the circumstances of this case. The record does not disclose that the Government raised this question in the District Court or in the Court of Appeals, and the Government does not tender it as a Question Presented for Decision in its brief in this Court. This court has often reached the merits of a case involving questions of statutory construction similar to that presented in this case under former 18 U.S.C. § 254 in proceedings by way of collateral attack upon consecutive sentences. In In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658, the petitioner brought a habeas corpus proceeding after serving seven months of three consecutive six-month sentences. He claimed that the sentencing court had misinterpreted the applicable statute and that he had committed but a single offense punishable by a single six-month sentence. This Court held that 'the objection may be taken on habeas corpus when the sentence on more than one of the convictions is sought to be enforced.' Id., 120 U.S. at page 285, 7 S.Ct. at page 561. In Bell v. United States, supra, a case on all fours with the present case, the Court reached the question of statutory construction over objection in the Government's brief in opposition to the petition for certiorari that the question could not be raised on motion under § 2255. Other cases in which the Court reached and decided questions of statutory construction, although the questions were raised by collateral attack on consecutive sentences, include: Tinder v. United States, 345 U.S. 565, 73 S.Ct. 911, 97 L.Ed. 1250 (§ 2255); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (§ 2255); Prince v. United States, supra (Federal Rule of Criminal Procedure 35, 18 U.S.C.A.); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (habeas corpus); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (habeas corpus). The fact that the Court has so often reached the merits of the statutory construction issues in such proceedings suggests that the availability of a collateral remedy is not a jurisdictional question in the sense that, if not properly raised, this Court should nevertheless determine it sua sponte. Moreover, there was only meagre argument of the question of the availability of the remedy in this case. The Government submitted only a short discussion of the question in the body of its brief and made only a passing reference to it toward the close of the oral argument. The question of the scope of collateral attack upon criminal sentences is an important and complex one, judging from the number of decisions discussing it in the District Courts and the Courts of Appeals. We think that we should have the benefit of a full argument before dealing with the question. We, therefore, proceed to construe former 18 U.S.C. § 254 without, however, intimating any view as to the availability of a collateral remedy in another case where that question is properly raised, and is adequately briefed and argued in this Court.
3
There is no constitutional issue presented. The question for decision is as to the construction to be given former § 254 in the circumstances alleged by the petitioner. Did Congress mean that the single discharge of a shotgun would constitute one assault, and thus only one offense, regardless of the number of officers affected, or did Congress define a separate offense for each federal officer affected by the doing of the act? The congressional meaning is plainly open to question on the face of the statute, which originated as § 2 of the Act of May 18, 1934. 48 Stat. 780. The Government does not seriously contend otherwise, but emphasizes that the legislative history shows that the statute was designed to protect federal officers from personal harm, or the threat of personal harm, in the performance of their duties, or on account of the performance of their duties. From this premise, the Government argues that there must be an offense for each officer who is put in immediate apprehension of personal injury, i.e., assaulted, and that each officer thus defines the unit of prosecution. The position is summed up in the Government's brief as follows: 'The legislation was aimed at protecting federal officers, not only to promote the orderly functioning of the federal government (whose efficiency would diminish in proportion to the number of individual officers affected), but also to protect the individual officers, as 'wards' of the federal government, from personal harm. Both of these legislative objectives make the individual officers a separate unit of protection.'
4
However, we are unable to read the legislative history as clearly illumining the statute with this meaning. The history is scant, consisting largely of an Attorney General's letter recommending the passage of the legislation,3 and sheds no real light on what Congress intended to be the unit of prosecution. Although the letter mentions the need for legislation for the protection of federal officers, it also speaks of the need for legislation 'to further the legitimate purposes of the Federal government.' From what appears, an argument at least as plausible as the Government's may be made that the congressional aim was to prevent hindrance to the execution of official duty, and thus to assure the carrying out of federal purposes and interests, and was not to protect federal officers except as incident to that aim. Support for this meaning may be found in the fact that § 254 makes it unlawful not only to assault federal officers engaged on official duty but also forcibly to resist, oppose, impede, intimidate or interfere with such officers. Clearly one may resist, oppose, or impede the officers or interfere with the performance of their duties without placing them in personal danger. Such a congressional aim would, of course, be served by considering the act of hindrance as the unit of prosecution without regard to the number of federal officers affected by the act. For example, the locking of the door of a building to prevent the entry of officers intending to arrest a person within would be an act of hindrance denounced by the statute. We cannot find clearly from the statute, even when read in the light of its legislative history, that the Congress intended that the person locking the door might commit as many crimes as there are officers denied entry. And if we cannot find this meaning in the supposed case, we cannot find that Congress intended that a single act of assault affecting two officers constitutes two offenses under the statute. The Government frankly conceded on the oral argument that assault can be treated no differently from the other outlawed activities,4 and that if a single act of hindrance which has an impact on two officers is only one offense when the act is not an assault, an act of assault can be only one offense even though it has an impact on two officers.
5
Moreover, an interpretation that there are as many assaults committed as there are officers affected would produce incongruous results. Punishments totally disproportionate to the act of assault could be imposed because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act. For an assault is ordinarily held to be committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm.5 Thus under the meaning for which the Government contends, one who shoots and seriously wounds an officer would commit one offense punishable by 10 years' imprisonment, but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years' imprisonment, even though he does not fire the gun and no officer actually suffers injury. It is difficult, without a clear indication than the materials before us provide, to find that Congress intended this result.
6
It is therefore apparent that § 254 may as reasonably be read to mean that the single discharge of the shotgun would constitute an 'assault' without regard to the number of federal officers affected, as it may be read to mean that as many 'assaults' would be committed as there were officers affected. Neither the wording of the statute nor its legislative history points clearly to either meaning. In that circumstance the Court applies a policy of lenity and adopts the less harsh meaning. '(W)hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221—222, 73 S.Ct. 227, 229, 97 L.Ed. 260. And in Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905, the Court expressed this policy as follows: 'When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.' See also Prince v. United States, supra; Gore v. United States, 357 U.S. 386, 391, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405. This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended. If Congress desires to create multiple offenses from a single act affecting more than one federal officer, Congress can make that meaning clear. We thus hold that the single discharge of a shotgun alleged by the petitioner in this case would constitute only a single violation of § 254.
7
It follows that the petitioner is entitled to an opportunity to sustain his allegation that his conviction of two assaults rested upon evidence that the wounding of the two officers resulted from a single discharge of the gun.6 The District Court did not hold a hearing on his motion because of its view that the single discharge admitted by him resulted in two assaults. But the Court of Appeals, in affirming on the same ground, correctly acknowledged that if this were an erroneous view of the law, 'there is a necessity for the determination of such a factual question (and) there must be a hearing (at which) the (petitioner) is entitled to be present.' 230 F.2d at page 726, 728. See United States v. Hayman, 342 U.S. 205, 219—220, 72 S.Ct. 263, 272, 96 L.Ed. 232; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. Because the proceedings at the petitioner's trial were not transcribed7 it will be necessary at the hearing on the motion to reconstruct the trial record. We decide only the issue tendered by the parties and intimate no view as to whether the petitioner may be entitled to correction of the consecutive sentence under any different fact situation which the reconstructed trial record may disclose.
8
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
9
It is so ordered.
10
Judgment of Court of Appeals reversed and case remanded with directions.
11
Mr. Justice CLARK (dissenting).
12
By what to me is a dubious route, permitting a collateral attack to be made on this old judgment under § 22551 proceedings, the Court reaches the merits only to agree fully with Ladner's contentions. As I see it, this enlargement of jurisdiction under § 2255 will subject the trial court dockets to a rash of applications by prisoners and completely overturn the purpose of the Congress in adopting the § 2255 procedure in lieu of habeas corpus. Moreover, it appears that by adopting Ladner's view on the merits the Court clearly informs the criminal, if I might be permitted to borrow a phrase, that assaults on the lives of federal officers come just 'as cheap by the dozen.'
13
Nearly fourteen years ago, two federal officers were ambushed and seriously wounded by Ladner when he shot them point-blank with a shotgun as they sat in the front seat of a vehicle transporting some prisoners arrested in a raid on an illicit distillery. He was convicted of an assault on each of the officers. Ladner contends that he fired only a single charge from the shotgun and is, therefore, guilty of only one offense, regardless of the number of officers assaulted.
14
The principal issue, as I see the case, is the procedural one under § 2255, namely whether the Court should allow this collateral attack on Ladner's sentence. This important question, both argued and briefed by the Government, is, I think, wrongly decided by the Court. These proceedings are by motion under § 2255 to correct the consecutive sentences of ten years imposed on each of Counts 2 and 3 of the indictment. Count 2 charges an assault on Officer James Buford Reed, while Count 3 charges one on Officer W. W. Frost. The record is unclear, as the Court points out, as to how many discharges of the shotgun Ladner fired into the vehicle. Hence a determination of that issue must be made by the trial court on remand of the case.
15
Clearly this is an error that should have been raised by appeal. It did not undermine the jurisdiction of the original trial court, for under the allegations of the indictment these counts clearly state separate offenses. It raises no constitutional issue. The history of § 2255 clearly reveals that such an attack was not authorized. Reference to United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, gives us a complete picture. The Judicial Conference of the United States proposed § 2255 to remedy the 'practical problems that had arisen in the administration of the federal courts' habeas corpus jurisdiction.' The Conference in submitting the measure to the Congress noted that
16
'The motion remedy broadly covers all situations where the sentence is 'open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus.' Hayman, supra, 342 U.S. at page 217, 72 S.Ct. at page 271.
17
It is clear that in enacting § 2255, Congress did not intend to enlarge the available grounds for collateral attack, but rather sought only to correct serious administrative problems that had developed in the exercise over the years of habeas corpus jurisdiction.
18
The Court today holds that the trial court may have committed an error of law which will require the reconstruction of the evidence as to the number of shots fired by Ladner. As I have indicated, this may require a retrial of this fourteen-year-old case. Here the indictment and judgment are admittedly regular on their faces. The dispute is entirely with the facts of the incident. The issue, therefore, is squarely governed by the principles of Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. That was a habeas corpus proceeding attacking a conviction admittedly obtained as a result of error of the trial court. As here, neither the jurisdiction of the trial court nor claimed constitutional violations were at issue. The Court, speaking through Mr. Justice Douglas, said:
19
'Congress * * * has provided a regular, orderly method for correction of all such errors by granting an appeal to the Circuit Courts of Appeals and by vesting us with certiorari jurisdiction. * * * Every error is potentially reversible error; and many rulings of the trial court spell the difference between conviction and acquittal. If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.' 332 U.S. at pages 181—182, 67 S.Ct. at page 1592.
20
The history and language of § 2255 show that the same limitations are present in such proceedings and that they are equally jurisdictional. What was enacted by Congress to solve the practical problems created by the 'great increases' in habeas corpus applications today becomes the tool by which prisoners can pry open their convictions on even broader grounds than were ever permitted theretofore. It appears entirely probable that a much greater administrative problem will result than confronted the courts before the enactment of § 2255.
21
The Court cites seven cases in which we decided 'questions of statutory construction' although the questions were raised by 'collateral attack upon consecutive sentences. * * *' But those cases only point up my position the more, i.e., that a collateral attack can be made only where the error in the sentence is apparent from the facts alleged in the four corners of the indictment or admitted by the parties. In five of the cases, i.e., In re Snow, 1887, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658; Tinder v. United States, 1953, 345 U.S. 565, 73 S.Ct. 911, 97 L.Ed. 1250; Gore v. United States, 1958, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405; Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, and Ebeling v. Morgan, 1915, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151, the error in sentencing is apparent from the face of the indictment. In the remaining two cases, Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905;2 and Morgan v. Devine, 1915, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, the facts were admitted. The importance of this distinction is indicated by the Court in Prince where it goes out of its way to point out that it was admitted by respondent that the robbery charged in Count 1 was performed immediately after the entry into the bank, charged in Count 2. The majority cannot point to a single case in this Court where collateral attack on consecutive sentences has been permitted under § 2255 when the facts were in dispute. There is none. The law has long been settled, formerly under habeas corpus and now under § 2255, to the contrary.
22
However, even more surprising to me, as it runs counter to my understanding of efficient judicial administration, is the Court's statement that its holding today should not be considered as 'intimating any view as to the availability of a collateral remedy in another case where that question is properly raised, and is adequately briefed and argued in this Court.' I find no counterpart for such a handling in our precedents. Implicit therein is the suggestion that come another case where the point is 'properly raised (and) adequately briefed and argued in this Court'3 then the conclusion will be different. Meanwhile, the Court says, Ladner is no precedent on the question of 'the availability of a collateral remedy.' Despite this, the Court permits its use here. This ad hoc disposition is not in keeping with good business conduct so necessary in court administration.
23
I do not reach the merits. The Congress, however, may correct that error of the Court. But the ad hoc manner in which it has today disposed of the case we shall have with us always—a precedent for others to follow.
1
That statute provides:
'Whoever shall forcibly resist, oppose, impede, intimidate, or interfere with any person * * * (if he is a federal officer designated in § 253) while engaged in the performance of his official duties, or shall assault him on account of the performance of his official duties, shall be * * * imprisoned not more than three years * * *; and whoever, in the commission of any of the acts described in this section, shall use a deadly or dangerous weapon shall be * * * imprisoned not more than ten years * * *.' 18 U.S.C. (1940 ed.) § 254.
2
Ladner was convicted by a jury on three separate counts; one for conspiring to assault the officers, a second for assaulting one of the officers, and a third for assaulting the other officer. He was sentenced for two years on the conspiracy count, which sentence was to run concurrently with a 10-year sentence for assaulting one of the officers. A 10-year sentence imposed for the assault on the second officer was to run from and after the expiration of the first two sentences. Thus Ladner was sentenced to a total jail term of 20 years. The proceedings instituted by Ladner's co-conspirator, one Cameron, for post-conviction relief are reported in United States v. Cameron, D.C., 84 F.Supp. 289.
3
The letter, of January 3, 1934, to Senator Ashurst, Chairman of the Senate Committee on the Judiciary, is as follows:
'My dear Senator:
'I wish again to renew the recommendation of this Department that legislation be enacted making it a Federal offense forcibly to resist, impede, or interfere with, or to assault or kill, any official or employee of the United States while engaged in, or on account of, the performance of his official duties. Congress has already made it a Federal offense to assault, resist, etc., officers or employees of the Bureau of Animal Industry of the Department of Agriculture while engaged in or on account of the execution of their duties (sec. 62, C.C., sec. 118, title 18, U.S.C.); to assault, resist, etc., officers and others of the Customs and Internal Revenue, while engaged in the execution of their duties (sec. 65, C.C., sec. 121, title 18, U.S.C.); to assault, resist, beat, wound, etc., any officer of the United States, or other person duly authorized while serving or attempting to serve the process of any court of the United States (sec. 140, C.C., sec. 245, title 18, U.S.C.); and to assault, resist, etc., immigration officials or employees while engaged in the performance of their duties (sec. 16, Immigration Act of Feb. 5, 1917, c. 29, 39 Stat. 885, sec. 152, title 8, U.S.C.). Three of the statutes just cited impose an increased penalty when a deadly or dangerous weapon is used in resisting the officer or employee.
'The need for general legislation of the same character, for the protection of Federal officers and employees other than those specifically embraced in the statutes above cited, becomes increasingly apparent every day. The Federal Government should not be com-
pelled to rely upon the courts of the States, however respectable and well disposed, for the protection of its investigative and law-enforcement personnel; and Congress has recognized this fact at least to the extent indicated by the special acts above cited. This Department has found need for similar legislation for the adequate protection of the special agents of its division of investigation, several of whom have been assaulted in the course of a year, while in the performance of their official duties.
'In these cases resort must usually be had to the local police court, which affords but little relief to us, under the circumstances, in our effort to further the legitimate purposes of the Federal Government. It would seem to be preferable, however, instead of further extending the piecemeal legislation now on the statute books, to enact a broad general statute to embrace all proper cases, both within and outside the scope of existing legislation. Other cases in point are assaults on letter carriers, to cover which the Post Office Department has for several years past sought legislation; and the serious wounding, a couple of years ago, of the warden of the Federal Penitentiary at Leavenworth by escaped convicts outside the Federal jurisdiction. In the latter case it was possible to punish the escaped convicts under Federal law for their escape; but they could not be punished under any Federal law for the shooting of the warden.
'I have the honor, therefore, to enclose herewith a copy of S. 3184, which was introduced at the request of this Department in the Seventy-second Congress and to urge its reintroduction in the present Congress; and to express the hope that it may receive the prompt and serious consideration of your committee.
'Respectfully,
'Homer Cummings,
'Attorney General.'
See, for the legislative history, S.Rep. No. 535, 73d Cong., 2d Sess.; H.R.Rep. No. 1455, 73d Cong., 2d Sess.; 78 Cong.Rec. 8126—8127.
4
This concession by the Government seems necessary in view of the lack of any indication that assault was to be treated differently, and in light of 18 U.S.C. § 111, 18 U.S.C.A. § 111, the present recodification of § 254, which lumps assault in with the rest of the offensive actions. The statute now provides that 'Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with' any designated federal officer 'while engaged in or on account of the performance of his official duties' is committing a crime. The Reviser's Note indicates that this change in wording was not intended to be a substantive one.
5
See Burdick, Law of Crime (1946), § 342; Clark and Marshall, Law of Crimes (1958), § 10.16; Miller on Criminal Law (1934) § 99.
6
In view of the trial judge's recollection that 'more than one shot was fired into the car in which the officers were riding * * *' we cannot say that it is impossible that petitioner was properly convicted of more than one offense, even under the principles which govern here.
7
Although 58 Stat. 5, now 28 U.S.C. § 753, 28 U.S.C.A. § 753, which provides for the recording of all proceedings in criminal cases, was enacted on January 20, 1944, Congress had not appropriated funds for the payment of court reporters at the time of the trial in June 1944. See Richard v. United States, 5 Cir., 148 F.2d 895; Vickers v. United States, 8 Cir., 157 F.2d 285.
1
28 U.S.C. § 2255 (1952), 28 U.S.C.A. § 2255.
2
Though the § 2255 issue was mentioned in the Government's reply to the petition for certiorari in Bell, the question was not briefed nor argued on the merits.
3
The point was raised in this Court. The Government devoted four and one-half pages of its 29-page brief to it, discussing 18 separate cases. My research of the question indicates there would be little to add to the Government's discussion.
| 01
|
358 U.S. 270
79 S.Ct. 273
3 L.Ed.2d 289
HOTEL EMPLOYEES UNION, LOCAL NO. 255, et al., Petitioners,v.SAX ENTERPRISES, Inc.; Leevlans Corporation; R. S. Levy, Daniel Lifter and J. S. Lansburg, as Trustee, et al. HOTEL EMPLOYEES UNION, LOCAL NO. 255, et al., Petitioners, v. Harry LEVY et al., doing business as Sherry Frontenac Hotel, Stuyvesant Corporation, Abe Allenberg, et al.
Nos. 5, 6.
Argued Nov. 10, 1958.
Decided Jan. 12, 1959.
Rehearing Denied Feb. 24, 1959.
See 359 U.S. 921, 79 S.Ct. 576.
Messrs. Arthur J. Goldberg and David E. Feller, Washington, D.C., for the petitioners.
Marion E. Sibley, Miami Beach, Fla., and Thomas H. Anderson, Miami, Fla., for the respondents.
PER CURIAM.
1
The judgments of the Supreme Court of Florida in these twelve consolidated cases must be reversed. They all concern the power of the courts of Florida to enjoin organizational picketing at twelve Florida resort hotels. After a series of decisions in regard to these and related cases,* the Florida Supreme Court, in identical per curiam opinions, affirmed the issuance of permanent injunctions against the picketing.
2
The Florida courts were without jurisdiction to enjoin this organizational picketing, whether it was activity protected by § 7 of the National Labor Relations Act, as amended, 29 U.S.C § 157, 29 U.S.C.A. § 157, Hill v. Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, or prohibited by § 8(b)(4) of the Act, 29 U.S.C. § 158(b)(4), Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. See Weber v. Anheuser-Busch, Inc., 348 U.S. 468, at 481, 75 S.Ct. 480, 488, 99 L.Ed. 546. This follows even though the National Labor Relations Board refused to take jurisdiction, Amalgamated Meat Cutters v. Fairlawn Meats, 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613. The record does not disclose violence sufficient to give the State jurisdiction under United Automobile Workers, etc., v. Wisconsin Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162. In none of the twelve cases did the Florida trial courts make any finding of violence, and in some an affirmative finding of no violence was made.
3
Since it was stipulated below that a witness would testify that interstate commerce was involved in the Florida resort hotel industry, and since the parties asked that 'Final Decree be entered by the Chancellor upon the record as now made in the light of this Stipulation,' we find it unnecessary to remand for consideration of that question. See Hotel Employees Local No. 255 v. Leedom, 358 U.S. 99, 79 S.Ct. 150. Other questions raised by respondents are either without merit or irrelevant to this disposition of the cases.
4
Reversed.
*
Sax Enterprises, Inc., v. Hotel Employees Union, Fla., 80 So.2d 602; Boca Raton Club, Inc., v. Hotel Employees Union, Fla., 83 So.2d 11; and Fontainebleau Hotel Corp. v. Hotel Employees Union, Fla., 92 So.2d 415.
| 910
|
358 U.S. 272
79 S.Ct. 266
3 L.Ed.2d 292
Harry A. HAHN, Petitioner,v.ROSS ISLAND SAND & GRAVEL CO., a Corporation.
No. 52.
Argued Dec. 11, 1958.
Decided Jan. 12, 1959.
Rehearing Denied Feb. 24, 1959.
See 359 U.S. 921, 79 S.Ct. 577.
Mr. Dwight L. Schwab, Portland Or., for the petitioner.
Mr. Ray H. Lafky, Salem, Or., for the State of Oregon, as amicus curiae.
Mr. Arno H. Denecke, Portland, Or., for the respondent.
PER CURIAM.
1
By its terms, the Longshoremen's and Harbor Workers' Compensation Act does not apply 'if recovery for the disability or death through workmen's compensation proceedings may * * * validly be provided by State law.' § 3, 44 Stat. 1426, 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a) (emphasis supplied). In Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, we recognized that in some cases it was impossible to predict in advance of trial whether a worker's injury occurred in an operation which, although maritime in nature, was so 'local' as to allow state compensation laws validly to apply under the limitations of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086. As to cases within this 'twilight zone,' Davis, in effect, gave an injured waterfront employee an election to recover compensation under either the Longshoremen's Act or the Workmen's Compensation Law of the State in which the injury occurred. It seems plain enough that petitioner's injury occurred in the 'twilight zone,' and that recovery for it 'through workmen's compensation proceedings,' could have been, and in fact was, validly 'provided by State law' the Oregon Workmen's Compensation Act. Ore.Rev.Stat. §§ 656.002 656.990. Therefore, the Longshoremen's Act did not bar petitioner's claim under state law. But since his employer had elected to reject them, the automatic compensation provisions of the Oregon Workmen's Compensation Act did not apply to the claim. Section 656.024 of that law provides, however, that when an employer has elected to reject the Act's automatic compensation provisions his injured employee may maintain in the courts a negligence action for damages. Of course, the employee could not do this if the case were not within the 'twilight zone,' for then the Longshoremen's Act would provide the exclusive remedy. Since this case is within the 'twilight zone,' it follows from what we held in Davis that nothing in the Longshoremen's Act or the United States Constitution prevents recovery.
2
The judgment is reversed and the cause is remanded to the Supreme Court of Oregon for proceedings not inconsistent with this opinion.
3
The CHIEF JUSTICE and Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
4
Mr. Justice STEWART, whom Mr. Justice HARLAN joins, dissenting.
5
This case poses a difficult and important issue of first impression. The Court decides it, I think, incorrectly.
6
The petitioner was injured while working on a barge in navigable waters within the State of Oregon. The respondent employer had secured payment of compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq., but had elected not to be covered by the Oregon Workmen's Compensation Law, Ore.Rev.Stat. § 656.002 et seq. Compensation benefits under the federal statute were clearly available at all times to the petitioner. Instead of accepting these benefits, however, he brought an action for personal injuries in an Oregon state court, the Oregon statute permitting such an action against an employer not participating in the state workmen's compensation plan.1
7
The trial court entered judgment for the employer, notwithstanding a jury award in the petitioner's favor, and the judgment was affirmed by the Oregon Supreme Court, which held that the petitioner's sole remedy was under the federal statute. 214 Or. 1, 320 P.2d 668. It is that decision which is today reversed.
8
The creation in Davis v. Department of Labor of a 'twilight zone' was a practical solution to a practical problem, a problem stemming from Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and one which 25 years of post-Jensen history had failed to solve. The problem was how to assure to injured waterfront employees the simple, prompt, and certain protection of workmen's compensation which Congress had clearly intended to give in enacting the federal statute. See 317 U.S., at page 254, 63 S.Ct. at page 228. The Davis decision in effect told the injured employee that in a doubtful case he would be assured of workmen's compensation whether he proceeded under a state workmen's compensation act or the federal statute. See Moores' Case, 323 Mass. 162, 80 N.E.2d 478, affirmed per curiam, sub nom. Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417.
9
Even accepting the premise that the circumstances surrounding Hahn's accident brought it within the twilight zone, no one had supposed until today that either Davis or the federal statute allowed an employee to spurn federal compensation and submit his claim to a state court jury.2 Chappell v. C. D. Johnson Lumber Corp., D.C., 112 F.Supp. 625, reversed on other grounds, 9 Cir., 216 F.2d 873.
10
In the interest of a clear legislative purpose to provide the certainty and security of workmen's compensation, the 'illogic' of a twilight zone was permitted.3 Such illogic should not be utilized to frustrate that very purpose. I would affirm the judgment.
1
The employer in such a case is deprived of the traditional common-law defenses. Ore.Rev.Stat. § 656.024.
2
The pertinent provision of 33 U.S.C. § 903(a), 33 U.S.C.A. § 903(a), is as follows:
'(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law.' (Emphasis added.)
3
The twilight zone and its background have been much criticized and discussed. For summaries, see Gilmore and Black, The Law of Admiralty (1957), § 6—48; 2 Larson, The Law of Workmen's Compensation (1952), § 89.00 et seq.; Rodes, Workmen's Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harv.L.Rev. 637 (1955).
| 78
|
358 U.S. 276
79 S.Ct. 321
3 L.Ed.2d 296
PEOPLE of the United States ex rel. Talbot JENNINGS, petitioner,v.Joseph E. RAGEN, Warden, Illinois State Penitentiary.
No. 185, Misc.
Supreme Court of the United States
January 12, 1959
Talbot Jennings, pro se.
Mr. Latham Castle, Atty. Gen. of Illinois, for respondent.
On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted.
2
Petitioner, confined under sentence of an Illinois court following his conviction of armed robbery, sought a writ of habeas corpus from the Federal District Court. His petition contained allegations, primarily concerning the introduction into evidence at his trial of a confession coerced by physical mistreatment by police officers, which if true would entitle him to relief. Appended to the petition were various documents, including an opinion of the Supreme Court of Illinois affirming his conviction and simultaneously affirming the denial to him of post-conviction remedies which he had sought in the trial court while his appeal from the conviction was pending. See People v. Jennings, 11 Ill.2d 610, 144 N.E.2d 612. In that opinion, the state court held that the evidence before it warranted the trial court's finding that petitioner's confession had been voluntary.
3
The State responded to petitioner's application and urged dismissal. The District Court, on a record limited to the aforementioned documents augmented by a 'report' prepared by an amicus curiae appointed by it, dismissed the application without a hearing. The Court of Appeals, in turn, denied petitioner's motion for a certificate of probable cause, 28 U.S.C. § 2253, 28 U.S.C.A. § 2253, and dismissed his appeal.
4
It appears from the record before us that the District Court dismissed petitioner's application without making any examination of the record of proceedings in the state courts, and instead simply relied on the facts and conclusions stated in the opinion of the Supreme Court of Illinois. We think that the District Court erred in dismissing this petition without first satisfying itself, by an appropriate examination of the state court record, that this was a proper case for the dismissal of petitioner's application without a hearing, in accordance with the principles set forth in Brown v. Allen, 344 U.S. 443, 463-465, 506, 73 S.Ct. 397, 97 L.Ed. 469. See also Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361. It follows that the judgment of the Court of Appeals must be vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
| 01
|
358 U.S. 242
79 S.Ct. 245
3 L.Ed.2d 270
INTERNATIONAL BOXING CLUB OF NEW YORK, Inc., a Corporation of New York; International Boxing Club, Inc., a Corporation of Illinois, et al., Appellants,v.UNITED STATES of America.
No. 18.
Argued Nov. 13, 1958.
Decided Jan. 12, 1959.
[Syllabus from pages 242-243 intentionally omitted]
Mr. Kenneth C. Royall, New York City, for appellants.
Mr. Philip Elman, Washington, D.C., for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
This civil Sherman Act1 case was here four years ago on direct appeal from a dismissal by the District Court, which had held that the Act did not apply to the business of professional boxing. We reversed, finding that 'the complaint states a cause of action (under the Act) and that the Government is entitled to an opportunity to prove its allegations,' and remanded the case for trial on the merits. United States v. International Boxing Club, 1955, 348 U.S. 236, 75 S.Ct. 259, 263, 99 L.Ed. 290. The complaint charged the appellants with a combination and conspiracy in unreasonable restraint of trade and commerce among the States in the promotion, broadcasting, and televising of professional world championship boxing contests, as well as a conspiracy to monopolize and monopolization of the same. After a trial, the District Court, in an opinion incorporating detailed findings of fact and conclusions of law based on the principles laid down in our earlier opinion, found that the allegations of the complaint had been sustained. 150 F.Supp. 397. After further hearings on the nature and extent of the relief necessary to protect the public interest, the court entered its final judgment dissolving two of the corporate appellants, directing divestiture of certain stock owned by the individual appellants and granting injunctive relief designed to open up the market in the business of promoting professional world championship boxing matches. 171 F.Supp. 841.
2
The appellants, while not attacking any specific finding as clearly erroneous, claim that the proof did not show that they violated Section 1 or 2 of the Act. In this regard appellants level their strongest blows at the District Court's definition of the relevant market. Out of the entire field of professional boxing, the District Court carved a market in championship contests alone, holding it to be the relevant market at which the conspiracy was aimed. In the alternative, appellants insist that the relief granted the Government was 'unnecessarily punitive, even if liability is assumed. On a direct appeal to this Court we noted probable jurisdiction, 1958, 356 U.S. 910, 78 S.Ct. 668, 2 L.Ed.2d 584. We have concluded that the findings of the District Court are not clearly erroneous and that in view of our former holding on the sufficiency of the complaint the judgment on the merits was properly entered. As to the relief granted we find that the court did not exceed the limits of allowable discretion in framing a decree 'that will, so far as practicable, cure the ill effects of the illegal conduct, and assure the public freedom from its continuance.' United States v. United States Gypsum Co., 1950, 340 U.S. 76, 88, 71 S.Ct. 160, 169, 95 L.Ed. 89.
3
Our previous decision herein having decided that the promotion of professional championship boxing contests on an interstate basis constituted trade and commerce among the States, within the meaning of the Sherman Act, there is no contest here either on the findings or the law on that point. Since on that appeal we discussed in some detail the allegations of the complaint, which the trial court has now found amply proven by the evidence, we shall only summarize the findings here.
4
The Findings.
5
The conspiracy began in January 1949, when appellants Norris and Wirtz, who owned and controlled the Chicago Stadium, the Detroit Olympia Arena and the St. Louis Arena, made an agreement with Joe Louis, the then heavyweight boxing champion of the world. Wishing to retire, Louis agreed to give up his title after obtaining from each of the four leading contenders2 exclusive promotion rights including rights to radio, television and movie revenues. Upon securing these exclusive contracts Louis assigned them to the appellant Internation Boxing Club, Illinois, which was organized by Norris and Wirtz for the purpose of promoting boxing for the combination in Illinois. They paid Louis $150,000 cash plus an employment contract and a 20% stock interest in I.B.C., Illinois.
6
In March 1949 Norris and Wirtz approached appellant Madison Square Garden, in which they had for many years owned 50,000 shares of stock. It was the 'foremost sports arena in New York City and is the best known arena of its kind in the United States, if not the world.'3 However, its facilities were tied up by an exclusive lease it had granted to Mike Jacobs' interests—the leading professional boxing promoter in the field at that time. Norris and Wirtz proposed that they should all 'work together now and keep the events for our buildings and not create a competitive situation that would be harmful to all.' In order to effectuate this program, appellant Madison Square Garden bought out Mike Jacobs' interest, including, in addition to his lease on Madison Square Garden, his exclusive leases to Yankee Stadium and the St. Nicholas Arena and his contract with the then welterweight champion Sugar Ray Robinson. These contracts were assigned to Internation Boxing Club, New York, organized for the purpose of promoting boxing for the combination in New York.
7
Once Jacobs' interests had been acquired, there remained only one substantial competitor in the field of promoting championship boxing matches. That was Tournament of Champions, Inc., owned in part by the Columbia Broadcasting System. It owned an exclusive lease on the Polo Grounds as well as an exclusive promotion contract covering the next two fights of the then middleweight champion of the world. In May 1949 Madison Square Garden bought all of the stock of Tournament of Champions at a cost of $100,000 plus 25% of the net profits on the next two middleweight championship matches. The assets thus acquired were likewise assigned to I.B.C., New York. By a simultaneous separate agreement, Columbia Broadcasting System agreed for a five-year period not to invest in or promote any professional boxing matches in return for a first refusal right to the broadcasting of certain boxing matches staged for a like period in Madison Square Garden.
8
This series of agreements, concummated within four months' time, gave appellants exclusive control of the promotion of boxing matches in three championship divisions, i.e., heavyweight, middleweight, and welterweight. Not satisfied with this temporary control, however, appellants perpetuated their hold on championship bouts by requiring each contender for the title to grant to them an exclusive promotion contract to his championship fights, including film and broadcasting, for a period of from three to five years. Over the facilities for the staging of contests appellants exercised like control, owning or managing the 'key' arenas and stadia in the Nation.4
9
Tightening the ropes around the ring thus built, Norris and Wirtz increased their stockholdings in Madison Square Garden to where they controlled it and were able to 'dictate its policies and boxing activities.' This has continued their control over I.B.C., New York, the stock of which is now wholly owned by Madison Square Garden.5 They are the sole stockholders of Chicago Stadium Corporation which in turn is the sole stockholder of I.B.C., Illinois. Their control over this boxing empire is revealed by the fact that Norris is president of each of the four top corporations, i.e., Madison Square Garden, I.B.C., New York, Chicago Stadium Corporation, and I.B.C., Illinois. He and Wirtz are directors in all four, while I.B.C., Illinois and I.B.C., New York, which have owned all of the promotion contracts with the contenders, have a joint board of directors.
10
The effect of the conspiracy is obvious. Using the facilities of I.B.C., Illinois and I.B.C., New York, appellants entered into exclusive promotion contracts with title aspirants, requiring exclusive handling agreements in the event the contender became champion. In amassing their empire, appellants obtained control of champions in three divisions. The choice given a contender thereafter was clear, i.e., to sign with appellants or not to fight. With appellants in control of the key arenas and stadia of the country through Madison Square Garden, Chicago Stadium Corporation, and others, an event could not be successfully staged in any of these areas, the most fruitful in the Nation, without their consent. The exercise of this power brought immediate results. From June 1949, when appellants staged their first championship fight, until May 15, 1953, the date of the amended complaint, they staged or controlled the promotion of 36 of the 44 championship battles held in this country, giving them approximately 81% of that field. In two of the classifications, heavyweight and middleweight, the combine staged all of the contests. The power of the combine to exclude competitors in the championship field is graphically shown by their promotion of 25 out of 27 fights in all divisions, a total of 93%, during the two-and-a-half-year period ending with the filing of the amended complaint. This power extended to the sale of film and broadcasting rights—most valuable adjuncts to successful promotion in the business.
11
Appellants launch a vigorous attack on the finding that the relevant market was the promotion of championship boxing contests in contrast to all professional boxing events. They rely primarily on United States v. E. I. Du pont De Nemours & Co., 1956, 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264. That case, involving an alleged monopoly of the market in cellophane, held that the relevant market was not cellophane alone but the entire field of flexible packaging materials. In testing for the relevant market in Sherman Act cases, the Court said:
12
'* * * no more definite rule can be declared than that commodities reasonably interchangeable by consumers for the same purposes make up that 'part of the trade or commerce,' monopolization of which may be illegal.' Du pont, supra, 351 U.S. at page 395, 76 S.Ct. at page 1007.
13
The appellants argue that the 'physical identity of the products here would seem necessarily to put them in one and the same market.' They say that any boxing contest, whether championship or not, always includes one ring, two boxers and one referee, fighting under the same rules before a greater or lesser number of spectators either present at ringside or through the facilities of television, radio, or moving pictures.
14
We do not feel that this conclusion follows. As was also said in Dupont, supra, 351 U.S. at page 404, 76 S.Ct. at page 1012:
15
'The 'market' * * * will vary with the part of commerce under consideration. The tests are constant. That market is composed of products that have reasonable interchangeability for the purposes for which they are produced—price, use and qualities considered.'
16
With this in mind, the lower court in the instant case found that there exists a 'separate, identifiable market' for championship boxing contests. This general finding is supported by detailed findings to the effect that the average revenue from all sources for appellants' championship bouts was $154,000, compared to $40,000 for their nonchampionship programs; that television rights to one championship fight brought $100,000, in contrast to $45,000 for a nontitle fight seven months later between the same two fighters; that the average 'Nielsen' ratings6 over a two-and-one-half-year period were 74.9% for appellants' championship contests, and 57.7% for their nonchampionship programs (reflecting a difference of several million viewers between the two types of fights); that although the revenues from movie rights for six of appellants' championship bouts totaled over $600,000, no full-length motion picture rights were sold for a nonchampionship contest; and that spectators pay 'substantially more' for tickets to championship fights than for nontitle fights. In addition, numerous representatives of the broadcasting, motion picture and advertising industries testified to the general effect that a 'particular and special demand exists among radio broadcasting and telecasting (and motion picture) companies for the rights to broadcast and telecast (and make and distribute films of) championship contests in contradistinction to similar rights to non-championship contests.'7
17
In view of these findings, we cannot say that the lower court was 'clearly erroneous' in concluding that nonchampionship fights are not 'reasonably interchangeable for the same purpose' as championship contests. A determination of the 'part of the trade or commerce' encompassed by the Sherman Act involves distinctions in degree as well as distinctions in kind. One prime example of this is the application of the Act to trade or commerce in a localized geographical area. See, e.g., Schine Chain Theatres v. United States, 1948, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245; United States v. Griffith Amusement Co., 1948, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236; cf. Times-Picayune Pub. Co. v. United States, 1953, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277; United States v. Columbia Steel Co., 1948, 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533. The case which most squarely governs this case is United States v. Paramount Pictures, 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. There, the charge involved, inter alia, extensive motion picture theatre holdings. The District Court had refused to order a divestiture of such holdings on the grounds that no 'national monopoly' had been intended or obtained. This Court felt that such a finding was not dispositive of the issue, saying:
18
'First, there is no finding as to the presence or absence of monopoly on the part of the five majors (defendants) in the first-run field for the entire country, in the first-run field in the 92 largest cities of the country, or in the first-run field in separate localities. Yet the first-run field, which constitutes the cream of the exhibition business, is the core of the present cases. Section 1 of the Sherman Act outlaws unreasonable restraints irrespective of the amount of trade or commerce involved (United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224, 225, n. 59, 60 S.Ct. 811, 844—846, 84 L.Ed. 1129), and § 2 condemns monopoly of 'any part' of trade or commerce.' Paramount, supra, 334 U.S. at pages 172—173, 68 S.Ct. at page 936. (Emphasis in the original.)
19
Similarly, championship boxing is the 'cream' of the boxing business, and, as has been shown above, is a sufficiently separate part of the trade or commerce to constitute the relevant market for Sherman Act purposes.8
20
We have also examined the remainder of this characteristically lengthy record. When the case was here previously appellants did not deny that the allegations of the complaint stated a cause of action against them, provided their activity came within the meaning of the Sherman Act. We held that the complaint stated a cause of action. The District Court has now found these allegations to have been proven. With the case in this posture, appellants have an almost insurmountable burden. They must show that the findings, or at least the basic ones, are 'clearly erroneous.' Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A. This they have not been able to do. It follows that the decree entered on the merits adjudging the appellants to have violated both §§ 1 and 2 of the Sherman Act must be affirmed.
The Relief.
21
In approaching the question of relief we must remember that our function is not to sit as a trial court. Besser Mfg. Co. v. United States, 1952, 343 U.S. 444, 449—450, 72 S.Ct. 838, 841—842, 96 L.Ed. 1063; United States v. National Lead Co., 1947, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; cf. United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160. As was said in International Salt Co. v. United States, 1947, 332 U.S. 392, 400—401, 68 S.Ct. 12, 17, 92 L.Ed. 20:
22
'The framing of (antitrust) decrees should take place in the District rather than in Appellate Courts. They are invested with large discretion to model their judgments to fit the exigencies of the particular case.'
23
The yardstick which the trial court should apply in monopolization cases is well stated by the Court in Schine Chain Theatres v. United States, 1948, 334 U.S. 110, 128—129, 68 S.Ct. 947, 957, 92 L.Ed. 1245. The decree should (1) put 'an end to the combination or conspiracy when that is itself the violation'; (2) deprive 'the antitrust defendants of the benefits of their conspiracy'; and (3) 'break up or render impotent the monopoly power which violates the Act.'
24
The relief granted by a trial court in an antitrust case and brought here on direct appeal, thus by-passing the usual appellate review, has always had the most careful scrutiny of this Court. Though the records are usually most voluminous and their review exceedingly burdensome, we have painstakingly undertaken it to make certain that justice has been done. See, e.g., United States v. Paramount Pictures, supra; Schine Chain Theatres v. United States, supra; United States v. National Lead Co., supra. That we have done here. We have finally concluded that the relief granted was not beyond the allowable discretion of the District Court. The Bounds of the Relief Ordered.
25
At the time of the final decree the Joe Louis agreements had elapsed; the exclusive-contract practice had been at least temporarily abandoned; the leases on Yankee Stadium, the Polo Grounds and St. Nicholas Arena in New York had been given up and the appellants had no control over the new heavyweight champion, Floyd Patterson. Nevertheless, the additional evidence taken by the District Court showed that they still possessed all of the power of monopoly and restraint. In this we agree. The appellants had exercised a strangle hold on the industry for a long period. It was evident at the time of the decree that, statistically, they still dominated the staging of championship bouts and completely controlled the filming and broadcasting of those contests. They had gained this leadership through the elimination by purchase of all of their major competitors in the field; by the control of contending boxers through exclusive agreements; and by the staging of events through the ownership or lease of key stadia and arenas. This illegal activity gave appellants an odorous monopoly background which was known and still feared in the boxing world. In addition, Norris and Wirtz still possessed the major tools, so well used previously, necessary to continue their control. They owned or controlled the key arena and stadium in New York and Chicago, the most lucrative communities in boxing; they continued to control all of the championship bouts staged there; they commanded the filming and broadcasting of all championship fights the cream of the business—wherever staged; and though on the surface they owned no stock directly in the two I.B.C. corporations, each was the wholly owned subsidiary of corporations which Norris and Wirtz did control and manage.
26
In this setting the District Court ordered Norris and Wirtz to divest themselves, within a give-year period, of all stock which they owned 'directly or indirectly' in Madison Square Garden. In addition, both of the International Boxing Clubs, Illinois and New York, were ordered dissolved. The Chicago Stadium and Madison Square Garden were each enjoined from staging more than two championship bouts annually. All exclusive agreements for the promotion of boxing events, including nonchampionship, were banned. Madison Square Garden was ordered for a period of five years to lease its premises when available at a 'fair and reasonable' rental to any duly qualified promoter applying in writing therefor. Failure to agree on terms would require submission to the courts for determination. Like requirement was imposed on Chicago Stadium Corporation, provided Norris-and-Wirtz control continued.
27
The District Court Judge concluded that it was necessary to include each of these provisions in the decree in order to put an end to the combination, deprive the appellants of the benefit of their conspiracy and break up their monopoly power. At the conclusion of the final hearing on relief he observed that prior to 1949 the Norris-Wirtz group was in Chicago while the Madison Square Garden enterprise was in New York. They were 'two separate entities,' one promoting contests in the mid-West and the other in New York. He declared that 'in order to destroy this monopoly we have to return the situation as nearly as possible to the economic conditions as they existed in 1949' and, further, 'I can see no way in this case * * * that a proper decree can be formulated unless that power that Wirtz and Norris have in Madison Square Garden is curtailed. They have to get out of the control.'
28
The Order of Divestiture.
29
Appellants contend that since the stock owned by Norris and Wirtz was not acquired pursuant to the conspiracy, was not the fruit of illegal activity and was not proven to be the lever by which Madison Square Garden was persuaded to join the conspiracy, divestiture was but punishment rather than a necessary corrective remedy. They further say that the sale, even though made in the manner outlined in the decree,9 would result in great loss to Norris and Wirtz. They contend that it was arbitrary for the District Court not to permit them to exercise an option, as proposed by them, of a choice between Madison Square Garden and the Chicago Stadium, both of which they still control.
30
It may be that the stock in Madison Square Garden was not the fruit of the conspiracy; but even if lawfully acquired it may be utilized as part of the conspiracy to effect its ends. See United States v. Paramount Pictures, supra, 334 U.S. at page 152, 68 S.Ct. at page 926. Moreover, since the inception of the conspiracy Norris and Wirtz have increased their holdings to over 219,000 shares. It was this stock ownership and their control of stock voting power that the trial court found dictated the election of the officers and directors of Madison Square Garden and gave to Norris and Wirtz the unquestioned control and management of its activities. Although reluctant at first to require a divestiture of this stock, the trial judge ultimately became convinced that it was the sine qua non of the relief. During the hearing he said:
31
'The great evil I found was the combination that Wirtz and Norris caused and created by joining up with Madison Square Garden. I regard Wirtz and Norris as one and Madison Square Garden as another, a separate entity and business interest. The evil primarily sprung from their combination, their comcerted efforts and action. That has to be broken up.' (Emphasis supplied.)
32
What is perhaps equally significant is that through the exercise of this power Norris and Wirtz elected the officers and board of directors of I.B.C., New York—a joint board with I.B.C., Illinois, which they also controlled through the Chicago Stadium Corporation. This joint board was the bridge over which the conspiracy was made effective. Over it the control of the promotion of championship boxing contests was secured. That this control remained effective up to the very date of the final hearing, June 24, 1957, is shown by the following statement by the court on that date:
33
'The unlawful combination of the defendants still possesses and exercises its monopolistic control in the field of championship contests. It appears that since May 15, 1953 there have been held in the United States 37 championship contests, excluding one bantamweight contest. The defendants admit that they had promotional control over 24 of the 37 championship contests which were held or of 65 per cent of the market, but we find that the defendants were not financial strangers to the other 13 championship contests which were held in cities other than New York and Chicago. Because the defendants are licensed by state authorities to promote only in New York and Illinois, they could not be the persons actually designated as the promoter of the 13 championship contests, but all five of the championship contests which originated in cities other than Chicago or New York on Friday nights were televised on IBC's-New York Friday night television series.
34
'We find, too, that all of the 37 championship contests in this period from May 15, 1953, save only the five outdoor contests, were televised on either the defendants' Wednesday or Friday night television series, and that the profits of the sale of the telecasting rights inured to the benefit of the defendants.'
35
As this was some two and a half years after our opinion in the former appeal on January 31, 1955, it appears that appellants had continued exercising their unlawful control long after they well knew that this activity was within the coverage of the Sherman Act. In view of the fact that no denial was made on that appeal of the sufficiency of the Government's complaint it is reasonable to assume that appellants, subsequent to our opinion, knew that their conduct violated the Sherman Act, obedience to which is so important to our free enterprise system. Still they continued their illegal activity. In fact from all appearances it is continuing to this day. Such conduct, in addition to the interlocking nature of the ownership at the time of the final decree, fully justified the District Court's conclusion that the 'dissolution of the combination can only be accomplished by an immediate and complete severance of the interlocking ownership of Norris and Wirtz in Madison Square Garden. * * * (T)here must be a complete divestiture of the stockholdings of Norris and Wirtz in the Garden. The Government has established Norris and Wirtz control the Garden Corporation.' Moreover, this was the only effective means at hand by which competition in championship events might be restored. It was intended to return the parties as near as possible to the status quo existing prior to the conspiracy.
36
For these reasons, we do not see why it was incumbent upon the court to give Norris and Wirtz certain options requested at the time of the decree. We shall mention only two. The first was that they have the right to exercise a choice of retaining either Madison Square Garden or the Chicago Stadium. But this would not be conducive to the re-establishment of competition between the two interests, which the District Court considered a necessity. Nor would it eliminate the 'great evil' the trial court found in the Norris-Wirtz-Garden combination. Another requested option was that Norris and Wirtz be permitted to retain their control of Madison Square Garden and the latter be enjoined from promoting championship boxing events. But this would have eliminated the world's principal boxing center 'the premier sports arena in the world,' as appellants characterized it—from promoting such events in competition with Norris and Wirtz.
37
In short, the Government in its effort to free the professional boxing business of monopoly and unreasonable restraints would have won the battle but lost the war under either of the proffered alternatives. As this Court said in United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 189—190, 65 S.Ct. 254, 262, 89 L.Ed. 160.
38
'Common control was one of the instruments in bringing about unity of purpose and unity of action and in making the conspiracy effective. If that affiliation continues, there will be tempting opportunity * * * to act in combination * * *. The procivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in the future.'
39
The Dissolution of the Two International Boxing Clubs.
40
Admittedly these corporations were formed pursuant to and were the means used to effectuate the conspiracy. As the trial judge said:
41
'These corporations are the promotional arms of the defendants, conceived and used to enable defendants to restrain and monopolize promotion of championship boxing contests. Their assets are of but nominal value except for the goodwill attaching to their names by virtue of the conspiracy.'
42
The conditions existing here even subsequent to our former opinion confirm the need for such dissolution. Both corporations continued to share equally the profits the combination reaped from the staging of championship boxing contests. This also included revenues from championship contests promoted by others but televised by the combination. They continue even now as the bridge between the choice arenas Norris and Wirtz own or control and the boxers with whom they have exclusive promotion contracts. Through interlocking officers and directorates the two I.B.C.'s thus effectively hold the combination together. It is antitrust policy to decree dissolution 'where the creation of the combination is itself the violation.' United States v. Crescent Amusement Co., supra, 323 U.S. at page 189, 65 S.Ct. at page 262, and cases there cited. This is one of those situations where the injunctive process affords too little relief too late.
43
Appellants argue that this is punitive; that the parent companies, under the decree, are left free to organize new corporations to handle their respective boxing promotions and hence dissolution is a useless act. The trial court felt, however, and we agree, that continued operation under the old I.B.C. charters might lead to a situation nominis umbra not conducive to the elimination of the old illegal practices. New corporations, if formed, would start off with clean slates free from numerous written and oral agreements and understandings now existent and known throughout the industry. Hence dissolution might well have the salutary effect of completely clearing new horizons that the trial judge was attempting to create in the boxing world, especially when effected in conjunction with the stock divestiture provision. Moreover, there would be little inconvenience and nominal expense even if, as appellants contend, they 'as a practical matter must (form new corporations) if they are to promote any boxing at all.' This we think a poor excuse for not completely eliminating, by dissolution, these old trappings of monopoly and restraint.
44
The Compulsory Leasing Provisions.
45
The District Court, having found that one of the means used in effectuating the conspiracy was the ownership and control of arenas and stadia, entered a compulsory leasing provision in the decree as to Madison Square Garden and the Chicago Stadium Corporation.10
46
The appellants' main concern with this provision of the decree is the requirement that in the event the terms of a lease cannot be agreed upon the matter will be submitted to the District Court. Appellants fear that this is not only an undesirable but an impractical activity for a District Court. But they have suggested no alternative to relieve the court of this burden. Obviously, such a provision may result in some disputes which must be settled. Until experience in the enforcement of the provision proves the reference to be too burdensome we see no reason to disturb it. If experience proves it unworkable the parties, under the decree, may apply to the court for appropriate relief. See Lorain Journal Co. v. United States, 1951, 342 U.S. 143, 156—157, 72 S.Ct. 181, 187—188, 96 L.Ed. 162; International Salt Co. v. United States, supra, 332 U.S. at page 401, 68 S.Ct. at page 17.
47
Exclusive Contracts With Contestants.
48
Appellants object to the prohibition against exclusive contracts applying to all professional boxing contests. They question the Government's enlarging its base from championship bouts to all professional boxing. But human nature being what it is there is sound reason to say that exclusive contracts with boxers in nontitle contests would surely affect those same boxers when and if they arrive at the title. Such arrangements would give appellants, so experienced in the boxing field, a decided advantage over the independent promoter. Such a prohibition is fully justified at least until the effects of the conspiracy are fully dissipated. For the same reason we see no fault in the five-year prohibition against exclusive rights to a return bout.
49
The trial court recognized that these restrictions went beyond the 'relevant market' which has been considered for purposes of determining the Sherman Act violations, but felt that '(t)he relief here must be broader than the championship field because the evil to be remedied is broader.' This Court has recognized that sometimes 'relief, to be effective, must go beyond the narrow limits of the proven violation.' United States v. United States Gypsum Co., supra, 340 U.S. at page 90, 71 S.Ct. at page 170; Timken Roller Bearing Co. v. United States, 1951, 341 U.S. 593, 600, 71 S.Ct. 971, 975, 95 L.Ed. 1199. When this sort of relief is granted, we must of course be especially wary lest the trial court overstep the correspondingly narrower limits of its discretion, but, for the reasons set out above, we feel that no such misuse of the trial court's power is present here.
50
We have considered the other objections of appellants to the decree and find them unsubstantial as presently posed. In the event experience proves that some of the provisions are so severe as to require modification or amendment, the parties may apply to the District Court as provided in paragraph 25 of the decree. The judgment should be affirmed. It is so ordered.
51
Judgment affirmed.
52
Mr. Justice STEWART took no part in the consideration or decision of this case.
53
Mr. Justice FRANKFURTER, dissenting in part.
54
While I have heretofore expressed views in favor of the almost controlling deference to be paid to a District Court's considered formulation of the provisions appropriate to a decree designed to remedy adjudicated violations of the antitrust laws, those views have not prevailed, see the opinions in United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, and this Court has felt free to modify and eliminate provisions of an antitrust decree, particularly when a single judge has imposed an unconventional and drastic remedy. The main issue dealt with in Mr. Justice HARLAN'S dissent, while a narrow one, is, in my view, important. While divestiture has been decreed by the district judge, the mandatory disposition of the stock has been delayed for five years, and the stock placed in trusteeship. During this five-year period a series of detailed controls have been imposed, under the supervision of the District Court, in order to prevent appellants Norris and Wirtz from exercising the power their stock ownership has given them over the operations of Madison Square Garden. The ownership itself has been sterilized. I think it not an unreasonable forecast that, even were we to postpone for five years the decision whether to order the divestiture or continue the trusteeship, appellants Norris and Wirtz would not find it profitable to continue their sterilized ownership of the Garden stock. However, there is no compelling reason to order them to do what sound business judgment may compel. One has the right to assume that, in view of this Court's unanimous affirmance of the findings below that appellants were in violation of the Sherman Law, they will scrupulously obey the decree and not even by the subtlest indirection seek to avoid our decision. Therefore I think it is needless now to determine that divestiture must take place five years hence, rather than wait upon the event in order to determine whether divestiture should then be ordered.
55
Accordingly, I join Mr. Justice HARLAN'S opinion.
56
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting in part.
57
I am unable to subscribe to the Court's approval of those parts of the decree below which ordered (1) the divestiture of the stockholdings of Norris and Wirtz in Madison Square Garden Corporation and (2) the dissolution of the New York and Illinois International Boxing Clubs. On the other aspects of the case I agree with the results the Court has reached.
58
Divestiture.
59
As a starting point I accept the conclusion of the District Court that competition in the promotion and exhibition of professional championship boxing could not be effectively restored so long as Norris and Wirtz remained in control of Madison Square Garden's activities in this field. Because of the pre-eminence of the Garden as a site for boxing contests, the District Court found that its control by Norris and Wirtz constituted the fulcrum of the antitrust violations which were adjudged. That finding is supported by the evidence, and in turn justifies the court's conclusion that the elimination of their influence in the Garden was prerequisite to restoring competition.
60
It by no means follows, however, that the order divesting Norris and Wirtz of their Garden stockholdings was an appropriate method of accomplishing that objective in the circumstances of this case. Unless past pronouncements of this Court cautioning against the indiscriminate use of divestiture as a remedy in antitrust cases, see Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199, are to be taken less seriously than theyshould be, it seems to me that the Court has too lightly given approval to the use of that drastic measure here.
61
First. It is not at all clear to me just why the District Court, which in the early stages of the hearings on relief expressed itself strongly against divestiture, ultimately reached the conclusion that such a course was necessary. Indeed the record can be read as indicating the court's belief that the five-year trusteeship of the stock, though designed to alleviate some of the hardships of a forced sale, would at the same time effectively remove Norris and Wirtz from control over the Garden's affairs and therefore in conjunction with the other provisions of the decree result in restoring competitive conditions, whether or not the correlative requirement of sale was carried out within the five-year period.1 The decree itself supports this reading. For despite the evident realization that the stock might not be sold within five years, the provisions of the decree especially aimed at opening up competition for the use of the Garden are all geared to this period. If in fact the District Court thought this five-year insulation of Norris and Wirtz from managerial and policy-making activities at the Garden would combine with the other restrictions to restore competition, justification for divestiture must then be found in a purpose to prevent a relapse into noncompetitive conditions after the five years have elapsed, something which the District Court quite properly considered to be a function of the decree. On this premise I am at a loss to see why continuance of the trusteeship, and, if necessary, the concomitant restrictions of the Garden's activities, should not have been considered adequate to serve that end.
62
Second. If I am mistaken in thus divining the thinking of the District Court, I still consider that in the circumstances of this case divestiture was at least ordered prematurely. Determination whether that drastic remedy was required should have been postponed until the expiration of the trusteeship period so that the necessity for its application could then be judged in light of the effectiveness of the other sanctions of the decree. I recognize that various contingencies can be conjured up to support the view that divestiture, rather than trusteeship, holds the more solid promise of assuring the preservation of competition. Nevertheless I think that rejection of a continuance of the trusteeship in favor of divestiture should, in the peculiar setting of this case, be based on experience rather than speculative apprehension.
63
Three factors seem to me especially compelling toward such a course. In the first place, this cannot properly be considered a case of reprehensible immoral conduct or willful lawbreaking.2 Not until January 31, 1955, when this Court handed down its opinion in United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290, did it become known that professional boxing was even subject to the federal antitrust laws. In view of this Court's earlier decisions in the baseball cases, Federal Baseball Club of Baltimore v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, and Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 412, I think it reasonable to say that in 1949 when this alleged conspiracy began most well-informed lawyers believed that professional boxing, like professional baseball, was beyond antitrust stricture. Hence the appellants had every reason to believe their actions were innocent when taken. Putting the matter somewhat differently, we should be slow in lending approval to the use of such a drastic remedy as this in a case where the appellants have never had the opportunity to demonstrate their willingness to comply with the law once they have learned that it applies to their activities. In my opinion, the thrust of this factor is not blunted by arguing, as the Court does, that appellants should voluntarily have done something to unscramble their relationships during the two and a half years that elapsed between the Court's decision in the original International Boxing case and the entry of the present decree. That sort of squeeze play should not be expected of those already involved in a lawsuit.
64
Further, divestiture here is brought to bear upon a large investment much of which was acquired long before the conduct charged in this case began, and the balance of which was obtained prior to the announcement of the International Boxing decision. The 'unlawful fruits' doctrine accordingly offers no justification for this divestiture. Although recognizing this to be true, the Court states that the Garden stock was nonetheless utilized as means of accomplishing the antitrust violations. But this is just another way of saying that divestiture is a necessary element of effective relief; it affords no independent justification for the employment of that remedy.
65
Lastly, the divestiture order reaches far beyond the subject matter of the action. It permanently removes Norris and Wirtz from all interest in the Garden, over 90% of whose activities are entirely unrelated to professional boxing.
66
Third. It is true, of course, that the trial court's considered judgment on what is necessary to dissipate the effects and prevent recurrence of an adjudged antitrust violation is entitled to much deference from this Court. But by the same token this Court, before it is asked to put its stamp of approval on such a drastic remedy as divestiture, is entitled to have a clear and unambiguous expression of the district court's reasoning in choosing such a course. Especially is this so where, as here, this Court is the sole reviewing authority and in consequence has not had the benefit of an intermediate review of the issues by a Court of Appeals. In my opinion this record leaves much to be desired in this regard. The most I can make of it, taking the case for divestiture most favorably to the Government, is that the District Court would have been justified in reserving that issue for consideration at the time the five-year trusteeship of the Norris and Wirtz stock expired. Certainly no adequate case for a present order of divestiture has been made out. In this view of the matter it becomes unnecessary to discuss at this time the various 'options' alternative to divestiture which were rejected by the District Court.
67
Dissolution.
68
I can find no adequate basis for the order dissolving the two International Boxing Clubs. My difficulty with this aspect of the relief is sufficiently shown by the fact that, as I read the record, it would be permissible for Madison Square Garden and the Norris and Wirtz interests in Chicago to create new corporations carrying exactly the same name as the two present organizations. The only justification offered by the Government for this aspect of the decree is that the two clubs were instrumentalities of the antitrust conspiracy and that their dissolution was but an expedient for insuring that all of their illegal agreements had been put to an end. But since all such agreements, both written and oral, are already canceled by other provisions of the decree, and since there is no suggestion that the sweeping relief granted by the District Court has any loopholes which would permit these organizations to function improperly, this justification is hardly convincing. In these circumstances disslution appears to me to be not only punitive but futile, something not promotive of sound antitrust law enforcement.
69
I would remand the case to the District Court with instructions to modify its decree by striking the provisions for compulsory sale of the Norris and Wirtz stock in the Madison Square Garden Corporation, reserving the issue of divestiture for further proceedings at the end of the five-year trusteeship period, and eliminating the requirement of dissolution of the two International Boxing Clubs.
1
15 U.S.C. § 1 et seq., 15 U.S.C.A. § 1 et seq.
2
Ezzard Charles, Joe Walcott, Lee Savold, and Gus Lesnevich.
3
The importance of Madison Square Garden in the present context is shown by the fact that of all the championship contests staged during the 12 years immediately preceding 1949, 45% were held in New York City, of which 75% were in Madison Square Garden. The balance of the New York championship bouts, with one exception, were held in Yankee Stadium, the Polo Grounds, or St. Nicholas Arena.
4
Between 1937( and 1948, 50% of all championship contests were staged in either Madison Square Garden, Yankee Stadium, the Polo Grounds, St. Nicholas Arena, Chicago Stadium, Detroit Olympia Arena, or the St. Louis Arena.
5
At the time the I.B.C.'s were formed, Joe Louis owned 20% of the stock of each and the other 80% was spit evenly between Norris and Wirtz on one hand and Madison Square Garden on the other. At some point thereafter, Louis ceased to be a stockholder and his share was split evenly between Norris-Wirtz and Madison Square Garden. At the time of the final decree, apparently as the result of an effort to make a showing of separateness of control, the Norris-Wirtz interests owned all of the stock in I.B.C., Illinois, and Madison Square Garden owned all of the stock in I.B.C., New York. The trial court found that the two interests nevertheless still shared equally in the combined profits of both I.B.C.'s.
6
According to the District Court, the 'Nielsen Average Audience rating is a percentage which purports to show the number of residential television sets that were tuned in to the program expressed as a percentage of the total residential television sets, whether turned off or on, which were in areas into which the program was telecast.' (150 F.Supp. 407)
7
Approximately 25% of the revenue produced by the appellants' championship fights during the period covered by the complaint was derived through the sale of radio, television and motion picture rights.
8
By analogy, it bears those sufficiently 'peculiar characteristics' found in automobile fabrics and finishes such as to bring them within the Clayton Act's 'line of commerce.' United States v. E. I. Du Pont De Nemours & Co., 1957, 353 U.S. 586, 593 595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057.
9
Norris and Wirtz were given five years to sell their stock in Madison Square Garden, which stock is listed on the New York Stock Exchange. During this time, the stock is to be held by two trustees named by the court. If the stock is not sold within five years, the trustees are ordered to sell it within the next two years.
10
This provision of the decree, applying only to championship contests, ordered appellants to lease their respective buildings upon seasonable written request by a qualified promoter, if the proposed rent is reasonable, if the applicant furnishes adequate security, and if at the time of the application the building is neither already under lease to another for the specified day nor in conflict at that time with 'any well-established event' which has been regularly conducted therein. If the parties cannot agree on what constitutes adequate security or a reasonable rental, either party may apply to the court for a determination thereof.
1
Apart from its divestiture and dissolution provisions, the decree imposes wide-ranging and pervasive restrictions on appellants' activities in boxing promotion and exhibition. It renders void all exclusive contracts which they may presently have with boxers. It prohibits the making of new exclusive contracts, with the exception that, after five years, exclusive provision may be made for return bouts. Similarly, exclusive leases with stadia not owned by appellants are proscribed. So, too, are such arrangements with television and radio broadcasters. Further, appellants are restrained, for a period of five years, from promoting more than four championship boxing programs annually, two by Madison Square Garden and two, cumulatively, by Norris and Wirtz. During that five-year period also, the compulsory leasing provisions discussed in the Court's opinion are to be in effect. Finally, the decree removes Norris and Wirtz as officers and directors of Madison Square Garden, and enjoins them from holding such positions in the future.
2
The District Court put the matter in this way: 'I don't charge them (Norris and Wirtz) with malicious intentional and moral wrongdoing, nor do I proceed to formulate the decree on such a basis. They are guilty, if anything, of a moral, prohibitive wrong, which was in doubt as to whether it was even prohibitive at the time some of these acts were done, and serious doubt, but most people held it was not.'
| 78
|
358 U.S. 224
79 S.Ct. 274
3 L.Ed.2d 257
TERRITORY OF ALASKA, Petitioner,v.AMERICAN CAN COMPANY, Fidalgo Island Packing Company, Libby, McNeill & Libby, Inc., et al.
No. 40.
Argued Dec. 9, 1958.
Decided Jan. 12, 1959.
Mr. J. Gerald Williams, Juneau, Alaska, for the petitioner.
Mr. W. C. Arnold for the respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Alaska, while a Territory, enacted a law which levied a tax at the rate of 1 percent on all real and personal property.
2
L.1949, c. 10, § 3. The tax was challenged in litigation without success.1 Some paid the tax voluntarily; others became delinquent. In 1953 the tax statute was repealed. L.1953, c. 22. Thereafter petitioner instituted the present suits to collect taxes owing for the years 1949 to 1952, inclusive. The District Court granted a motion to dismiss, holding that no liability for these taxes had survived the repeal. D.C., 137 F.Supp. 181. The Court of Appeals affirmed. 9 Cir., 246 F.2d 493. The case is here by a petition for writ of certiorari which was granted in view of the fiscal importance of the question to Alaska. 356 U.S. 926, 78 S.Ct. 717, 2 L.Ed.2d 758.
3
Alaska has a general law, saving rights accrued under a statute that is repealed.2 The lower courts, however, held that this case was governed not by that provision but by § 2(a) of the repealing Act which reads as follows:
4
'Section 1 of this Act3 shall not be applicable to:
5
'(a) any taxes which have been levied and assessed by any municipality, school or public utility district under the provisions of Chapter 10, Session Laws of Alaska 1949, as amended, or which are levied and assessed during the current fiscal year of such municipality, school or public utility district'.
6
It was held that this specific enactment qualifies the general repeal law and that the purpose of the 1953 Act was to wipe out any and all liabilities to pay taxes under the repealed law that had accrued prior to the date of repeal. Support for that conclusion was found in the title of the 1953 Act which includes the words 'excepting from repeal certain taxes,' no qualifications whatsoever being indicated.
7
We take a different view. Section 2(a) of the 1953 Act, as we read it, has nothing to do with any taxes other than those payable to a municipality, a school or public utility district, none of which is here involved. If it had done no more than save all accrued taxes in those categories, the case would be in quite a different posture. Section 2(a), however, does not do that. It was protective of municipal, school, or public utility taxes in a much broader way. It saved first, those taxes that had been 'levied and assessed' and second, those to be 'levied and assessed during the current fiscal year.' This was to make sure, as the dissent below said, that municipalities and school and public utility districts (though not the Territory itself) would have the right to levy and collect the old taxes for the current year 1953, whether before or after the repealing Act had taken effect. So construed, § 2(a) carves no exception from the general saving statute and does not interfere with the collection of unpaid taxes which accrued prior to repeal.
8
We are reinforced in this conclusion by the legislative history of the bill4 that became the repealing Act, a history of which we take judicial notice. See United States v. American Trucking Ass'ns, 310 U.S. 534, 547, 60 S.Ct. 1059, 84 L.Ed. 1345. And see Wigmore on Evidence (3d ed. 1940) § 2577. The bill as introduced 'cancelled, repealed and abrogated, and declared null and void' 'all accrued and unpaid taxes' under the 1949 Act. That provision was deleted, however, by a House Committee, and it never became part of the law. The bill passed the House without it. The present § 2(a) was added in the Senate; and the House agreed. If we adopted the construction taken below, we would be reading into the Act by implication what the Legislature seemingly rejected.
9
The judgment of the Court of Appeals is reversed and, as there are other questions which were raised by the appeal (9 Cir., 246 F.2d 493, 495) but not reached by that court, the cause is remanded to it for proceedings in conformity with this opinion. It is so ordered.
10
Judgment of Court of Appeals reversed and cause remanded with directions.
11
Mr. Justice FRANKFURTER and Mr. Justice HARLAN took no part in the consideration or decision of this case.
1
See Mullaney v. Hess, 9 Cir., 189 F.2d 417; Hess v. Mullaney, 9 Cir., 213 F.2d 635.
2
Alaska Comp.L.Ann.1949, § 19—1—1, reads as follows:
'The repeal or amendment of any statute shall not affect any offense committted or any act done or right accruing or accrued or any action or proceeding had or commenced prior to such repeal or amendment; nor shall any penalty, forfeiture or liability incurred under such statute be released or extinguished, but the same may be enforced, continued, sustained, prosecuted and punished under the repealing or amendatory statute save as limited by the ex post facto and other provisions of the Constitution, in which event the same may be enforced, continued, sustained, prosecuted and punished under the former law as if such repeal or amendment had not been made.'
3
Section 1 of the 1953 Act provides:
'That Chapter 10, Session Laws of Alaska, 1949, as amended by Chapter 88, Session Laws of Alaska, 1949, be and it is hereby repealed.'
4
We refer to the Alaska House and Senate Journals and to the original bill as introduced in the House which is on file with the Secretary of Alaska, a copy being certified by him.
| 78
|
358 U.S. 228
79 S.Ct. 276
3 L.Ed.2d 260
John LEE, Petitioner,v.Paul J. MADIGAN, Warden, Federal Penitentiary, Alcatraz, California.
No. 42.
Argued Dec. 9, 10, 1958.
Decided Jan. 12, 1959.
Messrs. Carl L. Rhoads, Ecorse, Mich., and Robert E. Hannon, Castro Valley, Cal., for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Article of War 92, 10 U.S.C. (1946 ed., Supp. IV) § 1564, which, prior to the adoption of the Uniform Code of Military Justice,1 governed trials for murder or rape before courts-martial,2 contained a proviso 'That no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.'
2
The question for decision concerns the meaning of the words 'in time of peace' in the context of Article 92.
3
Petitioner, while serving with the United States Army in France, was convicted by a court-martial, dishonorably discharged, and sentenced to prison for 20 years. He was serving that sentence in the custody of the Army at Camp Cooke, California, when he was convicted by a court-martial of the crime of conspiracy to commit murder. This offense occurred on June 10, 1949, at Camp Cooke. The question is whether June 10, 1949, was 'in time of peace' as the term was used in the 92d Article. The question was raised by a petition for a writ of habeas corpus challenging the jurisdiction of the court-martial. Both the District Court (148 F.Supp. 23) and the Court of Appeals (248 F.2d 783) ruled against petitioner. We granted certiorari, 356 U.S. 911, 78 S.Ct. 672, 2 L.Ed.2d 585.
4
The Germans surrendered on May 8, 1945 (59 Stat. 1857), the Japanese on September 2, 1945 (59 Stat. 1733). The President on December 31, 1946, proclaimed the cessation of hostilities, adding that 'a state of war still exists.' 61 Stat. 1048, 50 U.S.C.A.Appendix, § 601 note. In 1947, Senate Joint Resolution 123 was passed (61 Stat. 449) which terminated, inter alia, several provisions of the Articles of War3 but did not mention Article 92. The war with Germany terminated October 19, 1951, by a Joint Resolution of Congress (65 Stat. 451, 50 U.S.C.A.Appendix, note preceding section 1) and a Presidential Proclamation (66 Stat. c3, 50 U.S.C.A.Appendix, note preceding section 1). And on April 28, 1952, the formal declaration of peace and termination of war with Japan was proclaimed by the President (66 Stat. c31, 50 U.S.C.A.Appendix, note preceding section 1), that being the effective date of the Japanese Peace Treaty. Since June 10, 1949 the critical date involved here—preceded these latter dates, and since no previous action by the political branches of our Government had specifically lifted Article 92 from the 'state of war' category, it is argued that we were not then 'in time of peace' for the purposes of Article 92. That argument gains support from a dictum in Kahn v. Anderson, 255 U.S. 1, 9—10, 41 S.Ct. 224, 226, 65 L.Ed. 469, that the term 'in time of peace' as used in Article 92 'signifies peace in the complete sense, officially declared.' Of like tenor are generalized statements that the termination of a 'state of war' is 'a political act' of the other branches of Government, not the Judiciary. See Ludecke v. Watkins, 335 U.S. 160, 169, 68 S.Ct. 1429, 1433, 92 L.Ed. 1881. We do not think that either of those authorities is dispositive of the present controversy. A more particularized and discriminating analysis must be made. We deal with a term that must be construed in light of the precise facts of each case and the impact of the particular statute involved. Congress in drafting laws may decide that the Nation may be 'at war' for one purpose, and 'at peace' for another. It may use the same words broadly in one context, narrowly in another. The problem of judicial interpretation is to determine whether 'in the sense of this law' peace had arrived. United States v. Anderson, 9 Wall. 56, 69, 19 L.Ed. 615. Only mischief can result if those terms are given one meaning regardless of the statutory context.
5
In the Kahn case, the offense was committed on July 29, 1918, and the trial started November 4, 1918—both dates being before the Armistice.4 It is, therefore, clear that the offense was not committed 'in time of peace.' Moreover, a military tribunal whose jurisdiction over a case attaches in a time of actual was does not lose jurisdiction because hostilities cease. Once a military court acquires jurisdiction that jurisdiction continues until the end of the trial and the imposition of the sentence. See Carter v. McClaughry, 183 U.S. 365, 383, 22 S.Ct. 181, 188, 46 L.Ed. 236. The broad comments of the Court in the Kahn case on the meaning of the term 'in time of peace' as used in Article 92 were therefore, quite unnecessary for the decision.
6
Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881, belongs in a special category of cases dealing with the power of the Executive or the Congress to deal with the aftermath of problems which a state of war brings and which a cessation of hostilities does not necessarily dispel. That case concerns the power of the President to remove an alien enemy after hostilities have ended but before the political branches have declared the state of war ended. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 107, 64 L.Ed. 194, involves the constitutionality under the war power of a prohibition law passed in 1918, 40 Stat. 1045, after the armistice with Germany was signed and to be operative 'until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States.' Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596, concerns the constitutionality of control of housing rentals promulgated after hostilities were ended and before peace was formally declared. These cases deal with the reach of the war power, as a source of regulatory authority over national affairs, in the aftermath of hostilities. The earlier case of McElrath v. United States, 102 U.S. 426, 26 L.Ed. 189, is likewise irrelevant to our problem. It was a suit for back pay by an officer, the outcome of which turned on a statute which allowed dismissal of an officer from the service 'in time of peace' only by court-martial. The President had made the dismissal; and the Court held that such action, being before August 20, 1866, when the Presidential Proclamation announced the end of the rebellion and the existence of peace, was lawful, since there was extrinsic evidence that Congress did not intend the statute to be effective until the date of the Proclamation.
7
Our problem is not controlled by those cases. We deal with the term 'in time of peace' in the setting of a grant of power to military tribunals to try people for capital offenses. Did Congress design a broad or a narrow grant of authority? Is the authority of a court-martial to try a soldier for a civil crime, such as murder or rape, to be generously or strictly construed? Cf. Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688.
8
We do not write on a clean slate. The attitude of a free society toward the jurisdiction of military tribunals—our reluctance to give them authority to try people for nonmilitary offenses—has a long history.
9
We reviewed both British and American history, touching on this point, in Reid v. Covert, 354 U.S. 1, 23—30, 77 S.Ct. 1222, 1233—1237, 1 L.Ed.2d 1148. We pointed out the great alarms sounded when James II authorized the trial of soldiers for nonmilitary crimes and the American protests that mounted when British courts-martial impinged on the domain of civil courts in this country. The views of Blackstone on military jurisdiction became deeply imbedded in our thinking: 'The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land.' 1 Blackstone's Commentaries 413. And see Hale, History and Analysis of the Common Law of England (1st ed. 1713), 40—41. We spoke in that tradition in United States ex rel. Toth v. Quarles, 350 U.S. 11, 22, 76 S.Ct. 1, 8, 100 L.Ed. 8, 'Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.'
10
The power to try soldiers for the capital crimes of murder and rape was long withheld. Not until 1863 was authority granted. 12 Stat. 736. And then it was restricted to times of 'war, insurrection, or rebellion.'5 The theory was that the civil courts, being open, were wholly qualified to handle these cases. As Col. William Winthrop wrote in Military Law and Precedents (2d ed. 1920) 667, about this 1863 law:
11
'Its main object evidently was to provide for the punishment of these crimes in localities where, in consequence of military occupation, or the prevalence of martial law, the action of the civil courts is suspended, or their authority can not be exercised with the promptitude and efficiency required by the exigencies of the period and the necessities of military government.'
12
Civil courts were, indeed, thought to be better qualified than military tribunals to try nonmilitary offenses. They have a more deeply engrained judicial attitude, a more thorough indoctrination in the procedural safeguards necessary for a fair trial. Moreover, important constitutional guarantees come into play once the citizen—whether soldier or civilian—is charged with a capital crime such as murder or rape. The most significant of these is the right to trial by jury, one of the most important safeguards against tyranny which our law has designed.6 We must assume that the Congress, as well as the courts, was alive to the importance of those constitutional guarantees when it gave Article 92 its particular phrasing. Statutory language is construed to conform as near as may be to traditional guarantees that protect the rights of the citizen. See Ex parte Endo, 323 U.S. 283, 301—304, 65 S.Ct. 208, 218, 219, 89 L.Ed. 243; Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140; Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204. We will attribute to Congress a purpose to guard jealously against the dilution of the liberties of the citizen that would result if the jurisdiction of military tribunals were enlarged at the expense of civil courts. General Enoch H. Crowder, Judge Advocate General, in testifying in favor of the forerunner of the present proviso of Article 92, spoke of the protection it extended the officer and soldier by securing them 'a trial by their peers.'7 We think the proviso should be read generously to achieve that end.
13
We refused in Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688, to construe 'martial law,' as used in an Act of Congress, broadly so as to supplant all civilian laws and to substitute military for judicial trials of civilians not charged with violations of the law of war. We imputed to Congress an attitude that was more consonant with our traditions of civil liberties. We approach the analysis of the term 'in time of peace' as used in Article 92 in the same manner. Whatever may have been the plan of a later Congress in continuing some controls long after hostilities ceased,8 we cannot readily assume that the earlier Congress used 'in time of peace' in Article 92 to deny soldiers or civilians the benefit of jury trials for capital offenses four years after all hostilities had ceased. To hold otherwise would be to make substantial rights turn on a fiction. We will not presume that Congress used the words 'in time of peace' in that sense. The meaning attributed to them is at war with common sense, destructive of civil rights, and unnecessary for realization of the balanced scheme promulgated by the Articles of War. We hold that June 10, 1949, was 'in time of peace' as those words were used in Article 92. This conclusion makes it unnecessary for us to consider the other questions presented, including the constitutional issues which have been much mooted.
14
Reversed.
15
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
16
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
17
The Court today holds that on June 10, 1949, the date of this capital offense, this country was 'in time of peace' within the meaning of Article of War 92, 10 U.S.C. (1946 ed., Supp. IV) § 1564, and therefore that the court-martial before which petitioner was tried was without statutory jurisdiction to entertain the proceeding. Believing that the ground upon which the Court nullifies petitioner's conviction has long been settled squarely to the contrary, and that a de novo examination of the question also requires the conclusion that the United States, on June 10, 1949, was not 'in time of peace' within the meaning of Article 92, I respectfully dissent.
18
In Kahn v. Anderson, 255 U.S. 1, 10, 41 S.Ct. 224, 226, 65 L.Ed. 469, this Court unanimously held that the term 'in time of peace' in Article 92 'signifies peace in the complete sense, officially declared.' See also Givens v. Zerbst, 255 U.S. 11, 21, 41 S.Ct. 227, 229, 65 L.Ed. 475. The Court now dismisses this square holding as 'dictum' and as 'quite unnecessary for the decision,' pointing out that the statement of facts in Kahn shows that the capital offense for which petitioner there was tried was committed before the Armistice which resulted in the termination of active hostilities in World War I, and that the court-martial which tried him was also convened before the Armistice. I think that Kahn can hardly be dismissed so lightly. The conclusion there as to the meaning of 'in time of peace' might have been regarded as unnecessary to decision only had the Court, proceeding on a theory entirely different from that which it actually adopted, relied on the date of the offense or of the beginning of trial as dispositive. But plainly the Court did not proceed on any such basis. Rather, it accepted at least arguendo petitioner's contention that the court-martial which had tried him did not have jurisdiction to continue 'in time of peace' even a trial previously begun. It is thus not sound to say that the holding that 'peace' in Article 92 'signifies peace in the complete sense, officially declared,' was unnecessary to the decision in Kahn. Given the ground upon which the Court chose to decide the case it was quite indispensable. The idea that the ground on which a court actually decides a case becomes dictum because the case might have been decided on another ground is novel doctrine to me.
19
I think that Congress, and the military authorities charged with the implementation and enforcement of the Articles of War, should be able to rely on a construction given one of those Articles by a unanimous decision of this Court. The conclusion in Kahn was not reached lightly without full consideration, as is shown by the fact that nearly two pages of the summary of counsels' argument contained in the report of the case are devoted to a discussion of the question, and another two pages to the Court's expression of the reasoning underlying its decision on the point. In 1948, 27 years after Kahn and a single year before the prosecution here involved, Congress reenacted Article 92 without change in the relevant language. The Court now holds that between 1921 and 1949 the meaning of the statute underwent an inexplicable change, and that the authority under the statute then confirmed must now be denied. I see no warrant for thus speculating anew as to the motives of Congress in enacting and re-enacting the phrase 'in time of peace' in Article 92.1
20
Entirely apart from Kahn, I think today's decision is demonstrably wrong. This Court has consistently for nearly 100 years recognized, in many contexts, that a cessation of active hostilities does not denote the end of 'war' or the beginning of 'peace' as those or similar terms have been used from time to time by Congress in legislation. In McElrath v. United States, 102 U.S. 426, 26 L.Ed. 189, there was before the Court a statute of Congress prohibiting summary dismissal by the President of military officers 'in time of peace.' Although I venture to say that almost as many reasons could be conjured up for construing the term loosely in that context as in that now before us, the Court unanimously held that July 1866 was not 'in time of peace' although active hostilities between North and South had long since ceased, and that 'peace, in contemplation of law' did not exist until the Presidential Proclamation of August 20, 1866. See also United States v. Anderson, 9 Wall. 56, 19 L.Ed. 615. In Ludecke v. Watkins, 335 U.S. 160, 168—169, 68 S.Ct. 1429, 1433, 92 L.Ed. 1881, this Court in construing a statute recognized that "The state of war' may be terminated by treaty or legislation or Presidential proclamation. Whatever the mode, its termination is a political act.' See also Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, both expressly recognizing that the state of war between this country and the Axis powers was not terminated by either the Presidential Proclamation of 1946 or the Joint Resolution of July 1947.
21
The Court says that 'Congress in drafting laws may decide that the Nation may be 'at war' for one purpose, and 'at peace' for another.' Of course it may. But the Court points to no case, and I know of none, which has construed statutory language similar to that found in Article 92 to mean anything but 'peace in the complete sense, officially declared.' Under these circumstances, and given McElrath and Kahn, the conclusion seems to me unmistakable that Congress intended that 'peace' in Article 92 means what we have always, until today, held it meant in this and other congressional legislation. When Congress has wished to define 'war' or 'peace' in particular statutes as meaning something else, it has explicitly done so. See, e.g., War Brides Act, 59 Stat. 659: 'For the purpose of this Act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress.'
22
Today's decision casts a cloud upon the meaning of all federal legislation the impact of which depends upon the existence of 'peace' or 'war.' Hitherto legislation of this sort has been construed according to well-defined principles, the Court looking to 'treaty or legislation or Presidential proclamation,' Ludecke v. Watkins, 335 US. at page 168, 68 S.Ct. at page 1433, to ascertain whether a 'state of war' exists. The Court, in an effort to make a 'more particularized and discriminating analysis,' has apparently jettisoned these principles. It is far from clear to me just what has taken their place.2
23
The Court does not reach petitioner's contention that he could not constitutionally be tried by court-martial because he was not a member of the armed forces at the time this offense was committed. It is sufficient to say that this contention is also squarely foreclosed by Kahn v. Anderson, supra, and that in my opinion nothing in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, or in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, impairs the authority of Kahn on this score.
24
I would affirm.
1
64 Stat. 108, 70A Stat. 36, 10 U.S.C. (Supp. V) § 801 et seq., 10 U.S.C.A. § 801 et seq., enacted May 5, 1950. For the present provisions governing murder and rape see Articles 118, 120.
2
Article 92 read as follows:
'Any person subject to military law found guilty of murder shall suffer death or imprisonment for life, as a court-martial may direct; but if found guilty of murder not premeditated, he shall be punished as a court-martial may direct. Any person subject to military law who is found guilty of rape shall suffer death or such other punishment as a court-martial may direct: Provided, That no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.'
3
See H.R.Rep. No. 2682, 79th Cong., 2d Sess.; H.R.Rep. No. 799, 80th Cong., 1st Sess.; S.Rep. No. 339, 80th Cong., 1st Sess.
4
In Givens v. Zerbst, 255 U.S. 11, 41, S.Ct. 227, 65 L.Ed. 475, a companion case to the Kahn case, the crime was committed on September 28, 1918, and the court-martial convened on October 30, 1918.
5
Prior to that time only state courts could try a soldier for murder or rape. Coleman v. Tennessee, 97 U.S. 509, 514, 24 L.Ed. 1118. And that Act was construed as not giving the military exclusive jurisdiction.
'With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect.' Id.
6
We said in United States ex rel. Toth v. Quarles, supra, 350 U.S. at pages 17—19, 76 S.Ct. at page 5:
'* * * there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.
'Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions, and habits. Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field. On many occasions, fully known to the Founders of this country, jurors plain people—have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices. The acquittal of William Penn is an illustrious example. Unfortunately, instances could also be cited where jurors have themselves betrayed the cause of justice by verdicts based on prejudice or pressures. In such circumstances independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.'
7
See S.Rep. No. 130, 64th Cong., 1st Sess., p. 88.
General Crowder was opposed to a proposal of the General Staff that capital crimes even when committed in this country be tried by court-martial as well as by civil courts. He said, 'We never have had that law, and I doubt very much whether it is desirable to divorce the Army to that extent from accountability in the civil courts. . . . I think that here in the United States proper the Army should be under the same accountability as civilians for capital crimes.' Id., at 32.
8
The method employed by the Executive and the Congress in terminating wartime controls was different at the end of World War II than it was when World War I terminated. In the earlier war most of the legislation dependent on the existence of a state of war was terminated at one time. See Joint Resolution March 3, 1921, 41 Stat. 1359, H.R.Rep. No. 1111, 66th Cong., 3d Sess.; S.Rep. No. 706, 66th Cong., 3d Sess. At the end of World War II Congress acted more selectively. See H.R.Rep. No. 2682, 79th Cong., 2d Sess. Thus Congress by S.J.Res. 123, 80th Cong., 1st Sess., declared that, for the purpose of construing specified statutes (among them certain Articles of War—but not Article 92), the effective date of the Resolution should be deemed the termination date of the state of war. The fact that Article 92 was not in that list leaves the problem where it was at the time the law was enacted. The failure to repeal, alter, or amend this law plainly has no bearing on its original purpose.
1
The Court's heavy reliance in construing the statute here involved on its attribution to Congress of 'a purpose to guard jealously against the dilution of the liberties of the citizen that would result if the jurisdiction of military tribunals were enlarged at the expense of civil courts' is rendered somewhat suspect, to say the least, by the fact that under the Uniform Code of Military Justice, 64 Stat. 108, 70A Stat. 36, 10 U.S.C. (Supp. V) § 801, 10 U.S.C.A. § 801, enacted May 5, 1950. Congress has apparently chosen to given courts-martial jurisdiction over capital crimes committed in this country in time of peace as well as in time of war. See 10 U.S.C. (Supp. V) §§ 918, 920, 10 U.S.C.A. §§ 918, 920.
2
The Court does not say when the 'peace' which it finds to have existed in June 1949 came into being. It may be noted that the Presidential Proclamation of December 31, 1946, proclaiming the cessation of hostilities, specifically announced that 'a state of war still exists,' and that Senate Joint Resolution 123, 61 Stat. 449 (effective July 25, 1947), which repealed or rendered inoperative a selected group of wartime measures (not including Article 92), was obviously an expression of a conscious and deliberate decision by Congress that the time had not yet come to end the state of war. It was not until October 19, 1951, that Congress, by joint resolution, declared that 'the state of war declared to exist between the United States and the Government of Germany by the joint resolution of Congress approved December 11, 1941, is hereby terminated,' 65 Stat. 451, and not until April 28, 1952, the effective date of the Japanese Peace Treaty, that peace with Japan was proclaimed by the President, 66 Stat. c31.
| 12
|
358 U.S. 217
79 S.Ct. 269
3 L.Ed.2d 251
Paul WILLIAMS and Lorena Williams, Husband and Wife, Petitioners,v.Hugh LEE, Doing Business as Ganado Trading Post.
No. 39.
Argued Nov. 20, 1958.
Decided Jan. 12, 1959.
Mr. Norman M. Littell, Washington, D.C., for the petitioners.
Mr. Wm. W. Stevenson, Flagstaff, Ariz., for the respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Respondent, who is not an Indian, operates a general store in Arizona on the Navajo Indian Reservation under a license required by federal statute.1 He brought this action in the Superior Court of Arizona against petitioners, a Navajo Indian and his wife who live on the Reservation, to collect for goods sold them there on credit. Over petitioners' motion to dismiss on the ground that jurisdiction lay in the tribal court rather than in the state court, judgment was entered in favor of respondent. The Supreme Court of Arizona affirmed, holding that since no Act of Congress expressly forbids their doing so Arizona courts are free to exercise jurisdiction over civil suits by non-Indians against Indians though the action arises on an Indian reservation. 83 Ariz. 241, 319 P.2d 998. Because this was a doubtful determination of the important question of state power over Indian affairs, we granted certiorari. 356 U.S. 930, 78 S.Ct. 772, 2 L.Ed.2d 761.
2
Originally the Indian tribes were separate nations within what is now the United States. Through conquest and treaties they were induced to give up complete independence and the right to go to war in exchange for federal protection, aid, and grants of land. When the lands granted lay within States these governments sometimes sought to impose their laws and courts on the Indians. Around 1830 the Georgia Legislature extended its laws to the Cherokee Reservation despite federal treaties with the Indians which set aside this land for them.2 The Georgia statutes forbade the Cherokees from enacting laws or holding courts and prohibited outsiders from being on the Reservation except with permission of the State Governor. The constitutionality of these laws was tested in Worcester v. State of Georgia, 6 Pet. 515, 8 L.Ed. 483, when the State sought to punish a white man, licensed by the Federal Government to practice as a missionary among the Cherokees, for his refusal to leave the Reservation. Rendering one of his most courageous and eloquent opinions, Chief Justice Marshall held that Georgia's assertion of power was invalid. 'The Cherokee nation * * * is a distinct community, occupying its own territory * * * in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.' 6 Pet. at page 561.
3
Despite bitter criticism and the defiance of Georgia which refused to obey this Court's mandate in Worcester3 the broad principles of that decision came to be accepted as law.4 Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. Thus, suits by Indians against outsiders in state courts have been sanctioned. See Felix v. Patrick, 145 U.S. 317, 332, 12 S.Ct. 862, 867, 36 L.Ed. 719; United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023. See also Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456. And state courts have been allowed to try non-Indians who committed crimes against each other on a reservation. E.g., People of State of New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261. But if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.5 Donnelly v. United States, 228 U.S. 243, 269—272, 33 S.Ct. 449, 458—459, 57 L.Ed. 820; Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962. Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. Cf. Utah & Northern Railway Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542.
4
Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation. To assure adequate government of the Indian tribes it enacted comprehensive statutes in 1834 regulating trade with Indians and organizing a Department of Indian Affairs. 4 Stat. 729, 735. Not satisfied solely with centralized government of Indians, it encouraged tribal governments and courts to become stronger and more highly organized. See, e.g., the Wheeler-Howard Act, §§ 16, 17, 48 Stat. 987, 988, 25 U.S.C. §§ 476, 477, 25 U.S.C.A. §§ 476, 477. Congress has followed a policy calculated eventually to make all Indians full-fledged participants in American society. This policy contemplates criminal and civil jurisdiction over Indians by any State ready to assume the burdens that go with it as soon as the educational and economic status of the Indians permits the change without disadvantage to them. See H.R.Rep. No. 848, 83d Cong., 1st Sess. 3, 6, 7 (1953). Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. State of Georgia had denied.6
5
No departure from the policies which have been applied to other Indians is apparent in the relationship between the United States and the Navajos. On June 1, 1868, a treaty was signed between General William T. Sherman, for the United States, and numerous chiefs and headmen of the 'Navajo nation or tribe of Indians'.7 At the time this document was signed the Navajos were an exiled people, forced by the United States to live crowded together on a small piece of land on the Pecos River in eastern New Mexico, some 300 miles east of the area they had occupied before the coming of the white man. In return for their promises to keep peace, this treaty 'set apart' for 'their permanent home' a portion of what had been their native country, and provided that no one, except United States Government personnel, was to enter the reserved area. Implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. State of Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. Since then, Congress and the Bureau of Indian Affairs have assisted in strengthening the Navajo tribal government and its courts. See the Navajo-Hopi Rehabilitation Act of 1950, § 6, 64 Stat. 46, 25 U.S.C. § 636, 25 U.S.C.A. § 636; 25 CFR §§ 11.1 through 11.87NH. The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.8 No Federal Act has given state courts jurisdiction over such controversies.9 In a general statute Congress did express its willingness to have any State assume jurisdiction over reservation Indians if the State Legislature or the people vote affirmatively to accept such responsibility.10 To date, Arizona has not accepted jurisdiction, possibly because the people of the State anticipate that the burdens accompanying such power might be considerable.11
6
There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. Cf. Donnelly v. United States, supra; Williams v. United States, supra. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U.S. 553, 564—566, 23 S.Ct. 216, 220—221, 47 L.Ed. 299.
7
Reversed.
1
31 Stat. 1066, as amended, 32 Stat. 1009, 25 U.S.C. § 262, 25 U.S.C.A. § 262, provides: 'Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.'
2
The Georgia laws are set out extensively in Worcester v. State of Georgia, 6 Pet. 515, 521—528. The principal treaties involved are found at 7 Stat. 18, 39.
3
For interesting accounts of this episode in the struggle for power between state and federal governments see IV Beveridge, The Life of John Marshall, 539—552; I Warren, The Supreme Court in United States History, c. 19. See also Cherokee Nation v. State of Georgia, 5 Pet. 1, 8 L.Ed. 25.
4
See The Kansas Indians, 5 Wall. 737, 18 L.Ed. 667; Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030; United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; United States v. Forness, 2 Cir., 125 F.2d 928; Iron Crow v. Oglala Sioux Tribe, 8 Cir., 231 F.2d 89; Begay v. Miller, 70 Ariz. 380, 222 P.2d 624; Cohen, Federal Indian Law (Revision by the United States Interior Department 1958); 55 Decisions of the Department of the Interior 56—64.
The Federal Government's power over Indians is derived from Art. I, § 8, cl. 3, of the United States Constitution, Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691, and from the necessity of giving uniform protection to a dependent people. United States v. Kagama, supra.
5
For example, Congress has granted to the federal courts exclusive jurisdiction upon Indian reservations over 11 major crimes. And non-Indians committing crimes against Indians are now generally tried in federal courts. See 18 U.S.C. §§ 437—439, 1151 1163, 18 U.S.C.A. §§ 437—439, 1151—1163; Cohen, op. cit. supra, note 4, at 307—326.
6
See e.g., 62 Stat. 1224, 64 Stat. 845, 25 U.S.C. §§ 232, 233, 25 U.S.C.A. §§ 232, 233 (granting broad civil and criminal jurisdiction to New York); 18 U.S.C. § 1162, 18 U.S.C.A. § 1162, 28 U.S.C. § 1360, 28 U.S.C.A. § 1360 (granting broad civil and criminal jurisdiction to California, Minnesota, Nebraska, Oregon, and Wisconsin). The series of statutes granting extensive jurisdiction over Oklahoma Indians to state courts are discussed in Cohen, op. cit. supra, note 4, at 985—1051.
7
15 Stat. 667. In 16 Stat. 566 (1871), Congress declared that no Indian tribe or nation within the United States should thereafter be recognized as an independent power with whom the United States could execute a treaty but provided that this should not impair the obligations of any treaty previously ratified. Thus the 1868 treaty with the Navajos survived this Act.
8
Young, The Navajo Yearbook (1955), 165, 201; id. (1957), 107, 110.
9
In the 1949 Navajo-Hopi Rehabilitation Bill, S. 1407, 81st Cong., 1st Sess., setting up a 10-year program of capital and other improvements on the Reservation, Congress provided for concurrent state, federal and tribal jurisdiction. President Truman vetoed the bill because he felt that subjecting the Navajo and Hopi to state jurisdiction was undesirable in view of their illiteracy, poverty and primitive social concepts. He was also impressed by the fact that the Indians vigorously opposed the bill. 95 Cong.Rec. 14784—14785. After the objectionable features of the bill were deleted it was passed again and became law. 64 Stat. 44, 25 U.S.C. §§ 631—640, 25 U.S.C.A. §§ 631—640.
10
Act of Aug. 15, 1953, c. 505, §§ 6, 7, 67 Stat. 590, provides as follows: 'Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.
'* * * The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.' 28 U.S.C.A. § 1360 note.
Arizona has an express disclaimer of jurisdiction over Indian lands in its Enabling Act, § 20, 36 Stat. 569, A.R.S., and in Art. XX, Fourth, of its Constitution, A.R.S. Cf. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419.
11
See H.R.Rep. No. 848, 83d Cong., 1st Sess. 3, 7 (1953); Secretary of Interior, Annual Report (1955), 247—248; id. (1956), 215—216; id. (1957), 253—254.
| 12
|
358 U.S. 207
79 S.Ct. 260
3 L.Ed.2d 243
James P. MITCHELL, Secretary of Labor, United States Department of Labor, Petitioner,v.LUBLIN, McGAUGHY & ASSOCIATES et al.
No. 37.
Argued Oct. 21, 1958.
Decided Jan. 12, 1959.
Miss Bessie Margolin, Washington, D.C., for the petitioner.
Mr. Alan J. Hofheimer, Norfolk, Va., for the respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
Petitioner, the Secretary of Labor, brought this action under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 217, 29 U.S.C.A. § 217,1 to restrain respondent2 from violating the record-keeping and overtime provisions of the Act. 29 U.S.C. §§ 206, 207, 211, 29 U.S.C.A. §§ 206, 207, 211. The complaint was dismissed basically on the lower court's conclusion that the activities of respondent, an architectural and consulting engineering firm, were local in nature and not within the Act's coverage. 250 F.2d 253. We granted certiorari 356 U.S. 917, 78 S.Ct. 704, 2 L.Ed.2d 713, to resolve an apparent conflict with a decision of another Court of Appeals in a similar case.3
2
Respondent is hired to design public, industrial and residential projects and to prepare plans and specifications necessary for their construction. It has offices in both Norfolk, Virginia, and Washington, D.C., and it employs some sixty-five or seventy persons. Respondent does considerable work for the armed services. The District Court estimated that approximately 60% of the work in the Norfolk office has been done for the Army Engineers or the Navy Department while 85% of the work in Washington has been performed for similar agencies or for subdivisions of local governments in the District and nearby States. Many of respondent's projects and clients are located outside Virginia and the District of Columbia. A typical project undertaken in the past was the design of a standard mobile Army warehouse with the attendant preparation of detailed plans and specifications. In addition, respondent has designed various construction projects including the widening of streets at a naval operating base, the extension and paving of airplane taxiways and parking aprons at a naval air station, a local sewerage system in Maryland, the alteration of various hangar facilities at military air bases, the relocation of radio and television facilities, the improvement of state roads and turnpikes, and the repair of government buildings at shipyards. The balance of respondent's activity has consisted of preparing plans and specifications for the construction of private projects such as homes, commercial buildings, bus terminals, shopping centers and the like. Respondent has performed certain supervisory functions in connection with the construction of some of the private projects but almost none where governmental agencies were involved.
3
The government contracts required respondent to produce plans and specifications, copies of which were sent by the sovernmental agencies to prospective bidders, many of whom were located outside Virginia and the District of Columbia. These plans consisted of drawings and designs and were supplemented by explanatory specifications which contained the information necessary for estimating cost and guiding contractors in bidding and construction. They were prepared under the supervision of respondent's professional members and associates by draftsmen employed by respondent. In many cases, the information necessary to prepare the plans and specifications was gathered on the site of the projects by fieldmen employed by respondent. These fieldmen included surveyors, transitmen and chainmen who often traveled across state lines to get to the projects. On one project, fieldmen from the Washington office went daily to nearby Maryland to gather data for a sewerage project. In addition to the draftsmen and fieldmen, various clerks and stenographers employed by respondent participated in the mechanical preparation of these plans and specifications.
4
The parties are agreed that respondent's professional employees—architects and engineers—are exempted from the coverage of the Act by § 13(a)(1), 29 U.S.C. § 213(a)(1), 29 U.S.C.A. § 213(a)(1).4 Therefore, the Secretary's injunction action is directed at some fifty employees mentioned above: draftsmen, fieldmen, clerks and stenographers. The stenographers, in addition to their connection with the plans and specifications, manned respondent's private phone wire connecting the Norfolk and Washington offices, prepared and typed substantial numbers of letters concerning the described projects which were mailed to persons in places other than Virginia and the District of Columbia, and prepared payrolls in the Virginia office for employees at the Washington and Norfolk locations.
5
The question at issue is whether these non-professional employees are 'engaged in commerce' as that term is used in §§ 6 and 7 of the Act, 29 U.S.C. §§ 206, 207, 29 U.S.C.A. §§ 206, 207.5 To determine the answer to this question, we focus on the activities of the employees and not on the business of the employer. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196. We start with the premise that Congress, by excluding from the Act's coverage employees whose activities merely 'affect commerce,' indicated its intent not to make the scope of the Act coextensive with its power to regulate commerce.6 Kirschbaum Co. v. Walling, supra; McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538. However, within the tests of coverage fashioned by Congress, the Act has been construed liberally to apply to the furthest reaches consistent with congressional direction. Thus the Court stated in Overstreet v. North Shore Corp., 318 U.S. 125, 128, 63 S.Ct. 494, 496, 87 L.Ed. 656, '* * * the policy of Congressional abnegation with respect to occupations affecting commerce is no reason for narrowly circumscribing the phrase 'engaged in commerce."7
6
Where employees' activities have related to interstate instrumentalities or facilities, such as bridges, canals and roads, we have used a practical test to determine whether they are 'engaged in commerce.' The test is 'whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity.' Mitchell v. C. W. Vollmer & Co., supra, 349 U.S. at page 429, 75 S.Ct. at page 862.8 Coverage in the instant case must be determined by that test for, as the parties stipulated below, the draftsmen, fieldmen, clerks and stenographers all worked intimately with the plans and specifications prepared by respondent for the repair and construction of various interstate instrumentalities and facilities including air bases, roads, turnpikes, bus terminals, and radio and television installations. In our view, such work is directly and vitally related to the functioning of these facilities because, without the preparation of plans for guidance, the construction could not be effected and the facilities could not function as planned. In our modern technologically oriented society, the elements which combine to produce a final product are diffuse and variegated. Deciding whether any one element is so directly related to the end product as to be considered vital is sometimes a difficult problem. But plans, drawings and specifications have taken on greater importance as the complexities of design and bidding have increased. Under the circumstances present here, we have no hesitancy in concluding that the preparation of the plans and specifications was directly related to the end products and that the employees whose activities were intimately related to such preparation were 'engaged in commerce.' Respondent urges that military bases are not instrumentalities of commerce, but rather of war, and, in addition, that many of the projects involved new construction and hence cannot be considered as existing facilities or instrumentalities of interstate commerce. In answer to respondent's first point, it is sufficient to note that under the Court's reasoning in Powell v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017, a facility designed for war may also be an instrumentality of commerce. See Mitchell v. H. B. Zachry Co., D.C., 127 F.Supp. 377. Here respondent's employees admittedly worked on plans and specifications relating to construction at military air bases. And it is not disputed that these bases are used for interstate commerce, at least to the extent that interstate flights both land at and take off from them, and men, materials, and mail move through them from distant points. Respondent's second objection must be rejected also. Whatever vitality the 'new construction' doctrine retains after Mitchell v. C. W. Vollmer & Co., supra, and Southern Pacific Co. v. Gileo, 351 U.S. 493, 500, 76 S.Ct. 952, 957, 100 L.Ed. 1357, it is not applicable here because, as the record shows, many projects involved the repair, extension, or relocation of existing facilities.
7
Respondent contends that its activities are essentially local in nature. But as we stated, Congress deemed the activities of the individual employees, not those of the employer, the controlling factor in determining the proper application of the Act. Here the activities of the employees show clearly that they are 'engaged in commerce' and thus are eligible for the protections afforded by the Act.
8
Although not an issue below and not a matter of disagreement between the parties before this Court, some doubt has arisen whether injunctive relief is proper in this case. Examination of the record reveals that the controversy has been whether the admitted activities of respondent's employees during the period of the complaint brought them within the Act's coverage. Respondent does not appear ever to have urged that an injunction would be improper if, as a matter of law, its employees were 'engaged in commerce.' Its position seems correct in light of the specific statutory provision, § 17, 29 U.S.C. § 217, 29 U.S.C.A. § 217, which gives the District Courts jurisdiction to restrain violations of the Act. And the numerous suits brought by the Department of Labor under that section attest to the fact that the commencement of an injunction action, where coverage is in doubt, is not at all unusual. See, e.g., Mitchell v. C. W. Vollmer & Co., supra; Walling v. Jacksonville Paper Co., supra; Kirschbaum Co. v. Walling, supra; Mitchell v. Raines, 5 Cir., 238 F.2d 186; Mitchell v. Feinberg, 2 Cir., 236 F.2d 9; Chambers Construction Co. v. Mitchell, 8 Cir., 233 F.2d 717.
9
The Act sets up four means for enforcement. Section 16(a), 29 U.S.C. § 216(a), 29 U.S.C.A. § 216(a), provides for criminal prosecution of willful violators. Section 16(b), 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b), gives individual employees rights of actions in civil suits to recover unpaid minimum wages, overtime compensation and certain liquidated damages. Section 16(c), 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c), allows the Secretary of Labor to bring such an action in behalf of such employees provided the suit does not involve 'an issue of law which has not been settled finally by the courts.' Section 17, 29 U.S.C. § 217, 29 U.S.C.A. § 217, of course, provides for injunctions. Even a cursory examination of these provisions shows that the injunction is the only effective device available to the Secretary when coverage is in doubt and he wishes to establish the availability of the Act to employees not theretofore afforded its protections.
10
We fail to see what undue burden will be placed on respondent by the issuance of an injunction especially in view of the District Court's suggestion to which both parties appear to have acquiesced, that if coverage premised on the admitted activities is established, the parties should have no trouble in deciding which of the employees are covered. In any event, upon proceedings on remand, it will still be within the discretion of the District Court whether or not to issue an injunction. If, for instance, respondent discloses its records, enters a stipulation concerning which employees are covered, and agrees not to violate the Act in the future, the District Court might conclude that an injunction is unnecessary. Compare Mitchell v. Bland, 5 Cir., 241 F.2d 808, 810, with Chambers Construction Co. v. Mitchell, supra, 233 F.2d at page 725.
11
The judgment is reversed and the case is remanded to the District Court for proceedings not inconsistent with this opinion. It is so ordered.
12
Reversed and remanded.
13
Mr. Justice WHITTAKER, dissenting.
14
While I am of the view that the evidence may be sufficient to show that some of respondents' employees at some times—namely, fieldmen when traveling interstate in gathering information needed for the preparation of architectural and engineering plans, and construction supervisors when actually supervising the repairing or remodeling of structures used in commerce—are 'engaged in commerce,' within the meaning of § 7(a) of the Fair Labor Standards Act, as amended, 29 U.S.C. § 207(a), 29 U.S.C.A. § 207(a), I am nevertheless persuaded that the evidence is not sufficient, and does not show conduct sufficiently continuous as to any category of employees, to justify the entry of a general injunction against respondents from, in effect, 'violating the law,' thus requiring them to live under pain of contempt citation for violation of a general injunctive decree, while others live under the law of the land. I am further persuaded to this conclusion in the knowledge that such of these employees as can show that their particular work at a particular time rendered them 'engaged in commerce' have a complete legal remedy under § 16(b) of the Act, 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b), to recover overtime compensation plus an additional equal amount, attorneys' fees and costs. As I read its opinion, these are the factors that persuaded the Court of Appeals to affirm the District Court's denial of the prayed injunction, 250 F.2d 253, 260—261, and for those reasons I would affirm its judgment.
15
Mr. Justice STEWART, dissenting.
16
With the general principles stated in the Court's opinion there can be no dispute. Their application to the facts of the present case, however, does not lead me to the conclusion reached by the Court. Believing that the Court of Appeals did not err in deciding on which side of the shadowy line between such decisions as McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538, and Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460, this case falls, I would affirm the judgment.
1
'The district courts * * * shall have jurisdiction, for cause shown, to restrain violations of section 15 of this title * * *.'
Section 15, 29 U.S.C.A. § 215, makes it unlawful to violate, inter alia, any of the provisions of §§ 6, 7, 11(c) and 11(d), 29 U.S.C. §§ 206, 207, 211(c) and 211(d), 29 U.S.C.A. §§ 206, 207, 211(c, d).
2
The action was commenced against Lublin, McGaughy & Associates, a copartnership, Alfred M. Lublin, John B. McGaughy, William T. McMillan and William Marshall, Jr., doing business as Lublin, McGaughy & Associates, and each of those persons individually. Throughout the action, these defendants have been treated as a single business entity which we shall refer to herein as respondent.
3
Mitchell v. Brown Engineering Co., 8 Cir., 224 F.2d 359, certiorari denied 350 U.S. 875, 76 S.Ct. 119, 100 L.Ed. 773.
4
The section provides:
'The provisions of sections 206 and 207 of this title shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator). * * *'
5
Section 6 provides:
'(a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates * * *.'
Section 7 provides:
'(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.'
6
See also the limitations contained in § 3(j), 29 U.S.C. § 203(j), 29 U.S.C.A. § 203(j), concerning the coverage of persons engaged in occupations related to the production of goods for commerce.
7
See also Mitchell v. C. W. Vollmer & Co., supra; Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745; Walling v. Jacksonville Paper Co., supra, 317 U.S. at page 567, 63 S.Ct. at page 335.
8
See also Fitzgerald Const. Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; MeLeod v. Threlkeld, supra; Walling v. Jacksonville Paper Co., supra; Overstreet v. North Shore Corp., supra.
| 67
|
358 U.S. 283
79 S.Ct. 297
3 L.Ed.2d 312
LOCAL 24 of the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al., Petitioners,v.Revel OLIVER, A.C.E. Transportation Company, Inc., and Interstate Truck Service, Inc.
No. 49.
Argued Dec. 10, 11, 1958.
Decided Jan. 19, 1959.
Mr. David Previant, Milwaukee, Wis., for petitioners.
Mr. Stanley Denlinger, Akron, Ohio, for respondent Revel Oliver.
Mr. Charles R. Iden, Akron, Ohio, for respondents A.C.E. Transp. Co., Inc., and Interstate Truck Service, Inc.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
As the result of multiemployer, multistate collective bargaining with the Central States Drivers Council, comprising local unions of truck drivers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, a collective bargaining agreement, the 'Central States Area Over-the-Road Motor Freight Agreement,' effective February 1, 1955, and expiring January 31, 1961, was entered into by the locals and motor carriers in interstate commerce who operate under the authority of the Interstate Commerce Commission1 in 12 midwestern States, including Ohio.2 Article XXXII of this collective bargaining agreement3 prescribes terms and conditions which regulate the minimum rental and certain other terms of lease when a motor vehicle is leased to a carrier by an owner who drives his vehicle in the carrier's service.4 The Ohio courts enjoined the petitioner, Ohio's Teamsters Local 24 and its president, and the respondent carriers, A.C.E. Transportation Company, Inc., and Interstate Truck Service, Inc., Ohio employers, from giving effect to the provisions of Article XXXII. The Ohio courts held that the Article violates the Ohio antitrust law, known as the Valentine Act.5 The question is whether the fact that the Article was contained in an agreement which was the fruit of the exercise of collective bargaining rights under the National Labor Relations Act6 precluded the Ohio courts from applying the Ohio antitrust law to prohibit the parties from carrying out the terms of the Article they had agreed upon in bargaining. No claim is made that Article XXXII violates any provision of federal law.
2
The Article is in express terms made applicable only to a lessor-driver when he himself drives his vehicle in the business of the lessee-carrier. § 1. The Article, at least in words, constitutes the lessor-driver an employee of the carrier at such times: 'The employer (the carrier) expressly reserves the right to control the manner, means and details of, and by which, the owner-operator performs his services, as well as the ends to be accomplished.' § 4. His wages, hours and working conditions are then to be those applied to the carrier's drivers of carrier-owned vehicles, and he has 'seniority as a driver only.' § 2. He must operate his vehicle at such times 'exclusively in * * * (the carrier's) service and for no other interests.' § 1. The carrier 'agrees to pay * * * social security tax, compensation insurance, public liability and property damage insurance, bridge tolls' and various other fees imposed on motor freight transportation, except 'that the owner-driver shall pay license fees in the state in which title is registered.' § 10. The lessor-driver must be compensated by 'separate checks * * * for driver's wages and equipment rental.' § 6. The wage payment must be in the amount of 'the full wage rate and supplementary allowances' payable to carrier drivers similarly circumstanced who dirve carrier-owned vehicles. § 12(a). The equipment rental payment must be in an amount not less than 'the minimum rates' specified by the Article which 'result from the joint determination of the parties that such rates represent only the actual cost of operating such (leased) equipment. The parties have not attempted to negotiate a profit for the owner-driver.' § 12(b). All leases by union members who drive their vehicles for carriers in effect on the operative date of the collective bargaining agreement are to 'be dissolved or modified within thirty (30) days' to conform to the terms and conditions of the Article. § 15. The parties declare that 'the intent of this clause (the Article) * * * is to assure the payment of the Union scale of wages * * * and to prohibit (a carrier from) the making and carrying out of any plan, scheme or device to circumvent or defeat the payment of wage scales provided in this Agreement. * * * (and) to prevent the continuation of or formation of combinations or corporations or so-called lease of fleet arrangements whereby the driver (of his own vehicle) is required to and does periodically pay losses sustained by the corporation or fleet arrangement, or is required to accept less than the actual cost of the running of his equipment, thus, in fact, reducing his scale of pay.' § 16.
3
The respondent, Revel Oliver, a member of the union, is the owner of motor equipment7 which, at the time the collective bargaining agreement was negotiated, was subject to written lease agreements with the carrier respondents, A.C.E. Transportation Company, Inc., and Interstate Truck Service, Inc. The terms and conditions of the leases, particularly in regard to rental compensation, differ substantially from those provided in Article XXXII.8
4
Oliver brought this action on January 20, 1955, in the Court of Common Pleas, Summit County, Ohio, for an injunction restraining the petitioners and the respondent carriers from carrying out the terms of Article XXXII. He obtained a temporary restraining order upon sworn allegations. At the trial the respondent carriers joined with Oliver in making the attack on the Article. The petitioners defended on the ground that the State could not lawfully exercise power to apply its antitrust law to cause a forfeiture of the product of the exercise of federally sanctioned collecive bargaining rights. The union justified the Article as necessary to prevent undermining of the negotiated drivers' wage scale said to result from a practice of carriers of leasing a vehicle from an owner-driver at a rental which returned to the owner-driver less than his actual costs of operation, so that the driver's wage received by him, although nominally the negotiated wage, was actually a wage reduced by the excess of his operating expenses over the rental he received. The Court of Common Pleas held in Oliver v. All-States Freight, 156 N.E.2d 176, that the National Labor Relations Act could not 'be reasonably construed to permit this remote and indirect approach to the subject of wages,' and that Article XXXII was in violation of the State's antitrust law because 'there are restrictions and restraints imposed upon articles (the leased vehicles) that are widely used in trade and commerce. * * * (and) preclude an owner of property from reasonable freedom of action in dealing with it.' On the petitioners' appeal to Ohio's Ninth Judicial District Court of Appeals that court heard the case de novo and affirmed the judgment of the Court of Common Pleas, adopting its opinion. 156 N.E.2d 190. The Court of Appeals entered a permanent injunction perpetually restraining the petitioners and the respondent carriers (1) 'from entering into any agreements * * * or carrying out the * * * requirements * * * of any such agreement, which will require the alteration' of Revel Oliver's 'existing lease or leasing agreement'; (2) 'from entering into any * * * agreement or stipulation in the future, or the negotiation therefor, the * * * tendency of which is to * * * determine in any manner the rate to be charged for the use of' Revel Oliver's equipment; (3) 'from giving force and effect to Section 32 (sic) of the Contract * * * or any modification * * * thereof, the * * * tendency of which shall attempt to fix the rates' for the use of Revel Oliver's equipment.9 Petitioners' appeal to the Ohio Supreme Court was dismissed for want of a debatable constitutional question. 167 Ohio St. 299, 147 N.E.2d 856. We granted certiorari to consider the important question raised of the interaction of state and federal power arising from the petitioners' claim that the Ohio regulation abridges rights protected by federal statute. 356 U.S. 966, 78 S.Ct. 1007, 2 L.Ed.2d 1073.
5
Article XXXII did not originate with the 1955 agreement. The carriers and the union have disputed since 1938 the terms of a carrier's hire of a lessor's driving services with his leased vehicle. The usual lease is by the owner of a single vehicle who hires out his services as driver with his vehicle. A carrier's representative who has participated in all contract negotiations since those leading to the 1938 agreement testified to the history. According to him, the nub of the union's position over the two decades has been that the carriers abuse the leasing practice, particularly by paying inadequate rentals for the use of leased vehicles, with the result 'that part of the men's wages for driving was being used for the upkeep of their vehicles * * *. They (the union) claimed that the leased people were breaking down the rate structure * * *.' The union's demands for contract provisions to safeguard against the alleged abuse were designed also to 'secure a living wage (for the lessor) plus an adequate rental for his equipment.' A minimum rental clause first appeared in the 1938 agreement which also contained provisions comparable to §§ 8, 10 and 14 of present Aticle XXXII. In 1939, after the union claimed that 'there was a lot of people that was transferring their title into other people's name to avoid the conditions of the contract,' § 3 was added to provide that 'certificate and title to the equipment must be in the name of the actual owner.' When the dispute brought the parties to the verge of a strike in 1941, the note to § 1 and §§ 13, 15, 16, 17 and 18 came into the agreement. But by 1946 the controversy reached a pitch where the union demanded agreement from the carriers to abolish the leasing practice: 'The unions were going to refuse the addition of any individual owners, and the unions also desired to make certain restrictions on the use of owner-operators, again claiming that the * * * company operators were taking advantage of certain provisions of the contract.' This demand was compromised by the addition of § 19 restricting leasing to carriers 'who will agree to submit all grievances pertaining to owner-operators to joint Employer-Union grievance committees in each respective state'; the section 'represented the compromise between the union position that it should abolish all owner-operators and the companies' contention there should be no limitation.'
6
First. The Ohio courts rejected the petitioners' contention that the evidence conclusively established that Article XXXII dealt with subject matter within the scope of 'collective bargaining' in which federal law gave petitioners the right to engage. The state courts rested their judgments principally on the minimum rental regulations of § 12 of the Article. The principal discussion occurs in the opinion of the Court of Common Pleas. These regulations were held to constitute the Article a price-fixing arrangement violating the Ohio antitrust law in that they evidenced 'concerted action of the Union combining with a non-labor third party in a formal contract. * * * (the) effect (of which) is to oppress and destroy competition. * * * (and) preclude an owner of property from reasonable freedom of action in dealing with it.'
7
It seems to us that in considering whether the Article deals with a subject matter within the scope of collective bargaining as defined by federal law the Ohio courts did not give proper significance to the Article's narrowly restricted application to the times when the owner drives his leased vehicle for the carrier, and to the adverse effects upon the negotiated wage scale which might result when the rental for the use of the leased vehicle was unregulated at these times. Since no claim was presented to the Ohio courts that the petitioners sought to apply these regulations to Revel Oliver's arrangements with the respondent carriers except on the very infrequent and irregular occasions when Oliver drove one of his vehicles for a carrier, we take it that the Ohio courts' opinions and judgments relate only to the validity of the Article as applied at such times. This would necessarily be the case as the text of the Article, and that text as illumined by its history, conclusively establish that the regulations in no wise apply to the terms of lease of a vehicle when driven by a driver not the owner of the vehicle; the wages, hours and working conditions to be observed by contracting employers of non-owner drivers are governed by the general provisions in that regard found in other articles of the collective bargaining agreement.
8
In the light of the Article's history and purpose, we cannot agree with the Court of Common Pleas that its regulations constitute a 'remote and indirect approach to the subject of wages,' outside the range of matters on which the federal law requires the parties to bargain. The text of the Article and its unchallenged history show that its objective is to protect the negotiated wage scale against the possible undermining through diminution of the owner's wages for driving which might result from a rental which did not cover his operating costs. This is thus but an instance, as this Court said of a somewhat similar union demand in another case, in which a union seeks to protect lawful employee interests against what is believed, rightly or wrongly, to be 'a scheme or device utilized for the purpose of escaping the payment of union wages and the assumption of working conditions commensurate with those imposed under union standards.' Milk Wagon Drivers' Union, Local No. 753, International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America v. Lake Valley Farm Products, Inc., 311 U.S. 91, 98—99, 61 S.Ct. 122, 126, 85 L.Ed. 63. Looked at in this light, as on the evidence it must be, to determine its relevance to the collective bargaining rights under the Federal Act, the point of the Article is obviously not price fixing but wages. The regulations embody not the 'remote and indirect approach to the subject of wages' perceived by the Court of Common Pleas but a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract. The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions but is in fact of vital concern to the carrier's employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and more carrier-owned vehicles from service. Cf. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 771, 62 S.Ct. 816, 817, 86 L.Ed. 1178. It is not necessary to attempt to set precise outside limits to the subject matter properly included within the scope of mandatory collective bargaining, cf. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823, to hold, as we do, that the obligation under § 8(d) on the carriers and their employees to bargain collectively 'with respect to wages, hours, and other terms and conditions of employment' and to embody their understanding in 'a written contract incorporating any agreement reached,' found an expression in the subject matter of Article XXXII. See Timken Roller Bearing Co., 70 N.L.R.B. 500, 518, reversed on other grounds, 6 Cir., 161 F.2d 949. And certainly bargaining on this subject through their representatives was a right of the employees protected by § 7 of the Act.
9
Second. We must decide whether Ohio's antitrust law may be applied to prevent the contracting parties from carrying out their agreement upon a subject matter as to which federal law directs them to bargain. Little extended discussion is necessary to show that Ohio law cannot be so applied. We need not concern ourselves today with a contractual provision dealing with a subject matter that the parties were under no obligation to discuss; the carriers as employers were under a duty to bargain collectively with the union as to the subject matter of the Article, as we have shown. The goal of federal labor policy, as expressed in the Wagner and Taft-Hartley Acts, is the promotion of collective bargaining; to encourage the employer and the representative of the employees to establish, through collective negotiation, their own charter for the ordering of industrial relations, and thereby to minimize industrial strife. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893; National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 401—402, 72 S.Ct. 824, 828, 96 L.Ed. 1027. Within the area in which collective bargaining was required, Congress was not concerned with the substantive terms upon which the parties agreed. Cf. Terminal Railroad Ass'n of St. Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571. The purposes of the Acts are served by bringing the parties together and establishing conditions under which they are to work out their agreement themselves. To allow the application of the Ohio antitrust law here would wholly defeat the full realization of the congressional purpose. The application would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here. Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972; and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide, see Allen Bradley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939; cf. United States v. Employing Plasterers' Ass'n of Chicago, 347 U.S. 186, 190, 74 S.Ct. 452, 454, 98 L.Ed. 618. We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions. Cf. State of California v. Taylor, 353 U.S. 553, 566, 567, 77 S.Ct. 1037, 1044, 1045, 1 L.Ed.2d 1034. Since the federal law operates here, in an area where its authority is paramount, to leave the parties free, the inconsistent application of state law is necessarily outside the power of the State. Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 542—544, 65 S.Ct. 1373, 1375, 1376, 89 L.Ed. 1782. Cf. International Union of United Automobile, Aircraft and Agricultural Implement Workers of America v. O'Brien, 339 U.S. 454, 457, 70 S.Ct. 781, 782, 94 L.Ed. 978; Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364; Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U.S. 953, 70 S.Ct. 491, 94 L.Ed. 588. The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 307—312, 69 S.Ct. 584, 588—590, 93 L.Ed. 691.10 Of course, the paramount force of the federal law remains even though it is expressed in the details of a contract federal law empowers the parties to make, rather than in terms in an enactment of Congress. See Railway Employes' Dept. v. Hanson, 351 U.S. 225, 232, 76 S.Ct. 714, 718, 100 L.Ed. 1112. Clearly it is immaterial that the conflict is between federal labor law and the application of what the State characterizes as an antitrust law. '* * * Congress has sufficiently expressed its purpose to * * * exclude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade.' Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 481, 75 S.Ct. 480, 488, 99 L.Ed. 546. We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce. If there is to be this sort of limitation on the arrangements that unions and employers may make with regard to these subjects, pursuant to the collective bargaining provisions of the Wagner and Taft-Hartley Acts, it is for Congress, not the States, to provide it.
10
Reversed.
11
Mr. Justice WHITTAKER, believing that respondent Oliver, while driving his own tractor in the performance of his independent contract with the respondent carriers was not an employee of those carriers, but was an independent contractor, United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757, and that, as such, he was expressly excluded from the coverage of the National Labor Relations Act by 61 Stat. 137, 29 U.S.C. § 152(3), 29 U.S.C.A. § 152(3), would affirm the judgment of the Court of Appeals for the Ninth Judicial District of Ohio.
12
The CHIEF JUSTICE, Mr. Justice FRANKFURTER and Mr. Justice STEWART took no part in the consideration or decision of this case.
Appendix to Opinion of the Court.
13
Article XXXII of the Central States Area Over-the-Road Motor Freight Agreement.
14
Owner-Operators.
15
Section 1. Owner-operators (See Note), other than certificated or permitted carriers, shall not be covered by this Agreement unless affiliated by lease with a certificated or permitted carrier which is required to operate in full compliance with all the provisions of this Agreement and holding proper ICC and state certificates and permits. Such owner-operators shall operate exclusively in such service and for no other interests.
16
(Note: Whenever 'owner-operator' is used in this article, it means owner-driver only, and nothing in this article shall apply to any equipment leased except where owner is also employed as a driver.)
17
Section 2. This type of operator's compensation for wages and working conditions shall be in full accordance with all the provisions of this Agreement. The owner-operator shall have seniority as a driver only.
18
Section 3. Certificate and title to the equipment must be in the name of the actual owner.
19
Section 4. In all cases, hired or leased equipment shall be operated by an employee of the certificated or permitted carrier. The employer expressly reserves the right to control the manner, means and details of, and by which, the owner-operator performs his services, as well as the ends to be accomplished.
20
Section 5. Certificated or permitted carriers shall use their own available equipment, together with all leased equipment under minimum thirty-day bona fide lease arrangements, on a rotating board, before hiring any extra equipment.
21
Section 6. Separate checks shall be issued by the certificated or permitted carriers for driver's wages and equipment rental. At no time shall the equipment check be for less than actual miles operated. Separate checks for drivers shall not be deducted from the minimum truck rental revenue. The driver shall turn in tie direct to the certificated or permitted carrier. All monies due the owner-operator may be held no longer than two weeks, except where the lease of equipment agreement is terminated and in such cases all monies due the operator may be held no longer than thirty (30) days from the date of the termination of the operation of the equipment.
22
Section 7. Payment for equipment service shall be handled by the issuance of a check for the full mileage operated, tonnage or percentage, less any agreed advances. A statement of any charges by the certificated or permitted carrier shall be issued at the same time, but shall not be deducted in advance.
23
Section 8. The owner-operator shall have complete freedom to purchase gasoline, oil, grease, tires, tubes, etc., including repair work, at any place where efficient service and satisfactory products can be obtained at the most favorable prices.
24
Section 9. There shall be no deduction pertaining to equipment operation for any reason whatsoever.
25
Section 10. The Employer of certificated or permitted carrier hereby agrees to pay road or mile tax, social security tax, compensation insurance, public liability and property damage insurance, bridge tolls, fees for certificates, permits and travel orders, fines and penalties for inadequate certificates, license fees, weight tax and wheel tax, and for loss of driving time due to waiting at state lines, and also cargo insurance. It is expressly understood that the owner-driver shall pay the license fees in the state in which title is registered.
26
All tolls, no matter how computed, must be paid by the Employer regardless of any agreement to the contrary.
27
All taxes or additional charges imposed by law relating to actual truck operation and use of highways, no matter how computed or named, shall be paid by the Carrier, excepting only vehicle licensing as such, in the state where title is registered.
28
Section 11. There shall be no interest or handling charge on earned money advanced prior to the regular pay day.
29
Section 12. (a) All certificated or permitted carriers hiring or leasing equipment owned and driven by the owner-driver shall file a true copy of the lease agreement covering the owner-driven equipment with the Joint State Committees. The terms of the lease shall cover only the equipment owned and driven by the owner-driver and shall be in complete accord with the minimum rates and conditions provided herein, plus the full wage rate and supplementary allowances for drivers as embodied elsewhere in this Agreement.
30
(b) The minimum rate for leased equipment owned and driven by the owner-driver shall be: 75% of the above rates to apply for deadheading, if and when ordered, provided, however, that the 75% rate will apply only on first empty dispatch away from the home terminal; thereafter the full equipment rental rate to apply until driver is redispatched from hom terminal; the above rates to be based on 23,000-pound load limit. On load limits over 23,000 pounds, there shall be one-half (1/2) cent additional per mile for each 1,000 pounds or fraction thereof in excess of 23,000 pounds. There shall be a minimum guarantee of 24,000 pounds for leased equipment owned and driven by the owner-driver. Nothing herein shall apply to leased equipment not owned by a driver.
31
The minimum rates set forth above result from the joint determination of the parties that such rates represent only the actual cost of operating such equipment. The parties have not attempted to negotiate a profit for the owner-driver.
32
Section 13. Driver-owner mileage scale does not include use of equipment for pickup or delivery at point of origin terminal or at point of destination terminal, but shall be subject to negotiations between the Local Union and Company. Failure to agree shall be submitted to the grievance procedure.
33
Section 14. There shall be no reductions where the present basis of payment is higher than the minimums established herein for this type of operation. Where owner-operator is paid on a percentage or tonnage basis and the operating company reduces its tariff, the percentage or tonnage basis of payment shall be automatically adjusted so that the owner-operator suffers no reduction in equipment rental or wages, or both.
34
Section 15. It is further understood and agreed that any arrangements which have heretofore been entered into between members of this Union, either among themselves or with the Employer or with the aid of the Employer, applicable to owner-driver equipment contrary to the terms hereof, shall be dissolved or modified within thirty (30) days after the signing of this Agreement so that such arrangements shall apply only to equipment of the owner-driver while being driven by such owner-driver. In the event that the parties cannot agree on a method of dissolution or modification of such arrangement to make the same conform to this Agreement, the question of dissolution or modification shall be submitted to artitration, each party to select one member of the arbitration board, and the two so selected to choose a third member of said board. If the two cannot agree upon the third within five (5) days, he shall be appointed by the Joint State Committee. The decision of said board to be final and binding.
35
Section 16. It is further agreed that the intent of this clause and this entire Agreement is to assure the payment of the Union scale of wages as provided in this Agreement and to prohibit the making and carrying out of any plan, scheme or device to circumvent or defeat the payment of wage scales provided in this Agreement. This clause is intended to prevent the continuation of or formation of combinations or corporations or so-called lease of fleet arrangements whereby the driver is required to and does periodically pay losses sustained by the corporation or fleet arrangement, or is required to accept less than the actual cost of the running of his equipment, thus, in fact, reducing his scale of pay.
36
Section 17. It is further agreed that if the Employer of certificated or permitted carrier requires that the 'driver-owner-operator' sell his equipment to the Employer or certificated or permitted carrier, directly or indirectly, the 'driver-owner-operator' shall be paid the fair true value of such equipment. Copies of the instruments of sale shall be filed with the Union and unless objected to within ten (10) days shall be deemed satisfactory. If any question is raised by the Union as to such value, the same shall be submitted to arbitration, as above set forth, for determination. The decision of the arbitration board shall be final and binding.
37
Section 18. It is further agreed that the Employer or certificated or permitted carrier will not devise or put into operation any scheme, whether herein enumerated or not, to defeat the terms of this Agreement, wherein the provisions as to compensation for services on and for use of equipment owned by owner-driver shall be lessened, nor shall any owner-driver lease be cancelled for the purpose of depriving Union employees of employment, and any such complaint that should arise pertaining to such cancellation of lease or violation under this section shall be subject to Article X.
38
Section 19. (a) The use of individual owner-operators shall be permitted by all certificated or permitted carriers who will agree to submit all grievances pertaining to owner-operators to joint Employer-Union grievance committees in each respective state. It is understood and agreed that all such grievances will be promptly heard and decided with the specific purpose in mind of
39
(1) protecting provisions of the Union contract;
40
(2) prohibiting any and all violations directly or indirectly of contract provisions relating to the proper use of individual owners;
41
(3) prohibiting any attempts by any certificated or permitted carrier in changing his operation which will affect the rights of drivers under the terms of the contract, and generally the certificated or permitted carriers agree to assume responsibility in policing and doing everything within their power to eliminate all alleged abuses in the use of owner-drivers which resulted in the insertion of Section 19 (Article XXXIII) in the original 1945 47 Over-the-Road contract; (4) owner-driver operations to be terminal to terminal, except where no local employees to make such deliveries or otherwise agreed to in this contract;
42
(5) the certificated or permitted carriers agree that they will, with a joint meeting of the Unions, set up uniform rules and practices under which all such cases will be heard;
43
(6) it shall be considered a violation of the contract should any operator deduct from rental of equipment the increases provided for by the 1955 Amendments or put into effect any means of evasion to circumvent actual payment of increases agreed upon effective for the period starting February 1, 1955, and ending January 31, 1961.
44
(b) No owner-operator shall be permitted to drive or hold seniority where he owns three or more pieces of leased equipment. This provision shall not apply to present owner-operators having three or more pieces of equipment under lease agreement, but such owner-operator shall not be permitted to put additional equipment in service so long as he engages in work covered by this Agreement or holds seniority. Where owner-operator drives, he can hold seniority where he works sixty (60) per cent or more of time.
1
Certificates of convenience and necessity are issued to common carriers pursuant to §§ 206—208 of the Interstate Commerce Act, 49 Stat. 551, 552, as amended, 49 U.S.C. §§ 306—308, 49 U.S.C.A. §§ 306—308; permits are issued to contract carriers pursuant to § 209, 49 Stat. 552, as amended, 49 U.S.C. § 309, 49 U.S.C.A. § 309.
2
The agreement covers between 3,000 and 3,500 employers and between 45,000 and 50,000 truck drivers. Those covered in Ohio consist of approximately 500 employers and 6,000 drivers. Upwards of 90% of the Ohio drivers drive equipment owned by carriers who operate under I.C.C. certificates or permits. The rest of the covered drivers own their own equipment, usually one vehicle, but since they are not holders of I.C.C. certificates or permits, they lease their equipment to, and drive it for, certificated or permitted carriers.
3
For the text of Article XXXII, see Appendix, post, 79 S.Ct. page 306.
4
For details of I.C.C. regulations governing the relationship between certificated carriers and the lessors of motor vehicle equipment, see the discussion in American Trucking Ass'ns Inc., v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337.
5
The specific provision involved, Ohio Rev.Code Ann. § 1331.01, provides as follows:
'As used in sections 1331.01 to 1331.14, inclusive, of the Revised Code:
'(A) 'Person' includes corporations, partnerships, and associations existing under or authorized by any state or territory of the United States, or a foreign country.
(B) 'Trust' is a combination of capital, skill, or acts by two or more persons for any of the following purposes:
'(1) To create or carry out restrictions in trade or commerce;
'(2) To limit or reduce the production, or increase or reduce the price of merchandise or a commodity;
'(3) To prevent competition in manufacturing, making, transportation, sale, or purchase of merchandise, produce, or a commodity;
'(4) To fix at a standard or figure, whereby its price to the public or consumer is in any manner controlled or established, an article or commodity of merchandise, produce, or commerce intended for sale, barter, use, or consumption in this state;
'(5) To make, enter into, execute, or carry out contracts, obligations, or agreements of any kind by which they bind or have bound themselves not to sell, dispose of, or transport an article or commodity, or an article of trade, use, merchandise, commerce, or consumption below a common standard figure or fixed value, or by which they agree in any manner to keep the price of such article, commodity, or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of an article, commodity, or transportation between them or themselves and others, so as directly or indirectly to preclude a free and unrestricted competition among themselves, purchasers, or consumers in the sale or transportation of such article or commodity, or by which they agree to pool, combine, or directly or indirectly unite any interests which they have connected with the sale or transportation of such article or commodity, that its price might in any manner be affected.
'A trust as defined in division (B) of this section in unlawful and void.'
6
Involved are §§ 7 and 8 of the National Labor Relations Act, as amended and reenacted by the Labor Management Relations Act, 61 Stat. 140, 29 U.S.C. §§ 157, 158, 29 U.S.C.A. §§ 157, 158. Section 7 is follows:
'Employees 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).'
Section 8(a)(5) and 8(b)(3) require employers and labor organizations to bargain collectively. Section 8(d), in pertinent part, provides:
'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 * * *.'
7
Oliver is rather unusual among Ohio owner-drivers because he owns not one vehicle but a fleet, six trucks and four trailers, each of which is under a lease agreement with one or the other of the carrier respondents. Oliver drove only occasionally, 'every month or so for A.C.E. and every eight months or so for Interstate,' and Article XXXII applied to his leases only as to the vehicle he drove on those occasions.
8
Accordingly, § 15 of Art. XXXII required the carriers to take steps to modify both agreements. The Interstate Truck Service lease with Oliver was for a fixed term, but contained a five-day cancellation clause. The agreement between A.C.E. and Oliver was not for any fixed term and was brought into effect by the issuance of individual waybills and manifests for particular hauls.
9
The restraints entered by the judgment and order of the Court of Appeals filed September 30, 1957, are:
'(a) That the defendants-appellees, A.C.E. Transportation Co., Inc., Interstate Truck Service, Inc., and defendants-appellants, Local No. 24 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and each of them, their agents, representatives and successors or persons, acting, by, through or for them, or in concert with each other, are hereby perpetually restrained and enjoined from entering into any agreements one with the other or carrying out the effects, requirements or terms of any such agreement, which will require the alteration, cancellation or violation of plaintiff-appellee's (Revel Oliver's) existing lease or leasing agreement or any such agreement hereafter renewed or renegotiated and entered into, and
'(b) That the defendants-appellees, A.C.E. Transportation Co., Inc., Interstate Truck Service, Inc., and defendants-appellants, Local No. 24 of The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and Kenneth Burke, President and Business Agent of said Local and each of them and the successor of each and those acting in concert with said defendants-appellees and appellants are hereby perpetually enjoined and restrained from entering into any combination, arrangement, agreement or stipulation in the future, or the negotiation therefor, the purpose, intent or tendency of which is to fix or determine in any manner the rate to be charged for the use of plaintiff's equipment, leased by said plaintiff-appellee to the defendants-appellees, A.C.E. Transportation Co., Inc., and Interstate Truck Service, Inc., and
'(c) That the said defendants-appellee, A.C.E. Transportation Co., Inc., Interstate Truck Service, Inc., and defendants-appellants, Local No. 24 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and Kenneth Burke, President and Business Agent of said Local and each of them and the successors of each are hereby perpetually enjoined from giving force and effect to Section 32 (sic) of the Contract between them as is fully set forth in this Court's finding, or any modification or alteration thereof, the import, effect or tendency of which shall attempt to fix the rates and the use of plaintiff-appellee's equipment or to fix or determine the return for plaintiff-appellee's capital investment in said equipment.'
10
In Algoma, state law was allowed to operate to restrict a provision of a collective bargaining contract only after it was found after an exhaustive examination of the legislative history of the Wagner Act that Congress intended to leave the special subject of the legality of maintenance of membership clauses up to the States through § 8(3) of that Act, 49 Stat. 452. Questions of the nature that we consider today were expressly left open. 336 U.S., at page 312, 69 S.Ct. at page 590.
| 910
|
358 U.S. 331
79 S.Ct. 350
3 L.Ed.2d 344
William P. ROGERS, Attorney General of the United States as Successor to the Alien Property Custodian, petitioner,v.CALUMET NATIONAL BANK OF HAMMOND, Substituted Trustee, etc., et al.
No. 468.
Supreme Court of the United States
January 26, 1959
Solicitor General Rankin, Assistant Attorney General Townsend, Messrs. George B. Searls and Irwin A. Seibel, for petitioner.
Messrs. Charles Levin and Curt C. Silberman, for respondents.
On petition for writ of certiorari to the Appellate Court of Indiana.
PER CURIAM.
1
The petition for writ of certiorari is granted. We are of the view that under Silesian-American Corp. v. Markham, 2 Cir., 156 F.2d 793, 796, affirmed, 332 U.S. 469, 68 S.Ct. 179, 92 L.Ed. 81, a state court is without power to review the discretion exercised by the Attorney General of the United States under federal law. The judgment is therefore reversed and the cause remanded to the Appellate Court of Indiana. On remand the Indiana courts are of course free to consider other questions presented by this record in light of General License 94, 12 Fed.Reg. 1457, as it may have affected the definition of 'national' in Executive Order 9095, 7 Fed.Reg. 1971, as amended, 50 U.S.C.A.Appendix, § 6 note, and Executive Order 8389, 5 Fed.Reg. 1400, 12 U.S.C.A. § 95a note. See GMO. Niehaus & Co. v. United States, 153 F.Supp. 428, 139 Ct.Cl. 605.
| 89
|
358 U.S. 332
79 S.Ct. 353
3 L.Ed.2d 345
HERRMANN, Trustee, petitioner,v.ROGERS, Attorney General of the United States.
No. 572.
Supreme Court of the United States
January 26, 1959
Messrs. Burton K. Wheeler and Robert G. Seaks, for petitioner.
Solicitor General Rankin, Assistant Attorney General Townsend, Messrs. George B. Searls and Irwin A. Seibel, for respondent.
On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the Court of Appeals is vacated, and the cause is remanded to it, to consider whether, under the law of property of Idaho, it was possible, after the time of the making of the conveyance, for any person other than the named beneficiaries of the trust to acquire a property interest in it (other than through a named beneficiary), and, in the light of its determination as to this, to reconsider its holding that respondent was entitled to all the trust funds remaining in the hands of the trustee.
| 89
|
358 U.S. 307
79 S.Ct. 329
3 L.Ed.2d 327
James Alonzo DRAPER, Petitioner,v.UNITED STATES of America.
No. 136.
Argued Dec. 11, 1958.
Decided Jan. 26, 1959.
Mr. Osmond K. Fraenkel, New York City, for petitioner.
Mr. Leonard B. Sand, Washington D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Petitioner was convicted of knowingly concealing and transporting narcotic drugs in Denver, Colorado, in violation of 35 Stat. 614, as amended, 21 U.S.C. § 174, 21 U.S.C.A. § 174. His conviction was based in part on the use in evidence against him of two "envelopes containing [865 grams of] heroin" and a hypodermic syringe that had been taken from his person, following his arrest, by the arresting officer. Before the trial, he moved to suppress that evidence as having been secured through an unlawful search and seizure. After hearing, the District Court found that the arresting officer had probable cause to arrest petitioner without a warrant ane that the subsequent search and seizure were therefore incident to a lawful arrest, and overruled the motion to suppress. 146 F.Supp. 689. At the subsequent trial, that evidence was offered and, over petitioner's renewed objection, was received in evidence, and the trial resulted, as we have said, in petitioner's conviction. The Court of Appeals affirmed the conviction, 10 Cir., 248 F.2d 295, and certiorari was sought on the sole ground that the search and seizure violated the Fourth Amendment1 and therefore the use of the heroin in evidence vitiated the conviction. We granted the writ to determine that question. 357 U.S. 935, 78 S.Ct. 1386, 2 L.Ed.2d 1549. The evidence offered at the hearing on the motion to suppress was not substantially disputed. It established that one Marsh, a federal narcotic agent with 29 years' experience, was stationed at Denver; that one Hereford had been engaged as a "special employee" of the Bureau of Narcotics at Denver for about six months, and from time to time gave information to Marsh regarding violations of the narcotic laws, for which Hereford was paid small sums of money, and that Marsh had always found the information given by Hereford to be accurate and reliable. On September 3, 1956, Hereford told Marsh that James Draper (petitioner) recently had taken up abode at a stated address in Denver and "was peddling narcotics to several addicts" in that city. Four days later, on September 7, Hereford told Marsh "that Draper had gone to Chicago the day before [September 6] by train [and] that he was going to bring back three ounces of heroin [and] that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train." Hereford also gave Marsh a detailed physical description of Draper and of the clothing he was wearing,2 and said that he would be carrying "a tan zipper bag," and that he habitually "walked real fast."
2
On the morning of September 8, Marsh and a Denver police officer went to the Denver Union Station and kept watch over all incoming trains from Chicago, but they did not see anyone fitting the description that Hereford had given. Repeating the process on the morning of September 9, they saw a person, having the exact physical attributes and wearing the precise clothing described by Hereford, alight from an incoming Chicago train and start walking "fast" toward the exit. He was carrying a tan zipper bag in his right hand and the left was thrust in his raincoat pocket. Marsh, accompanied by the police officer, overtook, stopped and arrested him. They then searched him and found the two "envelopes containing heroin" clutched in his left hand in his raincoat pocket, and found the syringe in the tan zipper bag. Marsh then took him (petitioner) into custody. Hereford died four days after the arrest and therefore did not testify at the hearing on the motion.
3
26 U.S.C. (Supp. V) § 7606, added by § 104(a) of the Narcotic Control Act of 1956, 70 Stat. 570, 26 U.S.C.A. § 7607, provides, in pertinent part:
4
"The Commissioner * * * and agents, of the Bureau of Narcotics * * * may—
5
* * *
6
"(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."
7
The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh "probable cause" within the meaning of the Fourth Amendment, and "reasonable grounds" within the meaning of § 104(a), supra,3 to believe that petitioner had committed or was committing a violation of the narcotic laws. If it did, the arrest, though without a warrant was lawful and the subsequent search of petitioner's person and the seizure of the found heroin were validly made incident to a lawful arrest, and therefore the motion to suppress was properly overruled and the heroin was competently received in evidence at the trial. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145; Giordenello v. United States, 357 U.S. 480, 483, 78 S.Ct. 1245, 1248, 2 L.Ed.2d 1503.
8
Petitioner does not dispute this analysis of the question for decision. Rather, he contends (1) that the information given by Hereford to Marsh was "hearsay" and, because hearsay is not legally competent evidence in a criminal trial, could not legally have been considered, but should have been put out of mind, by Marsh in assessing whether he had "probable cause" and "reasonable grounds" to arrest petitioner without a warrant, and (2) that, even if hearsay could lawfully have been considered, Marsh's information should be held insufficient to show "probable cause" and "reasonable grounds" to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant.
9
Considering the first contention, we find petitioner entirely in error. Brinegar v. United States, 338 U.S. 160, 172-173, 69 S.Ct. 1302, 1309 93 L.Ed. 1879, has settled the question the other way. There, in a similar situation, the convict contended "that the factors relating to inadmissibility of the evidence [for] purposes of proving guilt at the trial, deprive[d] the evidence as a whole of sufficiency to show probable cause for the search * * *." Id., 338 U.S. 172, 69 S.Ct. 1309. (Emphasis added.) But this Court, rejecting that contention, said: "[T]he so-called distinction places a wholly unwarranted emphasis upon the criterion of admissibility in evidence, to prove the accused's guilt, of the facts relied upon to show probable cause. That emphasis, we think, goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. It approaches requiring (if it does not in practical effect require) proof sufficient to establish guilt in order to substantiate the existence of probable cause. There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them."4 338 U.S. at pages 172-173, 69 S.Ct. at page 1309.
10
Nor can we agree with petitioner's second contention that Marsh's information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. The information given to narcotic agent Marsh by "special employee" Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a "fast" pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had "reasonable grounds" to believe that the remaining unverified bit of Hereford's information—that Draper would have the heroin with him—was likewise true.
11
"In dealing with probable cause, * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, 338 U.S. at page 175, 69 S.Ct. at page 1310. Probable cause exists where "the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288.5
12
We believe that, under the facts and circumstances here, Marsh had probable cause and reasonable grounds to believe that petitioner was committing a violation of the laws of the United States relating to narcotic drugs at the time he arrested him. The arrest was therefore lawful, and the subsequent search and seizure, having been made incident to that lawful arrest, were likewise valid.6 It follows that petitioner's motion to suppress was properly denied and that the seized heroin was competent evidence lawfully received at the trial.
13
Affirmed.
14
The CHIEF JUSTICE and Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
15
Mr. Justice DOUGLAS, dissenting.
16
Decisions under the Fourth Amendment,1 taken in the long view, have not given the protection to the citizen which the letter and spirit of the Amendment would seem to require. One reason, I think, is that wherever a culprit is caught red-handed, as in leading Fourth Amendment cases, it is difficult to adopt and enforce a rule that would turn him loose. A rule protective of law-abiding citizens is not apt to flourish where its advocates are usually criminals. Yet the rule we fashion is for the innocent and guilty alike. If the word of the informer on which the present arrest was made is sufficient to make the arrest legal, his word would also protect the police who, acting on it, hauled the innocent citizen off to jail.
17
Of course, the education we receive from mystery stories and television shows teaches that what happened in this case is efficient police work. The police are tipped off that a man carrying narcotics will step off the morning train. A man meeting the precise description does alight from the train. No warrant for his arrest has been—or, as I see it, could then be—obtained. Yet he is arrest; and narcotics are found in his pocket and a syringe in the bag he carried. This is the familiar pattern of crime detection which has been dinned into public consciousness as the correct and efficient one. It is, however, a distorted reflection of the constitutional system under which we are supposed to live.
18
With all due deference, the arrest made here on the mere word of an informer violated the spirit of the Fourth Amendment and the requirement of the law, 26 U.S.C. (Supp. V) § 7607, 26 U.S.C.A. § 7607, governing arrests in narcotics cases. If an arrest is made without a warrant, the offense must be committed in the presence of the officer or the officer must have "reasonable grounds to believe that the person to be arrested has committed or is committing" a violation of the narcotics law. The arresting officers did not have a bit of evidence, known to them and as to which they could take an oath had they gone to a magistrate for a warrant, that petitioner had committed any crime. The arresting officers did not know the grounds on which the informer based his conclusion; nor did they seek to find out what they were. They acted solely on the informer's word. In my view that was not enough.
19
The rule which permits arrest for felonies, as distinguished from misdemeanors, if there are reasonable grounds for believing a crime has been or is being committed (Carroll v. United States, 267 U.S. 132, 157, 45 S.Ct. 280, 286, 69 L.Ed. 543), grew out of the need to protect the public safety by making prompt arrests. Id. Yet, apart from those cases where the crime is committed in the presence of the officer, arrests without warrants, like searched without warrants, are the exception, not the rule in our society. Lord Chief Justice Pratt in Wilkes v. Wood, 19 How.St.Tr. 1153, condemned not only the odious general warrant,2 in which the name of the citizen to be arrested was left blank, but the whole scheme of seizures and searches3 under "a discretionary power" of law officers to act "wherever their suspicions may chance to fall"—a practice which he denounced as "totally subversive of the liberty of the subject." Id., at 1167. See III May, Constitutional History of England, c. XI. Wilkes had written in 1762, "To take any man into custody, and deprive him of his liberty, without having some seeming foundation at least, on which to justify such a step, is inconsistent with wisdom and sound policy." The Life and Political Writings of John Wilkes, p. 372.
20
George III in 1777 pressed for a bill which would allow arrests on suspicion of treason committed in America. The words were "suspected of" treason and it was to these words that Wilkes addressed himself in Parliament. "There is not a syllable in the Bill of the degree of probability attending the suspicion. * * * Is it possible, Sir, to give more despotic powers to a bashaw of the Turkish empire? What security is left for the devoted objects of this Bill against the malice of a prejudiced individual, a wicked magistrate * * *?" The Speeches of Mr. Wilkes, p. 102.
21
These words and the complaints against which they were directed were well known on this side of the water. Hamilton wrote about "the practice of arbitrary imprisonments" which he denounced as "the favorite and most formidable instruments of tyranny." The writs of assistance, against which James Otis proclaimed,4 were vicious in the same way as the general warrants, since they required no showing of "probable cause" before a magistrate, and since they allowed the police to search on suspicion and without "reasonable grounds" for believing that a crime had been or was being committed. Otis' protest was eloquent; but he lost the case. His speech, however, rallied public opinion. "Then and there," wrote John Adams, "the child Independence was born." 10 Life and Works of John Adams (1856), p. 248.
22
The attitude of Americans to arrests and searches on suspicion was also greatly influenced by the lettres de cachet extensively used in France.5 This was an order emanating from the King and countersigned by a minister directing the seizure of a person for purposes of immediate imprisonment or exile. The ministers issued the lettres in an arbitrary manner, often at the request of the head of a noble family to punish a deviant son or relative. See Mirabeau, A Victim of the Lettres de Cachet, 3 Am.Hist.Rev. 19. One who was so arrested might remain incarcerated indefinitely, as no legal process was available by which he could seek release. "Since the action of the government was secret, his friends might not know whither he had vanished, and he might even be ignorant of the cause of his arrest." 8 The Camb.Mod.Hist. 50. In the Eighteenth Century the practice arose of issuing the lettres in blank, the name to be filled in by the local mandatory. Thus the King could be told in 1770 "that no citizen of your realm is guaranteed against having his liberty sacrificed to revenge. For no one is great enough to be beyond the hate of some minister, nor small enough to be beyond the hate of some clerk." III Encyc.Soc.Sci. 138. As Blackstone wrote, "* * * if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) there would soon be an end of all other rights and immunities." I Commentaries (4th ed. Colley)* 135.
23
The Virginia Declaration of Rights, adopted June 12, 1776, included the forerunner of the Fourth Amendment:6
24
"That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted." Section 10. (Italics added.)
25
The requirement that a warrant of arrest be "supported by evidence" was by then deeply rooted in history. And it is inconceivable that in those days, when the right of privacy was so greatly cherished, the mere word of an informer such as we have in the present case—would be enough. For whispered charges and accusations, used in lieu of evidence of unlawful acts, were the main complaint of the age. Frisbie v. Butler, Kirby, Conn., p. 214 (1785-1788), decided in 1787, illustrates, I think, the mood of the day in the matter of arrests on suspicion. A warrant of arrest and search was issued by a justice of the peace on the oath of a citizen who had lost some pork from a cellar, the warrant stating, "said Butler suspects one Benjamin Frisbie, of Harwinton, to be the person that hath taken said pork." The court on appeal reversed the judgment of conviction, holding inter alia that the complaint "contained no direct charge of the theft, but only an averment that the defendant was suspected to be guilty." Id., at page 215. Nothing but suspicion id shown in the instant case—suspicion of an informer, not that of the arresting officers. Nor did they seek to obtain from the informer any information on which he based his belief. The arresting officers did not have a bit of evidence that the petitioner had committed or was committing a crime before the arrest. The only evidence of guilt was provided by the arrest itself.
26
When the Constitution was up for adoption, objections were made that it contained no Bill of Rights. And Patrick Henry was one who complained in particular that it contained no provision against arbitrary searches and seizures:
27
"* * * general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred may be searched and ransacked by the strong hand of power. We have infinitely more reason to dread general warrants here than they have in England, because there, if a person be confined, liberty may be quickly obtained by the writ of habeas corpus. But here a man living many hundred miles from the judges may get in prison before he can get that writ." I Elliot's Debates, 588.
28
The determination that arrests and searches on mere suspicion would find no place in American law enforcement did not abate following the adoption of a Bill of Rights applicable to the Federal Government. In Conner v. Commonwealth, 3 Bin., Pa., 38, an arrest warrant issued by a magistrate stating his "strong reason to suspect" that the accused had committed a crime because of "common rumor and report" was held illegal under a constitutional provision identical in relevant part to the Fourth Amendment. "It is true, that by insisting on an oath, felons may sometimes escape. This must have been very well well known to the framers of court constitution; but they thought it better that the guilty should sometimes escape, than that every individual should be subject to vexation and oppression." Id., at pages 43-44. In Grumon v. Raymond, 1 Con.. 40, the warrant stated that "several persons are suspected" of stealing some flour which is concealed in Hyatt's house or other places and arrest the suspected persons if found with the flour. The court held the warrant void, stating it knew of "no such process as one to arrest all suspected persons, and bring them before a court for trial. It is an idea not to be endured for a moment." Id., at page 44. See also Fisher v. McGirr, 1 Gray, Mass.,1; Lippman v. People, 175 Ill. 101, 51 N.E. 872; Somerville v. Richards, 37 Mich. 299; Commonwealth v. Dana, 2 Metc., Mass., 329, 335-336.
29
It was against this long background that Professors Hogan and Snee of Georgetown University recently wrote:
30
"* * * it must be borne in mind that any arrest based on suspicion alone is illegal. This indisputable rule of law has grave implications for a number of traditional police investigative practices. The round-up or dragnet arrest, the arrest on suspicion, for questioning, for investigation or on an open charge all are prohibited by the law. It is undeniable that if those arrests were sanctioned by law, the police would be in a position to investigate a crime and to detect the real culprit much more easily, much more efficiently, much more economically, and with much more dispatch. It is equally true, however, that society cannot confer such power on the police without ripping away much of the fabric of a way of life which seeks to give the maximum of liberty to the individual citizen. The finger of suspicion is a long one. In an individual case it may point to all of a certain race, age group or locale. Commonly it extends to any who have committed similar crimes in the past. Arrest on mere suspicion collides violently with the basic human right of liberty. It can be tolerated only in a society which is willing to concede to its government powers which history and experience teach are the inevitable accoutrements of tyranny." 47 Geo.L.J. 1, 22.
31
Down to this day our decisions have closely heeded that warning. So far as I can ascertain the mere word of an informer, not bolstered by some evidence7 that a crime had been or was being committed, has never been approved by this Court as "reasonable grounds" for making an arrest without a warrant. Whether the act complained of be seizure of goods, search of premises, or the arrest of the citizen, the judicial inquiry has been directed toward the reasonableness of inferences to be drawn from suspicious circumstances attending the action thought to be unlawful. Evidence required to prove guilt is not necessary. But the attendant circumstances must be sufficient to give rise in the mind of the arresting officer at least to inferences of guilt. Locke v. United States, 7 Cranch 339, 3 L.Ed. 364; The THompson, 3 Wall. 155, 18 L.Ed. 55; Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Director General of Railroads v. Kastenbaum, 263 U.S. 25, 44 S.Ct. 52, 68 L.Ed. 146; Carroll v. United States, 267 U.S. 132, 159-162, 45 S.Ct. 280, 287-288, 69 L.Ed. 543; United States v. Di Re, 332 U.S. 581, 591-592, 68 S.Ct. 222, 227, 92 L.Ed. 210; Brinegar v. United States, 338 U.S. 160, 165-171, 69 S.Ct. 1302, 1305-1308, 93 L.Ed. 1879.
32
The requirement that the arresting officer know some facts suggestive of guilt has been variously stated:
33
"If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient." Stacey v. Emery, supra, 97 U.S. at page 645, 24 L.Ed. 1035.
34
"* * * good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the * * agent, which in the judgment of the court would make his faith reasonable." Director General of Railroads v. Kastenbaum, supra, 263 U.S. at page 28, 44 S.Ct. at page 53.
35
Even when officers had information far more suggestive of guilt than the word of the informer used here, we have not sustained arrests without a warrant. In Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. 367, 92 L.Ed. 436, the arresting officer not only had an informer's tip but he actually smelled opium coming out of a room; and on breaking in found the accused. That arrest was held unlawful. Yet the smell of opium is far more tangible direct evidence than an unverified report that someone is going to commit a crime. And in United States v. Di Re, supra, an arrest without a warrant of a man sitting in a car, where counterfeit coupons had been found passing between two men, was not justified in absence of any shred of evidence implicating the defendant, a third person. And see Giacona v. State, Tex.Cr.App., 298 S.W.2d 587. Yet the evidence before those officers was more potent than the mere word of the informer involved in the present case.
36
The Court is quite correct in saying that proof of "reasonable grounds" for believing a crime was being committed need not be proof admissible at the trial. It could be inferences from suspicious acts, e.g., consort with known peddlers, the surreptitious passing of a package, an intercepted message suggesting criminal activities, or any number of such events coming to the knowledge of the officer. See People v. Rios, 46 Cal.2d 297, 294 P.2d 39. But, if he takes the law into his own hands and does not seek the protection of a warrant, he must act on some evidence known to him.8 The law goes far to protect the citizen. Even suspicious acts observed by the officers may be as consistent with innocence as with guilt. That is not enough, for even the guilty may not be implicated on suspicion alone. Baumboy v. United STates, 9 Cir., 24 F.2d 512. The reason it is, as I have said, that the standard set by the Constitution and by the statutes is one that will protect both the officer and the citizen. For if the officer acts with "probable cause" or "reasonable grounds," he is protected even though the citizen is innocent.9 This important requirement should be strictly enforced, lest the whole process of arrest revert once more to whispered accusations by people. When we lower the guards as we do today, we risk making the role of the informer—odious in our history—once more supreme. I think the correct rule was stated in Poldo v. United States, 9 Cir., 55 F.2d 866, 869. "Mere suspicion is not enough; there must be circumstances represented to the officers through the testimony of their senses sufficient to justify them in a good-faith belief that the defendant had violated the law."
37
Here the officers had no evidence—apart from the mere word of an informer—that petitioner was committing a crime. The fact that petitioner walked fast and carried a tan zipper bag was not evidence of any crime. The officers knew nothing except what they had been told by the informer. If they went to a magistrate to get a warrant of arrest and relied solely on the report of the informer, it is not conceivable to me that one would be granted. See Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1053. For they could not present to the magistrate any of the facts which the informer may have had. They could swear only to the fact that the informer had made the accusation. They could swear to no evidence that lay in their own knowledge. The could present, on information and belief, no facts which the informer disclosed. No magistrate could issue a warrant on the mere word of an officer, without more.10 See Giordenello v. United State, supra. We are not justified in lowering the standard when an arrest is made without a warrant and allowing the officers more leeway than we grant the magistrate.
38
With all deference I think we break with tradition when we sustain this arrest. We said in United States v. Di Re, supra, 332 U.S. at page 229, "* * * 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." In this case it was only after the arrest and search were made that there was a shred of evidence known to the officers that a crime was in the process of being committed.11
1
The Fourth Amendment of the Constitution of the United States provides: "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 seized."
2
Hereford told Marsh that Draper was a Negro of light brown complexion, 27 years of age, 5 feet 8 inches tall, weighed about 160 pounds, and that he was wearing a light colored raincoat, brown slacks and black shoes.
3
The terms "probable cause" as used in the Fourth Amendment and "reasonable grounds" as used in § 104(a) of the Narcotic Control Act, 70 Stat. 570, are substantial equivalents of the same meaning. United States v. Walker, 7 Cir., 246 F.2d 519, 526; cf. United States v. Bianco, 3 Cir., 189 F.2d 716, 720.
4
In the United States v. Heitner, 2 cir., 149 F.2d 105, 106, Judge Learned Hand said: "It is well settled that an arrest may be made upon hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties."
Grau v. United States, 287 U.S. 124, 128, 53 S.Ct. 38, 40, 77 L.Ed. 212, contains a dictum that "A search warrant may issue only upon evidence which would be competent in the trial of the offense before a jury (Giles v. United States, 1 Cir., 284 F. 208; Wagner v. United States, 8 Cir., 8 F.(2d) 581) * * *." But the principles underlying that proposition were thoroughly discredited and rejected in Brinegar v. United States, supra, 338 U.S. at pages 172-174, 69 S.Ct. at pages 1309-1310 and notes 12 and 13. There are several cases in the federal courts that followed the now discredited dictum in the Grau case, Simmons v. United States, 8 Cir., 18 F.2d 85, 88; Worthington v. United States, 6 Cir., 166 F.2d 557, 564-565; cf. Reeve v. Howe, D.C., 33 F.Supp. 619, 622; United States v. Novero, D.C., 58 F.Supp. 275, 279, but the great weight of authority is the other way. See, e.g., Wrightson v. United States, 98 U.S.App.D.C. 377, 236 F.2d 672; United States v. Heitner, supra; United States v. Bianco, 3 Cir., 189 F.2d 716; Wisniewski v. United States, 6 Cir., 47 F.2d 825; United States v. Walker, 7 Cir., 246 F.2d 519; Mueller v. Powell, 8 Cir., 203 F.2d 797. And see Note, 46 Harv.L.Rev. 1307, 1310-1311, criticizing the Grau dictum.
5
To the same effect are: Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629; Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 548, 69 L.Ed. 1032; Steele v. United States, No. 1, 267 U.S. 498, 504-505, 45 S.Ct. 414, 416-417, 69 L.Ed. 757; Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035; Brinegar v. United States, supra, 338 U.S. at pages 175, 176, 69 S.Ct. at pages 1310, 1311.
6
Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145; Giordenello v. United States, 357 U.S. 480, 483, 78 S.Ct. 1245, 1248, 2 L.Ed.2d 1503.
1
The Fourth Amendment provides:
"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 seized." (Italics added.)
2
The general warrant was declared illegal by the House of Commons in 1766. See 16 Hansard, Parl.Hist.Eng., 207.
3
The nameless general warrant was not the only vehicle for intruding on the privacy of the subjects without a valid basis for believing them guilty of offenses. In declaring illegal a warrant to search a plaintiff's house for evidence of libel, issued by the Secretary of State without any proof that the named accused was the author of the alleged libels, Lord Camden said, "we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society." Entick v. Carrington, 2 Wils.K.B. 275, 291.
4
See Quincy's Mass.Rep., 1761-1882, Appendix I, p. 469.
5
"Experience * * * has taught us that the power [to make arrests, searches and seizures] is one open to abuse. The most notable historical instance of it is that of lettres de cachet. Our Constitution was framed during the seethings of the French Revolution. The thought was to make lettres de cachet impossible with us." United States v. Innelli, D.C., 286 F. 731.
6
See also Maryland Declaration of Rights (1776), Art. XXIII; Massachusetts Constitution (1780), Part First, Art. XIV; New Hampshire Constitution (1784), Part I, Art. XIX; North Carolina Declaration of Rights (1776), Art. XI; Pennsylvania Constitution (1776), Art. X.
7
Hale, who traced the evolution of arrests without warrants in The History of the Pleas of the Crown (1st Am. ed. 1847), states that while officers need at time to act on information from others, they must make that information, so far as they can, their own. He puts a case where A, suspecting B "on reasonable grounds" of being a felon, asks an officer to arrest B. The duty of the officer was stated as follows:
"He ought to inquire and examine the circumstances and causes of the suspicion of A which tho he cannot do it upon oath, yet such an information may carry over the suspicion even to the constable, whereby it may become his suspicion as well as the suspicion of A." Id., at 91.
8
United States v. Heitner, 2 Cir., 149 F.2d 105, 106, that says an arrest may be made "upon hearsay evidence" was a case where the arrest was made after the defendant on seeing the officers tried to get away. Our cases cited by that court in support of the use of hearsay were Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed 1032; and Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629. But each of them was a case where the information on which the arrest was made, though perhaps not competent at the trial, was known to the arresting officer.
9
Maghan v. Jerome, 67 App.D.C. 9, 88 F.2d 1001; Pritchett v. Sullivan, 8 Cir., 182 F. 480. See Ravenscroft v. Casey, 2 Cir., 139 F.2d 776.
10
See State v. Gleason, 32 Kan. 245, 4 P. 363; State v. Smith, Mo.App., 262 S.W. 65, arising under state constitutions having provisions comparable to our Fourth Amendment.
11
The Supreme Court of South Carolina has said:
"Some things are to be more deplored than the unlawful transportation of whiskey; one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the laws of the land. There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.
"In the instant case of possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant's person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. * * * It is better that the guilty shall escape, rather than another offense shall be committed in the proof of guilt." Town of Blacksburg v. Beam, 104 S.C. 146, 148, 88 S.E. 441, L.R.A. 1916E, 714.
| 01
|
358 U.S. 326
79 S.Ct. 340
3 L.Ed.2d 340
William C. GREENE, Petitioner,v.UNITED STATES of America.
No. 134.
Argued Jan. 13, 1959.
Decided Jan. 26, 1959.
Mr. James H. Heller, Washington, D.C., for the petitioner.
Mr. John L. Murphy, Washington, D.C., for the respondent.
PER CURIAM.
1
Petitioner was convicted in the United States District Court for the District of Columbia on each of 15 counts of an indictment for violations of the narcotic laws,1 and as recited in the formal judgment was sentenced to imprisonment as follows:
2
'Twenty (20) Months to Five (5) Twenty (20) Months to Five (5) Years * * * on Count Four, said sentence on Count Four to take effect (at) the expiration of sentence imposed on Count Two; Twenty (20) Months to Five (5) Years * * * on Count Seven, said sentence on Count Seven to take effect at the expiration of sentence imposed on Count Four; Twenty (20) Months to Five (5) Years * * * on each of Counts One, Three, Five, Six, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen and Fifteen, said sentences by the Counts to run concurrently and to run concurrently with the sentences imposed on Counts Two, Four and Seven.'
3
On his appeal, petitioner sought reversal of the conviction and sentence on each count upon the grounds of prejudicial procedural errors at the trial, insufficiency of the evidence to support the convictions and sentences, and invalid multiple punishments for single offenses. In a per curiam opinion the Court of Appeals held that 'The record supports at least 5 of the sentences that were to run 'concurrently with' the 3 consecutive sentences. It therefore supports the aggregate sentence. We need not decide whether it supports the 'consecutive' sentences themselves. Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, (1375) 87 L.Ed. 1774; Wanzer v. United States, 93 U.S.App.D.C. 412, 208 F.2d 45.' It thereupon affirmed, one judge dissenting, 100 U.S.App.D.C. 396, 246 F.2d 677. Petitioner sought certiorari on the grounds that the sentences invalidly multiply punishments for single offenses, and that the Court of Appeals erred in failing to determine the validity of the several sentences and in holding that imprisonment for an aggregate period of 5 to 15 years is authorized by its finding that 'at least 5 of the sentences that were to run 'concurrently with' the 3 consecutive sentences (are valid).' We granted the writ to determine those questions. 357 U.S. 934, 78 S.Ct. 1386, 2 L.Ed.2d 1549.
4
The Government contends here that the several sentences are in reality but one 'gross sentence' to imprisonment for a period of 5 to 15 years, and that, the holding of the Court of Appeals that at least 5 of the 'concurrent' sentences are valid supports the judgment,2 but it concedes that 'If the sentence (may) not be considered as a gross sentence, at least as to the 12 counts which were to be concurrent with 2, 4, and 7, * * * the case would have to be remanded to the Court of Appeals to pass on the validity of counts 2, 4, and 7, (and if) it found any one of them invalid, that court would then have to remand to the District Court for resentencing, since, assumingthat the other counts cannot be considered in gross, it is not clear which of them, taken individually, were to be concurrent with 2, which with 4, and which with 7.'
5
The question whether, in these circumstances, the law permits the imposition of a single 'gross sentence' upon several counts exceeding the maximum sentence that may lawfully be imposed upon any one of such counts is not presented here, for we think the Government's contention that these 15 sentences were, or may be treated as, one 'gross sentence' to imprisonment for a period of 5 to 15 years is unsupportable and is contradicted by the plain words of the recorded judgment. 'The only sentence known to the law is the sentence or judgment entered upon the records of the court.' Hill v. United States, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283. The judgment entered on the records of the court in this case explicitly imposed a separate sentence of from 20 months to the then permissible maximum of 5 years3 on each of the 15 counts. It is therefore plain that the court did not impose one 'gross sentence' to imprisonment for a period of 5 to 15 years.
6
The judgment makes the separate sentences on Counts Two, Four, and Seven to run consecutively. Thus, if each is valid, they in sequence authorize imprisonment for an aggregate period of 5 to 15 years. But the judgment makes the separate sentences on the other 12 counts to run concurrently with each other (hence for a total period of 20 months to 5 years) and 'with the sentences imposed on Counts Two, Four and Seven,' without saying whether those 'concurrent' sentences are to run with the sentence on Count Two, with the consecutive sentence on Count Four, or with the consecutive sentence on Count Seven. It is therefore evident that the Court of Appeals was in error in concluding that the 5 'concurrent' sentences which it thought were valid alone support an aggregate period of imprisonment of 5 to 15 years.
7
The rule that reversal is not required if any one of several concurrent sentences is valid and alone supports the sentence and judgment, Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774; and cases cited; Pinkerton v. United States, 328 U.S. 640, 642, note 1, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489; United States v. Sheridan, 329 U.S. 379, 381, 67 S.Ct. 332, 333, 91 L.Ed. 359; Roviaro v. United States, 353 U.S. 53, 59, note 6, 77 S.Ct. 623, 627, 1 L.Ed.2d 639; Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 323, 2 L.Ed.2d 321, does not aid the Government, for no one of the 'concurrent' sentences, or even all of them together, could, even if geared to a particular (though invalid) consecutive sentence, support imprisonment for more than 20 months to 5 years. If any one of the consecutive sentences on Counts Two, Four or Seven be invalid it cannot be said that such of the 'concurrent' sentences as are valid will run with such invalid consecutive sentence, and thus support that much of the aggregate term of imprisonment, because the trial judge did not make the concurrent sentences to run with any particular one of the consecutive sentences. It is therefore clear, under the present sentences, that imprisonment for an aggregate period of 5 to 15 years can be sustained only if each of the consecutive sentences on Counts Two, Four, and Seven is valid. Hence it is necessary for the Court of Appeals to pass upon the validity of the consecutive sentences. The judgment of the Court of Appeals is vacated and the cause is remanded to that court for further proceedings not inconsistent with this opinion.
8
It is so ordered.
9
Judgment of Court of Appeals vacated and cause remanded with directions.
1
The Narcotic Drugs Import and Export Act, § 2(c), 65 Stat. 767, 21 U.S.C. § 174, 21 U.S.C.A. § 174; the Internal Revenue Code of 1954, §§ 4704(a), 4705(a), and 7237(a), 68A Stat. 550—551, 860, as amended, 69 Stat. 3, 26 U.S.C. (Supp. III) §§ 4704(a), 4705(a), 7237(a), 26 U.S.C.A. §§ 4704(a), 4705(a), 7237(a).
2
In support of its stated position the Government relies on its understanding of this Court's opinions in Ex parte De Bara, 179 U.S. 316, 21 S.Ct. 110, 45 L.Ed. 207, and Ex parte Henry, 123 U.S. 372, 8 S.Ct. 142, 31 L.Ed. 174. It also relies upon Phillips v. United States, 8 Cir., 212 F.2d 327, 335; Barnes v. United States, 8 Cir., 197 F.2d 271, 273; Levine v. Hudspeth, 10 Cir., 127 F.2d 982, 984; McKee v. Johnston, 9 Cir., 109 F.2d 273, 275; Jackson v. Hudspeth, 10 Cir., 111 F.2d 128, 129; Ross v. Hudspeth, 10 Cir., 108 F.2d 628, 629; Hawkins v. United States, 7 Cir., 14 F.2d 596, 597—598; Klein v. United States, 1 Cir., 14 F.2d 35, 37; Neely v. United States, 4 Cir., 2 F.2d 849, 852.
3
At the time of these alleged offenses, and prior to the enactment of the Narcotic Control Act of 1956, 70 Stat. 567, 570, § 2(c) of the Narcotic Drugs Import and Export Act (65 Stat. 767, 21 U.S.C. § 174, 21 U.S.C.A. § 174) provided for imprisonment for its violation of 'not less than two or more than five years,' and § 7237(a) of the Internal Revenue Code of 1954 (68A Stat. 860) provided for imprisonment for the violation or conspiracy to violate §§ 4704(a) or 4705(a) of that Code of 'not less than 2 or more than 5 years.'
| 01
|
358 U.S. 334
79 S.Ct. 457
3 L.Ed.2d 354
UNITED STATES of America, Appellant,v.RADIO CORPORATION OF AMERICA and National Broadcasting Company, Inc.
No. 54.
Argued Dec. 8, 1958.
Decided Feb. 24, 1959.
Mr. Sol. Gen. J. Lee Rankin, Washington, D.C., for appellant.
Mr. Bernard G. Segal, Philadelphia, Pa., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
Appellees, Radio Corporation of America and National Broadcasting Company, are defendants in this civil antitrust action brought by the Government under § 4 of the Sherman Act, 15 U.S.C. § 4, 15 U.S.C.A. § 4. After holding a preliminary hearing on three of appellees' affirmative defenses to that action, the federal district judge dismissed the complaint. 158 F.Supp. 333. The Government appealed directly to this Court under the Expediting Act, 15 U.S.C. § 29, 15 U.S.C.A. § 29. The principal question presented is whether approval by the Federal Communications Commission of appellees' agreement to exchange their Cleveland television station for one in Philadelphia bars this independent action by the Government which attacks the exchange as being in furtherance of a conspiracy to violate the federal antitrust laws.
2
The Government's complaint generally alleged the following facts. In 1954, National Broadcasting Company (NBC), a wholly owned subsidiary of Radio Corporation of America (RCA), owned five very high frequency (VHF) television stations. The stations were located in the following market areas: New York, which is the country's largest market; Chicago, second; Los Angeles, third; Cleveland, tenth; and Washington D.C., eleventh. According to the Government's allegations, in March 1954, NBC and RCA originated a continuing conspiracy to acquire stations in five of the eight largest market areas in the country. Since Philadelphia is the country's fourth largest market area, acquisition of a Philadelphia station in exchange for appellees' Cleveland or Washington station would achieve one goal of the conspiracy.1
3
One Philadelphia station, WPTZ, was owned by Westinghouse Broadcasting Company. This station and a Westinghouse-owned station in Boston were affiliated with the NBC network. In addition, Westinghouse desired NBC affiliation for a station to be acquired in Pittsburgh. In order to force Westinghouse to exchange its Philadelphia station for NBC's Cleveland station, it is alleged that NBC threatened Westinghouse with loss of the network affiliation of its Boston and Philadelphia stations, and threatened to withhold affiliation from its Pittsburgh station to be acquired. NBC also threatened to withhold network affiliation from any new VHF or UHF (ultra high frequency) stations which Westinghouse might acquire. By thus using its leverage as a network, NBC is alleged to have forced Westinghouse to agree to the exchange contract under consideration. Under the terms of that contract NBC was to acquire the Philadelphia station, while Westinghouse was to acquire NBC's Cleveland station plus three million dollars.
4
The Government asked that the conspiracy be declared violative of § 1 of the Sherman Act, 15 U.S.C. § 1, 15 U.S.C.A. § 1, that the appellees be divested of such assets as the District Court deemed appropriate, that 'such other and additional relief as may be proper' be awarded, and that the Government recover costs of the suit.
5
Appellees' affirmative defenses arose out of the fact that the exchange had been approved by the Federal Communications Commission.2 FCC approval was required under § 310(b) of the Communications Act of 1934, 48 Stat. 1086, as amended, 66 Stat. 716, 47 U.S.C. § 310(b), 47 U.S.C.A. § 310(b). Under that Section, appellees filed applications setting forth the terms of the transaction and the reasons for requesting the exchange. The Commission instituted proceedings to determine whether the exchange met the statutory requirements of § 310, that the 'public interest, convenience, and necessity' would be served. They were not adversary proceedings. After extensive investigation of the transaction, the Commission was still not satisfied that the exchange would meet the statutory standards, and, over three dissents, issued letters seeking additional information on various subjects, including antitrust problems, under § 309(b) of the Act. After receiving answers to the letters, the Commission, without holding a hearing, on December 21, 1955, granted the application to exchange stations.3
6
It was stipulated below that in passing upon the application, the Commission had all the information before it which has now been made the basis of the Government's complaint. It further appears that during the FCC proceedings the Justice Department was informed as to the evidence in the FCC's possession. It was further stipulated, and we assume, that the FCC decided all issues relative to the antitrust laws that were before it, and that the Justice Department had the right to request a hearing under § 309(b), to file a protest under § 309(c), to seek a rehearing under § 405, and to seek judicial review of the decision under § 402(b). See Far East Conference v. United States, 342 U.S. 570, 576, 72 S.Ct. 492, 495, 96 L.Ed. 576; U.S. ex rel. Chapman v. Federal Power Comm., 345 U.S. 153, 155, 156, 73 S.Ct. 609, 611 612, 97 L.Ed. 918. The Department of Justice took none of these actions. Accordingly, on January 22, 1956, after the period in which the Department could have sought review had expired, NBC and Westinghouse consummated the exchange transaction according to their contract. The Department did not file the present complaint until December 4, 1956, over ten months later.
7
Against this background, appellees assert that the FCC had authority to pass on the antitrust questions presented, and, in any case, that the regulatory scheme of the Communications Act has so displaced that of the Sherman Act that the FCC had primary jurisdiction to license the exchange transaction, with the result that any attack for antitrust reasons on the exchange transaction must have been by direct review of the license grant. Relying on this premise, they then contend that the only method available to the Government for redressing its antitrust grievances was to intervene in the FCC proceedings; that since it did not, the antitrust issues were determined adversely to it when the exchange was approved, so that it is barred by principles of collateral estoppel and res judicata; and that in any case the long delay between approval of the exchange and filing of this suit bars the suit because of laches.
I.
8
Whether these contentions are to prevail depends substantially upon the extent to which Congress authorized the FCC to pass on antitrust questions, and this in turn requires examination of the relevant legislative history. Two sections of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., 47 U.S.C.A. § 151 et seq., deal specifically with antitrust considerations, Sections 311 and 313:
9
'Sec. 311. The Commission is hereby directed to refuse a station license and/or the permit hereinafter required for the construction of a station to any person (or to any person directly or indirectly controlled by such person) whose license has been revoked by a court under section 313. * * *
10
'Sec. 313. All laws of the United States relating to unlawful restraints and monopolies and to combinations, contracts, or agreements in restraint of trade are hereby declared to be applicable to the manufacture and sale of and to trade in radio apparatus and devices entering into or affecting interstate or foreign commerce and to interstate or foreign radio communications. Whenever in any suit, action, or proceeding, civil or criminal, brought under the provisions of any of said laws or in any proceedings brought to enforce or to review findings and orders of the Federal Trade Commission or other governmental agency in respect of any matters as to which said Commission or other governmental agency is by law authorized to act, any licensee shall be found guilty of the violation of the provisions of such laws or any of them, the court, in addition to the penalties imposed by said laws, may adjudge, order, and/or decree that the license of such licensee shall, as of the date the decree or judgment becomes finally effective or as of such other date as the said decree shall fix, be revoked and that all rights under such license shall thereupon cease: Provided, however, That such licensee shall have the same right of appeal or review as is provided by law in respect of other decrees and judgments of said court.'
11
These provisions were taken from the Radio Act of 1927.4 They appear to have originated in a bill drafted by Congressman White of Maine, H.R. 5589, 69th Cong., 1st Sess. What is now § 311 appeared as the third paragraph of § 2(C)5 of that bill, while what is now s 313 appeared as § 2(G).6 In the hearings on the bill before the House Committee, Congressman Reid of Illinois asked Judge Davis, Department of Commerce representative, whether the Secretary of Commerce7 had any discretion to refuse a license under § 2(C) (now § 311) to a party which the Secretary believed to be violating the antitrust laws. The following colloquy ensued:8
12
Judge Davis. 'He has no discretion under this act.'
13
Congressman Reid. 'They have to be found guilty first; is that the idea?'
14
Congressman White. 'Yes. In other words, I tried to get away from placing upon the secretary the determination of a judicial question of that character. That involves, of course, a determination as to the facts; it requires a knowledge of the law and it irequires an application of the law to the facts, and then it requires the exercise of judicial powers, if you leave that in his discretion, and I tried to lift it away from the secretary.' Later on, the question arose as to what grounds were available to the Secretary to revoke licenses under § 2(F) (now § 312). After Congressman White mentioned one statutory ground, Congressman Reid observed:9
15
'Yes; but you do not include unlawful combinations and monopolies and contracts or agreements in restraint of trade. That is not covered.'
16
Congressman White. 'No; not in that section.'
17
Congressman Davis of Tennessee. 'Those are covered in 'G' (now § 313).'
18
Congressman White. 'That is a judicial question and we have left it to the courts to pass on that.'
19
This failure to include a provision permitting refusal of a license for antitrust violations in the absence of a judicial determination caused Congressman Davis to insert a lengthy Minority Report on H.R. 9108, which was old H.R. 5589 reintroduced by Congressman White.10 Consequently, when the bill (then numbered H.R. 9971) reached the floor of the House, Congressman Davis attempted to insert a number of amendments which would have strengthened the antitrusts aspects of the bill. See 67 Cong.Rec. 5484, 5485. All were defeated, including an amendment to § 2(C) (now § 311) which would have required refusal of a license to any company 'found by any Federal court or the commission to have been unlawfully monopolizing' radio communication. (Emphasis supplied.) See 67 Cong. Rec. 5501—5504, 5555.
20
Thus, in the Senate consideration of a version of the bill, when asked whether there was 'anything in the bill providing in case the applicant for a permit is found to be acting in violation of the Sherman antitrust law or controls a monopoly that the commission may pass upon the question,' Senator Dill of Washington, who was in charge of the bill in the Senate, replied:11
21
'The bill provides that in case anybody has been convicted under the Sherman antitrust law or any other law relating to monopoly he shall be denied a license; but the bill does not attempt to make the commission the judge as to whether or not certain conditions constitute a monopoly; it rather leaves that to the court.'
22
Congress adjourned before any action could be taken on the bill at that session. At the next session, a Conference Committee reported out the version of the bills which became the Radio Act of 1927, with now § 311 being § 13 of the Act and now § 313 being § 15 of the Act, despite the vigorous but unsuccessful opposition of Congressman Davis in the House, see, e.g., 68 Cong.Rec. 2577, and Senator Pittman of Nevada in the Senate. See, e.g., 68 Cong.Rec. 3032, 3034.
23
Only one change was made in those two Sections when they were incorporated into the Communications Act. Section 311 was modified merely to authorize rather than to require the revocation of a license by the Commission after a court had found a radio broadcaster in violation of the antitrust laws, but had not ordered its license revoked, 48 Stat. 1086. In all other respects §§ 13 and 15 of the Radio Act were identical with, and had the same purpose as, §§ 311 and 313 of the Communications Act.12
24
While this history compels the conclusion that the FCC was not intended to have any authority to pass on antitrust violations as such, it is equally clear that courts retained jurisdiction to pass on alleged antitrust violations irrespective of Commission action. Thus § 311, as originally enacted in 1934, 48 Stat. 1086, read as follows:
25
'The Commission is hereby directed to refuse a station license and/or the permit hereinafter required for the construction of a station to any person (or to any person directly or indirectly controlled by such person) whose license has been revoked by a court under section 313, and is hereby authorized to refuse such station license and/or permit to any other person (or to any person directly or indirectly controlled by such person) which has been finally adjudged guilty by a Federal court of unlawfully monopolizing or attempting unlawfully to monopolize, radio communication, directly or indirectly, through the control of the manufacture or sale of radio apparatus, through exclusive traffic arrangements, or by any other means, or to have been using unfair methods of competition. The granting of a license shall not estop the United States or any person aggrieved from proceeding against such person for violating the law against unfair methods of competition or for a violation of the law against unlawful restraints and monopolies and/or combinations, contracts, or agreements in restraint of trade, or from instituting proceedings for the dissolution of such corporation.' (Emphasis supplied.)
26
Appellees attempt to avoid the force of the italicized sentence in two ways. First, they point to its repeal in the 1952 amendments to the Act, 66 Stat. 716. That repeal was occasioned by objections from the industry that it was unfair for radio broadcasters who had been found in violation of the antitrust laws to be subject to license refusals by the Commission, even when the court as a part of its decree did not see fit to order the license revoked under § 313. See S.Rep. No. 142, 82d Cong., 1st Sess. 9. Congress accordingly repealed all of the Section following the first comma, including the italicized sentence. It apparently considered that inherent in the scheme of the Act was the right to challenge under the antitrust laws even transactions approved by the Commission, for the Conference Committee carefully noted that repeal of the italicized sentence would not curtail such a right:13
27
'To the extent that this section of the conference substitute will eliminate from section 311 of the present law the last sentence, which is quoted above, the committee of conference does not feel that this is of any legal significance. It is the view of the members of the conference committee that the last sentence of the present section 311 is surplusage and that by omitting it from the present law the power of the United States or of any private person to proceed under the antitrust laws would not be curtailed or affected in any way.'
28
Thus, appellees' reliance on repeal of the last sentence of § 311 is clearly misplaced.
29
Second, appellees urge that the italicized sentence as originally enacted had a very narrow scope; that it was intended to insure only that the granting of a license would not estop the Government from prosecuting antitrust violations subsequent to the transaction giving rise to the license proceeding, or of which the transaction was merely a small part. They argue that the sentence was intended to permit only actions such as in Packaged Programs v. Westinghouse Broadcasting Co., 3 Cir., 255 F.2d 708. But the language of the sentence cannot be naturally read in such a narrow manner, and it would take persuasive legislative history so to restrict its application. Appellees point to no such history, nor to any cases to holding.
30
Thus, the legislative history of the Act reveals that the Commission was not given the power to decide antitrust issues as such, and that Commission action was not intended to prevent enforcement of the antitrust laws in federal courts.
II.
31
We now reach the question whether, despite the legislative history, the over-all regulatory scheme of the Act requires invocation of a primary jurisdiction doctrine. The doctrine originated with Mr. Justice (later Chief Justice) White in Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. It was grounded on the necessity for administrative uniformity, and, in that particular case, for maintenance of uniform rates to all shippers.14 A second reason for the doctrine was suggested by Mr. Justice Brandeis in Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 479, 66 L.Ed. 943, where he pointed to the need for administrative skill 'commonly to be found only in a body of experts' in handling the 'intricate facts' of, in that case, the transportation industry.
32
Thus, when questions arose as to the applicability of the doctrine to transactions allegedly violative of the antitrust laws, particularly involving fully regulated industries whose members were forced to charge only reasonable rates approved by the appropriate commission, this Court found the doctrine applicable.15 United States v. Pacific & Arctic R. Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742; Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183; United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; State of Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051; Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. At the same time, this Court carefully noted that the doctrine did not apply when the action was only for the purpose of dissolving the conspiracy through which the allegedly invalid rates were set, for in such a case there would be no interference with rate structures or a regulatory scheme.16 United States v. Pacific & Arctic R. Co., supra; State of Georgia v. Pennsylvania R. Co., supra. The decisions sometimes emphasized the need for administrative uniformity and uniform rates, Keogh v. Chicago & N.W.R. Co., supra, while at other times they emphasized the need for administrative experience in distilling the relevant facts in a complex industry as a foundation for later court action. United States Navigation Co. v. Cunard S.S. Co., supra, and Far East Conference v. United States, supra, as explained in Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 497—499, 78 S.Ct. 851, 861—862, 2 L.Ed.2d 926.
33
The cases all involved, however, common carriers by rail and water. These carriers could charge only the published tariff, and that tariff must have been found by the appropriate agency to have been resonable. Free rate competition was modified by federal controls. The Court's concern was that the agency which was expert in, and responsible for, administering those controls should be given the opportunity to determine questions within its special competence as an aid to the courts in resolving federal antitrust policy and federal regulatory patterns into a cohesive whole. That some resolution is necessary when the antitrust policy of free competition is placed beside a regulatory scheme involving fixed rates is obvious. Cf. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544. Accordingly, this Court consistently held that when rates and practices relating thereto were challenged under the antitrust laws, the agencies had primary jurisdiction to consider the reasonableness of such rates and practices in the light of the many relevant factors including alleged antitrust violations, for otherwise sporadic action by federal courts would disrupt an agency's delicate regulatory scheme, and would throw existing rate structures out of balance.
34
While the television industry is also a regulated industry, it is regulated in a very different way. That difference is controlling. Radio broadcasters, including television broadcasters, see Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153, are not included in the definition of common carriers in § 3(h) of the Communications Act, 47 U.S.C. § 153(h), 47 U.S.C.A. § 153(h), as are telephone and telegraph companies. Thus the extensive controls, including rate regulation, of Title II of the Communications Act, 47 U.S.C. §§ 201—222, 47 U.S.C.A. §§ 201—222, do not apply.17 Television broadcasters remain free to set their own advertising rates. As this Court said in Federal Communications Comm. v. Sanders Bros. Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 697, 84 L.Ed. 869:
35
'In contradistinction to communication by telephone and telegraph, which the Communications Act recognizes as a common carrier activity and regulates accordingly in analogy to the regulation of rail and other carriers by the Interstate Commerce Commission, the Act recognizes that broadcasters are not common carriers and are not to be dealt with as such. Thus the Act recognizes that the field of broadcasting is one of free competition. The sections dealing with broadcasting demonstrate that Congress has not, in its regulatory scheme, abandoned the principle of free competition as it has done in the case of railroads. * * *' Thus, there being no pervasive regulatory scheme, and no rate structures to throw out of balance, sporadic action by federal courts can work no mischief. The justification for primary jurisdiction accordingly disappears.18
36
The facts of this case illustrate that analysis. Appellees, like unregulated business concerns, made a business judgment as to the desirability of the exchange. Like unregulated concerns, they had to make this judgment with knowledge that the exchange might run afoul of the antitrust laws. Their decision varied from that of an unregulated concern only in that they also had to obtain the approval of a federal agency. But scope of that approval in the case of the FCC was limited to the statutory standard, 'public interest, convenience, and necessity.' See, generally, Federal Radio Comm. v. Nelson Bros. Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166; Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656; Federal Communications Comm. v. Sanders Bros. Radio Station, supra; Federal Communications Comm. v. RCA Communications, 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470. The monetary terms of the exchange were set by the parties, and were of concern to the Commission only as they might have affected the ability of the parties to serve the public. Even after approval, the parties were free to complete or not to complete the exchange as their sound business judgment dictated. In every sense, the question faced by the parties was solely one of business judgment (as opposed to regulatory coercion), save only that the Commission must have found that the 'public interest' would be served by their decision to make the exchange. No pervasive regulatory scheme was involved.
37
This is not to imply that federal antitrust policy may not be considered in determining whether the 'public interest, convenience, and necessity' will be served by proposed action of a broadcaster, for this Court has held the contrary.19 National Broadcasting Co. v. United States, 319 U.S. 190, 222—224, 63 S.Ct. 997, 1011—1013, 87 L.Ed. 1344. Moreover, in a given case the Commission might find that antitrust considerations alone would keep the statutory standard from being met, as when the publisher of the sole newspaper in an area applies for a license for the only available radio and television facilities, which, if granted, would give him a monopoly of that area's major media of mass communication. See 98 Cong.Rec. 7399; Mansfield Journal Co. v. Federal Communications Comm., 86 U.S.App.D.C. 102, 107, 109, 180 F.2d 28, 33, 34.
III.
38
The other contentions of appellees fall of their own weight if the FCC has no power to decide antitrust questions. Thus, before we can find the Government collaterally estopped by the FCC licensing, we must find 'whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final adjudication of the issue in controversy.' Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 917, 84 L.Ed. 1263. (Emphasis supplied.) But the issue in controversy before the Commission was whether the exchange would serve the public interest, not whether § 1 of the Sherman Act had been violated. Consequently, there could be no estoppel. Res judicata principles are even more inapposite.
39
Similarly, there could be no laches unless the Government was under some sort of a duty to go forward in the FCC proceedings. But unless the FCC had power to decide the antitrust issues, and we have held that it did not, the Government had no duty either to enter the FCC proceedings or to seek review of the license grant.20
40
Accordingly, the judgment of the District Court dismissing the action is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
41
It is so ordered.
42
Judgment reversed and case remanded for further proceedings.
43
Mr. Justice HARLAN concurs in the result, believing, as he understands part 'I' of the Court's opinion to hold, that a Commission determination of 'public interest, convenience, and necessity' cannot either constitute a binding adjudication upon any antitrust issues that may be involved in the Commission's proceeding or serve to exempt a licensee pro tanto from the antitrust laws, and that these considerations alone are dispositive of this appeal.
44
Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
1
Under present FCC regulations, NBC can own no more than five stations, 47 CFR, 1958, § 3.636, so that acquisition of a new station would require that an existing one be relinquished.
2
Federal Communications Commission Report No. 2793, Public Notice 27067, December 28, 1955.
3
Commissioner Bartley dissented from the action, urging that hearings should have been held because the facts theretofore revealed by the investigation had raised 'serious questions as to the desirability and possible legality of the competitive practices followed by the network in obtaining dominance of major broadcast markets.' He suggested that there was 'a substantial question whether, once the Commission grants iits approval to these transfers, certain provisions of the Clayton Act (viz. 15 U.S.C.Section 18 (15 U.S.C.A. § 18)) might prevent Federal Trade Commission and Justice Department from taking any effective action in the event they concluded that possible violations of the antitrust laws were involved.' (Emphasis by the Commissioner.) Commissioner Doerfer, joined by Commissioner Mack, responded that it was unnecessary to hold a hearing because the investigation had fully revealed the facts. He concluded, however: 'It is difficult to see how approval of this exchange may effectively preclude other governmental agencies from examining into this or any other transaction of the network companies.'
4
44 Stat. 1162. See H.R.Conf.Rep. No. 1918, 73d Cong., 2d Sess. 47, 49.
5
'The Secretary of Commerce is hereby directed to refuse a station license and/or the permit hereinafter required for the construction of a station to any person, firm, company, or corporation, or any subsidiary thereof, which has been found guilty by any Federal court of unlawfully monopolizing or attempting to unlawfully monopolize radio communication, directly or indirectly, through the control of the manufacture or sale of radio apparatus, through exclusive traffic arrangements, or by any other means. The granting of a license shall not estop the United States or any person aggrieved from prosecuting such person, firm, company, or corporation for a violation of the law against unlawful restraints and monopolies and/or combinations, contracts, or agreements in restraint of trade.'
6
'All laws of the United States relating to unlawful restraints and monopolies and to combinations, contracts, or agreements in restraint of trade are hereby declared to be applicable to the manufacture and sale of and to trade in radio apparatus and devices entering into or affecting interstate or foreign commerce and to interstate or foreign radio communications. Whenever in any suit, action, or proceeding, civil or criminal, brought under the provisions of any of said laws or in any proceedings brought to enforce or to review findings and orders of the Federal Trade Commission or other governmental agency in respect of any matters as to which said commission or other governmental agency is by law authorized to act, any licensee shall be found guilty of the violation of the provisions of such laws or any of them, the court, in addition to the penalties imposed by said laws, may adjudge, order, and/or decree that the license of such licensee shall, as of the date the decree or judgment becomes finally effective or as of such other date as the said decree shall fix, be revoked and that all rights under such license shall thereupon cease: Provided, however, That such licensee shall have the same right of appeal or review as is provided by law in respect of other decrees and judgments of said court.'
7
As then phrased, the Act was to be administered primarily by the Secretary of Commerce.
8
Hearings before the House Committee on the Merchant Marine and Fisheries on H.R. 5589, 69th Cong., 1st Sess. 27.
9
Id., at 29.
10
See H.R.Rep. No. 404, 69th Cong., 1st Sess. 6, 16, 23.
11
67 Cong.Rec. 12507.
12
H.R.Conf.Rep. No. 1918, 73d Cong., 2d Sess. 47, 49.
13
H.R.Conf.Rep. No. 2426, 82d Cong., 2d Sess. 19.
14
We recently explained the nature of the doctrine in United States v. Western Pacific R. Co., 352 U.S. 59, 63—64, 77 S.Ct. 161, 164—165, 1 L.Ed.2d 126:
'The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. 'Exhaustion' applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. 'Primary jurisdiction,' on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.'
15
See, generally, 3 Davis, Administrative Law Treatise, §§ 19.05, 19.06; Jaffe, Primary Jurisdiction Reconsidered: The Anti-Trust Laws, 102 U. of Pa.L.Rev. 577; Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv.L.Rev. 436; von Mehren, The Antitrust Laws and Regulated Industries: The Doctrine of Primary Jurisdiction, 67 Harv.L.Rev. 929.
16
This followed because, in the words of Mr. Justice Brandeis in Keogh v. Chicago & N.W.R. Co., supra, 260 U.S. at page 161, 43 S.Ct. at page 49, '* * * a combination of carriers to fix reasonable and nondiscriminatory rates may be illegal.' This Court in State of Georgia v. Pennsylvania R. Co., supra, took the position that shippers were entitled to have rates filed by carriers who were not parties to a conspiracy, even though the rates filed were the lowest which would be found to be reasonable. The risk that future filings would be at the uppermost limits of the zone of reasonableness was too great, and damage from the conspiratorial filings was presumed to flow. Of course, when the agency is permitted to exempt from antitrust coverage rates filed cooperatively, the doctrine equally applies to an attack on the alleged conspiracy. United States Navigation Co. v. Cunard S.S. Co., supra; Far East Conference v. United States, supra.
17
Under Title II, common carriers are required to furnish communications service on reasonable request and may charged only just and reasonable rates, § 201. Such carriers must file rates with the FCC, and can charge only the rates as filed, § 203. The Commission may hold hearings on the lawfulness of filed rates, § 204, and after hearings may itself set the applicable rate, § 205. Cf. 49 U.S.C. § 15 et seq., 49 U.S.C.A. § 15 et seq.; 46 U.S.C. § 817, 46 U.S.C.A. § 817. In view of this extensive regulation, Congress has provided that certain actions of telephone and telegraph companies may be exempted from the antitrust laws by the Commission, § 221(a) and § 222(c)(1). Cf. 49 U.S.C. §§ 5(11), 5b(9), 49 U.S.C.A. §§ 5(11), 5b(9) and 46 U.S.C. § 814, 46 U.S.C.A. § 814. Such exemptions are, however, subject to review, see Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 78 S.Ct. 851.
18
This conclusion is re-enforced by the Commission's disavowal of either the power or the desire to foreclose the Government from antitrust actions aimed at transactions which the Commission has licensed. This position was taken both before the district judge below, and in a Supplemental Memorandum filed in this Court, page 8:
'Concurrent with the jurisdiction of the Department of Justice to enforce the Sherman Act, the Commission, of course, has jurisdiction to designate license applications for hearing on public interest questions arising out of facts which might also constitute violations of the antitrust laws. This does not mean, however, that its action on these public interest questions of communications policy is a determination of the antitrust issues as such. Thus, while the Commission may deny applications as not in the public interest where violations of the Sherman Act have been determined to exist, its approval of transactions which might involve Sherman Act violations is not a determination that the Sherman Act has not been violated, and therefore cannot forestall the United States from subsequently bringing an antitrust suit challenging those transactions.'
Nor was this position taken merely for the purposes of this litigation, for it has been the view of the Commission over a period of years. See Report on Uniform Policy as to Violation by Applicants of Laws of United States, FCC Docket No. 9572 (1950), 1 Pike and Fischer, Radio Regulation, Part III, 91:495; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344. Since, as Mr. Justice Brandeis observed, the doctrine of primary jurisdiction rests in part upon the need for the skill of a 'body of experts,' (259 U.S. 285, 42 S.Ct. 479) it would be odd to impose the doctrine when the experts deny the relevance of their skill.
19
See also Report on Uniform Policy as to Violation by Applicants of Laws of United States, FCC Docket No. 9572, 1 Pike and Fischer, Radio Regulation, Part III, 91:495.
20
It is relevant to note that the Commission is not expressly required to give the Government notice that antitrust issues have been raised in a § 310(b) proceeding. Compare § 222(c)(1) of the Act relating to common carriers, which expressly makes consolidations and mergers exempt from antitrust coverage if approved by the Commission, but which also expressly requires that notice be given to the Attorney General of the United States prior to approval.
| 78
|
358 U.S. 423
79 S.Ct. 445
3 L.Ed.2d 413
John H. CRUMADY, Petitioner,v.THE JOACHIM HENDRIK FISSER, Her Engines, Tackle, Apparel, etc., Joachim Hendrik Fisser, et al. THE JOACHIM HENDRIK FISSER, Her Engines, Tackle, Apparel, etc., Petitioner, v. NACIREMA OPERATING CO., Inc.
Nos. 61, 62.
Argued Jan. 12, 13, 1959.
Decided Feb. 24, 1959.
Mr. Abraham E. Freedman, Philadelphia, Pa., for John H. crumady.
Mr. Victor S. Cichanowicz, New York City, for Joachim Hendrik Fisser, Her Engines, etc., and others.
Mr. John J. Monigan, Jr., Newark, N.J. for Nacirema Operating Co., inc.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, Crumady, was an employee of a stevedoring company engaged in transferring a cargo of lumber from the ship Joachim Hendrik Fisser of German registry to a pier at Newark, New Jersey. While so engaged, he was injured and brought this admiralty suit by libel in rem against the vessel. The vessel impleaded the stevedoring contractor.
2
When the accident happened the stevedores were trying to lift two timbers through a hatch. The manner of the accident was described as follows by the District Court:
3
'* * * libellant and his fellow-employees had placed a double-eyed wire rope sling, provided with a sliding hook movable between the eyes thereof, around the two timbers at a location two or three feet from their after ends. The two eyes of the sling were then placed upon the cargo hook of the up-and-down boom runner and a signal given by the stevedore gangwayman to the winchman to 'take up the slack'. The winchman complied with the signal, and during this operation libellant stood clear upon other timbers forming a part of the cargo, within the open square of the hatch. There was some testimony that when the slack was taken up by the winchman, the two timbers slid toward each other in the sling, the timber which had been under the lower edge of the hatch coaming moving or commencing to move toward the timber which lay within the open hatch square. After the slack had been taken up by the winchman, the same signaller called for the 'taking of a strain' upon the cargo runner. The winchman again responded, the two-part topping-lift broke and the head of the up-and-down boom, with its attached cargo and topping-lift blocks, fell to the top of the cargo within the hatch square.
4
'The topping-lift had been rigged in a double purchase and had been supporting the head of the boom. The wire rope constituting the topping-lift extended from a shackle on the topping-lift block at the cross-tree of the mast, through a block at the boom head, back through the mast block, down the mast, through a block welded to the mast table, and thence around a drum of the winch. When the boom fell, libellant was knocked down, either by the boom itself or its appurtenant tackle, and thus sustained numerous serious and permanently disabling orthopedic and neurological injuries.' 142 F.Supp. 389, 391.
5
The safe working load of the boom and cargo runner and topping-lift handling the load at the time of the accident was three tons each. This equipment, which was part of the unloading and loading gear of the vessel, was in good condition. The winch, which served the boom, had a 'cut off' device or circuit breaker. It was set to shut off the current on the application of a load of about six tons, which was twice the safe working load of the unloading gear. The circuit breaker operated perfectly, cutting off current at the point of stress for which it was set. It had been set to operate at a load slightly more than twice the safe working load of the unloading gear* by employees of the ship before the winch was turned over to petitioner's fellow employees for operation.
6
The District Court accordingly found the vessel unseaworthy and therefore liable to petitioner. It also found that the stevedores moved the head of the boom in an effort to clear the cargo from the sides of the hatch and that this 'created a load on the topping-lift greatly in excess of its safe working load.' This act was found to be 'the primary cause of the parting of the topping-lift and consequent fall of the boom.' Since the stevedoring company was found to be negligent in bringing 'into play the unseaworthy condition of the vessel,' the District Court directed the stevedoring company to indemnify the vessel for the damages to petitioner. 142 F.Supp. 389, 401. The Court of Appeals reversed, holding that the vessel was not unseaworthy and that the sole cause of the injury was the negligence of the stevedores. 249 F.2d 818. A petition for rehearing was denied en banc, Judge Biggs dissenting. 249 F.2d 821. The cases are here on petitions for certiorari. 357 U.S. 903, 78 S.Ct. 1150, 2 L.Ed.2d 1154.
7
1. We held in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S.Ct. 872, 877, 90 L.Ed. 1099 that stevedores, though intermediately employed, are, when performing 'the ship's service,' entitled to the same protection against unseaworthiness which members of the crew doing the same work would receive. And see Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. The work of loading and unloading is historically 'the work of the ship's service.' Seas Shipping Co. v. Sieracki, supra, 328 U.S. at page 96, 66 S.Ct. at page 878.
8
This protection against unseaworthiness imposes a duty which the owner of the vessel cannot delegate. Seas Shipping Co. v. Sieracki, supra, 328 U.S. at page 100, 66 S.Ct. at page 880. Unseaworthiness extends not only to the vessel but to the crew (Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354) and to appliances that are appurtenant to the ship. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. And as to appliances the duty of the shipowner does not end with supplying them; he must keep them in order. Id., 321 U.S. at page 104, 64 S.Ct. at page 459; The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760. The shipowner is not relieved of these responsibilities by turning control of the loading or unloading of the ship over to a stevedoring company. It was held in Grillea v. United States, 2 Cir., 232 F.2d 919, that stevedores themselves could render a ship pro tanto unseaworthy and make the vessel owner liable for injuries to one of them. And see Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120; Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. We need not go so far to sustain the District Court here. For there is ample evidence to support the finding that these stevedores did no more than bring into play the unseaworthy condition of the vessel. The winch—an appurtenance of the vessel was not inherently defective as was the rope in the Mahnich case. But it was adjusted by those acting for the vessel owner in a way that made it unsafe and dangerous for the work at hand. While the rigging would take only three tons of stress, the cutoff of the winch—its safety device—was set at twice that limit. This was rigging that went with the vessel and was safe for use within known limits. Yet those limits were disregarded by the vessel owner when the winch was adjusted. The case is no different in principle from loading or unloading cargo with cable or rope lacking the test strength for the weight of the freight to be moved. In that case the cable or rope, in this case the winch, makes the vessel pro tanto unseaworthy. That was the theory of the District Court; it correctly applied the concept of unseaworthiness; and its findings of fact were not clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20.
9
II. A majority of the Court ruled in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, that where a shipowner and stevedoring company entered into a service agreement, the former was entitled to indemnification for all damages it sustained as a result of the stevedoring company's breach of its warranty of workmanlike service. And see Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. The facts here are different from those in the Ryan case, in that this vessel had been chartered by its owners to Ovido Compania Naviera S.A. Panama, which company entered into the service agreement with this stevedoring company. The contract, however, mentioned the name of the vessel on which the work was to be done and contained an agreement on the part of the stevedoring company 'to faithfully furnish such stevedoring services.'
10
We think this case is governed by the principle announced in the Ryan case. The warranty which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel's owners are parties to the contract or not. That is enough to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries. Restatement, Law of Contracts, § 133. Moreover, as we said in the Ryan case, 'competency and safety of stowage are inescapable elements of the service undertaken.' 350 U.S. at page 133, 76 S.Ct. at page 237. They are part of the stevedore's 'warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product.' Id., 350 U.S. at pages 133—134, 76 S.Ct. at page 237. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696.
11
We conclude that since the negligence of the stevedores, which brought the unseaworthiness of the vessel into play, amounted to a breach of the warranty of workmanlike service, the vessel may recover over.
12
The judgment of the Court of Appeals is reversed and the judgment of the District Court is reinstated.
13
It is so ordered.
14
Judgment of Court of Appeals reversed and judgment of District Court reinstated.
15
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
16
It should be said at the outset that neither of these cases should have been taken for review. No. 61, although of course important to the unfortunate victim of this accident, satisfies none of the criteria for certiorari set forth generally in Rules of Supreme Court, Rule 19, 28 U.S.C.A. The case involves merely factual issues of consequence only in this particular litigation, and being in admiralty lacks even that feature, the right to jury trial, which some of my Brethren have found to justify the Court's reviewing the sufficiency of the evidence in FELA, 45 U.S.C.A. § 51 et seq., and Jones Act, 46 U.S.C.A. § 688, cases. No. 62, dependent as it is on No. 61, likewise does not belong here.
17
When this Court reverses a Court of Appeals, particularly on issues of fact, I think the lower court is at least due an understandable explication of the reasons. In No. 61 the Court holds the vessel liable on the ground that its setting of the circuit breaker to cut off at a strain of more than 3 tons rendered the lifting gear unseaworthy, and further finds that the stevedores 'did no more than bring into play' this unseaworthy condition. The Court overturns the findings of a unanimous Court of Appeals that the setting of the circuit breaker at a strain of 6 tons did not make the lifting gear unseaworthy, and that the accident was caused not by this setting but by the stevedores' improper positioning of the head of the boom.* 249 F.2d 818. In my opinion the action of the Court lacks any solid basis. My views can best be pointed up by briefly recounting what was held by the court below in reversing the District Court.
18
The Court of Appeals first found that Crumady's claim of unseaworthiness in the District Court was predicated on the alleged defective condition of the topping-lift, and not on the setting of the circuit breaker. Id., at page 819. It then concluded that the District Court, 'with adequate basis in the record,' had correctly rejected this claim. Ibid.
19
The court then went on to hold that the District Court had properly found the accident primarily attributable to the negligent handling of the lifting operation by the stevedores, in that they had permitted a long and heavy timber to become wedged under the coaming of the hatch from which it was being removed, as well as having changed, contrary to instructions, the position of the head of the boom. Ibid. This 'incorrect procedure,' the Court of Appeals held, caused the topping-lift cable to be subjected to 'excessive and abnormal strain,' which in turn caused the cable to break and the boom to fall on Crumady. Id., at pages 819, 820—821.
20
Next, the Court of Appeals turned to the setting of the circuit breaker, 'a new theory of the ship's unseaworthiness' which the court found had been 'adopted' by the trial court on its own initiative. Id., at page 819. In rejecting this basis for holding the vessel liable the Court of Appeals analyzed the situation as follows: (1) hoisting gear is 'rated' in terms of supporting a load of not more than one-fifth of the strength of the lifting cable; (2) the gear here involved was rated to lift 3 tons; (3) the cable it was intended to and did utilize, for both the topping-lift and cargo runner, was strong enough to withstand a strain of 15 tons; (4) the setting of the circuit breaker to cut off the power from the winch controlling the lifting operation at a strain of 6 tons was proper; (5) the circuit breaker functioned properly, but the stevedores' improper positioning of the boom subjected the topping-lift to 'an enormous, abnormal and unanticipated' additional strain. Id., at page 820.
21
In light of its analysis of the record the Court of Appeals concluded (id., at pages 820—821):
22
'It was a proper finding that the negligence of the stevedores was 'the sole active or primary cause' of the parting of the gear. But we think it is equally clear that the court erred in the next step of its reasoning, that this negligence of Nacirema 'brought into play the unseaworthy condition of the vessel'. The concept of seaworthiness contemplates no more than that a ship's gear shall be reasonably fit for its intended purpose. (Footnote omitted.) Applied to the present facts, this means that the setting of the electrical circuit breaker could make the gear unseaworthy only if there was reason to fear that a strain of about six tons on the running gear, which would activate the cut off, would subject cable of fifteen ton capacity in the topping-lift to a dangerous strain. There is nothing in this record which suggests that such an eventuality was reasonably to be feared or anticipated. Thus, the gear was not proved to have been unseaworthy, neither was the setting of the cut off device established as a legal cause of the accident which occurred.' What answer does this Curt now make to the Court of Appeals' convincingly reasoned opinion? Simply the assertion that because the lifting gear was 'rated' for only 3 tons, it was not clearly erroneous for the District Court to conclude that it was wrong to set the circuit breaker to cut off at 6 tons, 'twice that limit.' What support does the Court muster for this assertion? Nothing but a footnote reference to the testimony of two witnesses, without so much as a word about the Court of Appeals' rejection of the probative value of such testimony in the face of, among other things, 'a Coast Guard standard for the setting of such a control, indicating that the setting (at 6 tons) of the cut off device was entirely safe and proper.' Id., at page 820.
23
Perhaps I should add that I believe unavailing Chief Judge Biggs' suggestion on petition for rehearing that liability might be predicated on the stevedores' improper positioning of the head of the boom and the theory of unseaworthiness enunciated by Judge Learned Hand in Grillea v. United States, 2 Cir., 232 F.2d 919. 249 F.2d at page 821. The record contains no indication that the positioning of the boom was other than 'an incident in a continuous operation' beyond the compass of that theory. Grillea v. United States, supra, 232 F.2d at page 922.
24
In view of the foregoing I think the Court's action overriding the Court of Appeals entirely unjustified. I would affirm the judgment below in No. 61, and not reach, as the Court of Appeals found it unnecessary to do, the indemnity issue put to us in No. 62.
25
Since my views have not prevailed, however, I am bound to consider the indemnity issue in light of the Court's reasoning in the action for unseaworthiness. In this light I must again dissent. As I read Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, the ship is entitled to indemnity only if the liability-inducing unseaworthiness or hazardous working condition is created by the stevedore. Here, on the Court's premises, Nacirema merely brought into play an unseaworthy condition created by the vessel itself. And on the Court's further premise that this condition was the cause of the injuries sustained by Crumady I think neither the decision nor the underlying principles in Ryan justifies the award of indemnity. Cf. Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 568, 78 S.Ct. 438, 441, 2 L.Ed.2d 491.
*
One expert, Robert A. Simons, testified:
'I said that it is not safe practice to have a rig that was designed for three tons working load and of the winch with a cut-off set at six tons so that you could apply six tons load to the hoist before the winch would cut off because that would be doubling the load for which the rig was designed for.'
Another expert, Walter J. Byrne, testified:
'* * * if you have three-ton gear and a three-ton winch and due to cut-offs in back, you allow, let us say, a hundred per cent overload to be developed, then I think from my point of view as a safety man you are taking away a governor. You are taking away something which is built in for the protection of the gear and personnel.'
*
Chief Judge Biggs, dissenting from the refusal of the court of appeals to grant rehearing en banc, did not disagree with these findings. 249 F.2d at page 821.
| 78
|
358 U.S. 450
79 S.Ct. 357
3 L.Ed.2d 421
NORTHWESTERN STATES PORTLAND CEMENT COMPANY, Appellant,v.STATE OF MINNESOTA. T. V. WILLIAMS, as State Revenue Commissioner, Petitioner, v. STOCKHAM VALVES AND FITTINGS, INC.
Nos. 12, 33.
Argued Oct. 14, 15, 1958.
Decided Feb. 24, 1959.
[Syllabus from pages 450-451 intentionally omitted]
Mr. Joseph A. Maun, St. Paul, Minn., for appellant in No. 12.
Mr. Perry Voldness, St. Paul, Minn., for appellee in No. 12.
Mr. Ben F. Johnson, Atlanta, Ga., for petitioner in No. 33.
Mr. John Izard, Jr., Atlanta, Ga., for respondent in No. 33.
Mr. Justice CLARK delivered the opinion of the Court.
1
These cases concern the constitutionality of state net income tax laws levying taxes on the portion of a foreign corporation's net income earned from and fairly apportioned to business activities within the taxing State when those activities are exclusively in furtherance of interstate commerce. No question is raised in either case as to the reasonableness of the apportionment of net income under the State's formulas nor to the amount of the final assessment made. The Minnesota tax was upheld by its Supreme Court, 250 Minn. 35, 84 N.W.2d 373, while the Supreme Court of Georgia invalidated its statute as being violative of 'both the commerce and due-process clauses of the Federal Constitution * * *.' 213 Ga. 713, 101 S.E.2d 197, 202. The importance of the question in the field of state taxation is indicated by the fact that thirty-five States impose direct net income taxes on corporations. Therefore, we noted jurisdiction of the appeal in the Minnesota case, 1958, 355 U.S. 911, 78 S.Ct. 341, 2 L.Ed.2d 272, and granted certiorari in the other, 1958, 356 U.S. 911, 78 S.Ct. 670, 2 L.Ed.2d 585. Although the cases were separately briefed, argued, and submitted, we have, because of the similarity of the tax in each case, consolidated from for the purposes of decision. It is contended that each of the state statutes, as applied, violates both the Due Process and the Commerce Clauses of the United States Constitution. Article 1, § 8, cl. 3; Amend. 14. We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same. No. 12.—Northwestern States Portland Cement Co. v. State of Minnesota.
2
This is an appeal from judgments of Minnesota's courts upholding the assessment by the State of income taxes for the years 1933 through 1948 against appellant, an Iowa corporation engaged in the manufacture and sale of cement at its plant in Mason City, Iowa, some forty miles from the Minnesota border. The tax was levied under § 290.031 of the Minnesota statutes, which imposes an annual tax upon the taxable net income of residents and nonresidents alike. One of four classes taxed by the statute is that of 'domestic and foreign corporations * * * whose business within this state during the taxable year consists exclusively of foreign commerce, interstate commerce, or both.' Minnesota has utilized three ratios in determining the portion of net income taxable under its law.2 The first is that of the taxpayer's sales assignable to Minnesota during the year to its total sales during that period made everywhere; the second, that of the taxpayer's total tangible property in Minnesota for the year to its total tangible property used in the business that year wherever situated. The third is the taxpayer's total payroll in Minnesota for the year to its total payroll for its entire business in the like period. As we have noted, appellant takes no issue with the fairness of this formula nor of the accuracy of its application here.
3
Appellant's activities in Minnesota consisted of a regular and systematic course of solicitation of orders for the sale of its products, each order being subject to acceptance, filling and delivery by it from its plant at Mason City. It sold only to eligible dealers, who were lumber and building material supply houses, contractors and ready-mix companies. A list of these eligible dealers was maintained and sales would not be made to those not included thereon. Forty-eight percent of appellant's entire sales were made in this manner to such dealers in Minnesota. For efficient handling of its activity in that State, appellant maintained in Minneapolis a leased sales office equipped with its own furniture and fixtures and under the supervision of an employee-salesman known as 'district manager.' Two salesmen, including this district manager, and a secretary occupied this three-room office. Two additional salesmen used it as a clearing house. Each employee was paid a straight salary by the appellant direct from Mason City and two cars were furnished by it for the salesmen. Appellant maintained no bank account in Minnesota, owned no real estate there, and warehoused no merchandise in the State. All sales were made on a delivered price basis fixed by the appellant in Mason City and no 'pick ups' were permitted at its plant there. The salesmen, however, were authorized to quote Minnesota customers a delivered price. Orders received by the salesmen or at the Minneapolis office were transmitted daily to appellant in Mason City, were approved there, and acknowledged directly to the purchaser with copies to the salesman.
4
In addition to the solicitation of approved dealers, appellant's salesmen also contacted potential customers and users of cement products, such as builders, contractors, architects, and state, as well as local government purchasing agents. Orders were solicited and received from them, on special forms furnished by appellant, directed to an approved local dealer who in turn would fill them by placing a like order with appellant. Through this system appellant's salesmen would in effect secure orders for local dealers which in turn were filled by appellant in the usual manner. Salesmen would also receive and transmit claims against appellant for loss or damage in any shipments made by it, informing the company of the nature thereof and requesting instructions concerning the same.
5
No income tax returns were filed with the State by the appellant. The assessments sued upon, aggregating some $102,000, with penalties and interest, were made by the Commissioner of Taxation on the basis of information available to him.
6
No. 33.—T. V. Williams, Commissioner v. Stockham Valves & Fittings, Inc.
7
The respondent here is a Delaware Corporation with its principal office and plant in Birmingham, Alabama. It manufactures and sells valves and pipe fittings through established local wholesalers and jobbers who handle products other than respondent's. These dealers were encouraged by respondent to carry a local inventory of its products by granting to those who did so a special price concession. However, the corporation maintained no warehouse or storage facilities in Georgia. It did maintain a sales-service office in Atlanta, which served five States. This office was headquarters for one salesman who devoted about one-third of his time to solicitation of orders in Georgia. He was paid on a salary-plus-commission basis while a full-time woman secretary employed there received a regular salary only. She was 'a source of information' for respondent's products, performed stenographic and clerical services and 'facilitated communications between the * * * home office in Birmingham, * * * (the) sales representative * * * and customers, prospective customers, contractors and users of (its) products.' Respondent's salesman carried on the usual sales activities, including regular solicitation, receipt and forwarding of orders to the Birmingham office and the promotion of business and good will for respondent. Orders were taken by him, as well as the sales-service office, subject to approval of the home office and were shipped from Birmingham direct to the customer on an 'f.o.b. warehouse' basis. Other than office equipment, supplies, advertising literature and the like, respondent had no property in Georgia, deposited no funds there and stored no merchandise in the State.
8
Georgia levies a tax3 on net incomes 'received by every corporation, foreign or domestic, owning property or doing business in this State.'4 The Act defines the latter as including 'any activities or transactions' carried on within the State 'for the purpose of financial profit or gain' regardless of its connection with interstate commerce. To apportion net income, the Act applies a three-factor ratio based on inventory, wages and gross receipts. Under the Act the State Revenue Commissioner assessed and collected a total of $1,478.31 from respondent for the taxable years 1952, 1954 and 1955, and after claims for refund were denied the respondent filed this suit to recover such payments. It bases its right to recover squarely upon the constitutionality of Georgia's Act under the Commerce and the Due Process Clauses of the Constitution of the United States.
9
That there is a 'need for clearing up the tangled underbrush of past cases' with reference to the taxing power of the States is a concomitant to the negative approach resulting from a case-by-case resolution of 'the extremely limited restrictions that the Constitution places upon the states. * * *' State of Wisconsin v. J. C. Penney Co., 1940, 311 U.S. 435, 445, 61 S.Ct. 246, 250, 85 L.Ed. 267. Commerce between the States having grown up like Topsy, the Congress meanwhile not having undertaken to regulate taxation of it, and the States having understandably persisted in their efforts to get some return for the substantial benefits they have afforded it, there is little wonder that there has been no end of cases testing out state tax levies. The resulting judicial application of constitutional principles to specific state statutes leaves much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation. This Court alone has handed down some three hundred full-dress opinions spread through slightly more than that number of our reports. As was said in Miller Bros. Co. v. State of Maryland, 1954, 347 U.S. 340, 344, 74 S.Ct. 535, 538, 98 L.Ed. 744, the decisions have been 'not always clear * * * consistent or reconcilable. A few have been specifically overruled, while others no longer fully represent the present state of the law.' From the quagmire there emerge, however, some firm peaks of decision which remain unquestioned.
10
It has long been established doctrine that the Commerce Clause gives exclusive power to the Congress to regulate interstate commerce, and its failure to act on the subject in the area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the States. Gibbons v. Ogden, 1824, 9 Wheat. 1, 6 L.Ed. 23. In keeping therewith a State 'cannot impose taxes upon persons passing through the state, or coming into it merely for a temporary purpose' such as itinerant drummers. Robbins v. Taxing District, 1887, 120 U.S. 489, 493—494, 7 S.Ct. 592, 594, 30 L.Ed. 694. Moreover, it is beyond dispute that a State may not lay a tax on the 'privilege' of engaging in interstate commerce, Spector Motor Service v. O'Connor, 1951, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573. Nor may a State impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, Memphis Steam Laundry Cleaner v. Stone, 1952, 342 U.S. 389, 72 S.Ct. 424, 96 L.Ed. 436; Nippert v. City of Richmond, 1946, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760, or by subjecting interstate commerce to the burden of 'multiple taxation,' Michigan-Wisconsin Pipe Line Co. v. Calvert, 1954, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583; Adams Mfg. Co. v. Storen, 1938, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365. Such impositions have been stricken because the States, under the Commerce Clause, are not allowed 'one single tax-worth of direct interference with the free flow of commerce.' Freeman v. Hewit, 1946, 329 U.S. 249, 256, 67 S.Ct. 274, 279, 91 L.Ed. 265.
11
On the other hand, it has been established since 1918 that a net income tax on revenues derived from interstate commerce does not offend constitutional limitations upon state interference with such commerce. The decision of Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049, pointed the way. There the Court held that though true it was that the Constitution provided 'No Tax or Duty shall be laid on Articles exported from any State,' Art. I, § 9, still a net income tax on the profits derived from such commerce was not 'laid on articles in course of exportation or on anything which inherently or by the usages of commerce is embraced in exportation or any of its processes * * *. At most, exportation is affected only indirectly and remotely.' Id., 247 U.S. at pages 174—175, 38 S.Ct. at page 434. The first case in this Court applying the doctrine to interstate commerce was that of United States Glue Co. v. Town of Oak Creek, 1918, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135. There the Court distinguished between an invalid direct levy which placed a burden on interstate commerce and a charge by way of net income derived from profits from interstate commerce. This landmark case and those usually cited as upholding the doctrine there announced, i.e., Underwood Typewriter Co. v. Chamberlain, 1920, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165, and Memphis Natural Gas Co. v. Beeler, 1942, 315 U.S. 649, 62 S.Ct. 857, 858, 86 L.Ed. 1090, dealt with corporations which were domestic to the taxing State (United States Glue Co. v. Town of Oak Creek, supra), or which had 'established a 'commercial domicile" there, Underwood Typewriter Co. v. Chamberlain, supra; Memphis Natural Gas Co. v. Beeler, supra.
12
But that the presence of such a circumstance is not controlling is shown by the cases of Bass, Ratcliff & Gretton, Ltd. v. State Tax Commission, 1924, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282, and Norfolk & W.R. Co. v. State of North Carolina, 1936, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977. In neither of these cases was the taxpayer a domiciliary of the taxing State, incorporated or with its principal place of business there, though each carried on substantial local activities. Permitting the assessment of New York's franchise tax measured on a proportional formula against a British corporation selling ale in New York State, the Court held in Bass, Ratcliff & Gretton, Ltd., supra, that 'the Company carried on the unitary business of manufacturing and selling ale, in which its profits were earned by a series of transactions beginning with the manufacture in England and ending in sales in New York and other places—the process of manufacturing resulting in no profits until it ends in sales—the State was justified in attributing to New York a just proportion of the profits earned by the Company from such unitary business.' Id., 266 U.S. at page 282, 45 S.Ct. at page 84. Likewise in Norfolk & W.R. Co., supra, North Carolina was permitted to tax a Virginia corporation on net income apportioned to North Carolina on the basis of mileage within the State. These cases stand for the doctrine that the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs. In fact, in Bass, Ratcliff & Gretton the operations in the taxing State were conducted at a loss, and still the Court allowed part of the over-all net profit of the corporation to be attributed to the State. A reading of the statute in Norfolk & W.R. Co. reveals further that one facet of the apportionment formula was specifically designed to attribute a portion of the interstate hauls to the taxing State.
13
Any doubt as to the validity of our position here was entirely dispelled four years after Beeler, in a unanimous per curiam in West Publishing Co. v. McColgan, 328 U.S. 823, 66 S.Ct. 1378, 90 L.Ed. 1603, citing the four cases of Beeler, United States Glue Co., both supra, Interstate Busses Corp. v. Blodgett, 1928, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551, and International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The case involved the validity of California's tax on the apportioned net income of West Publishing Company, whose business was exclusively interstate. See 27 Cal.2d 705, 166 P.2d 861, 862. While the statement of the facts in that opinion recites that 'The employees were given space in the offices of attorneys in return for the use of plaintiff's books stored in such offices,' it is significant to note that West had not qualified to do business in California and the State's statute itself declared that the tax was levied on income derived from interstate commerce within the State, as well as any arising intrastate. The opinion was not grounded on the triviality that office space was given West's soliciters by attorneys in exchange for the chanceful use of what books they may have had on hand for their sales activities. Rather, it recognized that the income taxes arose from a purely interstate operation.
14
'In relying on the foregoing cases for the proposition that a foreign corporation engaged within a state solely in interstate commerce is immune from net income taxation by that state, plaintiff (West Publishing Co.) overlooks the distinction made by the United States Supreme Court between a tax whose subject is the privilege of engaging in interstate commerce and a tax whose subject is the net income from such commerce. It is settled by decisions of the United States Supreme Court that a tax on net income from interstate commerce, as distinguished from a tax on the privilege of engaging in interstate commerce, does not conflict with the commerce clause.' 27 Cal.2d 705, 708—709, 166 P.2d 861, 863. (Citations omitted.)
15
We believe that the rationale of these cases, involving income levies by States, controls the issues here. The taxes are not regulations in any sense of that term. Admittedly they do not discriminate against nor subject either corporation to an undue burden. While it is true that a State may not erect a wall around its borders preventing commerce an entry, it is axiomatic that the founders did not intend to immunize such commerce from carrying its fair share of the costs of the state government in return for the benefits it derives from within the State. The levies are not privilege taxes based on the right to carry on business in the taxing State. The States are left to collect only through ordinary means. The tax, therefore, is 'not open to the objection that it compels the company to pay for the privilege of engaging in interstate commerce.' Underwood Typewriter Co. v. Chamberlain, supra, 254 U.S. at page 119, 41 S.Ct. at page 46. As was said in State of Wisconsin v. Minnesota Mining & Mfg. Co., 1940, 311 U.S. 452, 453, 61 S.Ct. 253, 254, 85 L.Ed. 274, 'it is too late in the day to find offense to that (commerce) Clause because a state tax is imposed on corporate net income of an interstate enterprise which is attributable to earnings within the taxing state * * *.'
16
While the economic wisdom of state net income taxes is one of state policy not for our decision, one of the 'realities' raised by the parties is the possibility of a multiple burden resulting from the exactions in question. The answer is that none is shown to exist here. This is not an unapportioned tax which by its very nature makes interstate commerce bear more than its fair share. As was said in Central Greyhound Lines of New York v. Mealey, 1948, 334 U.S. 653, 661, 68 S.Ct. 1260, 1265, 92 L.Ed. 1633, 'it is interstate commerce which the State is seeking to reach and * * * the real question (is) whether what the State is exacting is a constitutionally fair demand by the State for that aspect of the interstate commerce to which the State bears a special relation.' The apportioned tax is designed to meet this very requirement and 'to prevent the levying of such taxes as will discriminate against or prohibit the interstate activities or will place the interstate commerce at a disadvantage relative to local commerce.' Id., 334 U.S. at page 670, 68 S.Ct. at page 1270. Logically it is impossible, when the tax is fairly apportioned, to have the same income taxed twice. In practical operation, however, apportionment formulas being what they are, the possibility of the contrary is not foreclosed, especially by levies in domiciliary States.5 But that question is not before us. It was argued in Northwest Airlines v. State of Minnesota, 1944, 322 U.S. 292, 64 S.Ct.950, 952, 88 L.Ed. 1283, that the taxation of the entire fleet of its airplanes in that State would result in multiple taxation since other States levied taxes on some proportion of the full value thereof. The Court rejected this contention as being 'not now before us' even though other States actually collected property taxes for the same year from Northwest upon 'some proportion' of the full value of its fleet.6 Here the records are all to the contrary. There is nothing to show that multiple taxation is present. We cannot deal in abstractions. In this type of case the taxpayers must show that the formula places a burden upon interstate commerce in a constitutional sense. This they have failed to do.
17
It is also contended that Spector Motor Service v. O'Connor, 1951, 340 U.S. 602, 71 S.Ct. 508, 509, 95 L.Ed. 573, requires a contrary result. But there it was repeatedly emphasized that the tax was 'imposed upon the franchise of a foreign corporation for the privilege of doing business within the State * * *.' Thus, it was invalid under a long line of precedents, some of which we have mentioned.7 It was not a levy on net income but an excise or tax placed on the franchise of a foreign corporation engaged 'exclusively' in interstate operations. Therefore, with the exception of Beeler, heretofore mentioned, the Court made no reference to the net-income-tax cases which control here. We do not construe that reference as intended to impair the validity of the Beeler opinion Nor does it reach our problem. The taxes here, like that in West Publishing Co. v. McColgan, supra, are based only upon the net profits earned in the taxing State. That incidence of the tax affords a valid 'constitutional channel' which the States have utilized to 'make interstate commerce pay its way.' In Spector the incidence was the privilege of doing business, and that avenue of approach had long been declared unavailable under the Commerce Clause. As was said in Spector, 'taxes may be imposed although their payment may come out of the funds derived from petitioner's interstate business, provided the taxes are so imposed that their burden will be reasonably related to the powers of the State and (are) nondiscriminatory.' 340 U.S. at page 609, 71 S.Ct. at page 512. We find that the statutes here meet these tests.
18
Nor will the argument that the exactions contravene the Due Process Clause bear scrutiny. The taxes imposed are levied only on that portion of the taxpayer's net income which arises from its activities within the taxing State. These activities form a sufficient 'nexus between such a tax and transactions within a state for which the tax is an exaction.' State of Wisconsin v. J. C. Penney Co., supra, 311 U.S. at page 445, 61 S.Ct. at page 250. It strains reality to say, in terms of our decisions, that each of the corporations here was not sufficiently involved in local events to forge 'some definite link, some minimum connection' sufficient to satisfy due process requirements. Miller Bros. Co. v. State of Maryland, 1954, 347 U.S. 340, 344—345, 74 S.Ct. 535, 539, 98 L.Ed. 744. See also Ott v. Miss. Valley Barge Line Co., 1949, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585; International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and West Publishing Co. v. McColgan, supra. The record is without conflict that both corporations engage in substantial income-producing activity in the taxing States. In fact in No. 12 almost half of the corporation's income is derived from the taxing State's sales which are shown to be promoted by vigorous and continuous sales campaigns run through a central office located in the State. While in No. 33 the percent of sales is not available, the course of conduct was largely identical. As was said in State of Wisconsin v. J. C. Penney Co., supra, the 'controlling question is whether the state has given anything for which it can ask return.' Since by 'the practical operation of (the) tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred * * *' it 'is free to pursue its own fiscal policies, unembarrassed by the Constitution * * *.' Id., 311 U.S. at page 444, 61 S.Ct. at page 250.
19
No. 12—Affirmed.
20
No. 33—Reversed.
21
Mr. Justice HARLAN, concurring.
22
In joining the opinion of the Court, I deem it appropriate to make some further comments as to the issues in these cases because of the strongly held contrary views manifested in the dissenting opinions of Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER. I preface what follows by saying that in my view the past decisions of this Court clearly point to, if indeed they do not compel, the sustaining of these two state taxing measures.
23
Since United States Glue Co. v. Town of Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135, decided in 1918, this Court has uniformly held that a State, in applying a net income tax of general impact to a corporation doing business within its borders, may reach income derived from interstate commerce to the extent that such income is fairly related to corporate activities within the State. See, e.g., Shaffer v. Carter, 252 U.S. 37, 57, 40 S.Ct. 221, 227, 64 L.Ed. 445; Atlantic Coast Line R. Co. v. Daughton, 262 U.S. 413, 416, 43 S.Ct. 620, 621, 67 L.Ed. 1051. See also Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 119—120, 41 S.Ct. 45, 46, 65 L.Ed. 165; Bass, Ratcliff & Gretton, Ltd. v. State Tax Commission, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282; Norfolk & W.R. Co. v. State of North Carolina, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977.
24
As I read the cases the existence of some income from intrastate business on the part of the taxed corporation, while sometimes adverted to, has never been considered essential to the valid taxation of such 'interstate' income. The cases upholding taxes of this kind cannot, in my opinion, properly be said to rest on the theory that the income earned from the carrying on of interstate commerce was not in fact being taxed, but rather was being utilized simply to measure the income derived from some separate, but unidentified, intrastate commerce, which income was in truth the subject of the tax. That this is so seems to me apparent from United States Glue itself. There the Court explicitly recognized that the question before it was whether net income from exclusively interstate commerce could be taxed by a State on an apportioned basis together with other income of a corporation. The careful distinction, drawn more than once in the course of the opinion, between gross receipts from interstate commerce, assumed to be immune from state taxation, and net income therefrom, 247 U.S. at pages 324, 326, 327, 328, 329, 38 S.Ct. at pages 500, 501, would be altogether meaningless if the case is to be explained on the basis suggested by my dissenting brethren, for if all that was in fact being taxed was income from intrastate commerce there is no reason why gross receipts as well as net income could not have been reached by the State.1
25
Surely any possible doubt on this score is removed by West Publishing Co. v. McColgan, 328 U.S. 823, 66 S.Ct. 1378, 90 L.Ed. 1603, where this Court unanimously affirmed, without oral argument, a decision of the California Supreme Court upholding the validity of a statute taxing 'income from any activities carried on in this State, regardless of whether carried on in intrastate, interstate or foreign commerce' as applied to reach a portion of the net income of a Minnesota corporation not qualified to do intrastate business in California and assumed by the California court to the deriving income in California entirely 'from activities in furtherance of a purely interstate business * * *.' 27 Cal.2d 705, 712, 166 P.2d 861, 865.
26
It is suggested that the Court's summary affirmance in the West case went on the ground that the taxpayer there was found by the state court to have been engaged in intrastate commerce in California, and that it was only the income earned from such commerce that had in truth been taxed by the State. In my view, this explanation of West is unacceptable. Apart from the fact that the California Supreme Court did not proceed on any such basis (see especially the quotation from the state court's opinion set forth at page 364 of 79 S.Ct.), the only facts elucidated in support of this view of the West cast are that employees of the taxpayer solicited business in California, that they were authorized to receive payments on orders taken by them, to collect delinquent accounts, and to adjust complaints, and that they were given space in California lawyers' offices in return for the use of the taxpayer's books there stored, which locations were also advertised as the taxpayer's local offices. It is said that these are 'the usual criteria which this Court has consistently held to constitute the doing of intrastate commerce' and that 'California determined and taxed only the amount of that intrastate commerce.' With deference, this seems to me to be both novel doctrine and unreal analysis; novel doctrine because this Court has never held that activities of this kind, performed solely in aid of interstate sales, are intrastate commerce; unreal analysis, because it is surely stretching things too far to say that California was seeking to measure and tax office renting and complaint adjusting rather than part of the income from concededly interstate sales transactions.
27
I think that West squarely governs the two cases now before us.2
28
It is said that the taxes presently at issue were 'laid on income from (interstate commerce) because of its source.' If this were so I should of course vote to strike down their application here as unconstitutionally discriminatory against interstate commerce. But this seems to me plainly not such a case. As the opinion of the Court demonstrates, the Minnesota and Georgia taxes are each part of a general scheme of state income taxation, reaching all individual, corporate, and other net income. The taxing statutes are not sought to be applied to portions of the net income of Northwestern and Stockham because of the source of that income—interstate commerce—but rather despite that source. The thrust of these statutes is not hostile discrimination against interstate commerce, but rather a seeking of some compensation for facilities and benefits afforded by the taxing States to income-producing activities therein, whether those activities be altogether local or in furtherance of interstate commerce. The past decisions of this Court establish that such compensation may be had by the States consistent with the Commerce Clause.
29
I think it no more a 'regulation of,' 'burden on,' or 'interference with' interstate commerce to permit a State within whose borders a foreign corporation engages solely in activities in aid of that commerce to tax the net income derived therefrom on a properly apportioned basis than to permit the same State to impose a nondiscriminatory net income tax of general application on a corporation engaging in both interstate and intrastate commerce therein and to take into account income from both categories. Cf. Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049. In each case the amount of the tax will increase as the profitability of the interstate business done increases. This Court has consistently upheld state net income taxes of general application so applied as to reach that portion of the profits of interstate business enterprises fairly allocable to activities within the State's borders. We do no more today.
30
Mr. Justice FRANKFURTER, dissenting.
31
By way of emphasizing my agreement with my brother WHITTAKER, I add a few observations.
32
The Court sustains the taxing power of the States in these two cases essentially on the basis of precedents. For me, the result of today's decisions is to break new ground. I say this because, among all the hundreds of cases dealing with the power of the States to tax commerce, there is not a single decision adjudicating the precise situation now before us. Concretely, we have never decided that a State may tax a corporation when that tax is on income related to the State by virtue of activities within it when such activities are exclusively part of the process of doing interstate commerce. That is the precise situation which the state courts found her, to wit:
33
'(Northwestern's) activities in this State were an integral part of its interstate activities, and all revenue received by it from customers in Minnesota resulted from its operations in interstate commerce.'
34
and,
35
'(W)ithout dispute (Stockham) was engaged exclusively in interstate commerce insofar as its activities in Georgia are concerned.' 213 Ga. 713, 719, 101 S.E.2d 197, 201.
36
It is vital to realize that in no case prior to this decision in which the taxing power of a State has been upheld when applied to corporations engaged in interstate commerce, was there a total absence of activities pursued or advantages conferred within the States severable from the very process which constitutes interstate commerce.
37
The case that argumentatively comes the closest to the situation now before the Court is West Publishing Co. v. McColgan, 328 U.S. 823, 66 S.Ct. 1378, 90 L.Ed. 1603.1 But in that case too, as the opinion of the California Supreme Court which we there summarily sustained clearly set forth, 27 Cal.2d 705, 166 P.2d 861, the West Publishing Company did not merely complete in Calfornia the business which began in Minnesota. It employed permanent workers who engaged in business activities localized in California, activities which were apart from and in addition to the purely interstate sale of law books. These activities were more than an essential part of the process of interstate commerce; they were, in legal shorthand, local California activities constituting intrastate business. In dealing with those purely local activities the State could properly exert its taxing power in relation to opportunities and advantages which it had given and which it could have withheld by simply not allowing a foreign corporation to do local business, whereas no State may withhold from a foreign corporation within its borders the right to exercise what is part of a process of exclusively interstate commerce. The State gives to a corporation so engaged nothing which it can withhold and therefore nothing for which it can charge a price, whether the price be the cost of a license to do interstate business or a tax on the profits accruing from that business.
38
I venture to say that every other decision—I say decision, not talk or dicta—on which reliance is placed, presented a situation where conjoined with the interstate commerce was severable local state business on the basis of which the state taxing power become constitutionally operative. The difference between those situations and this, as a matter of economics, involves the distinction between taking into account the total activity of the enterprise as a going business in determining a fairly apportioned tax based on locally derived revenues, and taxing a portion of revenue concededly produced by exclusively interstate commerce. To be sure, such a distinction is a nice one, but the last word on the necessity of nice distinctions in this area was said by Mr. Justice Holmes in Galveston, H. & S.A.R. Co. v. State of Texas, 210 U.S. 217, 225, 28 S.Ct. 638, 639, 52 L.Ed. 1031: 'It being once admitted, as of course it must be, that not every law that affects commerce * * * is a regulation of it in a constitutional sense, nice distinctions are to be expected.'
39
Accordingly, today's decision cannot rest on the basis of adjudicated precedents. This does not bar the making of a new precedent. The history of the Commerce Clause is the history of judicial evolution. It is one thing, however, to recognize the taxing power of the States in relation to purely interstate activities and quite another thing to say that that power has already been established by the decisions of this Court. If new ground is to be broken, the ground must be justified and not treated as though it were old ground.
40
I do not think we should take this new step. My objection is the policy that underlies the Commerce Clause, namely, whatever disadvantages may accrue to the separate States from making of the United States a free-trade territory are far outweighed by the advantages not only to the United States as a Nation, but to the component States. I am assuming, of course, that today's decision will stimulate, if indeed it does not compel, every State of the Union, which has not already done so, to devise a formula of apportionment to tax the income of enterprises carrying on exclusively interstate commerce. As a result, interstate commerce will be burdened not hypothetically but practically, and we have been admonished again and again that taxation is a practical matter.
41
I think that interstate commerce will be not merely argumentatively but actively burdened for two reasons:
42
First. It will not, I believe, be gainsaid that there are thousands of relatively small or moderate size corporations doing exclusively interstate business spread over several States. To subject these corporations to a separate income tax in each of these States means that they will have to keep books, make returns, store records, and engage legal counsel, all to meet the divers and variegated tax laws of forty-nine States, with their different times for filing returns, different tax structures, different modes for determining 'net income,' and different, often conflicting, formulas of apportionment. This will involve large increases in bookkeeping, accounting, and legal paraphernalia to meet these new demands. the cost of such a far-flung scheme for complying with the taxing requirements of the different States may well exceed the burden of the taxes themselves, especially in the case of small companies doing a small volume of business in several States.2
43
Second. The extensive litigation in this Court which has challenged formulas of apportionment in the case of railroads and express companies3—challenges addressed to the natural temptation of the States to absorb more than their fair share of interstate revenue—will be multiplied many times when such formulas are applied to the infinitely larger number of other businesses which are engaged in exclusively interstate commerce. The division in this Court on these railroad apportionment cases is a good index of what might reasonably be expected when cases involving the more numerous non-transportation industries come before the Court. This is not a suggestion that the convenience of the Court should determine our construction of the Commerce Clause, although it is important in balancing the considerations relevant to the Commerce Clause against the claims of state power that this Court should be mindful of the kind of questions it will be called upon to adjudicate and its special competence for adjudicating them. Wholly apart from that, the necessity for litigation based on these elusive and essentially non-legal questions casts a burden on businesses, and consequently on interstate commerce itself, which should not be imposed.
44
These considerations do not at all lead to the conclusion that the vast amount of business carried on throughout all the States as part of what is exclusively interstate commerce should not be made to contribute to the cost of maintaining state governments which, as a practical matter, necessarily contribute to the conduct of that commerce by the mere fact of their existence as governments. The question is not whether a fair share of the profits derived from the carrying on of exclusively interstate commerce should contribute to the cost of the state governments. The question is whether the answer to this problem rests with this Court or with Congress.
45
I am not unmindful of the extent to which federal taxes absorb the taxable resources of the Nation, while at the same time the fiscal demands of the States are on the increase. These conditions present far-reaching problems of accommodating federal-state fiscal policy. But a determination of who is to get how much out of the common fund can hardly be made wisely and smoothly through the adjudicatory process. In fact, relying on the courts to solve these problems only aggravates the difficulties and retards proper legislative solution.
46
At best, this Court can only act negatively; it can determine whether a specific state tax is imposed in violation of the Commerce Clause. Such decisions must necessarily depend on the application of routh and ready legal concepts. We cannot make a detailed inquiry into the incidence of diverse economic burdens in order to determine the extent to which such burdens conflict with the necessities of national economic life. Neither can we devise appropriate standards for dividing up national revenue on the basis of more or less abstract principles of constitutional law, which cannot be responsive to the subtleties of the interrelated economies of Nation and State.
47
The problem calls for solution by devising a congressional policy. Congress alone can provide for a full and thorough canvassing of the multitudinous and intricate factors which compose the problem of the taxing freedom of the States and the needed limits on such state taxing power.4 Congressional committees can make studies and give the claims of the individual States adequate hearing before the ultimate legislative formulation of policy is made by the representatives of all the States. The solution to these problems ought not to rest on the self-serving determination of the States of what they are entitled to out of the Nation's resources. Congress alone can formulate policies founded upon economic realties, perhaps to be applied to the myriad situation involved by a properly constituted and duly informed administrative agency.
48
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER and Mr. Justice STEWART join, dissenting.
49
I respectfully dissent. My disagreement with the Court is over what I think are constitutional fundamentals. I think that the Commerce Clause of the Constitution, Art. I, § 8, cl. 3, as consistently interpreted by this Court until today, precludes the States from laying taxes directly on, and thereby regulating, 'exclusively interstate commerce.' But the Court's decision today holds that the States may do so.
50
The statutes, facts and findings involved are clear, sharp and undisputed. There is no room to doubt that the statutes involved were designed to tax income derived 'exclusively (from) interstate commerce'; that the courts of the States concerned have found that the income involved derived 'exclusively (from) interstate commerce'; and that the taxes in question were laid directly on that interstate commerce.
51
Northwestern States Portland Cement Company, an Iowa corporation maintaining its principal office and only manufacturing plant in Mason City in that State, has for many years sold its cement locally in Iowa and, in interstate commerce, to dealers in neighboring States including Minnesota. Although the 'exclusively' interstate character of the commerce done by Northwestern in Minnesota is not disputed, the course of its conduct in that State is summarized in the margin.1 in 1950 Minnesota, acting under its statutory 'three factor formula' now contained in Minnesota Statutes 1957, § 290.19, M.S.A.,2 apportioned and allocated to Minnesota a substantial part of Northwestern's net income for each of the years 1933 through 1948. Upon the amount of net income so allocated, Minnesota assessed a tax against Northwestern for each of those years under what is now Minnesota Statutes 1957, § 290.03, M.S.A. which, in pertinent part, provides:
52
'290.03. * * * classes of taxpayers. An annual tax for each taxable year, computed in the manner and at the rates hereinafter provided, is hereby imposed upon the taxable net income for such year of the following classes of taxpayers:
53
'(1) Domestic and foreign corporations * * * whose business within this state during the taxable year consists exclusively of * * * interstate commerce * * *.'
54
Upon Northwestern's refusal to pay those taxes, Minnesota brought this action in its own court to recover them. Northwestern defended upon the grounds (1) that s 290.03, as applied, imposed the taxes directly upon interstate commerce and, hence, regulated it in violation of the Commerce Clause of the Constitution, Art. I, § 8, cl. 3, and (2) that the income involved was not subject to Minnesota's jurisdiction and its action in taxing it violated the Due Process Clause of the Fourteenth Amendment. At the conclusion of the trial, the court made formal findings of fact including the following:
55
'(Northwestern's) activities in this state were an integral part of its interstate activities, and all revenue received by it from customers in Minnesota resulted from its operations in interstate commerce.'
56
But the trial court, nevertheless, sustained the tax and entered judgment for the State. Northwestern appealed to the Supreme Court of Minnesota which, without challenging the finding of fact above-quoted, affirmed, 250 Minn. 32, 84 N.W.2d 373, and the case is here on Northwestern's appeal. 355 U.S. 911, 78 S.Ct. 341, 2 L.Ed.2d 272.
57
Stockham Valves & Fittings, Inc., is a Delaware corporation maintaining its principal office and only manufacturing plant in Birmingham, Alabama . It makes valves and pipefittings which it sells locally in Alabama and, in interstate commerce, to wholesalers and jobbers in Georgia as well as in all other States of the Union. Although the facts are stipulated and the 'exclusively' interstate character of the commerce done by Stockham in Georgia is not in dispute, the course of its conduct in that State is summarized in the margin.3 Petitioner, as State Revenue Commissioner of Georgia, acting under the 'Three Factor Ratio' of the Code of Georgia, 1933, as amended, § 92 3113(4),4 apportioned and allocated to Georgia a part of Stockham's net income for each of the years 1952, 1954, and 1955. Upon the amounts of net income so allocated, petitioner assessed a tax against Stockham for each of those years under the Code of Georgia of 1933, as amended, § 92—3113, which, in pertinent part, provides:
58
'Corporations, allocation and apportionment of income.—The tax imposed by this law shall apply to the entire net income, as herein defined, received by every corporation, foreign or domestic, owning property or doing business in this State. Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, * * * whether or not any such activity or transaction is connected with interstate or foreign commerce.' (Emphasis added.)
59
Upon demand, Stockham paid the taxes and, after denial of timely claim for refund, brought this suit to recover the amount paid, contending (1) that § 92—3113, as applied, imposed the taxes directly upon interstate commerce and, hence, regulated it in violation of the Commerce Clause of the Constitution, and (2) that the income involved was not subject to Georgia's jurisdiction and its action in taxing it violated the Due Process Clause of the Fourteenth Amendment. The trial court sustained the tax. Stockham appealed to the Supreme Court of Georgia. It found that:
60
'(W)ithout dispute (Stockham) was engaged exclusively in interstate commerce insofar as its activities in Georgia are concerned * * *.' 213 Ga. 713, 719, 101 S.E.2d 197, 201.
61
And it held that § 92—3113, as applied, violated the Commerce Clause of the Constitution. It thereupon reversed the judgment, 213 Ga. 713, 101 S.E.2d 197, and we granted Georgia's petition for certiorari. 356 U.S. 911, 78 S.Ct. 670, 2 L.Ed.2d 585.
62
I submit that these simple recitals clearly show (1) that the Minnesota and Georgia statutes, in plain terms, purport to tax income derived 'exclusively (from) interstate commerce,' (2) that the Minnestoa and Georgia courts have found that the income involved was derived 'exclusively (from) interstate commerce,' and (3) that the taxes were laid directly on that interstate commerce. There is no room to dispute these admitted facts. Yet, I believe, the Court does not squarely face them but veiledly treats the cases as though intrastate commerce were to some extent involved. It says, referring to the Minnesota case, (a) that one of the salesmen was known as 'district manager,' (b) that the Minneapolis sales office was used 'as a clearing house,' (c) that 'Orders were solicited and received from (builders, contractors and architects), on special forms furnished by appellant, directed to an approved local dealer who in turn would fill them by placing a like order with appellant, (and that) (t)hrough this system appellant's salesmen would in effect secure orders for local dealers which in turn were filled by appellant in the usual manner,' and (d) that 'Salesmen would also receive and transmit claims against appellant for loss or damage in any shipments made by it, informing the company of the nature thereof and requesting instructions concerning the same.' These recitals, if found true, might very well have supported a finding, had there been one, that the taxpayer was engaged in intrastate commerce in Minnesota. Particularly might the statement about the salesmen taking orders from builders, contractors and architects for local dealers have done so, for it was expressly held in Cheney Brothers Co. v. Commonwealth of Massachusetts, 246 U.S. 147, 155, 38 S.Ct. 295, 297, 62 L.Ed. 632, that such conduct amounted to engaging in the local business of selling products for such dealers. But no such finding was made by the Minnesota courts. And there is more than colorable basis for believing that Minnesota did not desire such a finding, as any such practice could easily be ended by Northwestern, and Minnesota's purpose was not to rest on such a basis but to obtain an adjudication that its statute, § 290.03, constitutionally imposed a tax upon the taxpayer's net income from Minnesota customers though derived 'exclusively (from) interstate commerce.' Nor can the Court's seeming disdain of the word 'commerce' and its frequent use, instead, of 'activities' obscure the fact that it was 'exclusively interstate commerce' that was taxed. The abstract use of the word 'activities,' as applied to a commerce question and distinguished from a due process one, has no legal significance. What is of legal consequence is whether the 'activities' were in intrastate or in interstate commerce. Here, the Minnesota and Georgia courts have found that the income which was taxed had derived 'exclusively (from) interstate commerce.'
63
So if anything is plain it is that we are not presented with cases involving the doing of any intrastate commerce in Minnesota or Georgia by the taxpayers. The courts of those States have expressly found that there was none. Therefore, we do not have a situation where a taxpayer was doing both intrastate and interstate commerce within the taxing State, thus to invoke application of the State's apportionment statute in order to determine how much of the total income of the taxpayer had derived from intrastate commerce in the taxing State, and was, therefore, subject to its taxing power. Instead we have here only interstate commerce, which the States are prohibited from regulating, by direct taxation or otherwise, by the Commerce Clause of the Constitution.
64
Yet, the Court 'conclude(s) that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same.' (Emphasis added.) I respectfully submit that this is novel doctrine, and that this Court has never before so held.
65
The Court refers to our past opinions in this field as creating a 'quagmire,' and says 'there is a 'need for clearing up the tangled underbrush of past cases' with reference to the taxing power of the States * * *.' I respectfully submit that this Court's past opinions, rightly understood and aligned in their proper categories, are remarkably consistent in a field so varied and complex, and that they do not deserve the characterizations given them. It is quite true in this field—as I thihk is the case in almost every field—that loose statements can be found in some of the opinions which when considered in isolation, and certainly when taken out of context, are seemingly outside the line of the law. But I think it is entirely fair to say that such confusion as exists is mainly due to a failure properly to analyze, understand, categorize and apply the decisions.
66
In applying the Court's opinions in the field of state income taxation of commerce, it is at least necessary sharply to discern (1) whether the tax was laid upon the general income of a resident or domiciliary of the taxing State, (2) whether the taxpayer's production, manufacturing, distribution or management facilities, or some of them, were located in the taxing State, (3) whether the taxpayer conducted both intrastate and interstate commerce in the taxing State, and, if so, (4) whether the tax was directly laid on income derived from interstate commerce, or—what is the equivalent on the whole of the income, or whether the whole of the income was used as one of the several factors in an apportionment formula merely for the purpose of fairly measuring the uncertain percentage or proportion of the total income that was earned within the taxing State.
67
Let us start our consideration with fundamentals. Of course, the foundation is the Commerce Clause itself. It provides: 'The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes * * *.' U.S.Const. Art. I, § 8, cl. 3. That clause 'by its own force created an area of trade free from interference by the States.' Freeman v. Hewit, 329 U.S. 249, 252, 67 S.Ct. 274, 276, 91 L.Ed. 265. '(N)o state has the right to lay a tax on interstate commerce in any form * * *. (T)he reason is that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to congress.' Leloup v. Port of Mobile, 127 U.S. 640, 648, 8 S.Ct. 1380, 1384, 32 L.Ed. 311. And see the thirteen cases in this Court there cited in support of the quoted text. Mr. Justice Brandeis, speaking for the Court in Sprout v. City of South Bend, 277 U.S. 163, 171, 48 S.Ct. 502, 505, 72 L.Ed. 833, declared that 'in order that (a State) fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business.' (Emphasis added.) The same declaration was made for the Court by Mr. Justice Butler in East Ohio Gas Co. v. Tax Commission, 283 U.S. 465, 470, 51 S.Ct. 499, 500, 75 L.Ed. 1171, and again by Mr. Chief Justice Hughes in Cooney v. Mountain States Tel. Co., 294 U.S. 384, 393, 55 S.Ct. 477, 482, 79 L.Ed. 934.
68
From this alone it would seem necessarily to follow that the taxes here challenged, which were laid by the States directly on 'exclusively interstate commerce,' burdened that commerce and, hence, regulated it in violation of the Commerce Clause of the Constitution. But there is more. This Court has consistently struck down state taxes which were laid on business that was exclusively interstate in character. Chency Brothers Co. v. Commonwealth of Massachusetts, 246 U.S. 147, 153, 38 S.Ct. 295, 296, 62 L.Ed. 632; Alpha Portland Cement Co. v. Commonwealth of Massachusetts, 268 U.S. 203, 45 S.Ct. 477, 69 L.Ed. 916; Ozark Pipe Line Corp. v. Monier, 266 U.S. 555, 45 S.Ct. 184, 69 L.Ed. 439; Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573. Cf. Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993; Freeman v. Hewit, supra. Neither the Court nor counsel have cited, and our research has not disclosed, a single opinion by this Court that has upheld a state tax laid on 'exclusively interstate commerce,' and we are confident none exists.
69
The Court recognizes that 'the States, under the Commerce Clause, are not allowed 'one single tax-worth of direct interference with the free flow of commerce.' Freeman v. Hewit, 1946, 329 U.S. 249, 256, 67 S.Ct. 274, 279, 91 L.Ed. 265.' It then says 'On the other hand, it has been established since 1918 that a net income tax on revenues derived from interstate commerce does not offend constitutional limitations upon state interference with such commerce. The decision of Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049, pointed the way.' What way did it point? There the 1913 federal income tax Act, imposing a tax upon the 'entire net income arising or accruing from all sources during the preceding calendar years.' was applied by the Federal Government to the whole net income of one who derived about three-fifths of it from 'buying goods in the several states, shipping them to foreign countries and there selling them.' The question was whether such a tax validly could be imposed in the light of Art. I, § 9, cl. 5 of the Constitution which provides that 'No Tax or Duty shall be laid on Articles exported from any State.' This Court held that the export clause only precluded taxation of 'articles in course of exportation,' and did not prohibit federal taxation of general income of the taxpayer 'from all sources,' and that the tax was 'not laid on income from exportation because of its source,' but upon general income 'from all sources,' and was, therefore, within the federal power to levy. 247 U.S. at page 174, 38 S.Ct., at page 433. But here the States of Minnesota and Georgia 'laid (the taxes directly) on income from (exclusively interstate commerce) because of its source.' They do not contend that they were laid on any intrastate commerce but admit there was none. I submit that the Lowe case does not in any sense 'point the way' for direct taxation by a State of that which it finds and admits to be 'exclusively interstate commerce.'
70
The Court then says 'The first case in this Court applying the doctrine (of the Lowe case) to interstate commerce was that of United States Glue Co. v. Town of Oak Creek, 1918, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135.' I submit that nothing in that case is authority for the proposition that a State may tax 'exclusively interstate commerce.' Exactly to the contrary, it sustained a tax only on 'that proportion of (the taxpayer's) income derived from business transacted * * * within the state * * *.' 247 U.S. at page 329, 38 S.Ct. at page 501. That was the whole point of the case. There the Glue Company, a Wisconsin corporation, maintained its principal office and its only manufacturing plant in the town of Oak Creek, in that State. It also maintained stocks in branches in other States. It sold its products both locally in Wisconsin, and in other States in interstate commerce, shipping either directly from its plant in Wisconsin or from one of its branches in another State. In the year involved, about one-seventh of its sales were made locally in Wisconsin, four-sevenths of them were made, and the goods shipped from its factory directly to customers in other States, in interstate commerce, and two-sevenths of them were made from stocks in its branches in other States. Wisconsin's income tax statutes provided, in pertinent part, Laws 1911, c. 658, that 'any person engaged in business within and without the state shall * * * be taxed only upon that proportion of such income as is derived from business transacted * * * within the state.' 'In order to determine what part of the income of a corporation engaged in business within and without the state * * * is to be taxed as derived from business transacted * * * within the state, reference is had to a formula prescribed by another statute,' which employed the total income of the taxpayer as one of its several factors. 'This formula was applied in apportioning (the taxpayer's) net 'business income' for the year' involved, which produced an amount substantially exceeding one-seventh of its total income—the amount of its local sales. '(U)pon the portion thus attributed to the State * * * the tax in question was levied.' 247 U.S. at pages 323—325, 38 S.Ct. at page 499. The Glue Company resisted the tax, contending that it was imposed directly upon interstate commerce in violation of the Commerce Clause of the Constitution, and, failing of relief in the Supreme Court of the State, it brought the case here on writ of error. This Court affirmed, concluding that the tax was 'measured * * * by the net proceeds from this part of plaintiff's business, along with a like imposition upon its income derived from other sources, and in the same way that other corporations doing business within the state are taxed upon that proportion of their income derived from business transacted * * * within the state. * * *' 247 U.S. at page 329, 38 S.Ct. at page 501. (Emphasis added.)
71
It would seem too obvious for debate that if a taxpayer maintains its factory and produces all its goods in one State but sells the whole in other States in interstate commerce, it has derived some portion of its income in the State of manufacture or production. It should be obvious, too, that where such a manufacturer has sold some of its products locally and others of them in interstate commerce, that the mere ratio of intrastate sales to interstate ones well might not constitute a fair basis for determining what part of the net income was derived from intrastate commerce on the one hand, and interstate commerce on the other. Inasmuch as it has always been thought by American lawyers that the States cannot tax interstate commerce but may tax intrastate commerce, it has been deemed necessary for the State to determine what portion of the total income of the taxpayer was derived from intrastate commerce done within its borders and is therefore subject to its taxing power. To accomplish that purpose, most States, like Wisconsin in the United States Glue case, and like Minnesota and Georgia in the cases here, have adopted apportionment statutes, applicable to situations where the taxpayer is doing business both within and without the State, which use, as one of the several factors, the total income of the taxpayer in measuring the part of the income that was derived from within the taxing State. Those were the principles applied in the United States Glue case.
72
Those principles were again made unmistakably clear, and were applied, by Mr. Justice Brandeis, in Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165, next relied on by the Court. That case does not hold that 'exclusively interstate commerce' may be taxed by a State. It holds just the contrary. There Underwood Typewriter Company, though a Delaware corporation, had become a domiciliary of Connecticut and manufactured all of its machines at its factory in that State. It sold them both locally in Connecticut and in other States in interstate commerce. In the year involved, about 33 percent of its dollar volume of sales was made in Connecticut and the remainder in other States in interstate commerce. To determine the amount of Underwood's net income derived from intrastate commerce, Connecticut applied the formula prescribed by its apportionment statute. This resulted in a determination that 47 percent of Underwood's net income had been derived from intrastate commerce in Connecticut. Upon that amount it computed and assessed its 2 percent net income tax. This Court, in sustaining the tax, over Underwood's objection that it violated the Commerce Clause of the Constitution, said: 'This tax is based upon the net profits earned within the state. That a tax measured by net profits is valid, although these profits may have been derived in part, or indeed mainly, from interstate commerce is settled. United States Glue Co. v. Town of Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135; Shaffer v. Carter, 252 U.S. 37, 57, 40 S.Ct. 221 (227), 64 L.Ed. 445. Compare Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049. * * * The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other states. In this it was typical of a large part of the manufacturing business conducted in the state. The Legislature in attempting to put upon this business its fair share of the burden of taxation, was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. It, therefore, adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the state.' 254 U.S. at pages 120—121, 41 S.Ct. at page 46. (Emphasis added.)
73
The Court next takes up the case of Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 62 S.Ct. 857, 86 L.Ed. 1090. That case does not at all hold that 'exclusively interstate commerce' may be taxed by a State. It, too, holds just the contrary. There Memphis Natural Gas Company purchased gas in Louisiana which it transported through its interstate pipe line to Tennessee where it sold 20 percent of it in interstate commerce, but it delivered 80 percent of it to Memphis Power & Light Company. 'That company distributes it to consumers under a contract with taxpayer which the Supreme Court of Tennessee has found to be a joint undertaking of the two companies whereby taxpayer furnishes gas from its pipeline, the Memphis company furnishes facilities and service for distribution and sale to consumers, and the proceeds of the sale, after deduction of specified costs and expenses, are divided between the two companies.' 315 U.S. at page 652, 62 S.Ct. at page 860. A Tennessee statute imposed a tax on all foreign and domestic corporations of 'three per cent. of the net earnings * * * arising from business done wholly within the state, excluding earnings arising from interstate commerce.' Ibid. Acting under that statute, a tax 'was laid on (the taxpayer's) net earnings from the distribution of gas under its contract with the Memphis company.' 315 U.S. at page 653, 62 S.Ct. at page 860. This Court said that 'if the Supreme Court of Tennessee correctly construed taxpayer's contract with the Memphis company as establishing a profit-sharing joint adventure in the distribution of gas to Tennessee consumers, the taxpayer's net earnings under the contract were subject to local taxation.' 315 U.S. at pages 653—654, 62 S.Ct. at page 861. (Emphasis added.) This Court then found that the Supreme Court of Tennessee had correctly construed the contract and that the taxpayer's activities 'constituted participation in the business of distributing the gas to consumers after its delivery into the service pipes of the Memphis company,' and sustained the tax, concluding: 'There is no contention or showing here that the tax assessed is not upon net earnings justly attributable to Tennessee.' 315 U.S. at pages 656, 657, 62 S.Ct. at page 862. (Emphasis added.)
74
It is true that Mr. Chief Justice Stone's opinion in the Beeler case contains the following language at page 656 of 315 U.S., at page 862 of 62 S.Ct.:
75
'In any case even if taxpayer's business were wholly interstate commerce, a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there, cf. Wheeling Steel Corp. v. Fox (298 U.S. 193, 56 S.Ct., 773, 80 L.Ed. 1143), or upon net income derived from within the state, Shaffer v. Carter, 252 U.S. 37, 57, 40 S.Ct. 221, 227, 64 L.Ed. 445; State of Wisconsin v. Minnesota Mining & Mfg. Co., 311 U.S. 452, 61 S.Ct. 253, 85 L.Ed. 274; cf. People of State of New York ex rel. Cohn v. Graves, 300 U.S. 308, 57 S.Ct. 466, 81 L.Ed. 666, is not prohibited by the commerce clause on which alone taxpayer relies. United States Glue Co. v. Town of Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135; Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 119—(120), 41 S.Ct. 45, 46, 65 L.Ed. 165. * * *' (Emphasis added.) The first sentence of that quotation caused Mr. Justice Burton to say, in Spector Motor Service v. O'Connor, 340 U.S. 602, 609, note 6, 71 S.Ct. 508, 512, 95 L.Ed. 573, that the statement was 'not essential to the decision in the case.' But it is a mistake to say that Mr. Chief Justice Stone's language even comes near holding that exclusively interstate commerce may be taxed by a State. Note that he spoke of a foreign corporation 'having a commercial domicile' in the taxing State (315 U.S. 649, 62 S.Ct. 859). That connotes the conduct of intrastate commerce in the taxing State, such as was involved in the Fox case which he cited, i.e., the maintenance in the taxing State of the taxpayer's 'principal office' in which its principal officers were located and conducted their business, and where a duplicate stock ledger and the records of capital stock transactions of the taxpayer were continuously kept. Of course that conduct amounted to the doing of intrastate commerce, and naturally the State could tax that intrastate commerce. And that's all the State did in Fox. Interstate commerce was not taxed either in Beeler or in Fox.
76
The Court then cites Bass, Ratcliff & Gretton, Ltd. v. State Tax Commission, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282, and Norfolk & W.R. Co. v. State of North Carolina, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977. But from the Court's own recitals respecting those cases it appears that the taxpayers there 'carried on substantial local activities' within the taxing States, which permitted the States to lay taxes on that intrastate commerce, 'measured on a proportional formula.' Those cases are exactly in line with the United States Glue, Underwood, and Beeler cases. They did not sustain a state tax on exclusively interstate commerce.
77
The Court next cites this Court's percuriam in West Publishing Co. v. McColgan, 328 U.S. 823, 66 S.Ct. 1378, 90 L.Ed. 1603, and quotes from the California opinion, which was there affirmed, only the following: 'The employees were given space in the offices of attorneys in return for the use of plaintiff's books stored in such offices.' (27 Cal.2d 705, 166 P.2d 862) It will be seen by reference to the California opinion that the California court had found considerably more intrastate commerce. It had found that the taxpayer 'regularly employed solicitors in (that) state who * * * were authorized to receive payments on orders taken by them, to collect delinquent accounts, and to make adjustments in case of complaints by customers, (and who) were given space in the offices of attorneys in return for the use of (the taxpayer's) books stored in such offices (which were) advertised as its local offices * * *.' 27 Cal.2d 705, 707, 166 P.2d 861, 862. That finding established the usual criteria which this Court has consistently held to constitute the doing of intrastate commerce. California determined and taxed only the amount of that intrastate commerce. It did not tax any interstate commerce. This Court in its per curiam affirmance cited the landmark Commerce Clause cases of United States Glue Co. v. Town of Oak Creek, supra; Memphis Natural Gas Co. v. Beeler, supra, and the landmark Due Process Clause case of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. Surely this makes it clear that at least this Court did not sustain any tax on interstate commerce.
78
The Court's quotation from State of Wisconsin v. Minnesota Mining & Manufacturing Co., 311 U.S. 452, 61 S.Ct. 253, 254, 85 L.Ed. 274, shows on its face that Wisconsin there taxed only income 'attributable to earnings within the taxing state. * * *'
79
Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 512, 95 L.Ed. 573, is quite consistent with the prior cases. There, by a process of elimination, the Court determined what the tax was not in arriving at what it was, and concluded that it was a tax which attached 'solely to the franchise of petitioner to do interstate business.' The Court then said:
80
'This Court heretofore has struck down, under the Commerce Clause, state taxes upon the privilege of carrying on a business that was exclusively interstate in character. The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state.' Citing Alpha Portland Cement Co. v. Commonwealth of Massachusetts, 268 U.S. 203, 45 S.Ct. 477, 69 L.Ed. 916; Ozark Pipe Line Corp. v. Monier, 266 U.S. 555, 45 S.Ct. 184, 69 L.Ed. 439, and referring, for comparison, to Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 669, 69 S.Ct. 1264, 1267, 93 L.Ed. 1613; Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993; Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265.
81
'Our conclusion is not in conflict with the principle that, where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer's business done within the state * * *.' 340 U.S. at pages 609—610, 71 S.Ct. at page 512.
82
It is not plain that this recent case holds that 'exclusively' interstate commerce may not be taxed by a State?
83
With this demonstration of the holdings in the commerce cases relied upon by the Court, surely we can repeat, with the conviction of demonstrated truth, our statement that none of the cases relied on by the Court supports its holding 'that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State * * *.' The fact that such taxes may be fairly or 'properly apportioned' is without legal consequence, for 'The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state.' Spector Motor Service v. O'Connor, supra, 340 U.S. at page 609, 71 S.Ct. at page 512. That this Court has always sustained state taxes on fairly determined amounts of intrastate income should be evident enough from the shown fact that it has struck them down only when there was none.
84
The Court says 'We believe that the rationale of these cases, involving income levies by States, controls the issues here.' I agree that the rationale of those cases controls the issues here. But I cannot agree that those cases involved like 'income levies by States.' They involved levies of income taxes on intrastate commerce, not on 'exclusively interstate commerce.' Whereas, here both the Minnesota and Georgia courts have found that the income taxed by those States had derived 'exclusively (from) interstate commerce,' and that the tax was not levied upon any intrastate commerce for there was none.
85
In these circumstances, I submit it is idle to say that the taxes were not laid 'on' interstate commerce, but on the taxpayer's general income after all commerce had ended, and, therefore, did not burden, nor hence regulate, interstate commerce. For in addition to the plainness of the fact, the courts of Minnesota and Georgia have explicitly held in these cases that the income involved was derived 'exclusively (from) interstate commerce,' and that the taxes were laid on that income. The taxes do not purport to have been, and could not have been, laid on any income derived from intrastate commerce in those States for there was none. It necessarily follows that the taxes were 'laid on income from (interstate commerce) because of its source,' Peck & Co. v. Lowe, supra, 247 U.S. at page 174, 38 S.Ct. at page 434, just as in Spector Motor Service v. O'Connor, supra.
86
The Commerce Clause denies state power to regulate interstate commerce. It vests that power exclusively in Congress. Direct taxation of 'exclusively interstate commerce' is a substantial regulation of it and, therefore, in the absence of congressional consent, the States may not directly tax it. This Court has so held every time the question has been presented here until today. Without congressional consent, the States of Minnesota and Georgia have laid taxes directly on what they admit was 'exclusively interstate commerce.' Hence, in my view, those levies plainly violated the Commerce Clause of the Constitution and cannot stand consistently therewith and with our prior cases. I would, therefore, reverse the judgment of the Supreme Court of Minnesota in No. 12 and affirm the judgment of the Supreme Court of Georgia in No. 33.
1
§ 290.03:
'Classes of taxpayers. An annual tax for each taxable year, computed in the manner and at the rates hereinafter provided, is hereby imposed upon the taxable net income for such year of the following classes of taxpayers:
'(1) Domestic and foreign corporations not taxable under section 290.02 which own property within this state or whose business within this state during the taxable year consists exclusively of foreign commerce, interstate commerce, or both;
'Business within the state shall not be deemed to include transportation in interstate or foreign commerce, or both, by means of ships navigating within or through waters which are made international for navigation purposes by any treaty or agreement to which the United States is a party; * * *.' Minn.Stat.1945, § 290.03, M.S.A.
2
Minn.Stat. (1945) § 290.19, M.S.A.
3
Ga.Code Ann. (1937), § 92—3102.
'Rate of taxation of corporations.—Every domestic corporation and every foreign corporation shall pay annually an income tax equivalent to five and one-half per cent. of the net income from property owned or from business done in Georgia, as is defined in section 92—3113: * * *'
Ga.Code Ann. (1937), § 92—3113.
'Corporations, allocation and apportionment of income.—The tax imposed by this law shall apply to the entire net income, as herein defined, received by every corporation, foreign or domestic, owning property or doing business in this State. Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign commerce. * * *'
4
The tax on corporations is part of a general scheme of income taxation which Georgia imposes on individuals (§ 92—3101), corporations (§ 92—3102), and fiduciaries (§ 92—3103).
5
In Standard Oil Co. v. Peck, 1952, 342 U.S. 382, 72 S.Ct. 309, 96 L.Ed. 427, we struck down Ohio's ad valorem property tax on vessels domiciled there but plying in interstate trade because it was not apportioned.
6
The Court nevertheless pointed out that such payments did 'not abridge the power of taxation of * * * the home State.' 322 U.S. at page 295, 64 S.Ct. at page 952.
7
See also Alpha Portland Cement Co. v. Commonwealth of Massachusetts, 1925, 268 U.S. 203, 216, 45 S.Ct. 477, 480, 69 L.Ed. 916, where this Court, striking down a Massachusetts excise tax on a foreign corporation engaged exclusively in interstate commerce, noted that '(t)he right to lay taxes on tangible property or on income is not involved; * * *'
Furthermore, none of the cases which the dissent relies on for the proposition that '(N)o State has the right to lay a tax on interstate commerce in any form * * *' was a net income tax case. In fact, all involved taxes levied upon corporations for the privilege of engaging in interstate commerce. This Court has consistently held that the 'privilege' of engaging in interstate commerce cannot be granted or withheld by a State, and that the assertion of state power to tax the 'privilege' is, therefore, a forbidden attempt to 'regulate' interstate commerce. Cf. Murdock v. Commonwealth of Pennsylvania, 1943, 319 U.S. 105, 112—113, 63 S.Ct. 870, 874—875, 87 L.Ed. 1292.
1
As early as 1919 such a discriminating commentator as the late Thomas Reed Powell had this to say, in commenting on the decisions of this Court in Peck & Co. v. Lowe, 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049, and United States Glue Co. v. Town of Oak Creek, supra: 'We may take it for granted, then, that the legal character of the recipient and the nature of the business in which the recipient is engaged are immaterial elements in considering the constitutionality of a state-wide, all-inclusive general tax on net income from business done within the state. The recipient may be an individual, a partnership, a domestic or a foreign corporation. The business may be exclusively interstate.' Indirect Encroachment on Federal Authority by the Taxing Powers of the States. VII, 32 Harv.L.Rev. 634, 639. That nothing in United States Glue turned on the fact that the taxpayer there happened to be a domestic corporation is shown by the line of cases following it where the taxpayers were foreign corporations doing an interstate business. See cases cited on page 366 of 79 S.Ct.
2
Apart from the considerations discussed in the text of this opinion, it is noteworthy that the Court in West, in relying on Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, cited directly to page 656 of the Beeler opinion, 62 S.Ct. 857, 862, 86 L.Ed. 1090, where it was said: 'In any case even if taxpayer's business were wholly interstate commerce (italics supplied), a nondiscriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there (citation), or upon net income derived from within the state (citations), is not prohibited by the commerce clause on which the taxpayer alone relies (citing among other cases United States Glue Co. v. Town of Oak Creek, supra). There is no contention or showing here that the tax assessed is not upon net earnings justly attributable to Tennessee (citations).'
1
The West case was a per curiam affirmance without opinion. The Court cited four cases in support: United States Glue Co. v. Town of Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135; Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed.551; Memphis Natural Gas Co. v. Beeler, 315 U.S. 649, 656, 62 S.Ct. 857, 862, 86 L.Ed. 1090; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. Not one of these cases presented the issue now here; in none had the Court to sustain a state net income tax on a business whose revenue derived solely from interstate commerce.
In United States Glue Co. v. Town of Oak Creek, supra, this Court upheld an apportioned net income tax levied by the State of Wisconsin on a Wisconsin corporation having its principal office and manufacturing establishment in that State. A substantial part of the corporation's business was intrastate. The only issue before the Court was the power of the State to include interstate income in its apportionment computation.
Interstate Busses Corp. v. Blodgett, supra, decided that appellant had not sustained the burden of showing that an excise tax of one cent per mile levied by Connecticut on motor vehicles using its highways in interstate commerce fell with discriminating weight on interstate commerce when the tax was viewed as part of the State's entire taxing scheme. Aside from this issue of discrimination, the case was merely another instance of a State charging for the use of its highways.
The Court in Memphis Natural Gas Co. v. Beeler, supra, upheld a net income tax imposed by the State of Tennessee on revenues earned by the Memphis Gas Company from shipping gas into the State and selling it, together with another company, to retail consumers in that State. The decision was explicitly based on a determination that the revenue was, in fact, derived from intrastate tather than interstate commerce. In addition the Memphis Company was licensed to do business in Tennessee, maintained its principal place of business there, and sold much of its gas in that State. It is true that on the page cited in Beeler the opinion indulged in a dictum that net income from interstate commerce was taxable. But this was an almost by-the-way observation, itself relying on citations which do not support it, by a writer prone to uttering dicta.
International Shoe Co. v. State of Washington, supra, decided that the Due Process Clause of the Fourteenth Amendment did not prohibit the State of Washington from exercising jurisdiction over the International Shoe Co., in the light of the frequency and extent of the company's business contacts within the State. There was no doubt that the unemployment compensation contributions exacted by Washington were entirely consistent with the Commerce Clause, since Congress had explicitly authorized such levies.
Thus none of the cases cited in West support an interpretation of that decision which goes beyond the actual situation of severable local activities presented in that case. Nor do they support the present taxes levied on exclusively interstate business.
2
For a detailed exposition of the manifold difficulties in complying with the diverse and complex taxing systems of the States, see Cohen, State Tax Allocations and Formulas which Affect Management Operating Decisions, 1 Jour.Taxation, No. 2 (July 1954), p. 2.
3
See, e.g., Wallace v. Hines, 253 U.S. 66, 67, 40 S.Ct. 435, 436, 64 L.Ed. 782; Pullman's Palace Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613; Adams Express Co. v. Ohio State Auditor, 165 U.S. 194, 17 S.Ct. 305, 41 L.Ed. 683; Id., 166 U.S. 185, 17 S.Ct. 604, 41 L.Ed. 965 (opinion denying rehearing).
4
See Northwest Airlines, Inc., v. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283. In Northwest we pointed to the desirability of congressional action to formulate uniform standards for state taxation of the rapidly expanding airline industry. Following our decision Congress directed the Civil Aeronautics Board to study and report to Congress methods of eliminating burdensome, multiple state taxation of airlines. See H.R.Doc.No.141, 79th Cong., 1st Sess. This report of the Board was a 158-page document whose length and complex economic content in dealing with only a single subject of state taxation, illustrate the difficulties and nonjudicial nature of the problem. Following the presentation of this extensive report, several bills were introduced into Congress providing for a single uniform apportionment formula to be used by the States in taxing airlines. H.R. 1241, 80th Cong., 1st Sess.; S. 2453, 80th Cong., 2d Sess.; S. 420, 81st Cong., 1st Sess. None of these bills was enacted.
Australia has resolved the problem of conflicting and burdensome state taxation of commerce by a national arrangement whereby taxes are collected by the Commonwealth and from these revenues appropriate allocations are made annually to the States through the mechanism of a Premiers' Conference—the Prime Minister of the Commonwealth and the Premiers of the several States.
1
Northwestern did not qualify, under Minnesota laws, to do business in that State. During the years involved it maintained a small sales office in Minneapolis where it employed two salesmen and a secretary. Her duties were wholly clerical. It also employed from two to three salesmen at other points in Minnesota who worked out of their homes. Apart from a small amount of furniture in its Minneapolis office and two salesmen's automobiles, it owned no property within the State, nor did it have a bank account therein, and all salaries and reimbursable expenses of the salesmen and the secretary, office rent, telephone bills and all other expenses of the Minneapolis office, were paid directly from the home office. The salesmen solicited and took orders from dealers but they were not authorized to accept orders or make contracts for the company, nor were they authorized to receive payments, collect accounts or adjust claims. Orders which they received were mailed to the home office for approval of credit and for acceptance or rejection. The orders were acknowledged and accepted or rejected in writing, mailed from the home office directly to the purchasers. Accepted orders were filled by delivery of the cement to a rail carrier, f.o.b. plant at Mason City, and consigned to the purchasers. Sales invoices were prepared in and mailed from the home office directly to the purchasers who made payment directly to the company at its home office. The salesmen also called on contractors and other users of cement, not to solicit orders, but for the purpose of acquainting them with the merits of Northwestern's product and of advising them of the names of the local dealers where it might be purchased. There was evidence which might have supported a finding that these salesmen sometimes, in effect, took orders from contractors for, and delivered them to, local dealers who stocked Northwestern's cement, and thus were engaged in the local business of selling cement for such dealers. Cheney Brothers Co. v. Commonwealth of Massachusetts, 246 U.S. 147, 155, 38 S.Ct. 295, 297, 62 L.Ed. 632. But no such finding was made, and there is more than colorable basis for believing that Minnesota did not press for such a finding, as any such practice could easily be ended by Northwestern and Minnesota's evident object was not to rest on such a basis, but to obtain an adjudication that its statute, § 290.03, validly imposed a tax upon Northwestern's net income from Minnesota customers though derived 'exclusively (from) interstate commerce.'
2
Minnesota Statutes 1957, § 290.19, M.S.A., provides, in substance, that where business is done 'partly within and partly without this state' there shall be apportioned and allocated to Minnesota, as income derived from the intrastate commerce done in that State, an amount equal to the ratio which the taxpayer's (a) sales made within that State, (b) tangible property owned or used in that State, and (c) total payrolls paid in that State bear to the taxpayer's totals of those factors.
3
To facilitate the conduct of its commerce, Stockham keeps a stock of its products in public warehouses in Birmingham, Chicago, Houston and Vernon (California), and maintains in each of those cities, and in each of 8 other widely separated industrial centers, including Atlanta, a small sales office. It has not qualified, under Georgia laws, to do business in that State. Its Atlanta office, which is listed in the Atlanta telephone and city directories, is staffed with
one salesman and a secretary. Her duties are entirely clerical. The salesman spends about one-third of his working time in Georgia, and the remainder in four other southeastern States, calling on persons who are in position to recommend or specify the use of particular building supplies in construction work, such as architects, engineers and contractors, and on independent wholesalers and jobbers, endeavoring to impress them with the merits of, and to induce them to specify or recommend the use of, Stockham's products. Although he has no authority to accept orders or to make contracts for the company, he solicits orders from wholesalers and jobbers, and transmits such as he receives to the home office for approval of credit and acceptance or rejection, but 'for the most part' orders are mailed directly by the purchasers to the home office in Birmingham. Accepted orders are filled by delivery of the goods to the purchasers, or to a common carrier consigned to the purchasers, at the Birmingham plant. Sales invoices are prepared and mailed by the home office directly to the purchasers who remit to the home office. The salesman does not receive payments, collect accounts or adjust claims. Except for the small amount of office furniture in its Atlanta sales office the company has no property in Georgia, nor does it have a bank account there, and the salaries of the salesman and secretary and their reimbursable expenses, the office rent, telephone bills and all other expenses of the Atlanta office are paid directly from the home office.
4
Code of Georgia, 1933, as amended, § 92—3113(4) provides that 'Where income is derived from the manufacture, production, or sale of tangible personal property, the portion of the net income therefrom attributable to property owned or business done within this State shall be taken to be the portion arrived at by' the arithmetical average which the ratios of the taxpayer's (a) inventories of products held in the State, (b) compensation paid or incurred in the State, and (c) gross receipts from business done within the State bear to the taxpayer's totals of those factors.
| 78
|
358 U.S. 522
79 S.Ct. 437
3 L.Ed.2d 480
ALLIED STORES OF OHIO, INC., Appellant,v.Stanley J. BOWERS, Tax Commissioner of Ohio.
No. 10.
Argued Nov. 12, 1958.
Decided Feb. 24, 1959.
Mr. Carlton S. Dargusch, Sr., Columbus, Ohio, for appellant.
Messrs. William Saxbe and John M. Tobin, Columbus, Ohio, for appellee.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The principal question presented is whether an Ohio statute that exempts from ad valorem taxation 'merchandise or agricultural products belonging to a nonresident * * * if held in a storage warehouse for storage only' denies to appellant, a resident of the State, the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution.
2
The facts are stipulated. So far as pertinent, they are that appellant, Allied Stores of Ohio, Inc., an Ohio corporation, owns and operates a department store in each of four Ohio cities. It also maintains in each of those cities a private warehouse where it stores stocks of merchandise of the kinds sold in its stores. As needed, merchandise is transferred from the warehouse to the store, and when merchandise is sold by sample in the store—usually a heavy or bulky article—it is delivered from the warehouse directly to the customer.
3
Title 57, Page's Ohio Rev.Code Ann.1953, § 5709.01, provides, inter alia, that 'All personal property located and used in business in this state (shall be) subject to taxation, regardless of the residence of the owners thereof. * * *' (Emphasis added.) During the tax year involved another Ohio statute, Title 57, Page's Ohio Rev.Code Ann.1953, § 5701.08(A), provided, in pertinent part, that:
4
'As used in Title LVII of the Revised Code:
5
'(A) Personal property is 'used' within the meaning of 'used in business' * * * when stored or kept on hand as material, parts, products, or merchandise; but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only. * * *'1 (We have added the italics, and, as was done by the Supreme Court of Ohio, we will refer to the italicized portion as the 'proviso.') Acting under those statutes, appellee, as Tax Commissioner of Ohio, proposed the assessment of an ad valorem tax against appellant based on the average value of the merchandise that it had stored in its four Ohio warehouses during the tax year ending January 31, 1954.2 Appellant petitioned the Board of Tax Appeals of Ohio for a redetermination, contending that the property stored in its four warehouses in the tax year involved was 'merchandise * * * held in a storage warehouse for storage only,' within the meaning of § 5701.08(A), and that because the section exempted nonresidents,3 but taxed residents, on stocks of merchandise so held, it denied to appellant, a resident of Ohio, the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. The Board of Tax Appeals upheld the tax, and so did the Court of Appeals of Cuyahoga County. On appeal, the Supreme Court of Ohio held that appellant lacked standing to raise the constitutional question presented and affirmed the judgment. 166 Ohio St. 116, 140 N.E.2d 411. The case comes here on Allied's appeal.
6
The first and preliminary question thus is whether the Supreme Court of Ohio correctly held that appellant lacked standing to prosecute the constitutional question sought to be presented. It is settled that '(w)hether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law, and, where a case coming from a state court presents that question, this court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court.' First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 346, 46 S.Ct. 135, 137, 70 L.Ed. 295; Staub v. City of Baxley, 355 U.S. 313, 318, 78 S.Ct. 277, 280.
7
In reaching its conclusion, the Ohio court said (166 Ohio St. 116, 140 N.E.2d 413) 'In our opinion, it is not necessary to consider the constitutional question raised by the taxpayer in the instant case because, if its contention with regard to that question is sound, it necessarily leads to the conclusion that the entire proviso in subdivision (A) of Section 5701.08, which read, 'but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only,' was void and should be stricken. That being so, it is apparent that any of taxpayer's 'merchandise * * * held in a storage warehouse for storage only' would be taxable because described by the preceding words remaining in the statute and reading, 'stored * * * as * * * merchandise." But the court did not hold that the proviso was invalid, nor did it strike it from the statute. Instead, it held that the proviso expressed the valid legislative purpose to exempt the merchandise and agricultural products of nonresidents when held in a storage warehouse for storage only and that the court was powerless to strike it. In this, the court was following its prior decisions on the question. General Cigar Co. v. Peck, 1953, 159 Ohio St. 152, 111 N.E.2d 265, and B. F. Goodrich Co. v. Peck, 1954, 161 Ohio St. 202, 118 N.E.2d 525, had so held. In the latter case the court had answered a contention that the proviso was invalid for undue preference of nonresidents by saying 'such an argument should be addressed to the General Assembly and not to this court.' 161 Ohio St. at page 210, 118 N.E.2d at page 530. Those interpretations, for present purposes, became a part of the proviso. Wheeling Steel Corp. v. Glander, 337 U.S. 562, 566, 69 S.Ct. 1291, 1293, 93 L.Ed. 1544. The proviso is the basis of appellant's claim of denial of the equal protection of the laws. With the proviso thus validly remaining in the statute it is quite immaterial that appellant's claim necessarily would fall if it were out. It follows that appellant does have standing to prosecute its constitutional claim.
8
This brings up to the merits. Does the proviso exempting 'merchandise or agricultural products belonging to a nonresident * * * if held in a storage warehouse for storage only' deny to appellant, a resident of the State, the equal protection of the laws within the meaning of the Fourteenth Amendment? The applicable principles have been often stated and are entirely familiar. The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. Bell's Gap R. Co. v. Commonwealth of Pennsylvania, 134 U.S. 232, 237, 10 S.Ct. 533, 535, 33 L.Ed. 892; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 293, 18 S.Ct. 594, 598, 42 L.Ed. 1037; Southwestern Oil Co. v. State of Texas, 217 U.S. 114, 121, 30 S.Ct. 496, 498, 54 L.Ed. 688; Brown-Forman Co. v. Commonwealth of Kentucky, 217 U.S. 563, 573, 30 S.Ct. 578, 580, 54 L.Ed. 883; Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 353, 38 S.Ct. 495, 62 L.Ed. 1154; Heisler v. Thomas Colliery Co., 260 U.S. 245, 255, 43 S.Ct. 83, 84, 67 L.Ed. 237; Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 179, 43 S.Ct. 526, 529, 67 L.Ed. 929; Stebbins v. Riley, 268 U.S. 137, 142, 45 S.Ct. 424, 426, 69 L.Ed. 884; Ohio Oil Co. v. Conway, 281 U.S. 146, 159, 50 S.Ct. 310, 313, 74 L.Ed. 775; State Board of Tax Com'rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 543, 75 L.Ed. 1248. 'To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure.' Ohio Oil Co. v. Conway, supra, 281 U.S. at page 159, 50 S.Ct. at page 314.
9
But there is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.' F. S. Royster Guano Co. v. Commonwealth of Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989; Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770; Air-Way Electric Appliance Corp. v. Day, 266 U.S. 71, 85, 45 S.Ct. 12, 15, 69 L.Ed. 169; Schlesinger v. State of Wisconsin, 270 U.S. 230, 240, 46 S.Ct. 260, 261, 70 L.Ed. 557; Ohio Oil Co. v. Conway, 281 U.S. 146, 160, 50 S.Ct. 310, 314, 74 L.Ed. 775. 'If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.' BrownForman Co v. Commonwealth of Kentucky, 217 U.S. 563, 573, 30 S.Ct. 578, 580, 54 L.Ed. 883. State Board of Tax Com'rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 543, 75 L.Ed. 1248. That a statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy. American Sugar Refining Co. v. State of Louisiana, 179 U.S. 89, 21 S.Ct. 43, 45 L.Ed. 102; Stebbins v. Riley, 268 U.S. 137, 142, 45 S.Ct. 424, 426, 69 L.Ed. 884.
10
Coming directly to the concrete problem now before us, it has repeatedly been held and appears to be entirely settled that a statute which encourages the location within the State of needed and useful industries by exempting them, though not also others, from its taxes is not arbitrary and does not violate the Equal Protection Clause of the Fourteenth Amendment. Bell's Gap R. Co. v. Commonwealth of Pennsylvania, supra, 134 U.S. at page 237, 10 S.Ct. at page 535; Ohio Oil Co. v. Conway, 281 U.S. at page 159, 50 S.Ct. at page 313; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015; Colgate v. Harvey, 296 U.S. 404, 439, 56 S.Ct. 252, 263, 80 L.Ed. 299 (dissenting opinion). Similarly, it has long been settled that a classification, though discriminatory, is not arbitrary nor violative of the Equal Protection Clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369; Quong Wing v. Kirkendall, 223 U.S. 59, 32 S.Ct. 192, 56 L.Ed. 350; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S.Ct. 370, 374, 60 L.Ed. 679; State Board of Tax Com'rs of Indiana v. Jackson, 283 U.S. at page 537, 51 S.Ct. at page 543.
11
In the light of the law thus well settled, how stands appellant's case? We cannot assume that state legislative enactments were adopted arbitrarily or without good reason to further some legitimate policy of the State. What were the special reasons, motives or policies of the Ohio Legislature for adopting the questioned proviso we do not know with certainty, nor is it important that we should, Southwestern Oil Co. v. State of Texas, 217 U.S. 114, 126, 30 S.Ct. 496, 500, 54 L.Ed. 688, for a state legislature need not explicitly declare its purpose. But it is obvious that it may reasonably have been the purpose and policy of the State Legislature, in adopting the proviso, to encourage the construction or leasing and operation of warehouses in Ohio by nonresidents with the attendant benefits to the State's economy, or to stimulate the market for merchandise and agricultural products produced in Ohio by enabling nonresidents to purchase and hold them in the State for storage only, free from taxes, in anticipation of future needs. Other similar purposes reasonably may be conceived. Therefore, we cannot say that the discrimination of the proviso which exempted only the 'merchandise or agricultural products belonging to a nonresident * * * if held in a storage warehouse for storage only' was not founded upon a reasonable distinction, or difference in state policy, or that no state of facts reasonably can be conceived to sustain it. For those reasons, it cannot be said, in the light of the settled law as shown by the cases cited, that the questioned proviso was invidious or palpably arbitrary and denied appellant the equal protection of the laws within the meaning of the Fourteenth Amendment.
12
Appellant heavily relies on Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544. We think that case is not apposite. There Ohio statutes exempted from taxation certain accounts receivable owned by residents of the State but taxed those owned by nonresidents. The statutes, on their face admittedly discriminatory against nonresidents, themselves declared their purpose. That purpose was to proffer to other States a scheme of 'reciprocity' for taxing accounts receivable.4 Ohio argued that the reciprocal character of its statutes eliminated the discriminatory effects against nonresidents, but this Court held that it did not. Having themselves specifically declared their purpose, the Ohio statutes left no room to conceive of any other purpose for their existence. And the declared purpose having been found arbitrarily discriminatory against nonresidents, the Court could hardly escape the conclusion that 'the inequality (was) not because of the slightest difference in Ohio's relation to the decisive transaction, but solely because of the different residence of the owner.' 337 U.S. at page 572, 69 S.Ct. at page 1297. As we have shown, that is not the situation here. Here the discrimination against residents is not invidious nor palpably arbitrary because, as shown, it rests not upon the 'different residence of the owner,' but upon a state of facts that reasonably can be conceived to constitute a distinction, or difference in state policy, which the State is not prohibited from separately classifying for purposes of taxation by the Equal Protection Clause of the Fourteenth Amendment.
13
Affirmed.
14
Mr. Justice STEWART took no part in the consideration or decision of this case.
15
Mr. Justice BRENNAN, with whom Mr. Justice HARLAN joins, concurring.
16
We hold today that Ohio's ad valorem tax law does not violate the Equal Protection Clause in subjecting the property of Ohio corporations to a tax not applied to identical property of non-Ohio corporations. Yet in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S.Ct. 1291, 93 L.Ed. 1544,1 the Court struck down, as violating the Equal Protection Clause, another provision of Ohio's ad valorem tax law which subjected the property of non-Ohio corporations to a tax not applied to identical property of Ohio corporations.2
17
The question presented in the two cases, if stated generally, and as I shall show, somewhat superficially, is: Measured by the demands of the Equal Protection Clause, is a State constitutionally permitted separately to classify domestic and foreign corporations for the purposes of payment of or exemption from an ad valorem tax? In both cases the distinction complained of as denying equal protection of the laws is that the incidence of the tax in fact turns on 'the different residence of the owner.' With due respect to my Brethren's view, I think that if this were all that the matter was, Wheeling and this case would be indistinguishable.3 Therefore, while I agree with my Brethren that the classification is valid in this case, I cannot reach that conclusion without developing the ground on which Wheeling is distinguishable.
18
Why is the 'different residence of the owner' a constitutionally valid basis for Ohio's freeing the property of the foreign corporation from the tax in this case and an invalid basis for its freeing the property of the domestic corporation from the tax involved in the Wheeling case?
19
I think that the answer lies in remembering that our Constitution is an instrument of federalism. The Constitution furnishes the structure for the operation of the States with respect to the National Government and with respect to each other. The maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action. Because there are 49 States and much of the Nation's commercial activity is carried on by enterprises having contacts with more States than one, a common and continuing problem of constitutional interpretation has been that of adjusting the demands of individual States to regulate and tax these enterprises in light of the multistate nature of our federation. While the most ready examples of the Court's function in this field are furnished by the innumerable cases in which the Court has examined state taxation and regulation under the Commerce and Due Process Clauses, still the Equal Protection Clause, among its other roles, operates to maintain this principle of federalism.
20
Viewing the Equal Protection Clause as an instrument of federalism, the distinction between Wheeling and this case seems to me to be apparent. My Brethren's opinion today demonstrates that in dealing with as practical and complex a matter as taxation, the utmost latitude, under the Equal Protection Clause, must be afforded a State in defining categories of classification. But in the case of an ad valorem property tax, Wheeling teaches that a distinction which burdens the property of nonresidents but not like property of residents is outside the constitutional pale. But this is not because no rational ground can be conceived for a classification which discriminates against nonresidents solely because they are nonresidents: could not such a ground be found in the State's benign and beneficent desire to favor its own residents, to increase their prosperity at the expense of outlanders, to protect them from, and give them an advantage over, 'foreign' competition? These bases of legislative distinction are adopted in the national policies of too many countries, including from time to time our own, to say that, absolutely considered, they are arbitrary or irrational. The proper analysis, it seems to me, is that Wheeling applied the Equal Protection Clause to give effect to its role to protect our federalism by denying Ohio the power constitutionally to discriminate in favor of its own residents against the residents of other state members of our federation. On the other hand, in the present case, Ohio's classification based on residence operates against Ohio residents and clearly presents no state action disruptive of the federal pattern. There is, therefore, no reason to judge the state action mechanically by the same principles as state efforts to favor residents. As my Brethren's opinion makes clear, a rational basis can be found for this exercise by Ohio of the latitude permitted it to define classifications under the Equal Protection Clause. One could, in fact, be found in the concept that it is proper that those who are bound to a State by the tie of residence and accordingly the more permanently receive its benefits are proper persons to bear the primary share of its costs. Accordingly, in this context, it is proper to say that any relief forthcoming must be obtained from the State Legislature.
1
The unitalicized portion of the statute was enacted in 1931, 114 Ohio Laws, pp. 714, 716. The italicized clause was added by the Ohio Legislature at its next session in 1933, 115 Ohio Laws, pp. 548, 553. In September 1955 the section was amended by deleting the italicized clause and inserting the following: 'and merchandise or agricultural products shipped from outside of this state and held in this state in a warehouse or a place of storage for storage only and for shipment outside of this state are not used in business in this state.' 126 Ohio Laws, p. 78.
2
The Ohio taxing date is January 1, Title 57, Page's Ohio Rev.Code Ann.1953, § 5711.03. Why the assessment involved was for the year ended January 31, instead of January 1, 1954, is not explained in the record or the briefs. A merchant's personal property is valued for tax purposes 'by taking the amount in value on hand, as nearly as possible, in each month of the next preceding year in which he has been engaged in business, adding together such amounts, and dividing the aggregate amount by the number of months that he has been in business during such year.' Title 57, Page's Ohio Rev.Code Ann.1953, § 5711.15.
3
The Supreme Court of Ohio has held that a foreign corporation, although authorized to do and doing a local business in Ohio, is a nonresident within the meaning of the proviso here in question. B. F. Goodrich Co. v. Peck, 161 Ohio St. 202, 204, 118 N.E.2d 525, 527.
4
The stated purpose was to proffer to other States a right to tax accounts receivable owned by residents of Ohio that derived from sales of Ohio goods negotiated and consummated in such other States in exchange for a claimed Ohio right to tax the accounts receivable owned by residents of other States that derived from sales of their goods negotiated and consummated in Ohio. 'The effect,' this Court said, '(was) that intangibles of nonresident owners (were) assigned a situs within the taxing reach of Ohio while those of its residents (were) assigned a situs without. (Thus), (t)he exempted intangibles of residents (were) offered up to the taxing power of other states which may embrace this doctrine of a tax situs separate from residence, (but) no other state (ever) sought to take advantage of the 'reciprocity' proffer.' Wheeling Steel Corp. v. Glander, supra, 337 U.S. at pages 573—574, 69 S.Ct. at page 1297.
1
To the same effect as the Wheeling case are Southern R. Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536, and Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372.
2
The Court distinguished ad valorem property taxes, levied on a foreign corporation permitted to do a local business, from an original entry privilege tax on a foreign corporation. 337 U.S. at pages 571—572, 69 S.Ct. at page 1296. 'A corporation which is allowed to come into a state and there carry on its business may claim, as an individual may claim, the protection of the Fourteenth Amendment against a subsequent application to it of state law.' Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 79—80, 58 S.Ct. 436, 437—438, 82 L.Ed. 673.
3
The statute in Wheeling 'discriminated' against nonresidents in the same way that the present statute 'discriminates' against residents. What my Brethren describe as the forbidden purpose of the distinction in Wheeling seems to me clearly to be only a rejected argument made by the State to show that there was no discrimination in fact. 337 U.S. at pages 572 574, 69 S.Ct. at pages 1296—1297. I see no indication in Wheeling that the Court's condemnation of the tax was based solely on its rejection of the 'reciprocity' argument.
| 78
|
358 U.S. 639
79 S.Ct. 455
3 L.Ed.2d 562
CITY OF MERIDIAN, Appellant,v.SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
No. 546.
Decided Feb. 24, 1959.
Messrs. George M. Ethridge, Jr., and Lester E. Wills, for appellant.
Messrs. Charles B. Snow and John A. Boykin, Jr., for appellee.
Mr. Tally D. Riddell, for City of Gulfport and others, as amici curiae.
PER CURIAM.
1
Appellee instituted this suit for a declaratory judgment that a 1956 Mississippi statute imposing a charge on public utilities for the use of public streets and places does not apply to it, and if it does, violates the Federal and State Constitutions. It was tried before a single district judge. After trial the district judge wrote an opinion (154 F.Supp. 736) and then entered a judgment which declared the statute in conflict with the State and Federal Constitutions and thus beyond the power of the Mississippi Legislature to enact. The Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. 256 F.2d 83. An appeal was taken to this Court pursuant to 28 U.S.C. § 1254(2), 28 U.S.C.A. § 1254(2), providing for appeal of a decision of a Court of Appeals where appellant relies on a state statute held to be 'invalid as repugnant to the Constitution, treaties or laws of the United States.' Appellee moved to dismiss the appeal, contending that review by appeal does not lie because the Court of Appeals decision declaring the state statute unconstitutional was based on the Constituion of Mississippi as well as the Federal Constitution. Subsequently, appellant moved the Court to vacate the judgment of the Court of Appeals and remand the case to the District Court with instructions to vacate its judgment and convene a three-judge court under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284 to consider appellee's complaint. Appellee opposed the motion. Without passing judgment on the merits of that motion (cf. Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363), we vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to hold the cause while the parties repair to a state tribunal for an authoritative declaration of applicable state law.
2
Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court's consideration of the underlying federal constitutional questions. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. That is especially desirable where the questions of state law are enmeshed with federal questions. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. Here, the state law problems are delicate ones, the resolution of which is not without substantial difficulty— certainly for a federal court. Cf. Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483, 60 S.Ct. 628, 630, 84 L.Ed. 876. In such a case, when the state court's interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily. Railroad Commission of Texas v. Pullman Co., supra; Spector Motor Service Inc. v. McLaughlin, supra, 323 U.S. 104—105, 65 S.Ct. 154. See Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228—229, 77 S.Ct. 287, 292—293, 1 L.Ed.2d 267.
3
The judgment of the Court of Appeals is vacated and the cause is remanded to the District Court for proceedings in conformity with this opinion.
| 89
|
358 U.S. 434
79 S.Ct. 411
3 L.Ed.2d 450
RAILWAY EXPRESS AGENCY, Inc., Appellant,v.COMMONWEALTH OF VIRGINIA.
No. 38.
Argued Oct. 15, 1958.
Decided Feb. 24, 1959.
Mr. Thomas B. Gay, Richmond, Va., for appellant.
Mr. Frederick T. Gray, Richmond, Va., for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
Once again the effort of the Commonwealth of Virginia to levy a tax against express agencies is before us for decision. Nearly five years ago this Court struck down as a 'privilege tax' violative of the Commerce Clause of the Federal Constitution its tax statute under which was laid an assessment on appellant's 'privilege of doing business' in Virginia.1 Railway Express Agency v. Commonwealth of Virginia, 1954, 347 U.S. 359, 74 S.Ct. 558, 98 L.Ed. 757. Subsequently the Virginia General Assembly enacted the Act here involved levying a 'franchise tax' on express companies, measured by gross receipts from operations within Virginia, in lieu of all other property taxes on intangibles and rolling stock. In due course an assessment against appellant was made thereunder for 1956. Both the State Corporation Commission, which has jurisdiction of such levies in Virginia, and the Commonwealth's highest court have upheld the validity of the new law as well as the assessment made thereunder, Railway Express Agency v. Commonwealth of Virginia, 199 Va. 589, 100 S.E.2d 785. Appellant levels a dual attack, the first being that the statute is a 'privilege tax' and like the former one violates the Commerce Clause; or, secondly, that in any event the assessment under it is calculated in such a manner as to deprive appellant of its property without due process of law in violation of the Fourteenth Amendment. On appeal we noted probable jurisdiction, 1958, 356 U.S. 929, 78 S.Ct. 772, 2 L.Ed.2d 760. We believe that Virginia has eliminated the Commerce Clause objections sustained against its former tax law. While the tax is in lieu of other property taxes which Virginia can legally assess and should be their just equivalent in amount, Postal Telegraph Cable Co. v. Adams, 1895, 155 U.S. 688, 696, 15 S.Ct. 268, 269, 39 L.Ed. 311, we will not inquire into the exactitudes of the formula where appellant has not shown it to be so baseless as to violate due process. Nashville, C. & St. L.R. v. Browning, 1940, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254. The failure of the appellant to furnish, in its return, certain necessary information showing its gross receipts allocated to Virginia, called for under the statute and requested by the Commonwealth, has left the correct amount unobtainable by the latter except by some method of approximation and places the burden on appellant to come forward with affirmative evidence of extraterritorial assessment.
2
Background and Activity of Appellant in Virginia.
3
Since the opinion in the former appeal, supra, 347 U.S. at pages 360—361, 74 S.Ct. at pages 559—560, relates the factual details concerning appellant's operations in Virginia, we believe it sufficient to say here that it is a Delaware corporation, owned by 68 of the railroads of the United States. It is engaged in both an interstate and intrastate express business throughout the Nation, save in Virginia, where a constitutional provision bars foreign corporations from possessing or exercising any of the powers or functions of public service corporations. There it operates a wholly owned subsidiary, a Virginia corporation, which carries on its intrastate functions within the Commonwealth. Appellant's Virginia business is thus of an exclusively interstate nature. Through exclusive contract arrangements with 177 of the railroads of the Nation appellant is the sole operator of express facilities on their lines, including Virginia. It pays therefor all of its net income, thus achieving one of the stated purposes of the agreement—that appellant '* * * shall have no net taxable income.' In turn, appellant's Virginia subsidiary pays all of its net income over to it for the privilege of exercising appellant's exclusive contracts in intrastate business in the Commonwealth. Appellant owns property within Virginia, its return filed with the Commonwealth for tax purposes showing $120,110.70 in cash on deposit; automotive equipment and trucks $262,719.63; real estate of the value of $32,850; and office equipment listed at $42,884.83.
Virginia's General Taxing System.
4
The Commonwealth has a comprehensive tax structure covering public service corporations.2 It empowers local governments to levy ad valorem taxes on the 'dead' value of all real property and tangible personal property, except rolling stock, located within their respective jurisdictions. This leaves free for state purposes taxes on rolling stock, money and other intangibles, and the 'live' or 'goint-concern' value of the business in Virginia. We are concerned only with the state tax which is levied on the franchises of express companies. It provides3 in pertinent part that
5
'(e)ach express company * * * shall * * * pay to the State a franchise tax which shall be in lieu of taxes upon all of its other intangible property and in lieu of property taxes on its rolling stock.'
6
The franchise tax is measured by 'the gross receipts derived from operations within' Virginia which is deemed
7
'to be all receipts on business beginning and ending within this State and all receipts derived from the transportation within this State of express transported through, into, or out of this State.'
8
The State Corporation Commission is directed, after notice, to assess the franchise tax on the basis of a report to be filed by the company involved or, in case of its failure to file such report, the Commission is to base the assessment 'upon the best and most reliable information that it can procure.'
9
The Issues Under the Statute.
10
First, let us clear away the dead underbrush of the old law. The new tax is not denominated a license tax laid on the 'privilege of doing business in Virginia'; nor is it 'in addition to the property tax' levied against appellant, nor a condition precedent to its engaging in interstate commerce in the Commonwealth. The General Assembly has made crystal-clear that the tax is now a franchise tax laid on the intangible property of appellant, and is levied 'in lieu of taxes upon all of its other intangible property and * * * rolling stock.' The measure of the tax is on gross receipts, fairly apportioned, and, as to appellant, is laid only on those 'derived from the transportation within this State of express transported through, into, or out of this State.'
11
Appellant concedes that the Commerce Clause does not prohibit the States from levying a tax on property owned by a concern doing an interstate business. It agrees that it has rolling stock and money in the Commonwealth, as well as intangibles, including its exclusive express privileges with the railroads. It readily admits that the latter agreements are 'valuable contract rights' and contribute a principal element to the 'going concern value' of its business in the Commonwealth. Subsuming that a valid tax levy might be levied on such intangibles, it argues, however, that the incidence of the tax is on appellant's privilege to carry on an exclusively interstate business in Virginia rather than on intangible property. Our sole question under the Commerce Clause is whether the tax in practical operation is on property or on privilege.
12
The due process issue is entangled with appellant's failure to file, in its report, data covering its gross receipts allocated to Virginia.4 Failing to do this the State Corporation Commission used a formula which in effect ascribed to Virginia the proportion of such receipts as the mileage of carriers within Virginia bore to the total national mileage of the same lines.5 Appellant contends that the assessment made in this manner is violative of due process and that the resulting amount of tax levied was confiscatory.
13
In any event, appellant argues, the 'in lieu' provisions of the law, as applied to it, are invalid. Admitting that it had cash, intangibles and rolling stock that were subject to a state tax but which suffered none because of the 'in lieu' provisions of this law, it contends that the tax assessed under the latter was no just equivalent of the 'in lieu' taxes but was greatly in excess thereof and violative of due process.
14
Validity of the Law Under the Commerce Clause.
15
As we have pointed out, the statute levies a franchise tax in lieu of all taxes on 'other intangible property' and rolling stock. (Emphasis added.) This leaves no room for doubt that the General Assembly intended to levy a tax upon appellant's intangibles. Moreover, supporting this interpretation, both the State Commission and the Supreme Court of Appeals have construed it as a tax on appellant's intangible property and 'going concern' value. This trinity of agreement by three state agencies, though not conclusive, has great weight in our determination of the natural and reasonable effect of the statute. Railway Express Agency v. Commonwealth of Virginia, supra; Spector Motor Service v. O'Connor, 1951, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573; Cudahy Packing Co. v. State of Minnesota, 1918, 246 U.S. 450, 38 S.Ct. 373, 62 L.Ed. 827; United States Express Co. v. State of Minnesota, 1912, 223 U.S. 335, 346, 32 S.Ct. 211, 215, 56 L.Ed. 459. This is not to say that a legislature may effect a validation of a tax, otherwise unconstitutional, by merely changing its descriptive words. Lawrence v. State Tax Commission, 1932, 286 U.S. 276, 280, 52 S.Ct. 556, 557, 76 L.Ed. 1102; Galveston, H. & San Antonio R. Co. v. State of Texas, 1908, 210 U.S. 217, 227, 28 S.Ct. 638, 640, 52 L.Ed. 1031. One must comprehend, however, the difference between the use of magic words or labels validating an otherwise invalid tax and their use to disable an otherwise constitutional levy. The latter this Court has said may sometimes be done. Railway Express Agency v. Commonwealth of Virginia, supra, 347 U.S. at page 364, 74 S.Ct. at page 561; Spector Motor Service v. O'Connor, supra, 340 U.S. at page 607, 71 S.Ct. at page 511; McLeod v. J. E. Dilworth Co., 1944, 322 U.S. 327, 330, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304.
16
Appellant buttresses its argument with reasoning that a tax on 'going concern' value just cannot be measured by fairly apportioned gross receipts. While it may be true that gross receipts are not the best measure, it is too late now to question its constitutionality. Illinois Cent. R. Co. v. State of Minnesota, 1940, 309 U.S. 157, 60 S.Ct. 419, 84 L.Ed. 670; Great Northern R. Co. v. State of Minnesota, 1929, 278 U.S. 503, 49 S.Ct. 191, 73 L.Ed. 477; Pullman Co. v. Richardson, 1923, 261 U.S. 330, 43 S.Ct. 366, 67 L.Ed. 682; Cudahy Packing Co. v. State of Minnesota, 1918, 246 U.S. 450, 38 S.Ct. 373, 62 L.Ed. 827; United States Express Co. v. State of Minnesota, 1912, 223 U.S. 335, 32 S.Ct. 211, 56 L.Ed. 459; Wisconsin & M.R. Co. v. Powers, 1903, 191 U.S. 379, 24 S.Ct. 107, 48 L.Ed. 229. These decisions are still in good standing on our books. Even on the former appeal this Court used the following language:
17
'Of course, we have held, and it is but common sense to hold, that a physical asset may fluctuate in value according to the income it can be made to produce. A live horse is worth more than a dead one, though the physical object may be the same, and a smooth-going automobile is worth more than an unassembled collection of all its parts. The physical facilities used in carrying on a prosperous business are worth more than the same assets in bankruptcy liquidation or on sale by the sheriff. No one denies the right of the State, when assessing tangible property, to use any fair formula which will give effect to the intangible factors which influence real values. Adams Express Co. v. Ohio State Auditor,6 166 U.S. 185, 17 S.Ct. 604, 41 L.Ed. 965. But Virginia has not done this.' 347 U.S. at page 364, 74 S.Ct. at page 561.
18
We feel that Virginia has now done just that.
19
We are not convinced by appellant's 'boot strap' argument that the express privileges it enjoys have no value to it because all of its net income by agreement with the railroads is paid over to them. We believe it more accurate to rely on its admission that 'No one would question the fact that Appellant's exclusive express privileges on the railroads are valuable contract rights.' This concession, when taken in the light of the expressed purpose of appellant that the payment of its net income for the use of the express privileges was solely to make certain 'that the Express Company shall have no net taxable income,' exposes the frivolous nature of this contention. We are not so blinded to business realities as to permit such a manipulation of the finances of appellant, the railroads' wholly owned subsidiary, to frustrate the Commonwealth in its effort to collect an otherwise fair tax.
20
Nor is there any substance to the contention that since Virginia could not prohibit appellant from engaging in its exclusively interstate business, it therefore may not tax 'good will' or 'going concern' value which is built up thereby. We need only cite some of the cases of this Court holding to the contrary: Great Northern R. Co. v. State of Minnesota, 1929, 278 U.S. 503, 49 S.Ct. 191, 73 L.Ed. 477; Pullman Co. v. Richardson, 1923, 261 U.S. 330, 43 S.Ct. 366, 67 L.Ed. 682; Cudahy Packing Co. v. State of Minnesota, 1918, 246 U.S. 450, 38 S.Ct. 373, 62 L.Ed. 827; United States Express Co. v. State of Minnesota, 1912, 223 U.S. 335, 32 S.Ct. 211, 56 L.Ed. 459; Adams Express Co. v. Ohio, 165 U.S. 194, 17 S.Ct. 305, 41 L.Ed. 683 (rehearing 1897, 166 U.S. 185, 17 S.Ct. 604, 41 L.Ed. 965); Western Union Telegraph Co. v. Taggart, 1896, 163 U.S. 1, 16 S.Ct. 1054, 41 L.Ed. 49; Cleveland, C., C. & St. L.R. Co. v. Backus, 1894, 154 U.S. 439, 14 S.Ct. 1122, 38 L.Ed. 1041.
21
Validity of the Tax Under the Due Process Clause.
22
In view of the fact that appellant failed to file the required information as to its gross receipts, thus placing an almost insurmountable burden on the Commonwealth to ascertain them, it is necessary that appellant make an affirmative showing that the mileage method used by Virginia is so palpably unreasonable that it violates due process. This is has failed to do. Appellant rests its argument not on facts and figures covering its actual gross income in Virginia but on comparative statistics based on tangible assets. It points out that during the taxable year the value of its tangible assets in Virginia ($475,065) was only 0.6% of its total assets ($79,700,426), while the amount of gross receipts apportioned to Virginia by the State Corporation Commission was 1.7% ($6,499,519) of its total gross receipts ($387,241,764).
23
The difference in the two percentages, appellant contends, must represent intangible values on which Virginia cannot operate because located outside of its jurisdiction. This syllogism does not take into account the facts of business life. Tangible assets in Virginia may produce much more income than like assets elsewhere. Death Valley Scotty generated much less gross from his desert sightseeing wagon than did his counterpart in Central Park. The utter fallacy of using tangible assets as the test of going-concern value here is demonstrated by the fact that appellant's tangible assets in Virginia depend entirely on whether it elects to retain title to tangible property or place it in the name of its subsidiary, the Virginia company. By placing them in the Virginia company it could thus, on a tangible asset formula, escape all tax on its intangibles.
24
There is nothing in the record even to indicate that the tangible assets that appellant carries in its own name in Virginia did not actually generate the amount of gross receipts attributed to it by the State Corporation Commission. In this connection, we note that 1.9% of appellant's total contract mileage was located there. Even where taxpayers have attempted to show through evidence, as this appellant has not, that a given apportionment formula effected an appropriation of more than that to which the State was entitled, this Court has required "clear and cogent evidence' that it results in extraterritorial values being taxed.' Butler Bros. v. McColgan, 1942, 315 U.S. 501, 507, 62 S.Ct. 701, 704, 86 L.Ed. 991; Norfolk & Western R. Co. v. State of North Carolina, 1936, 297 U.S. 682, 688, 56 S.Ct. 625, 628, 80 L.Ed. 977; cf. Bass, Ratcliff & Gretton Ltd., v. State Tax Comm'n, 1924, 266 U.S. 271, 282—284, 45 S.Ct. 82, 84—85, 69 L.Ed. 282. As this Court said in Nashville, C. & St. L.R. v. Browning, 1940, 310 U.S. 362, 365—366, 60 S.Ct. 968, 970—971, 84 L.Ed. 1254:
25
'In basing its apportionment on mileage, the Tennessee Commission adopted a familiar and frequently sanctioned formula. Pullman's Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613; State of Maine v. Grand Trunk Ry. Co., 142 U.S. 217, 12 S.Ct. 121, 163, 35 L.Ed. 994; Pittsburgh, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 421, 14 S.Ct. 1114, 38 L.Ed. 1031; Branson v. Bush, 251 U.S. 182, 40 S.Ct. 113, 64 L.Ed. 215. See 2 Cooley on Taxation, pp. 1660—1664. Its asserted inapplicability to the particular situation is rested on petitioner's evidence as to the comparative revenue-producing capacity of its lines in and out of Tennessee. But both the Commission and the Supreme Court of the state thought that this evidence, however weighty, was insufficient to displace the relevance of the formula. In a matter where exactness is concededly unobtainable and the feel of judgment so important a factor, we must be on guard lest unwittingly we displace the tax officials' judgment with our own. Certainly we cannot say that the combined judgment of Commission, Board, and state courts is baseless.' (Emphasis added.)
26
Appellant's final argument is to the effect that the tax in question, in the amount of $139,739.66, is 'no just equivalent' of the tax 'in lieu of which' it was levied, and therefore violates the Due Process Clause. This argument is based upon a false premise which can be quickly disposed of. Appellant states that under Virginia's system of segregation of property for state and local taxation the only property which the Commonwealth had the power to tax was cash on hand and on deposit and appellant's rolling stock, which, under the old rates, would have yielded a tax of $679.77. Appellant is clearly in error. As we read the Virginia statutes, and as they were construed below, the Commonwealth (as contrasted with the local) government also had the power to tax the 'going concern' value of all of appellant's Virginia property, as well as its other intangible property rights such as its valuable express privileges. Thus, the new tax is not only in lieu of the previous tax on rolling stock and cash on hand, but also reaches intangible rights of great value which since Railway Express, supra, had escaped taxation altogether.
27
It follows from what we have said that the tax is valid, and the judgment below is therefore affirmed.
28
Affirmed.
29
Mr. Justice FRANKFURTER concurs in the result.
30
Mr. Justice HARLAN, concurring.
31
I share the reservations of Mr. Justice BRENNAN as to the propriety of considering the tax described in the opinion of the Court as a property tax. I find myself unable, however, to distinguish in any constitutional sense the 'in lieu' tax here involved from similar levies the validity of which has been sustained as applied to interstate enterprises in the line of cases cited in the Court's opinion, and therefore join the opinion.
32
Mr. Justice BRENNAN, concurring.
33
While I join the opinion and judgment of the Court, I must admit to some reservations whether the tax at bar can fairly be thought of as a property tax. The discussion of the Court in this case's predecessor, Railway Express Agency, Inc., v. Commonwealth of Virginia, 347 U.S. 359, 364—367, 74 S.Ct. 558, 561—563, 98 L.Ed. 337, cast serious doubt on the propriety of viewing Virginia's former tax as a property tax, and I share that doubt. The only modification in the mathematical demonstration of the prior decision necessitated by the revision of the tax statute is brought about by the new statute's provision that the tax is in lieu of other taxes on the appellant's intangible property and rolling stock. In practical effect, this means that payment of this $139,739.66 tax is 'in lieu' of a 1/5% tax on $120,110.70 of cash, amounting to $240.22; a tax, amounting to $427.56, on the value, apportioned to the State, of the appellant's refrigerator cars; and a 2 1/2% tax on its trucks,* valued at $262,719, amounting to $6,567.98. These taxes, in lieu of which the $139,739.66 tax at bar is payable, aggregate $7,235.76. It seems to me doubtful whether this makes a significant alteration in the demonstration the Court made on the prior appeal with respect to the status as a property tax of the gross receipts tax on express companies. While the tax may be a rough equivalent of some sort of property tax that Virginia might conceivably levy on express companies, I do not see that it has been made clear that it bears any equivalence to any sort of property tax that she in fact levies on other sorts of businesses or has in fact previously levied on express companies. Cf. Pullman Co. v. Richardson, 261 U.S. 330, 339, 43 S.Ct. 366, 368, 67 L.Ed. 682. On the other hand, I cannot deny that this Court has, in decisions cited by the Court's opinion, frequently admitted gross receipts taxes to the characterization of 'property taxes' in situations where their equivalence with any actual property tax was somewhat tenuous. See, e.g., Illinois Central R. Co. v. State of Minnesota, 309 U.S. 157, 60 S.Ct. 419, 84 L.Ed. 670.
34
To me, the more realistic way of viewing the tax and evaluating its constitutional validity is to take it as what it is in substance, a levy on gross receipts fairly apportionable to the taxing State. Virginia has a comprehensive scheme of state income and gross receipts taxes on business corporations, with net income taxes the standard in the case of ordinary businesses and gross receipts taxes in the case of most categories of utility or 'public service' corporations. The gross receipts taxing structure does not single out this interstate transportation company, or discriminate against it, but rather requires it only to pay its share, at a tax rate comparable to the rates on the gross receipts of other categories of public service corporations, and in fact lower than those an many important ones. To restrict the gross receipts subject to the tax to an amount representing that part of appellant's interstate movements which takes place within the State, the State has employed an apportionment formula. That formula is not on its face unfair or discriminatory toward interstate commerce or indicative of an imposition on out-of-state activities, and the opinion of the Court amply demonstrates that this appellant cannot maintain a challenge to the details of its application here. The label of the tax as a 'privilege' or 'license' tax, proscribed by this case's predecessor, has been eliminated, as the Court's opinion shows. This Court's decisions sustain the application of a fairly apportioned general gross receipts tax to an interstate transportation company. Canton R. Co. v. Rogan, 340 U.S. 511, 515—516, 71 S.Ct. 447, 449, 95 L.Ed. 488; Central Greyhound Lines, Inc., of New York v. Mealey, 334 U.S. 653, 663—664, 68 S.Ct. 1260, 1266—1267, 92 L.Ed. 1633. Cf. Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 256, 58 S.Ct. 546, 549, 82 L.Ed. 823. In my view, the most compelling reason for affirming the judgment of the Supreme Court of Appeals of Virginia is the application of the principles of these cases here.
35
Mr. Justice WHITTAKER, with whom Mr. Justice STEWART joins, dissenting.
36
I cannot agree. Let me very briefly put the case in perspective, as I see it. Taxation of the property of appellant's Virginia subsidiary, which does an intrastate business in Virginia, is not at all involved here. The Court properly observes the fact that 'Appellant's Virginia business is * * * of an exclusively interstate nature.' In the year involved it owned in Virginia tangible real and personal property which was taxed by Virginia under other statutes and is not involved in this case. Virginia also claims that appellant had intangible property in Virginia. It is upon those intangibles, so claimed to have been present in the State, that Virginia sought to lay its 'franchise tax,' said by it to be a 'property tax' measured by appellant's gross receipts, allocable to Virginia, from 'exclusively' interstate commerce. Admittedly appellant had a bank account and some 'rolling stock' in Virginia, upon which, doubtless, Virginia validly could lay an ad valorem tax. But the dispute is over the following. Virginia claims that appellant should be deemed to have had in Virginia, and subject to the taxing statute here involved, substantially that percentage of the value of its national 'good will,' and of its exclusive express carriage contract with the railroads, which the ratio of the mileage of carriers which it uses in interstate commerce in Virginia bears to the total mileage of the same carriers which it uses everywhere in such commerce. Appellant contends that Virginia's claim in these respects is unconstitutional. Which of them is right? I think it is appellant. I think so for two reasons. First, the exclusive carriage contract which appellant has with the railroads requires it, as the Court observes, to pay 'all of its net income' to the railroads. Therefore, as a matter of both fact and law, that contract can have no dollar value to appellant, distinguished from the railroads, to be taxed to it anywhere. Second, appellant's 'good will,' if any, does not consist of anything localized in Virginia, but inheres solely in its 'exclusively' interstate business—a business that Virginia cannot reach or regulate, by direct taxation or otherwise, because it is prohibited from doing so by the Commerce Clause of the Constitution, Art. I, § 8, cl. 3. My views on that subject are fully stated in my dissenting opinion in No. 12, Northwestern States Portland Cement Co. v. State of Minnesota, and No. 33, Williams v. Stockham Valves & Fittings, Inc., 358 U.S. 450, 79 S.Ct. 357. I would therefore reverse the judgment of the Supreme Court of Appeals of Virginia.
1
Va.Code, 1950, § 58—547.
2
See Va.Const. § 170; and Va.Code 1950, §§ 58—9, 58—10.
3
Va.Code 1950, § 58—546 et seq., as amended by Va.Acts 1956, c. 612.
4
In its return, appellant stated that it was 'unable' to ascertain its gross receipts from express transported 'through, into or out of' the Commonwealth. The record contains testimony to this effect by one of appellant's officers. The record also shows, from one of appellant's own exhibits, that since 1931 the tax year in question is the only year in which appellant has been 'unable' to report this information. From 1931 to 1953, appellant managed to find a way of compiling or computing and reporting such data, and in only 7 of these 23 years did the Commonwealth disagree with appellant's figures. Due to the downfall of the old tax in Railway Express Agency v. Commonwealth of Virginia, supra, there was no reporting requirement for 1954 and 1955. Under the new tax, for 1956, appellant made no attempt to present evidence to show what reductions should be made in the Commission's figures, nor did it explore the possibility of an agreement about it as it apparently had in prior years. Cf. Cohan v. Commissioner of Internal Revenue, 2 Cir., 1930, 39 F.2d 540, 543—544. Instead, it relied completely upon its claim that the tax was unconstitutional.
5
Actually, the amounts paid to such carriers for Virginia traffic were ascertained by that method. Since the carrier payments represent only net receipts, the Virginia gross receipts were determined by applying to the Virginia carrier payments the ratio that its total gross receipts bore to its total carrier payments.
6
Parenthetically, it might be noted that the Adams case involved a 'going concern' valuation of $488,265 as compared to a 'dead' valuation of property in the amount of $28,438. 165 U.S. 194, 237, 17 S.Ct. 305, 315, 41 L.Ed. 683.
*
The State informs us that the appellant's trucks have been ruled to be 'rolling stock' and therefore shielded by the 'in lieu' provision of the new statute. While the Virginia Code does not in terms set forth a rate of taxation for the rolling stock of express companies, the rates provided for the rolling stock of railway and of freight car companies are 2 1/2% ad valorem. Va.Code §§ 58—515, 58—560. This rate would appear appropriate for exploring the equivalence of this 'in lieu' tax to a corresponding property tax, and in fact the rate, as established by the latter section, has been used before the 'in lieu' provision as a basis for the taxation of appellant's refrigerator cars.
| 78
|
358 U.S. 534
79 S.Ct. 383
3 L.Ed.2d 490
YOUNGSTOWN SHEET AND TUBE COMPANY, Appellant,v.Stanley J. BOWERS, Tax Commissioner of Ohio. UNITED STATES PLYWOOD CORPORATION, Petitioner, v. CITY OF ALGOMA.
Nos. 9, 44.
Argued Nov. 12, 13, 1958.
Decided Feb. 24, 1959.
[Syllabus from pages 534-535 intentionally omitted]
Mr. Carlton S. Dargusch, Sr. Columbus, Ohio, for appellant Youngstown Sheet & Tube Co.
Mr. William Saxbe and Mr. John M. Tobin, Columbus, Ohio, for appellee Bowers.
Mr. Roger C. Minahan, Milwaukee, Wis., for petitioner U.S. Plywood Corp.
Mr. Edwin Larkin, Mondovi, Wis., for respondent City of Algoma.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The principal question presented by these cases is whether appellant in No. 9, the Youngstown Sheet and Tube Company, and petitioner in No. 44, United States Plywood Corporation, have so acted upon the materials which they have imported for use in their manufacturing operations as to cause them to lose their distinctive character as 'imports,' within the meaning of that term as used in the Import-Export Clause, Art. 1, § 10, cl. 2, of the United States Constitution.1 The Supreme Courts of the States concerned have held that these manufacturers have done so. Our task is to decide whether, on the particular facts involved, those holdings violate the Import-Export Clause of the Constitution.
2
The facts in the Youngstown case are stipulated. In essence, they are that Youngstown, an Ohio corporation, operates an industrial plant in or near Youngstown, Ohio, where it manufactures iron and steel. In addition to the use of domestic ores, it imports iron ores from five countries 'for ultimate use in (its) open hearth (and) blast furnaces' in its manufacturing processes. The imported ores arrive in shiploads 'in bulk' either at an Atlantic or a Lake Erie port of entry where they are unloaded from the ship into railroad cars and are thereby transported to Youngstown's plant in Ohio. The plant is enclosed by a wire fence. Within the enclosure and 'adjacent to (the) manufacturing facilities' are several 'ore yards' for the storage of supplies of ore.2 Each ore yard consists of 'two parallel walls, on which there (is) a movable ore bridge.' When the imported ores arrive at this final destination, they are unloaded into one of the ore yards but, because the ore from each country is different from the others and each is imported for a different use, the ores are kept segregated as to the country of origin by being 'placed in a separate pile in a separate area of the ore yard.' The daily manufacturing needs for ore are taken from these piles. As needed, ores are conveyed from the particular pile or piles selected to 'stock bins' or 'stock houses,' holding one or two days' supply and located in close proximity to the furnaces, from which the ores are fed into the furnaces. As ore from a particular 'pile' in the ore yard is thus taken and consumed, other like ore is similarly imported from the same country and is brought to the plant and unloaded on top of the remainder of that particular pile. This course is continuously repeated. Youngstown endeavors to maintain 'a supply of imported ores to meet its estimated requirements for a period of at least three months.' The ores are not imported 'for resale,' but 'for use in manufacturing (at the Ohio plant).'
3
Acting under Ohio statutes which provide, inter alia, that 'All personal property located and used in business in this state (shall be) subject to taxation * * *'3 and that 'Personal property is 'used' within the meaning of 'used in business' * * * when stored or kept on hand as material, parts, products, or merchandise * * *,'4 the Tax Commissioner of Ohio proposed to assess an ad valorem tax against Youngstown based on the average value of the iron ores in its ore yards during the tax year ended January 1, 1954.5 Youngstown contested the proposed assessment. It contended, among other things, that the imported ores had not lost their character as imports and were therefore immune from state taxation under Art. I, § 10, cl. 2 of the United States Constitution.
4
After exhaustion of administrative proceedings, the case reached the Supreme Court of Ohio. It held that the 'protection (of the Import-Export Clause cannot) extend to such iron ore (1) after it has been commingled with other iron ore imported at a different time, even though such other iron ore is of the same grade and was imported from the same place, and (2) after portions of such iron ore have been removed for use in manufacturing.' It then entered judgment sustaining the tax, 166 Ohio St. 122, 140 N.E.2d 313, 317, and we noted probable jurisdiction of Youngstown's appeal. 355 U.S. 911, 78 S.Ct. 340, 2 L.Ed.2d 272.
5
The facts in the United States Plywood Corporation case were found in detail by the trial court and those findings are not challenged here. In essence, they are that United States Plywood Corporation (petitioner) operates an industrial plant in Algoma, Wisconsin, where it manufactures veneered wood products. It uses both domestic and imported lumber and veneers in its manufacturing processes. The imported lumber is shipped in railroad cars directly from Canada to petitioner's plant. It is unfinished, and is received in bulk or as loose, individual pieces or boards. It is also 'green' when received and therefore must be dried before it can be used by petitioner. Upon arrival at destination, it is unloaded and carted to petitioner's storage yard, located 'adjacent' to its plant, where it is stacked in the open in such a way as to allow the air freely to circulate through the stacks for the 'dominant purpose' of air-drying it. This method does not so completely dry the lumber as to make kiln-drying unnecessary, but it does materially reduce the time and expense of that process. From time to time, so much of the lumber as is about to be put into veneered products is taken from the stacks and placed in a kiln where the drying is completed and the lumber readied for use. The veneers are imported from three countries. They are received in bundles and are kept in that form in piles, separated as to specie, in petitioner's plant for use as needed in the day-to-day operations of the plant.
6
On the assessment date of May 1, 1955, the Assessor of the City of Algoma, acting under what is now Wis.Stat.1957, § 70.01, W.S.A., assessed a tax against petitioner based upon the value of one-half of the imported lumber and veneers then on hand. Petitioner paid the tax and then sued in the state court for its recovery. The trial court also found that air-drying the lumber 'was part of (petitioner's) manufacturing practices,' and that, when stacked for air-drying, the lumber 'entered the process of manufacture' and thus lost its character as an 'import,' and therefore all of it might lawfully have been taxed by the city. The court further found that the lumber and veneers had been imported by petitioner 'for use in manufacturing' at its Algoma plant, and that their importation journeys definitely had ended; that the lumber and veneers that were taxed (one-half of the amounts on hand) had been irrevocably committed to 'use in manufacturing' at that plant, were 'necessarily required to be kept on hand to meet (petitioner's) current operational needs,' were being 'used in manufacturing,' and had therefore lost their character as 'imports' and were subject to local taxation. It then entered judgment for the city, sustaining the tax, and, on petitioner's appeal, the Supreme Court of Wisconsin affirmed. 2 Wis.2d 567, 87 N.W.2d 481. Because of the importance of the constitutional question presented we granted certiorari. 356 U.S. 957, 78 S.Ct. 994, 2 L.Ed.2d 1065.
7
The Constitution confers on Congress the power to lay and collect import duties, Art. I, § 8, and provides that 'No State shall, without the Consent of the Congress, lay any Impost or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws * * *.' Art. I, § 10, cl. 2. That these provisions were intended to confer on the National Government the exclusive power to tax the act of importation is plain from their terms. And early in our national history Chief Justice Marshall held, in the landmark case of Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678, that one who had imported goods for the purpose of selling them, had, 'by payment of the duty to the United States, (acquired the) right to dispose of his merchandise, as well as to bring it into the country' (id., 12 Wheat. at page 442), and that the State could not tax it 'while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported.'6 Id., at page 442. But he made very clear that '* * * there must be a point of time when the prohibition ceases, and the power of the State to tax commences.' Id., at page 441. Elaborating this concept, he said:
8
'The constitutional prohibition on the States to lay a duty on imports * * * may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, though quite distinguishable when they do not approach each other, may yet * * * approach so nearly as to perplex the understanding. * * * Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State. * * *' Id., at page 441—442. (Emphasis added.)
9
While Chief Justice Marshall did not undertake definitively to state just what acts or conduct of the importer would be deemed to have 'so acted upon the thing imported' as to cause it to be 'mixed up with the mass of property in the county (and to lose) its distinctive character as an import,' he did specify some of the acts that would so result. He held that the goods lose their character as imports when the importer (1) 'sells them,'7 or (2) '(breaks) up his packages, and (travels) with them as an itinerant pedlar.' Id., at page 443. More important to the question confronting us, he also held (3) that goods brought into this country by an importer 'for his own use' and here 'used' by him are to be regarded as a part of 'the common mass' of property and are not immune from state taxation.8
10
In Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252, it was held that goods imported for 'use' share the same immunity as goods imported for 'sale,' and that goods imported 'for manufacture (do not) lose their character as imports any sooner or more readily than imports for sale' (id., 324 U.S. at page 667, 65 S.Ct. at page 878); but 'when (the imported goods are) used for the purpose for which they are imported, they cease to be imports and their tax exemption is at an end.' Id., 324 U.S. at page 665, 65 S.Ct. at page 877.
11
Thus, though Brown v. State of Maryland, supra, holds that goods brought into the country by an importer 'for his own use' are not exempted from state taxation by the Import-Export Clause, and Hooven & Allison Co. v. Evatt, supra, holds that they are, both agree that when the imported goods are 'used for the purpose for which they are imported, they cease to be imports and their tax exemption is at an end.' Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 665, 65 S.Ct. at page 877. Compare Brown v. State of Maryland, supra, 12 Wheat. at page 441—443.
12
Do the facts as stipulated and found in the cases before us, when considered in the light of applicable legal principles, show that these manufacturers have so acted upon the imported materials as to cause them to lose their distinctive character as 'imports' by irrevocably committing them, after their importation journeys have definitely ended, to 'use in manufacturing' at the plant and point of final destination, and by 'entering' and 'using' them 'in manufacturing' at that place' The manufacturers, relying upon their understanding of the Hooven case, argue that they do not, but we have concluded that they do.
13
In Hooven the taxpayer had imported bales of hemp and other fibers which it stored in its warehouse at its factory in Ohio with the intention of eventually using them in the manufacture of cordage and similar products. Ohio sought to lay an ad valorem tax on the bales of fibers so stored in the taxpayer's warehouse. The taxpayer contended that the bales of fibers were 'imports' and thus immune from state taxation under the Import-Export Clause of the Constitution. The Supreme Court of Ohio 'thought that Brown v. State of Maryland, supra, laid down a rule applicable only to imports for the purpose of sale, and that imports for use became, upon storage, even if still in the original package, so intermingled with the common mass of property within the state as to be subject to the state power of taxation' (324 U.S. at page 655, 65 S.Ct. at page 872), and upon that ground upheld the tax. This Court, holding that the tax immunity applies to goods imported for 'use' as well as for 'sale,' that the bales of fibers would not lose their character as imports 'until (they were) put to the use for which (they were) imported' (id., 324 U.S. at page 665, 65 S.Ct. at page 877), and that the fibers were not shown by the record in that case to have been 'subjected to manufacture when they were placed in (the taxpayer's) warehouse in their original packages' (id., 324 US. at page 667, 65 S.Ct. at page 878), reversed the judgment. But the record there did not present, and this Court did not reach or decide, the question we have here. Indeed, the Court expressly reserved it. It said:
14
'(I)t is unnecessary to decide whether, for purposes of the constitutional immunity, the presence of some fibers in the factory was so essential to current manufacturing requirements that they could be said to have entered the process of manufacture, and hence were already put to the use for which they were imported, before they were removed from the original packages. Even though the inventory of raw material required to be kept on hand to meet the current operational needs of a manufacturing business could be thought to have then entered the manufacturing process, the decision of the Ohio Supreme Court did not rest on that ground, and the record affords no basis for saying that any part of petitioner's fibers, stored in its warehouse, were required to meet such immediate current needs. Hence we have no occasion to consider that question.' Id., 324 U.S. at page 667, 65 S.Ct. at page 878.
15
Unlike Hooven, these are not cases of the mere storage in a warehouse of imported materials intended for eventual use in manufacturing but not found to have been essential to current operational needs. Here the Ohio and Wisconsin courts have in effect held that the stipulated and found facts show that the imported materials that were taxed by those States were so essential to current manufacturing requirements that they must be said to have entered the process of manufacture, and those courts have rested their judgments, in major part at least, on that ground. Our question therefore is precisely the one which the Court did not reach or consider in the Hooven case.
16
We are therefore confronted with the practical, albeit vexing, problem of reconciling the competing demands of the constitutional immunity of imports and of the State's power to tax property within its borders. The design of the constitutional immunity was to prevent '(t)he great importing States (from laying) a tax on the non-importing States,' to which the imported property is or might ultimately be destined, which would not only discriminate against them but also 'would necessarily produce countervailing measures on the part of those States whose situation was less favourable to importation.' Brown v. State of Maryland, supra, 12 Wheat. at page 440, 6 L.Ed. 678. See Madison, Debates in the Federal Convention of 1787, August 28, 1787 (Hunt & Scott ed.). And see, e.g., Cook v. State of Pennsylvania, 97 U.S. 566, 574, 24 L.Ed. 1015; Richfield Oil Corp. v. State Board, 329 U.S. 69, 76—77, 67 S.Ct. 156, 91 L.Ed. 80. The constitutional design was then to immunize imports from taxation by the importing States, and all others through or into which they may pass, so long as they retain their distinctive character as imports. Hence, that design is not impinged by the taxation of materials that were imported for use in manufacturing after all phases of the importation definitely have ended and the materials have been 'put to the use for which they (were) imported' (Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 657, 65 S.Ct. at page 873), for in such a case they have lost their distinctive character as imports and are subject to taxation. And inasmuch as 'the reconciliation of the competing demands of the constitutional immunity and of the state's power to tax is an extremely practical matter' (Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 668, 65 S.Ct. at page 878, 89 L.Ed. 1252), we must approach the question whether these materials had been 'put to the use for which they (were) imported' (id., 324 U.S. at page 657, 65 S.Ct. at page 873) with full awareness of realities and treat with them in a practical way.
17
The stipulation in the Youngstown case shows that the imported ores were essential to the operation of Youngstown's Ohio plant; that Youngstown had imported them 'for use in manufacturing' and 'to meet its estimated (manufacturing) requirements' at that plant; that the ores had arrived at their destination, had been placed in 'piles' in the 'ore yards' of that plant, and their importation journey definitely had ended; that the ores were irrevocably committed to 'use in manufacturing' at that plant and point of final destination; and that the daily ore needs of the plant were conveyed from the 'piles' in the 'ore yards' to 'stock bins' or 'stock houses,' holding one or two days' supply, from which they were fed into the furnaces. Does not the stipulation thus show that the ores were not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the daily requirements of the plant? It seems to us that these stipulated facts inescapably establish that Youngstown had 'so acted upon the (imported ores)' (Brown v. State of Maryland, supra, 12 Wheat. at page 441), by using them 'for the purpose for which they (were) imported,' that they must be held 'to have then entered the manufacturing process' (Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 665, 667, 65 S.Ct. at page 877) and to have lost their distinctive character as 'imports' and all tax immunity as such.
18
Youngstown does not deny that so much of the ores as have been conveyed from the 'piles' in the 'ore yards' to the 'stock bins' or 'stock houses' have lost their distinctive character as imports. Is there any real basis of distinction? The only possible differences are in the sizes of the piles and their distances from the furnaces. Surely the size of the pile is not material. Just as surely the short distance between the smaller piles in the 'stock bins' or 'stock houses' and the larger piles in the ore yards is not a real distinction. If the larger piles stood on higher ground adjoining the 'stock bins' and 'stock houses' so that the ores might feed by gravity from the former to the latter there would be no practical difference from the actual facts involved, but it could not be argued that the ores in the one are any less certainly being used in the processes of manufacture than the ores in the other. It seems entirely plain that the ores in the smaller piles in the 'stock bins' and 'stock houses' are no more definitely and irrevocably committed to use, or being used, at the plant than are the ores in the larger piles in the ore yards from which the smaller ones are constantly kept supplied. '(R)econciliation of the competing demands of the constitutional immunity and of the state's power to tax (being) an extremely practical matter' (Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 668, 65 S.Ct. at page 878), taxability cannot depend upon whether the size of the pile of stored materials or its distance from the place of actual fabrication or consumption is a little more or a little less.
19
In the United States Plywood Corporation case, two types of imported materials are involved—unfinished 'green' lumber received 'in bulk' and veneers received in 'bundles.' The Assessor of the City of Algoma, believing that one-half of the lumber and veneers on hand on the taxing date was necessarily required to be kept on hand to meet the current operating needs of petitioner's manufacturing plant, assessed an ad valorem tax upon the value of that one-half of the lumber and veneers. In the ensuing litigation, the Wisconsin courts found that the imported materials had been imported by petitioner 'for use in manufacturing' at its Algoma plant, had arrived at that place and that their importation journeys definitely had ended; that the lumber and veneers that were taxed (one-half of the amounts on hand on the taxing date) had been irrevocably committed to 'use in manufacturing' at that plant, were 'necessarily required to be kept on hand to meet (its) current operational needs,' and were actually being 'used' to supply those needs. These findings are amply supported by the evidence and are not contested here. We think they clearly show that the lumber and veneers that were taxed were not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the day-to-day manufacturing requirements of the plant. They thus establish that petitioner had 'so acted upon the (imported materials)' (Brown v. State of Maryland, supra, 12 Wheat. at page 441) that were taxed by using them 'for the purpose for which they (were) imported,' that—like the ores in the Youngstown case—they must be held 'to have then entered the manufacturing process' (Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 665, 667, 65 S.Ct. at page 877) and to have lost their distinctive character as 'imports' and all tax immunity as such.
20
The fact that the veneers were received in 'bundles' which were not opened until the veneers were put into the daily manufacturing operations of the plant is not controlling under the facts and findings here. Whatever may be the significance of retaining in the 'original package' goods that have been so imported for sale (Brown v. State of Maryland, supra; Waring v. (City of Mobile) The Mayor, 8 Wall. 110, 122—123, 19 L.Ed. 342; Low v. Austin, 13 Wall. 29, 32—33, 20 L.Ed. 517; Cook v. State of Pennsylvania, 97 U.S. 566, 573, 24 L.Ed. 1015; May & Co. v. City of New Orleans, 178 U.S. 496, 501, 507—508, 20 S.Ct. 976, 977, 979 980, 44 L.Ed. 1165), goods that have been so imported for use in manufacturing are not exempt from taxation, though not removed from the 'original package,' if, as found here, they have been 'put to the use for which they (were) imported.' Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 657, 65 S.Ct. at page 873. Breaking the original package is only one of the ways by which packaged goods that have been imported for use in manufacturing may lose their distinctive character as imports. Another way is by putting them 'to the use for which they (were) imported.' Id. That the package has not been broken is, therefore, only one of the several factors to be considered in factually determining whether the goods are being 'used for the purpose for which they (were) imported.' Hooven & Allison Co. v. Evatt, supra, 324 U.S. at page 665, 65 S.Ct. at page 877. Here the fact that the bundles are not opened until the veneers are put into the day-to-day manufacturing operations of the plant was fully considered by the Wisconsin courts before they made the finding that the veneers that were taxed were 'necessarily required to be kept on hand to meet (petitioner's) current operational needs,' and were actually being 'used' to supply those needs.
21
Because of the views expressed, it is unnecessary to reach or discuss the further finding and conclusion of the Wisconsin courts that when the 'green' lumber was stacked by petitioner in the open in a particular way for the 'dominant purpose' of air-drying it, the lumber 'entered the process of manufacture,' and, for that reason also, lost its character as an import.
22
The materials here in question were imported to supply, and were essential to supply, the manufacturer's current operating needs. When, after all phases of their importation had ended, they were put to that use and indiscriminate portions of the whole were actually being used to supply daily operating needs, they stood in the same relation to the State as like piles of domestic materials at the same place that were kept for use and used in the same way. The one was then as fully subject to taxation as the other. In those circumstances, the tax was not on 'imports,' nor was it a tax on the materials because they had been imported, but because at the time of the assessment they were being used, in every practical sense, for the purposes for which they had been imported. They were therefore subject to taxation just like domestic property that was kept at the same place in the same way for the same use. We cannot impute to the Framers of the Constitution a purpose to make such a discrimination in favor of materials imported from other countries as would result if we approved the views pressed upon us by the manufacturers. Compare May & Co. v. City of New Orleans, 178 U.S. at page 509, 20 S.Ct. at page 980.
23
Youngstown also challenged a portion of the tax on the ground that its domestic ores stored on public docks on the shore of Lake Erie in Ohio were 'merchandise * * * held in a storage warehouse for storage only' within the meaning of § 5701.08(A),9 and that, because the section exempted nonresidents but taxed residents on stocks of merchandise so held, it denied to Youngstown, a resident of Ohio, the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution. The Supreme Court of Ohio answered that contention by saying: 'For the reasons stated in Allied Stores of Ohio, Inc., v. Bowers, Tax Com'r (166 Ohio St. 116), 140 N.E.2d 411, the taxpayer's contentions (in that respect) must be rejected * * *.' Youngstown Sheet & Tube Co. v. Bowers, 166 Ohio St. 122, 124, 140 N.E.2d 313, 316. We have today affirmed the judgment of the Supreme Court of Ohio in Allied Stores of Ohio, Inc., v. Bowers, Tax Com'r, 358 U.S. 522, 79 S.Ct. 437, and for the reasons stated in our opinion in that case we hold that § 5701.08(A) and the questioned tax laid thereunder did not violate the Equal Protection Clause of the Fourteenth Amendment.
24
It follows that the judgment in each case must be
25
Affirmed.
26
Mr. Justice STEWART took no part in the consideration or decision of these cases.
27
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting on the main issue.
28
As one follows the tortuous and anguished endeavors to establish a free trade area within Western Europe, unhampered by interior barriers, against the opposition of inert and narrow conceptions of self-interest by the component nations, admiration for the farsighted statecraft of the Framers of the Constitution is intensified. Guided by the experience of the evils generated by the parochialism of the new States, the wise men at the Philadelphia Convention took measures to make for the expansive United States a free trade area and to withdraw from the States the selfish exercise of power over foreign trade, both import and export. They accomplished this by two provisions in the Constitution: the Commerce Clause and the Import-Export Clause.
29
The former reached its aim, as a matter of settled judicial construction, by placing the regulation of commerce among the States in the hands of Congress, except insofar as predominantly local interests give the States concurrent power until displaced by congressional legislation. This leeway to the States was established by the decision in Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996, foreshadowed by Marshall's decision in Willson v. Black-bird Creek Marsh Co., 2 Pet. 245, 7 L.Ed. 412. This permissive area for state action has given rise, as we know too well, to multitudinous litigation.
30
But in dealing with foreign commerce the Constitution left no such leeway. It rigorously confined the States to what might be 'absolutely necessary,' the only constitutional permission in terms so drastically limited, and beyond this permission of what is 'absolutely necessary' state action was barred except by consent of Congress as expressive of the national interest. Thus, hardly any room was left by the Constitution for judicial construction of the command, 'No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws * * *.' This strict limitation on the States was still further qualified by the requirement that the 'net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.'
31
For one hundred and thirty-two years, in a course of decision following Chief Justice Marshall's seminal discussion in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678, this Court has held, without a single deviation, that a State may not tax imports from foreign countries while retained by the importer in their original 'package'1 or form prior to the use of the goods or their sale. Today the Court, I am bound most respectfully to say, disregards this historic course of constitutional adjudication by allowing the States of Wisconsin and Ohio, and, therefore, all the States, to tax foreign imports despite the prohibition of Art. I, § 10, cl. 2, that 'No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, * * *.' as that clause has been authoritatively interpreted by this Court. And it does so, moreover, without overruling the decisions which the basis and logic of this new reading of the Constitution can no longer sustain. But they remain decisions of this Court. Thus, we are left with a confusing series of conflicting cases amidst which the States must blindly move in determining the extent of their constitutional power to tax. This confusion is substituted for a principle so plain of application that the controversies in this Court over the meaning of this far-reaching constitutional provision have numbered less than a dozen in our entire history. Of course, I do not believe that we should overrule this consistent course of decisions. But to do so would at least have the merit of explicit announcement of a new legal policy, with its concomitant repercussions on the conduct of our national economic life.
32
Since the legal analysis of the challenged taxes must derive from due regard for the precise circumstances on which they are based, it becomes necessary to set forth the facts of the two cases now before us.
33
In No. 44, United States Plywood Corp. v. City of Algoma, petitioner, a New York corporation licensed to do business in Wisconsin, attacks the validity of a tax levied by the City of Algoma on its storage stock of imported lumber and veneers. The veneers are imported from Canada, France and the Belgian Congo. From Canada comes birch veneer, and from France, French oak veneer, and from Africa, species of vener known as korina and fuma. The veneers are shipped to petitioner in wooden crates or in bundles secured by metal straps. After arrival at petitioner's plant the veneers are stored in a warehouse in their original packages prior to their use in the manufacture of veneered products. When used the packages are broken and take their course through the factory. The lumber, birch and cedar, is imported from Ontario, Canada. When received it is piled in the yard preparatory to use in manufacture.
34
The City of Algoma assessed for taxation one-half of the total value of the imported lumber piled in the yard and the veneers stored in their original packages in the warehouse, on tax day—May 1, 1955. The city said that at least that amount of the imported materials was necessary to meet the 'current operational requirements' of petitioner and thus was subject to state taxation.
35
The State Supreme Court upheld the tax on the basis of the finding below that the goods taxed were necessary for the 'current operational needs' of the plant. The tax on the lumber was sustained on an alternative ground. Since the dominant purpose of piling the lumber in the storage yard was to prepare it for manufacture by air drying, the lumber had entered the process of manufacture and lost its immunity from state taxation. Most of the Canadian lumber was received green and, as a matter of good business practice, it is customary to air dry such lumber before running it through dry kilns to further remove moisture.
36
In No. 9, Youngstown Sheet & Tube Co. v. Bowers, appellant challenges the application of a personal property tax to its stocks of imported iron ore stored at its plant in Youngstown, Ohio. The facts were stipulated. Appellant purchases and imports five grades of iron ore: Brazilian ore, Cuban ore, Mexican ore, Liberian ore, and Seine River ore. These ores are loaded in bulk at foreign ports into chartered vessels, each of which carries but a single cargo of a single grade of ore. When the vessels reach the port of entry, the ore is discharged into railroad cars and transported in bulk to appellant's plant in Youngstown. Upon arrival the ore is unloaded into a storage yard adjacent to the manufacturing plant. A separate storage pile in a separate area of the storage yard is maintained for each grade of imported ore, and such ore is not commingled with any other property. A supply of ore necessary to meet estimated requirements for at least three months is maintained. Since the ore is located at some distance from stock bins and furnaces, when the need arises for a particular grade of ore it is taken from the grade stock pile and transported to stock bins or stock houses prepatory to use in the furnaces. When a shipment of bulk ore of a particular grade is received it is placed in the stock pile designated for that grade, i.e., all imports of Brazilian ore are placed in the Brazilian pile, etc. Hence a stock pile of a particular grade may be diminished by a particular day's need, and augmented the next by subsequently imported ore of the same grade.
37
Appellant conceded that the imported ores had lost their immunity from taxation once they were removed from storage piles and placed in stock bins. The Supreme Court of Ohio decided that all the imported ore, including that remaining in the storage piles, could be taxed by the State, and upheld the challenged assessment. The Ohio court thought that the mere mingling of imported ore with other imported ore of the same grade, coupled with the fact that parts of each pile were taken for use in manufacturing, had terminated the constitutional immunity and subjected the entire stock of imported ore to state taxation.
38
Primary among the forces which led to the inclusion of Art. I, § 10, cl. 2, the Import-Export Clause, in the Constitution, was the deeply felt necessity of vesting exclusive power over foreign economic relations and foreign commerce in the new National Government.2 The importance of control over duties, imposts, and subsidies as an instrument of foreign trade and as a protection for the encouragement and growth of domestic manufactures was recognized as a matter of course by the Framers. For the effective exercise of this control it was necessary that the Government speak with one voice when regulating commercial intercourse with foreign nations. Orderly and effective policy would be impossible if thirteen States, each with their distinctive interests, and often conflicting, one with another, were allowed to exercise their own initiative in the regulation of foreign economic affairs. And so the States were prohibited from such regulation—they were forbidden, except by leave of Congress, to lay any duties on imports or on exports. Second only to this goal in importance, was the need to secure to the National Government an important source of revenue.3 The Framers assumed that, for many years, duties on foreign imports would be the prime source of national funds; the revenue on whose constant flow the operations of government would depend. It therefore was essential to the fiscal well-being of the new country to ensure exclusive access to this revenue to the National Government. Subordinate to these goals in importance was the desire to prevent the seaboard States, possessed of important ports of entry, from levying taxes on goods flowing through their ports to inland States.4 It was important not to allow these States to take advantage of their favorable geographical position in order to exact a price for the use of their ports from the consumers dwelling in less advantageously situated parts of the country. This fear of the use of geographical position to exact a form of tribute found an especially forceful expression in the absolute prohibition against duties on exports by either Nation or States.
39
The Import Clause was a result of the desire to safeguard these national goals and realize these necessities. Thus, the considerations governing its interpretation marked out for it a special path in the stream of constitutional adjudication—a course which diverged in many respects from the history of the Commerce Clause: that broad grant of power designed primarily to assure national control over commercial trade among the States. The often difficult, and continually delicate, considerations of the economic impact of a challenged tax, of the directness of its burden upon commerce, of its potential or actual discrimination against interstate trade, which have been of controlling importance to the proper evaluation of state taxes challenged under the Commerce Clause, are not the pertinent factors in assessing the constitutional validity of a tax charged with being in violation of the bar of Art. I, § 10, cl. 2. In the taxation of imports, the grant of power to the National Government is exclusive; the prohibition of the States, absolute.5 Thus the objects of relevant inquiry have been carefully circumscribed. Once it is clear, as a matter of economic fact, that a State has levied a tax upon foreign goods, this Court has always found it necessary to answer only one further question. The question was put by Chief Justice Marshall in 1827 in Brown v. State of Maryland: Have the goods retained their status as imports in the hands of the importer? If so, the tax is invalid. If not, if the goods have become part of the general property of the State, the tax is not barred by the Import Clause. The answer to this question involves essentially a determination of the physical status of the foreign goods. But, however variant the facts in different situations, the determinative principles have remained constant. And in the cases now before us, just as in every case this Court has decided under the Import Clause, the rules of decision must flow from the careful and authoritative exposition of Chief Justice Marshall in the governing case of Brown v. State of Maryland. The Chief Justice recognized that at some point in the importing process foreign goods lose their immunity and become subject to the taxing power of the State. Yet the goods must remain immune from state levies long enough to give the constitutional prohibition its intended effect. Every case decided under the Import Clause, from that day to this, has been concerned with applying to the particular facts before the Court, the considerations and standards formulated in Brown v. State of Maryland for determining when the exclusive national power ends and state power begins.6 In words grown familiar with judicial statement, yet deserving of repetition here, the great Chief Justice stated both the problem and the guide for decision. '(T)here must be a point of time,' Marshall postulated, 'when the prohibition ceases, and the power of the State to tax commences; * * * It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution.' 12 Wheat. at pages 441—442.
40
Since, in Brown v. State of Maryland, the object of importation had been sale, reasoned the Chief Justice, certainly the importer was entitled to realize that aim without being subject to state taxation. Although more subtle, more befogging cases might be imagined, it was 'plain' that, at least while in the hands of the importer in its original form or package, the foreign good remained an import and thus free from state levies.
41
The counsel for the State of Maryland in Brown v. State of Maryland was its Attorney General, Roger B. Taney. Twenty years later, sitting as Chief Justice, Taney acknowledged that 'further and more mature reflection' had made clear to him the wisdom of the principles laid down by his predecessor. 'Indeed,' said Mr. Chief Justice Taney, 'goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the State usually taxed for the support of the State government.'7
42
It is needless to review the consistency with which this Court has repeated and applied the formulas of Marshall and Taney. A few of the more important examples will serve as concrete illustrations. In Low v. Austin, 13 Wall. 29, 20 L.Ed. 517, the Supreme Court of the State of California had sustained the application of a general ad valorem property tax to cases of imported French champagne which were being held in the warehouse of the importer, a commission merchant, for purposes of sale. The California court was unable to discern any 'reason why imported goods, exposed in the store of a merchant for sale, do not constitute a portion of the wealth of the state as much as do domestic goods similarly situated.'8 This Court rejected the reasoning of the state court as in conflict with the principles of Brown v. State of Maryland, and invalidated the application of the tax to the imported wine. '(G)oods imported,' said this Court, 'do not lose their character as imports, and become incorporated into the mass of property of the State, until they have passed from the control of the importer or been broken up by him from their original cases. Whilst retaining their character as imports, a tax upon them, in any shape, is within the constitutional prohibition.'9 Similarly, in Anglo-Chilean Nitrate Sales Corp. v. State of Alabama, 288 U.S. 218, 53 S.Ct. 373, 77 L.Ed. 710, bags of Chilean nitrate stored in the importer's warehouse, awaiting sale, were held to be immune from assessment under the general franchise tax of the State of Alabama. The consistency with which these principles have been applied is demonstrated even more lucidly in those instances in which the Court has upheld a tax on goods held by the importer. In each such case the tax has been allowed only after an indubitable demonstration that the goods involved had been so altered from the physical form in which they had arrived upon importation that they had lost their character as foreign imports and had become, through the importer's action, a new ingredient of the general mass of property of the State.10
43
The historic standards governing the application of the Import Clause received recent reaffirmation in Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252. That case is of compelling significance here. For the situation there involved so precisely parallels the circumstances now before us as to control these cases, unless Hooven & Allison is to be overruled and the dissenting views expressed in that case adopted as the Court's views.
44
The Hooven & Allison Company imported bales of foreign hemp for use in the manufacture of cordage and similar products. The State of Ohio sought to tax this hemp while it was stored in the manufacturer's warehouse subsequent to importation, and prior to use. During hearings before the Ohio Board of Tax Appeals it was established that the company was accustomed to keep on hand merely a 'minimum working inventory' of imported hemp, an amount sufficient to compensate for the three-to six-month delay involved in shipping the hemp from foreign countries. On appeal, the Ohio Supreme Court sustained the tax on the grounds that the hemp, having been stored for the purposes of manufacture, had lost its constitutional immunity. In support of its conclusion the Ohio court quoted the portion of the proceedings below in which the company had admitted the presence of only a 'minimum working inventory.' This fact was urged before this Court in support of the State's request for affirmance.11
45
This Court invalidated the tax and reversed the judgment of the Ohio Supreme Court. Mr. Chief Justice Stone thus spoke for the Court:
46
'Although one Justice dissented in Brown v. State of Maryland, supra, from that day to this, this Court has held, without a dissenting voice, that things imported are imports entitled to the immunity conferred by the Constitution; that that immunity survives their arrival in this country and continues until they are sold, removed from the original package, or put to the use for which they are imported.' 324 U.S. at page 657, 65 S.Ct. at page 873, 89 L.Ed. 1252.
47
'* * * no opinion of this Court has ever said or intimated that imports held by the importer in the original package and before they were subjected to the manufacture for which they were imported, are liable to state taxation. On the contrary, Chief Justice Taney, in affirming the doctrine of Brown v. State of Maryland, in which he appeared as counsel for the State, declared, as we now affirm: 'Indeed, goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the state usually taxed for the support of state government.' * * *
48
'* * * We do not perceive upon what grounds it can be thought that imports for manufacture lose their character as imports any sooner or more readily than imports for sale. The constitutional necessity that the immunity, if it is to be preserved at all, survive the landing of the merchandise in the United States and continue until a point is reached, capable of practical determination, when it can fairly be said that it has become a part of the mass of taxable property within a state, is the same in both cases.' 324 U.S. at pages 666—667, 65 S.Ct. at page 877.
49
Indeed there is no process of logic, however dextrous, which would strike down a tax on imported goods being held prior to sale and allow a tax on goods stored prior to the processing which is preliminary to sale. In fact, the latter tax is less essential to state revenue since, in the case of goods held for manufacture, the State still retains the opportunity to impose a tax on the first sale. If the merchant who imported goods for the purpose of sale was entitled to realize that purpose before being subject to state taxes, certainly the manufacturer who had imported goods in order to process them was entitled to no lesser privilege. Goods lying in a manufacturer's warehouse in their original form or container are no more a part of the general mass of property of a State, than are goods which are displayed by a commission merchant, in their original crates, for purposes of sale; nor is a tax on goods stored for manufacture any less of an 'interception' of those goods while they are still imports than is a tax on goods immediately prior to their first sale. Clearly Hooven & Allison did not represent an extension of the principles of Brown v. State of Maryland but was an application of that decision in a context where to distinguish the principle would have been to reject it.12
50
The lucid standards developed by this Court for the interpretation of the Import Clause give clear guidance for the disposition of the present cases. We accept the finding of the Wisconsin courts that the imported lumber was stored for the dominant purpose of air drying. Having entered the process of manufacture, the goods had become subject to the taxing power of the State. However, neither the imported ores in No. 9, nor the foreign veneers in No. 44 had been subject to manufacturing. On tax day they lay in the manufacturer's storage area, in their original 'form and shape,' awaiting their initial processing. Thus the taxes sought to be levied on these materials are clearly barred by the historic series of adjudications of this Court, which have established that goods so situated, whether awaiting sale or manufacture, are constitutionally immune from state taxation under the proscription of Art. I, § 10, cl. 2, of the Constitution.
51
Yet the Court does not choose to take this plainly marked path of constitutional decision. Rather it has effectively departed from established doctrine and upholds the challenged taxes. It does so on the basis of a theory which is as elusive to logic as it is opposed to authority—a theory which is not only unsupported by economic fact or reason and without basis in any of the invoked 'realities,' but which turns Brown v. State of Maryland and its progeny into ad hoc results unrelated to their rationale, and disregards the harmonious reasoning on which these decisions were based and the process of one hundred and thirty-two years of constitutional adjudication.
52
The Court finds support for its decision in the language of Hooven & Allison. 'Unlike Hooven,' we are told, 'these are not cases of the mere storage in a warehouse of imported materials intended for eventual use in manufacturing but not found to have been essential to current operational needs.' On the assumption that the cases before us present a situation not governed by prior adjudication, it is maintained that, since the goods in question had been 'irrevocably committed * * * to 'use in manufacturing' at the plant and point of final destination,' and were being used to supply the daily manufacturing needs of the plant, petitioners must be deemed to have 'so acted upon the imported materials as to cause them to lose their distinctive character as 'imports." But is not this merely a way of giving an asserted conclusion of law the appearance of a fact? The vital question is how, if not when, do 'imported materials * * * lose their distinctive character as 'imports." After all, the vast bulk of imports are brought in for commercial purposes—to be exposed for sale in their original form or to be used as raw materials in manufacture. They are, that is, 'irrevocably committed' to be sold or to be used in manufacturing. They are not, normally, brought in to be dumped into the sea, as was the tea at the Boston Tea Party. Of course the goods here had been imported and stored for a manufacturing purpose. The manufacturer did not import them to sit idly in his storage area.
53
The very ground now relied upon by the Court, in its affirmance of the challenged taxes, was rejected in Hooven & Allison, as the record in that case overwhelmingly demonstrates.13 One is bound to say that the passage quoted by the Court from Mr. Chief Justice Stone's opinion in support of the statement that the cases before us are 'unlike Hooven & Allison,' does not support that proposition.14
54
Putting thus to one side the unwarranted reliance on language in Hooven & Allison, let us examine the basis on which the state taxes are upheld. Both the imported veneers in City of Algoma and the ore in Youngstown, the Court holds, must be said to have been 'put to the use for which they are imported,' to have 'entered the manufacturing process' and therefore to have lost their constitutional immunity, since they were 'not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the daily requirements of the plant'. Again one must ask whether these phrases mean any more than that the goods were being held by the manufacturer for the purpose for which he had imported them—use in manufacture. They had not been processed, changed from their original form or shape, acted upon, physically altered in the slightest, mingled with domestic goods, or 'used,' in the sense that anything was done to them. They simply lay in storage areas awaiting use. To say that the goods 'were actually being used to supply, the daily requirements of the plant,' simply affirms the obvious fact that the imports, unaffected in the form in which they were brought in from abroad and deposited, awaited their intended, but not begun, manufacturing process. In all prior considerations of the Import-Export Clause the immunity of imported goods has been terminated only by physical handling or alteration, not by reference to their assumed prospective role in the importer's use of them. The imported hemp in Hooven & Allison was similarly 'needed.' It too was 'irrevocably committed to supply,' and clearly it was 'actually being used to supply, the day-to-day manufacturing requirements of the plant.' To that end the hemp was imported. If the hemp was not to be so used it would not have been imported.
55
Furthermore, if we simply substitute 'place of sale,' for 'plant' in the Court's reasoning—and we are not vouchsafed reasons either in abstract reasoning or in practical logic to disallow it the identical enumeration of factors here thought sufficient to subject the imports to tax is found to be present in virtually every case in which this Court has invalidated a state tax on imports. The crates of champagne in Low v. Austin, and the bags of nitrate in Anglo-Chilean Nitrate Sales Corp. were also 'needed, imported, and irrevocably committed to supply,' and 'were actually being used to supply, the day-to-day manufacturing requirements' of the place of sale. In effect, the result of today's decision means that if imported goods are needed, they are taxable. If useless, they retain their constitutional immunity.
56
A close examination of the Youngstown case makes apparent this effective reversal of all previous judicial decision on the Import Clause, and justifies concern over today's holding. The stipulation of facts merely provides that the ore had been imported for purposes of manufacture and that 'at least' three months' supply was generally kept on hand. (R. 35.) There were no stipulations, nor were there any findings, as to the rate of use of the ore, the immediacy of the need for it, or its relation to the requirements of the plant, which also used domestic ore in its manufacturing. We have simply the fact that an inventory of ore was kept for eventual use. The tax was sustained by the Ohio Supreme Court on the ground that the bulk ore had become mingled with the general property of the State because new ore had been added to the pile, and old ore removed.15 The Ohio court did not discuss or rest on the fact that the goods were 'so essential to current manufacturing requirements that they must be said to have entered the process of manufacture.' There is no possible way to make the Court's reasoning fit with the circumstances which underlie and define Brown v. State of Maryland or Hooven & Allison. Nothing has been done to the ore; it is in its original form and shape prior to use. Even as a matter of sound accounting, were that relevant, the goods could not be said to have entered the process of manufacture. We cannot assume or fictionalize facts. They must be found to exist. By assuming them, the Court strips them of relevance and impliedly rejects the unbroken meaning that the decisions have given the Import Clause.
57
Nor is the Court's conclusion strengthened by the suggestion that, since petitioner did not contest the taxability of that ore which had been removed to stock bins or houses, we must allow the rest of the ore to be taxed, as to distinguish between the two would be incongruous. The question of the taxability of the removed ore is not before us. That question was not involved in any previous proceeding in this case. We have not the basis for knowledge as to what, if any, processing the ore underwent when removed to the stock bins. There is certainly no basis for assigning a hypothetical constitutional position to the removed ore, and using such an argumentative figment as the means for upholding the tax on the ore about which we do have the precise facts and whose immunity is the question before us.
58
In United States Plywood v. City of Algoma, one-half of the value of the imported wood was assessed for taxation. That amount was found to be necessary in order to meet 'current operational needs.' (R. 31) and was thus thought to be subject to state taxation. Formulas for the determination of current operational needs were discussed in detail by the Wisconsin courts, but the Court's opinion in Youngstown makes it unnecessary to examine those formulas here.16 For the reasoning of Youngstown makes it clear that not merely half, but all of the imported veneers can be properly taxed by Wisconsin, since they were all 'not only needed, imported, and irrevocably committed to supply, but were actually being used to supply, the daily (manufacturing) requirements of the plant.' I can only reiterate that the fact that goods were 'actually' to be used for the purpose for which imported is not, and has never been thought to be, relevant in determining their taxability under the Import Clause. The abstract assignment of a status to goods which are to be used in manufacture is certainly not germane to an evaluation of that physical transformation of the goods which has hitherto been required before an import could become vulnerable to state taxes. To say that goods are necessary to meet requirements merely asserts a truism which is equally applicable in every case this Court has decided under the Import Clause.
59
The Court summarizes its conclusion by stating that the imported goods 'stood in the same relation to the State as like piles of domestic materials at the same place that were kept for use and used in the same way. * * *'17 The Court then continues:
60
'In those circumstances, the tax was not on 'imports,' nor was it a tax on the materials because they had been imported, but because at the time of the assessment they were being used, in every practical sense, for the purposes for which they had been imported. They were therefore subject to taxation just like domestic property that was kept at the same place in the same way for the same use. We cannot impute to the Framers of the Constitution a purpose to make such a discrimination in favor of materials imported from other countries as would result if we approved the views pressed upon us by the manufacturers.' This is exactly the argument offered by the Supreme Court of California in support of the tax involved in Low v. Austin. That argument was then rejected unanimously by this Court and has never thereafter won acceptance. Whether the imposition of a tax resulted in 'a discrimination in favor of materials imported from other countries' has never been thought relevant to the determination of its constitutional validity. The taxes which the Court struck down in Low v. Austin, in Anglo-Chilean Nitrate Sales Corp. and in Hooven & Allison were non-discriminatory taxes which fell equally on imported and domestic goods similarly situated. The Framers of the Constitution provided an absolute immunity for imports. The decisions of this Court have given to the brief phrases of Art. I, § 10, cl. 2, the content of a command: 'a state shall not tax imports,' not, 'a state shall not tax imports discriminatorily.' It is one hundred and thirty-two years too late to refuse to attribute to the Framers the purpose of freeing imports from state taxation which this Court has consistently assumed.18
61
Moreover, it cannot properly be said that the application here of the settled principles of the Import Clause results in 'discrimination' in favor of foreign goods. Whether foreign goods are receiving a tax advantage over similar domestic goods can only be determined by an evaluation of the full range of imposts and duties which the importer has been required to pay to the National Government. Only then can we know, as a matter of economic reality, whether, in fact, there is discrimination. And if we find discrimination, it is the result of the decision of the Congress and the President that the goods involved should, as a matter of national policy, receive preferential treatment. Certainly this Court should be reluctant to make inroads on a rule of law so well and lucidly settled that it may legitimately be regarded as an ingredient in the formulation which is made by the National Government when it determines, as a considered national policy, the extent to which import duties should be imposed.
62
Reluctant as one is to say so, it must be said that the Court proposes no reason for its decision which has not heretofore been rejected by this Court. Nor are we pointed to new compelling policies which must be invoked in order to upset a firmly established principle of our constitutional law; a principle which, perhaps more clearly than any other constitutional standard, has arrived at a lucid, coherent, and eminently workable distribution of power between the Nation and the States.
63
In the Youngstown case appellant also claims that the tax on a portion of its domestic ores was imposed in violation of the Equal Protection Clause of the Fourteenth Amendment. I concur in the Court's rejection of that claim.
1
Article I, § 10, cl. 2 of the United States Constitution, in pertinent part, provides: 'No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws * * *.'
2
Exhibits in the record, though not giving measurements, indicate that the nearest ore yard is located within two or three hundred feet, and the most distant one is located within two or three hundred yards, of the furnaces.
3
Title 57, Page's Ohio Rev.Code Ann.1953, § 5709.01.
4
Title 57, Page's Ohio Rev.Code Ann.1953, § 5701.08(A).
5
The Ohio taxing date is January 1, Title 57, Page's Ohio Rev.Code Ann.1953, § 5711.03. But personal property held by a manufacturer for use in manufacturing is valued for tax purposes 'by taking the value of all (such) property * * * owned by such manufacturer on the last business day of each month (that) the manufacturer was engaged in business during the year, adding the monthly values together, and dividing the result by the number of months the manufacturer was engaged in such business during the year.' Title 57, Page's Ohio Rev.Code Ann.1953, § 5711.16.
6
Chief Justice Taney, while still at the bar, had argued that case for the State of Maryland. After coming to this Court, he had occasion to say that the theory of that holding was that while the imported articles 'are in the hands of the importer for sale * * * they may be regarded as merely in transitu, and on their way to the distant cities, villages and country for which they are destined, and where they are expected to be used and consumed, and for the supply of which they were in truth imported.' License Cases, 5 How. 504, 575, 12 L.Ed. 256.
7
The Court said that when the imported goods are sold 'the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State.' 12 Wheat. at page 443. That imported goods lose their character as 'imports' upon being sold is well-settled. License Cases, 5 How. 504, 575, 12 L.Ed. 256; Waring v. The Mayor (City of Mobile), 8 Wall. 110, 19 L.Ed. 342; Low v. Austin, 13 Wall. 29, 20 L.Ed. 517; May & Co. v. City of New Orleans, 178 U.S. 496, 20 S.Ct. 976, 44 L.Ed. 1165.
8
Counsel for Maryland had argued that to permit state tax immunity in that case would result in granting immunity to 'an importer who may bring in goods, as plate, for his own use, and thus retain much valuable property exempt from taxation.' In reply to that argument, Marshall rejected the assumption that the principles then announced would grant state tax exemptions to imports that were being used or held for use by the importer. In such a case, as in a case where the importer '(breaks) up his packages, and (travels) with them as an itinerant pedlar,' he said '(T)he tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege (i.e., of importation and sale) he had purchased, and has himself mixed them up with the common mass, and the law may treat them as it finds them. The same observations apply to plate, or other furniture used by the importer.' 12 Wheat. at page 443. (Emphasis added.)
9
As earlier stated (Note 3), § 5709.01 provides in pertinent part, 'All personal property located and used in business in this state (shall be) subject to taxation * * *.' (Title 57, Page's Ohio Rev.Code Ann., 1953, § 5709.01), and § 5701.08(A), at the time in question, provided, in pertinent part, that:
'As used in Title LVII of the Revised Code:
'(A) Personal property is 'used' within the meaning of 'used in business' * * * when stored or kept on hand as material, parts, products, or merchandise; but merchandise or agricultural products belonging to a nonresident of this state is not used in business in this state if held in a storage warehouse for storage only. * * *' Title 57, Page's Ohio Rev.Code Ann., 1953, § 5701.08(A).
1
Although the principles of Brown v. State of Maryland are often termed the 'original package doctrine,' Marshall was concerned with a 'package' only because the statute in that case taxed the selling of goods in their original packages. 12 Wheat. at page 436 & 443. Marshall himself is careful to use the phrase, 'form or package,' 12 Wheat., at page 442, and Mr. Chief Justice Taney, in his reformulation of Brown v. State of Maryland, used the characterization 'form and shape.' See 79 S.Ct. at page 397, infra. 'It is a matter of hornbook knowledge that the original package statement of Justice Marshall was an illustration, rather than a formula, and that its application is evidentiary, and not substantive, * * *.' City of Galveston v. Mexican Petroleum Corp. D.C., 15 F.2d 208.
2
See Letter of James Madison to Professor Davis, 3 Farrand, Records of the Federal Convention (1911), 520—521; Federalist No. 12 (Lodge ed. 1908) 67 (Hamilton); ibid., No. 44, at 280 (Madison).
3
See Federalist No. 12 (Lodge ed. 1908) 67 (Hamilton).
4
See 2 Farrand, Records of the Federal Convention (1911), 441—442.
5
In Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, at page 75—76, 67 S.Ct. 156, at pages 159—160, 91 L.Ed. 80, we pointed out that
'* * * the law under the Commerce Clause has been fashioned by the Court in an effort 'to reconcile competing constitutional demands, that commerce between the states shall not be unduly impeded by state action, and that the power to lay taxes for the support of state government shall not be unduly curtailed.' That accommodation has been made by upholding taxes designed to make interstate commerce bear a fair share of the cost of the local government from which it receives benefits * * * and by invalidating those which discriminate against interstate commerce, which impose a levy for the privilege of doing it, which place an undue burden on it. * * *
'It seems clear that we cannot write any such qualifications into the Import-Export Clause. It prohibits every State from laying 'any' tax on imports or exports without the consent of Congress. * * * It would entail a substantial revision of the Import-Export Clause to substitute for the prohibition against 'any' tax a prohibition against 'any discriminatory' tax. * * * the two clauses, though complementary, serve different ends. And the limitations of one cannot be read into the other."
See also Woodruff v. Parham, 8 Wall. 123, 19 L.Ed. 382; Sonneborn Bros. v. Cureton, 262 U.S. 506, 43 S.Ct. 643, 67 L.Ed. 1095; Federalist No. 32 (Lodge ed. 1908) 186—188 (Hamilton).
6
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252; Anglo-Chilean Nitrate Sales Corp. v. State of Alabama, 288 U.S. 218, 53 S.Ct. 373, 77 L.Ed. 710; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124, 48 S.Ct. 227, 72 L.Ed. 495; People of State of New York ex rel. Edward & John Burke v. Wells, 208 U.S. 14, 28 S.Ct. 193, 52 L.Ed. 370; May & Co. v. City of New Orleans, 178 U.S. 496, 20 S.Ct. 976, 44 L.Ed. 1165; Low v. Austin, 13 Wall. 29, 20 L.Ed. 517; Waring v. (City of Mobile) The Mayor, 8 Wall. 110, 19 L.Ed. 342; See also McGoldrick v. Gulf Oil Corp., 309 U.S. 414, 60 S.Ct. 664, 84 L.Ed. 840; Cook v. State of Pennsylvania, 97 U.S. 566, 24 L.Ed. 1015. For additional statements of the authority and importance of the doctrine of Brown v. State of Maryland, see American Steel & Wire Co. v. Speed, 192 U.S. 500, 519—520, 24 S.Ct. 365, 370, 48 L.Ed. 538; Norfolk & Western R. Co. v. Sims, 191 U.S. 441, 449, 24 S.Ct. 151, 153, 48 L.Ed. 254; License Cases, 5 How. 504, 575, 12 L.Ed. 256.
7
The License Cases, 5 How. 504, 575, 12 L.Ed. 256.
8
1 Cal.Unrep.Cas. 638, 643. The passage is also quoted at 13 Wall. 30—31.
9
13 Wall., at page 34.
10
People of State of New York ex rel. Edward & John Burke v. Wells, 208 U.S. 14, 28 S.Ct. 193, 52 L.Ed. 370; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124, 48 S.Ct. 227, 72 L.Ed. 495; May & Co. v. City of New Orleans, 178 U.S. 496, 20 S.Ct. 976, 44 L.Ed. 1165. Cf. Waring v. (City of Mobile) The Mayor, 8 Wall. 110, 19 L.Ed. 342.
11
The record and proceedings below in Hooven & Allison are discussed in detail at notes 13 and 14, infra.
12
The opinion of the Court asserts that the decision in Hooven & Allison is inconsistent with the reasoning of Marshall in Brown v. State of Maryland. We are told that Brown v. State of Maryland 'holds that goods brought into the country by an importer 'for his own use' are not exempted from state taxation * * * and Hooven & Allison Co. v. Evatt, * * * holds that they are. * * *' Surely this expresses a misapprehension of what Marshall said. Such a contention was made here, by the dissent in Hooven & Allison Co. v. Evatt, 324 U.S. 652, at pages 686—688, 65 S.Ct. 870, at page 887 (dissenting opinion), and silently rejected. For its refutation see Professor Thomas Reed Powell's State Taxation of Imports—When Does an Import Cease to be an Import, 58 Harv.L.Rev. 858, 859—864.
The statement of Marshall which is the basis of what is attributed to him was made by the Chief Justice in response to a contention by the State of Maryland that to grant immunity in this case would mean that an importer 'may bring in goods, as plate, for his own use, and thus retain much valuable property exempt from taxation.' 12 Wheat. at pages 442—443, 6 L.Ed. 678. Marshall thus dealt with this and similar contentions:
'This indictment is against the importer, for selling a package of dry goods in the form in which it was imported, without a license. This state of things is changed if he sells them, or otherwise mixes them with the general property of the State, by breaking up his packages, and travelling with them as an itinerant pedlar. In the first case, the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State. It denies to the importer the right of using the privilege which he has purchased from the United States, until he shall have also purchased it from the State. In the last cases, the tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege he had purchased, and has himself mixed them up with the common mass, and the law may treat them as it finds them. The same observations apply to plate, or other furniture used by the importer.' 12 Wheat. at page 443.
It is clear that Marshall is referring to personal household goods brought in by the importer and used by him. He is rejecting the idea that immunity can continue indefinitely after use if there has been no sale. He does not say, as the Court would have him say, that goods brought in by an importer 'for his own use,' or goods 'held for use,' are subject to state taxation. The phrase 'for his own use,' which the Court places in quotation marks and attributes to Marshall, was the Chief Justice's statement of counsel's contention and is not to be found in his own conclusion. The phrase 'held for use,' which the Court also attributes to Marshall in its paraphrase of his views, is an interpolation nowhere to be found in the Chief Justice's discussion. Goods which are imported for purposes of sale are brought in for 'use' as much as are goods which have been brought in for manufacture. A tax imposed prior to processing 'intercepts' goods on their way to incorporation in the general mass of property as effectively as does a tax prior to sale. Marshall was not distinguishing between goods brought in for manufacture and those brought in for sale. There is no rational distinction. He was merely denying immunity to goods which had been brought in and thereafter actively used by the importer. There is nothing in Brown v. State of Maryland that is not in complete accord with what was decided in Hooven & Allison.
13
At the hearing before the Ohio Board of Tax Appeals, the general manager of the Hooven & Allison Company was asked if the imported hemp was kept in the warehouse for any definite length of time. He answered:
'No; it might be we would need the stuff as soon as it got there and again we might not; it comes from long distances and we do not carry any more inventory than we need to; it takes three to six months for it to get to us; we attempt to keep a backlog for that; we attempt to run our business with a minimum working inventory, of course.' Transcript of Record, p. 42; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252.
Relying in large part on this testimony the Supreme Court of Ohio concluded that the goods 'had so come to rest as to be mingled with the mass of property in this country * * *.' Hooven & Allison Co. v. Evatt, 142 Ohio St. 235, 242, 51 N.E.2d 723, 726. In its brief before this Court, Ohio supported the validity of the tax on the basis of the above industrial circumstances:
'The evidence in the instant case shows that the petitioner purchased fibers solely for its own use, never for sale. It was impracticable to buy fibers a bale at a time to meet the immediate needs of its mill. It took from three to six months to get delivery after an order was placed. The undisputed testimony shows that the petitioner did not carry any more inventory than was actually needed, but due to the uncertainty of deliveries, it attempted 'to keep a backlog for that.' It attempted to operate 'with a minimum working inventory' (R. 16). In other words, when the imported goods reached the plant they were immediately used, in that they were essential to the continuous daily operation of petitioner's plant.' Brief for Respondent, p. 20, Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252.
This Court's decision did not accept the arguments made by the State throughout the course of litigation. The theory thus rejected now serves as the basis for this decision.
14
In support of its argument that the cases before us are 'unlike,' Hooven & Allison, the Court quotes from the following passage from that case:
'It cannot be said that the fibers were subjected to manufacture when they were placed in petitioner's warehouse in their original packages. And it is unnecessary to decide whether, for purposes of the constitutional immunity, the presence of some fibers in the factory was so essential to current manufacturing requirements that they could be said to have entered the process of manufacture, and hence were already put to the use for which they were imported, before they were removed from the original packages. Even though the inventory of raw material required to be kept on hand to meet the current operational needs of a manufacturing business could be thought to have then entered the manufacturing process, the decision of the Ohio Supreme Court did not rest on that ground, and the record affords no basis for saying that any part of petitioner's fibers, stored in its warehouse, were required to meet such immediate current needs. Hence we have no occasion to consider that question.' (Italics added.) 324 U.S. at page 667, 65 S.Ct. at page 878.
The record in the case, the opinions below, and the briefs in this Court, leave no doubt that this passage does not refer to the bulk of the imported hemp stored in the warehouse of the Hooven & Allison Company as a 'minimum working inventory.' Indeed, such reference would be wholly inconsistent with the principles on which the opinion rests. Due regard for the record and for the opinions clarifies the Chief Justice's meaning. When the imported hemp was ready for use it was moved from the warehouse to the factory. At the hearing, the general manager testified as to this hemp:
'* * * it is removed from the raw material account and charged into processing in the mill; each bale of fiber as it is removed from the raw material warehouse becomes, according to our records, in process. Of course we have to batch and treat this stuff; it may not be used for a couple of days; but as soon as it leaves the warehouse it is charged in process; * * *.' Transcript of Record, p. 43, Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252.
The Ohio Supreme Court took special note of this hemp which was
in transit from the warehouse to the processing line. It remarked that:
'While the bales remain in the raw-material warehouse, they are carried in a raw-material account on appellant's books; but upon their removal from such warehouse the bales are immediately charged to goods-in-process account whether the bales have been broken or not.' Hooven & Allison Co. v. Evatt, 142 Ohio St. 235, 237, 51 N.E.2d 723, 724.
As far as appears, these bales of hemp which had been removed to the factory as immediately necessary for current needs, but which remained in their original packages, were not separately assessed for taxation, nor were they, at any stage of the proceedings, treated as a separate item. It is obvious, though his language is somewhat cloudy, that what Chief Justice Stone meant was that he was not considering whether the removed hemp had a special status. Therefore, although it could not 'be said that the fibers were subjected to manufacture when they were placed in petitioner's warehouse * * *' it was 'unnecessary to decide whether, for purposes of the constitutional immunity, the presence of some fibers in the factory was so essential to current manufacturing requirements that they could be said to have entered the process of manufacture.' (Italics added.)
15
Since the Court does not rely on the reasoning of the Ohio court, I will not stop to examine closely its ground of decision. It is sufficient to note that it is difficult to understand by what mutation an import loses its status as an import merely by mingling it with identical imported goods which are similarly being stored prior to use.
16
The Wisconsin court found that one-half of the imported goods was necessary to meet 'current operational needs.' On the basis of this finding of 'fact,' this Court finds its new interpretation of the Import Clause satisfied. Since that interpretation is far broader than the narrow concept of 'current operational needs,' as applied by the Wisconsin court, it is unnecessary to discuss the constitutional validity of a rule based on 'current operational needs.' It is sufficient to note here that such a formula possesses no basis in economics; it is merely an arbitrary figure assigned to a portion of inventory. An appropriate analysis of the formulas tentatively offered by the Wisconsin Circuit Court to support its finding would reveal the unreal and arbitrary nature of the finding. However such discussion would be superfluous here.
17
This merely states a legal conclusion. The physical status of the imports did not differ in the slightest from that of any other import this Court has held to be immune from state taxation. Their 'relation' to the State is the question for decision.
18
See the passage quoted at note 5, supra, from Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 75—76, 67 S.Ct. 156, 159—160, 91 L.Ed. 80. See also Federalist No. 32 (Lodge ed. 1908) 186—188 (Hamilton).
| 78
|
358 U.S. 498
79 S.Ct. 524
3 L.Ed.2d 462
William B. CAMMARANO and Louise Cammarano, his wife, Petitioners,v.UNITED STATES of America. F. STRAUSS & SON, INC., of Arkansas, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 29 and 50.
Argued Nov. 19, 1958.
Decided Feb. 24, 1959.
Frederick Bernays Wiener, Washington, D.C., for petitioners, William B. Cammarano and Louise Cammarano.
Oscar H. Davis, Washington, D.C., for the United States.
E. Chas. Eichenbaum, Little Rock, Ark., for petitioner, F. Strauss & son, inc.
Mr. Justice HARLAN delivered the opinion of the Court.
1
These cases, coming to us from two different Circuits, present identical issues, and may appropriately be dealt with together in one opinion. The issues involve the interpretation and validity of Treas. Reg. 111, § 29.23(o)—1 and § 29.23(q)—1 as applied by the courts below to deny deduction as 'ordinary and necessary' business expenses under § 23(a)(1)(A) of the Internal Revenue Code of 19391 to sums expended by the respective taxpayer petitioners in furtherance of publicity programs designed to help secure the defeat of initiative measures then pending before the voters of the States of Washington and Arkansas.
2
The Treasury Regulations in question each provides in pertinent part that no deduction shall be allowed to 'sums of money expended for lobbying purposes, the promotion or defeat of legislation, the exploitation of propaganda, including advertising other than trade advertising * * *.'2 Both Courts of Appeals held that these provisions render nondeductible sums paid by petitioners to organizations which expended them in extensive publicity programs designed to persuade the voters to cast their ballots against state initiative measures, even though the passage of those measures would have seriously affected, or indeed wholly destroyed, the taxpayers' businesses—and that so interpreted the Regulations are a valid exercise of the Commissioner's rule-making power. We granted certiorari because of the recurring nature of the question, and because of its importance to the proper administration of the Internal Revenue laws. 355 U.S. 952, 78 S.Ct. 541, 2 L.Ed.2d 529; 356 U.S. 966, 78 S.Ct. 1007, 2 L.Ed.2d 1073.
3
A brief review of the facts in the two cases is necessary to an understanding of the issues.
4
No. 29: In 1948 petitioners William and Louise Cammarano, husband and wife, jointly owned a one-fourth interest in a partnership engaged in the distribution of beer at wholesale in the State of Washington. The partnership was a member of the Washington Beer Wholesalers Association. In December 1947 the Association had established a trust fund as a repository for assessments collected from its members to help finance a statewide publicity program urging the defeat of 'Initiative to the Legislature No. 13,' a measure to be submitted to the electorate at the general election of November 2, 1948, which would have placed the retail sale of wine and beer in Washington exclusively in the hands of the State. During 1948 petitioners' partnership paid to the trust fund $3,545.15, of which petitioners' pro rata share was $886.29. The trust fund collected a total of $53,500, which was turned over to an Industry Advisory Committee organized by wholesale and retail wine and beer dealers, which in turn expended it as part of contributions totaling $231,257.10 for various kinds of advertising directed to the public, none of which referred to petitioners' wares as such and all of which urged defeat of Initiative No. 13.3 The initiative was defeated.
5
In preparing their joint income tax return for 1948, petitioners deducted as a business expense the $886.29 paid to the Association's trust fund as their share of the partnership assessment. The deduction was disallowed by the Commissioner, and petitioners paid under protest the additional sum thus due and sued in the District Court for refund. That court ruled that the payments made to the trust fund were 'expended for * * * the * * * defeat of legislation' within the meaning of Treas. Reg. 111, § 29.23(o)—1 and were therefore not deductible as ordinary and necessary business expenses under § 23(a)(1)(A) of the Internal Revenue Code of 1939. The Court of Appeals affirmed, holding the Regulation applicable and valid as applied. 9 Cir., 246 F.2d 751.4
6
No. 50: Petitioner F. Strauss & Son, Inc., is a corporation engaged in the wholesale liquor business in Arkansas. In 1950 an initiative calling for an election on statewide prohibition was placed on the ballot to be voted on in the state general election on November 7, 1950. In May of that year Strauss, together with eight other Arkansas liquor wholesalers, organized Arkansas Legal Control Associates, Inc., as a means of coordinating their efforts to persuade the voters of Arkansas to vote against the proposed prohibition measure. Between May 30 and November 30, 1950, Arkansas Legal Control Associates collected a total of $126,265.84, which was disbursed for various forms of publicity concerning the proposed Act.5 Strauss' contribution amounted to $9,252.67.
7
The initiative measure was defeated in the November election. On its 1950 income tax return Strauss deducted the $9,252.67 as a business expense. The Commissioner disallowed the deduction and Strauss filed a timely petition in the Tax Court seeking a redetermination of the deficiency asserted. That court upheld the action of the Commissioner in disallowing the claimed deduction, and the Court of Appeals unanimously affirmed. 8 Cir., 251 F.2d 724.
8
Since 1918 regulations promulgated by the Commissioner under the Internal Revenue Code have continuously provided that expenditures for the 'promotion or defeat of legislation * * *,' or for any of the other purposes specified in the 'corporate' Regulation now before us, are not deductible from gross corporate income; and since 1938 regulations containing identical language have forbidden such deductions from individual income.6 During this period of more than 40 years these regulatory provisions have been before this Court on only one occasion. In Textile Mills Security Corporation v. Commissioner of Internal Revenue, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249, it was held that the Commissioner properly disallowed the deduction of sums paid by a corporation to a publicist and two legal experts employed to help secure the passage of legislation designed to secure the return of certain properties in this country seized during World War I under the provisions of the Trading With the Enemy Act, 50 U.S.C.A. Appendix, § 1 et seq. This holding was squarely based on the regulatory provisions now embodied in Treas.Reg. 111, § 29.23(q) 1, which were found valid and applicable to the facts involved in that case, although the very business of the taxpayer seeking the deduction was the direction of the publicity program in the course of which the expenditures were made.
9
Petitioners suggest that Textile Mills is not dispositive of the present cases, either as to the applicability of the Regulations upon the facts disclosed by these records or as to the validity of those Regulations under the statute if they are found to be applicable. Essentially, petitioners' contentions are (1) that the Regulations cannot properly be construed as applicable to expenditures made in connection with efforts to promote or defeat the passage of legislation by persuasion of the general public as opposed to direct influence on legislative bodies, that is 'lobbying'; (2) that in any case the Regulations are inapplicable to expenditures made in connection with initiative measures; and (3) that if construed as applicable to the facts here presented the Regulations are invalid as contrary to the plain terms of § 23(a) (1)(A) of the 1939 Code and possibly as unconstitutional under the First Amendment.
10
We need not be long detained by the question of the applicability of the Regulations to petitioners' expenditures. First, we see no justification for reading into these regulatory provisions the implied exceptions which petitioners would have us there find. We cannot accept petitioners' argument that Textile Mills should be read as limiting such provisions to direct dealings with legislators, insidious or otherwise. The deductions whose propriety was before the Court in that case were for expenditures, characterized by the Court of Appeals as being for 'matters of publicity, 'including the making of arrangements for speeches, contacting the press, in respect of editorial comments, and news items," and for the preparation of 'brochures' involving 'a comprehensive study of the history of the treatment of persons and property in war,' 3 Cir., 117 F.2d 62, 65, 63, all designed to influence the opinions of the general public.7 Apart from Textile Mills, the Courts of Appeals have uniformly applied these Regulations to expenditures for publicity directed to the general public on legislative matters. See e.g., Revere Racing Ass'n v. Scanlon, 1 Cir., 232 F.2d 816; American Hardware & Equipment Co. v. Commissioner of Internal Revenue, 4 Cir., 202 F.2d 126; Roberts Dairy Co. v. Commissioner of Internal Revenue, 8 Cir., 195 F.2d 948; Sunset Scavenger Co. v. Commissioner of Internal Revenue, 9 Cir., 84 F.2d 453. Petitioners' reading of these Regulations would make all but the reference to 'lobbying' pure surplusage. We think that the Regulations must be construed to mean what they say—that not only lobbying expenses, but also sums spent for 'the promotion or defeat of legislation, the exploitation of propaganda, including advertising other than trade advertising' are nondeductible.8
11
Likewise unpersuasive is petitioners' suggested distinction between expenses incurred in attempting to promote or defeat legislation pending before legislatures and those incurred in furthering or combatting an initiative measure. We think that initiatives are plainly 'legislation' within the meaning of these Regulations. Had the measures involved in these cases been passed by the people of Washington and Arkansas they would have had the effect and status of ordinary laws in every respect. The Constitutions of the States of Washington and Arkansas both explicitly recognize that in providing for initiatives they are vesting legislative power in the people.9 Every court which has considered the question has found these provisions to be fully as applicable to initiatives and referendums as to any other kind of legislation. See Revere Racing Ass'n v. Scanlon, supra; Old Mission Portland Cement Co. v. Commissioner of Internal Revenue, 9 Cir., 69 F.2d 676, affirmed on other issues, 293 U.S. 289, 55 S.Ct. 158, 79 L.Ed. 367; Mosby Hotel Co. v. Commissioner, decided October 22, 1954, P—H 1954 TC Mem.Dec. 54,288; McClintock-Trunkey Co. v. Commissioner of Internal Revenue, 19 T.C. 297, reversed on other issues, 9 Cir., 217 F.2d 329 (involving payments, like those of petitioners Cammarano, made to the Washington Beer Wholesalers Association in connection with 'Initiative to the Legislature No. 13').
12
A contrary reading of the Regulations would, indeed, be anomalous, for it would mean that expenses of publicity campaigns directed to the public to influence it in turn to persuade its legislative representatives to vote for or against pending bills would be encompassed by the Regulations and denied deductibility, whereas a lessdiluted form of persuasion and influence, directed to the voters as legislators, would be left at large so far as the Regulations are concerned. We see no reason to give so artificial and strained a construction to the pertinent language.10
13
The cornerstone of petitioners' argument is that Treas.Reg. 111, § 29.23(o)—1 and § 29.23(q)—1 are invalid if interpreted to apply to the expenditures here at issue. It is contended that sums expended by a taxpayer to preserve his business from destruction are deductible as ordinary and necessary business expenses under the Code as a matter of law, and that therefore a regulation purporting to deny deductibility to such expenditures is plainly contrary to the statute and ipso facto invalid. Petitioners rely upon Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171, where this Court held that attorney's fees incurred by a mail-order dentist in resisting a postal fraud charge which would have ended his business were deductible as an ordinary and necessary business expense.
14
We do not think that Heininger governs the present cases, nor that it establishes as broad a rule of law as petitioners suggest. In Heininger this Court held no more than that expenditures without which a business enterprise would inevitably suffer adverse effects, and the granting of deductibility to which would frustrate no 'sharply defined national or state policies,' 320 U.S., at page 473, 64 S.Ct. at page 253 (see also Commissioner of Internal Revenue v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559), were deductible as ordinary and necessary business expenses under the statute.11 Here the deductions sought are prohibited by Regulations which themselves constitute an expression of a sharply defined national policy, further demonstration of which may be found in other sections of the Internal Revenue Code.12
15
As was said in Textile Mills, 'the words 'ordinary and necessary' are not so clear and unambiguous in their meaning and application as to leave no room for an interpretative regulation. The numerous cases which have come to this Court on that issue bear witness to that.' 314 U.S., at page 338, 62 S.Ct. at page 279. In the present cases there is before us regulatory language of more than 40 years' continuous duration expressly providing that sums expended for the activities here involved shall not be considered an ordinary and necessary business expense under the statute. The provisions of the Internal Revenue Code which underlie the Regulations have been repeatedly re-enacted by the Congress without the slightest suggestion that the policy expressed in these regulatory measures does other than precisely conform to its intent.13
16
In 1934 the Court of Appeals for the Ninth Circuit denied deduction to expenses incurred in connection with a referendum which would, if passed, have increased the taxpayer's business. Old Mission Portland Cement Co. v. Commissioner of Internal Revenue, supra.14 And in 1936 the same court in Sunset Scavenger Co. v. Commissioner of Internal Revenue, supra, reversed the Board of Tax Appeals to hold that the regulatory language now before us, through repeated re-enactment by Congress of the underlying legislation, already had acquired the force of law, and applied it to deny deductibility to expenditures made by an incorporated association of garbage collectors for a publicity program directed to the general public urging the defeat of legislation which would have injured the business of the Association's membership. The court recognized that the Board of Tax Appeals had twice previously held similar expenditures deductible so long as not made for an illegal purpose,15 but pointed out that in both of those cases the effect of the Regulation had been entirely disregarded, and that they were therefore not sound authority. Three years later the Congress, in the face of these decisions, again re-enacted without change in the 1939 Code the 'ordinary and necessary' business expense section.
17
It is also noteworthy that Congress, in its 1954 re-enactment of the Internal Revenue Code, again adopted the 'ordinary and necessary' provision without substantive change,16 following consistent rulings by the courts subsequent to the 1939 re-enactment holding these Regulations applicable to sums spent in efforts to persuade the general public of the desirability or undesirability of proposed legislation affecting the taxpayer's business. See Textile Mills; American Hardware & Equipment Co. v. Commissioner of Internal Revenue, supra; Roberts Dairy Co. v. Commissioner of Internal Revenue, supra; McClintock-Trunkey Co. v. Commissioner of Internal Revenue, supra. Although the tax years involved in the cases before us are 1948 and 1950, and a 1954 re-enactment of course cannot conclusively demonstrate the propriety of an administrative and judicial interpretation and application as made to transactions occurring befofe the re-enactment, the 1954 action of Congress is significant as indicating satisfaction with the interpretation consistently given the statute by the Regulations here at issue and in demonstrating its prior intent. Cf. United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 199, 67 L.Ed. 358.
18
Under these circumstances we think that the Regulations have acquired the force of law. This is not a case where the Government seeks to cloak an interpretative regulation with immunity from judicial examination as to conformity with the statute on which it is based simply because Congress has for some period failed affirmatively to act to change the interpretation which the regulation gives to an otherwise unambiguous statute. Cf. Jones v. Liberty Glass Co., 332 U.S. 524, 68 S.Ct. 229, 92 L.Ed. 142. Nor is it a case where no reliable inference as to Congress' intent can be drawn from re-enactment of a statute because of a conflict between administrative and judicial interpretation of the statute at the time of its re-enactment. Cf. Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 476, 99 L.Ed. 483. Here we have unambiguous regulatory language, adopted by the Commissioner in the early days of federal income tax legislation, in continuous existence since that time, and consistently construed and applied by the courts on many occasions to deny deduction of sums expended in efforts to persuade the electorate,17 even when a clear business motive for the expenditure has been demonstrated.
19
In these circumstances we consider that what was said in Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 273, 53 S.Ct. 337, 339, 77 L.Ed. 739, applies here:
20
'This action (of Congress in re-enacting a statute) was taken with knowledge of the construction placed upon the section by the official charged with its administration. If the legislative body had considered the Treasury interpretation erroneous, it would have amended the section. Its failure so to do requires the conclusion that the regulation was not inconsistent with the intent of the statute (citations) unless, perhaps, the language of the act is unambiguous and the regulation clearly inconsistent with it. (citation).'18
21
This Court has heretofore recognized that the 'ordinary and necessary' language of the Code is hardly unambiguous, see Textile Mills Securities Corporation v. Commissioner of Internal Revenue, supra, and we cannot say that these Regulations are clearly, or even apparently, inconsistent with it. Cf. Trust of Bingham v. Commissioner of Internal Revenue, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670.
22
The statutory policy is further evidenced by the treatment given by Congress to the tax status of organizations, otherwise qualified for exemption as organized exclusively for 'religious, charitable, scientific, literary or educational purposes,' which engage in activities designed to promote or defeat legislation. As early as 1934 Congress amended the Code expressly to provide that no tax exemption should be given to organizations, otherwise qualifying, a substantial part of the activities of which 'is carrying on propaganda, or otherwise attempting, to influence legislation,' and that deductibility should be denied to contributions by individuals to such organizations. Revenue Act of 1934, §§ 101(6), 23(o)(2), 48 Stat. 700, 690. And a year thereafter, when the Code was for the first time amended to permit corporations to deduct certain contributions not qualifying as 'ordinary and necessary' business expenses, an identical limitation was imposed. Revenue Act of 1935, § 102(c), 49 Stat. 1016. These limitations, carried over into the 1939 and 1954 Codes,19 made explicit the conclusion derived by Judge Learned Hand in 1930 that 'political agitation as such is outside the statute, however innocent the aim * * *. Controversies of that sort must be conducted without public subvention; the Treasury stands aside from them.' Slee v. Commissioner of Internal Revenue, 2 Cir., 42 F.2d 184, 185, 72 A.L.R. 400. The Regulations here contested appear to us to be but a further expression of the same sharply defined policy.
23
Petitioners suggest that if the Regulations are construed to deny them deduction, a substantial constitutional issue under the First Amendment is presented. They rely upon Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, where a California statute, Wests' Ann.Rev. & Tax.Code, § 32 requiring the taking of a loyalty oath as a condition of property tax exemption was struck down on grounds of procedural due process. This contention, made by neither petitioner below, is without merit. Speiser has no relevance to the cases before us. Petitioners are not being denied a tax deduction because they engage in constitutionally protected activities, but are simply being required to pay for those activities entirely out of their own pockets, as everyone else engaging in similar activities is required to do under the provisions of the Internal Revenue Code. Nondiscriminatory denial of deduction from gross income to sums expended to promote or defeat legislation is plainly not "aimed at the suppression of dangerous ideas." 357 U.S., at page 519, 78 S.Ct. at page 1338. Rather, it appears to us to express a determination by Congress that since purchased publicity can influence the fate of legislation which will affect, directly or indirectly, all in the community, everyone in the community should stand on the same footing as regards its purchase so far as the Treasury of the United States is concerned.
24
Affirmed.
25
Mr. Justice DOUGLAS (concurring).
26
Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262, held that business advertisements and commercial matters* did not enjoy the protection of the First Amendment, made applicable to the States by the Fourteenth. The ruling was casual, almost offhand. And it has not survived reflection. That 'freedom of speech or of the press,' directly guaranteed against encroachment by the Federal Government and safeguarded against state action by the Due Process Clause of the Fourteenth Amendment, is not in terms or by implication confined to discourse of a particular kind and nature. It has often been stressed as essential to the exposition and exchange of political ideas, to the expression of philosophical attitudes, to the flowering of the letters. Important as the First Amendment is to all those cultural ends, it has not been restricted to them. Individual or group protests against action which results in monetary injuries are certainly not beyond the reach of the First Amendment, as Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, which placed picketing within the ambit of the First Amendment, teaches. And see Newell v. Chauffeurs, Teamsters & Helpers Local Union 795, 181 Kan. 898, 317 P.2d 817, 182 Kan. 205, 319 P.2d 171, reversed, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809. A protest against government action that affects a business occupies as high a place. The profit motive should make no difference, for that is an element inherent in the very conception of a press under our system of free enterprise. Those who make their living through exercise of First Amendment rights are no less entitled to its protection than those whose advocacy or promotion is not hitched to a profit motive. We held as much in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938. And I find it difficult to draw a line between that group and those who in other lines of endeavor advertise their wares by different means. Chief Justice Hughes speaking for the Court in Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666. 669, 82 L.Ed. 949, defined the First Amendment right with which we now deal in the broadest terms, 'The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' And see Jamison v. State of Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869; Martin v. City of Struthers, Ohio, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313; Burstyn, Inc. v. Wilson, 343 U.S. 495, 501—502, 72 S.Ct. 777, 780, 96 L.Ed. 1098.
27
In spite of the overtones of Valentine v. Chrestensen, supra, I find it impossible to say that the owners of the present business who were fighting for their lives in opposing these initiative measures were not exercising First Amendment rights. If Congress had gone so far as to deny all deductions for 'ordinary and necessary business expenses' if a taxpayer spent money to promote or oppose initiative measures, then it would be placing a penalty on the exercise of First Amendment rights. That was in substance what a State did in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. 'To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.' Id., 357 U.S. at page 518, 78 S.Ct. at page 1338. Congress, however, has taken no such action here. It has not undertaken to penalize taxpayers for certain types of advocacy; it has merely allowed some, not all, expenses as deductions. Deductions are a matter of grace, not of right. Commissioner of Internal Revenue v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559. To hold that this item of expense must be allowed as a deduction would be to give impetus to the view favored in some quarters that First Amendment rights must be protected by tax exemptions. But that proposition savors of the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State. Such a notion runs counter to our decisions (Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292; Follett v. Town of McCormick, supra, 321 U.S. at page 578, 64 S.Ct. at page 719), and may indeed conflict with the underlying premise that a complete hands-off policy on the part of government is at times the only course consistent with First Amendment rights. See People of State of Ill. ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, Ill., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649.
28
With this addendum, I concur in the opinion of the Court.
1
That section (26 U.S.C. § 23(a)(1)(A)) provides in pertinent part:
§ 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 * * *.' 26 U.S.C.A. § 23(a)(1)(A).
2
Only § 29.23(o)—1, which reads on individuals, is involved as to petitioners Cammarano, and only § 29.23(q)—1, reading on corporations, as to petitioner F. Strauss & Son, Inc. Because the language and effect of the two Regulations are in all relevant respects identical they will be discussed throughout this opinion as if they were one.
3
A typical advertisement paid for by the Industry Advisory Committee, signed by 'Men & Women Against Prohibition,' begins 'We intend to Vote Against Initiative 13—because it would mean a return to the speakeasy, the bootlegger, the gangster—and, finally, state-wide Prohibition! We urge our friends and neighbors to do likewise.'
4
The Court of Appeals alternatively held that judgment in favor of the Commissioner was required by a trial court finding that petitioners Cammarano had failed to show that passage of the initiative would have impaired their partnership's business as a beer distributor. 246 F.2d at page 754. This ground of decision is not strongly defended by the Government in this Court, and on our view of the principles which control it need not be considered.
5
A typical advertisement, which ran in all Arkansas daily and weekly newspapers, and which shows as its sponsor 'Arkansas Against Prohibition,' begins:
'What Does 'One Quart' Prohibition Really Mean? There's nothing like it anywhere * * * it's novel * * * it's unique. But it's sinister * * * it's a plan to destroy the strictly-regulated alcohol beverage business and to turn that business over to the bootlegger.'
6
Article 143 of Treas.Reg. 33 (1918 ed.) denied deductibility as ordinary and necessary business expenses to corporate expenditures for 'lobbying purposes, the promotion or defeat of legislation, the exploitation of propaganda * * *.' The prohibition against corporate deduction of such expenditures first appears in its present form in Art. 562 of Treas.Reg. 45 (1919 ed.), promulgated under the Revenue Act of 1918. Thereafter it so appears continuously without change. See Art. 562 of Treas.Reg. 45 (1920 ed.), 62, 65, and 69, promulgated under the Revenue Acts of 1918, 1921, 1924, and 1926, Art. 262 of Treas.Reg. 74 and 77, promulgated under the Revenue Acts of 1928 and 1932, Art. 23(o)—2 of Treas.Reg. 86, promulgated under the Revenue Act of 1934, Art. 23(q)—1 of Treas.Reg. 94 and 101, promulgated under the Revenue Acts of 1936 and 1938, §§ 19.23(q)—1, 29.23(q)—1, and 39.23(q)—1 of Treas.Reg. 103, 111, and 118, respectively, promulgated under the Internal Revenue Code of 1939.
The prohibition against individual deductibility of such expenditures first appears in Art. 23(o)—1 of Treas.Reg. 101, promulgated under the Revenue Act of 1938, and thereafter in §§ 19.23(o)—1, 29.23(o)—1, and 39.23(o)—1 of Treas.Reg. 103, 111, and 118, respectively, promulgated under the Internal Revenue Code of 1939.
In the proposed Income Tax Regulations under the 1954 Code the prohibitions are consolidated in § 1.162—15.
7
Petitioners Cammarano suggest that in fact 'lobbying' was involved in Textile Mills because of the activities of one Mondell whose services had also been engaged by the petitioner there. But the opinion of the Court of Appeals shows that none of the payments made to Mondell were involved in the litigation (see 117 F.2d at page 64), and the opinion of this Court makes no reference to any of Mondell's activities.
8
Petitioners point to United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, and United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989, where this Court interpreted the term 'lobbying' in a congressional resolution and in the Federal Regulation of Lobbying Act, 2 U.S.C. §§ 261—270, 2 U.S.C.A. §§ 261 270, to mean only representations and communications made directly to Congress and its members concerning pending or proposed legislation. These cases do not advance petitioners' cause, since the regulatory provisions here explicitly embrace more than 'lobbying.' Cf. United States v. Rumely supra, 345 U.S. at page 47, 73 S.Ct. at page 546.
9
Amendment 7 of the Constitution of the State of Washington provides in pertinent part:
'Art. 2, Sec. 1. Legislative Powers, Where Vested—The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the State of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature * * *.'
Amendment 7 of the Arkansas Constitution contains a virtually identical provision.
10
Petitioners place heavy reliance on the Commissioner's acquiescence until 1958 in a 1944 decision of the Tax Court allowing deduction to expenditures—found otherwise to qualify under § 23(a)(1), (A) of the 1939 Code—incurred by a taxpayer in connection with a self-operative amendment to the Missouri Constitution, on the ground that 'no legislation was needed or involved.' Smith v. Commissioner, 3 T.C. 696. Whether or not under the Regulations here at issue a distinction can rationally be drawn between a popularly enacted constitutional amendment and an initiative, we do not see how the fact that the Tax Court and the Commissioner for a period made such a distinction, compare Smith v. Commissioner, supra, with McClintock-Trunkey Co. v. Commissioner, 19 T.C. 297, reversed on other isssues, 9 Cir., 217 F.2d 329, helps petitioners' case, as the Commissioner and the Tax Court have been entirely consistent in their position that expenditures connected with initiatives—as in the present cases are not deductible.
The Tax Court appears to have modified its view since the Smith case even as to expenditures made in connection with constitutional amendments. See Mosby Hotel Co. v. Commissioner, decided October 22, 1954, P—H 1954 TC Mem.Dec. 54,288. And the Commissioner has recently withdrawn his acquiescence in the Smith decision. See Rev.Rul. 58—255, 1958—1 Cum.Bull. 91.
11
The Court noted that in judging the issues before it 'we do not have the benefit of an interpretative departmental regulation defining the application of the word 'ordinary and necessary' to the particular expenses here involved.' 320 U.S., at page 470, 64 S.Ct. at page 252.
12
See 79 S.Ct. at page 533, post.
13
See Note 6, supra.
14
The suggestion of petitioners Cammarano that the decision in that case turned on factors of the kind involved in McDonald v. Commissioner of Internal Revenue, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68, is contradicted by the statement of the Court of Appeals concerning Old Mission in Sunset Scavenger Co. v. Commissioner of Internal Revenue, 9 Cir., 84 F.2d at page 457.
15
G. T. Wofford v. Commissioner of Internal Revenue, 15 B.T.A. 1225; Los Angeles & Salt Lake R. Co. v. Commissioner of Internal Revenue, 18 B.T.A. 168. Cf. Lucas v. Wofford, 5 Cir., 49 F.2d 1027, where a petition by the Commissioner for review of the decision in G. T. Wofford, supra, was denied upon a finding that the expenditures involved were not made 'to secure the passage or defeat of any legislation.' 49 F.2d at page 1028.
After this Court's decision in Textile Mills the Board of Tax Appeals recognized that the Regulation was applicable to expenditures incurred in a 'proper and legal attempt to prevent (business) injury' by endeavoring to secure the defeat of legislation. Bellingrath v. Commissioner of Internal Revenue, 46 B.T.A. 89, 92.
16
Internal Revenue Code of 1954, 26 U.S.C.(Supp. V) § 162, 26 U.S.C.A. § 162.
17
Smith v. Commissioner, supra, can hardly be regarded as a break in the uniform chain of decisions. See Note 10, supra.
18
See also Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52: 'Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially ree acted statutes, are deemed to have received congressional approval and have the effect of law.'
19
Internal Revenue Code of 1939, 26 U.S.C. §§ 23(o)(2), (q)(2), 101(6), 26 U.S.C.A. §§ 23(o)(2), (q)(2), 101(6); Internal Revenue Code of 1954, 26 U.S.C. (Supp. V) §§ 170(c)(2)(D), 501(c)(3), 26 U.S.C.A. §§ 170(c)(2)(D), 501(c)(3).
*
Two decisions prior to the Valentine case approved broad regulation of commercial advertising. Fifth Avenue Coach Co. v. City of New York, 221 U.S. 467, 31 S.Ct. 709, 55 L.Ed. 815, was decided long befofe Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, extended the application of the First Amendment to the States. In Packer Corporation v. State of Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643, the First Amendment problem was not raised. The extent to which such advertising could be regulated consistently with the First Amendment (cf. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Martin v. City of Struthers, Ohio, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498) has therefore never been authoritatively determined.
| 1112
|
358 U.S. 516
79 S.Ct. 429
3 L.Ed.2d 475
Jack H. KELLY, Petitioner,v.Vincent W. KOSUGA.
No. 267.
Argued Jan. 22, 1959.
Decided Feb. 24, 1959.
Rehearing Denied April 6, 1959.
See 359 U.S. 962, 79 S.Ct. 796.
Mr. Joseph W. Louisell, Detroit, Mich., for petitioner.
Mr. Lee A. Freeman, Chicago, Ill., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The respondent sued the petitioner in the District Court for the Northern District of Illinois for failing to complete payment of the purchase price of 50 cars of onions which the respondent had sold to the petitioner in December 1955. Jurisdiction was based on diversity of citizenship. The petitioner interposed the defense that the sale was made pursuant to and as an indivisible part of an agreement which violated § 1 of the Sherman AntiTrust Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, 15 U.S.C.A. § 1. A motion was made to strike this defense and therefore the facts underlying it must be taken to be those set up in the petitioner's answer. Petitioner and respondent were both engaged in the marketing of onions. Petitioner, who was a grower of onions, admitted that he bought the onions from the respondent. But he alleged that the respondent and one Sam Siegel had represented to him and to other onion growers that they were the owners of substantial amounts of onions in storage, controlling 600 cars in the Chicago area and 400 more elsewhere throughout the country; that respondent and Siegel further informed the petitioner and other growers, at meetings called for the purpose in November and December 1955, that unless the growers purchased a large quantity of these onions, the respondent and Siegel would deliver them on the futures exchange for the purpose of depressing the futures price and the cash market price of onions. The petitioner and the other growers, who usually sold through trade channels, were fearful that this would cause them considerable loss. It was finally agreed by the petitioner and other growers that they would purchase 287 of the 600 cars of onions stored in the Chicago area, and the respondent and Siegel agreed not to deliver any onions on the futures market for the remainder of the current trading season. The petitioner and the other purchasers themselves agreed not to deliver any of the onions purchased from respondent and Siegel on the futures market for the remainder of the season; this was 'for the purpose of creating a false and fictitious market condition,' and 'to fix the price of onions and limit the amount of onions sold in the State of Illinois.' The District Court granted respondent's motion and struck the defense as insufficient in law.1
2
The District Court then found, on the undisputed facts, that petitioner had in fact purchased the 50 cars of onions from the respondent, at an agreed price of $960 per car, plus storage charges incurred after sale; that petitioner had withdrawn 13 cars of the onions from the designated storage places after the sale, but had not withdrawn the remainder; that while petitioner had made some payments on account of the sale, he had come into default on them; and that, when the onions began to show signs of deterioration, the respondent properly, after repudiation of the purchase by the petitioner, withdrew the remaining cars from storage and sold them for petitioner's account. The District Court entered summary judgment for the unpaid purchase price and storage charges, less the amounts obtained on the sale by respondent, the market price having declined in the interim. The Court of Appeals for the Seventh Circuit affirmed. 257 F.2d 48. We granted certiorari to consider the availability of the petitioner's pleaded defense of illegality under the Sherman Act to this action to enforce the terms of a sale made under state law. 358 U.S. 811, 79 S.Ct. 59, 3 L.Ed.2d 54.
3
As a defense to an action based on contract, the plea of illegality based on violation of the Sherman Act2 has not met with much favor in this Court. This has been notably the case where the plea has been made by a purchaser in an action to recover from him the agreed price of goods sold. In Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679, one who had purchased merchandise from a firm allegedly a combination in restraint of trade was not allowed to set up that fact as a defense to an action for the purchase price. In D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165, 35 S.Ct. 398, 59 L.Ed. 520, Corn Products sold merchandise to Wilder with a standing offer, of which the latter apparently had sought to take some advantage, to give Wilder a rebate if it bought exclusively from it. Again, in an action by the seller, Corn Products, to recover the agreed price, the purchaser, Wilder, was denied any defense of illegality based on the Sherman Act. The Court observed that the Sherman Act's express remedies could not be added to judicially by including the avoidance of private contracts as a sanction. Id., 236 U.S. at pages 174—175, 35 S.Ct. at pages 401—402. Cf. Bruce's Juices, Inc., v. American Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1021, 91 L.Ed. 1219. See A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 252, 45 S.Ct. 300, 302, 69 L.Ed. 597, generally to the same effect. Obviously, state law governs in general the rights and duties of sellers and purchasers of goods, and, while the effect of illegality under a federal statute is a matter of federal law, Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176 177, 63 S.Ct. 172, 173—174, 87 L.Ed. 165, even in diversity actions in the federal courts after Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, still the federal courts should not be quick to create a policy of nonenforcement of contracts beyond that which is clearly the requirement of the Sherman Act.
4
The petitioner recognizes the import of the holdings in Connolly, wilder and Small, but he argues that they involve situations where a person not party to any unlawful agreement sought to defend against the action on the grounds of the seller's unlawful acts; where the purchaser is party to the unlawful agreement and the agreement bears some relation to the suit, the petitioner claims be is not to be held to the purchase price. The distinction asserted is, to say the least, on its face paradoxical; and the petitioner quotes from this Court's opinion in McMullen v. Hoffman, 174 U.S. 639, 669, 19 S.Ct. 839, 851, 43 L.Ed. 1117, which dealt with the plea of illegality in another context: 'It has been often stated in similar cases that the defence is a very dishonest one, and it lies ill in the mouth of the defendant to allege it, and it is only allowed for public considerations, and in order the better to secure the public against dishonest transactions.' Petitioner evidently is willing to take the bitter as well as the sweet from this passage. If the defense of illegality is to be allowed as a collateral method of enforcement of the antitrust laws, as the breadth of the petitioner's argument suggests, it must be said that his theory creates a very strange class of private attorneys general.
5
In any event, an analysis of the narrow scope in which the defense is allowed in respect of the Sherman Act indicates that the principle of distinction is not what the petitioner claims it to be. The leading case here in which the defense was allowed is Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486, much relied on by petitioner. There the Voight company had made purchases from Continental, a corporation which existed only as a selling agent for numerous wallpaper companies doing business as a pool and selling at prices, alleged to be excessive and unreasonable, fixed through the pool agreement. The Court was of opinion that to give judgment for the excessive purchase price so fixed in favor of such a vendor would be to make the courts a party to the carrying out of one of the very restraints forbidden by the Sherman Act. 212 U.S. at page 261, 29 S.Ct. at page 292. Any thought that the Court might have been proceeding on broader grounds was shortly afterwards laid to rest by the unanimous opinion of the Court in the Wilder case. 236 U.S. at page 177, 35 S.Ct. at page 402. The scope of the defense of illegality under the Sherman Act goes no further. While enforcement of a contract between wrongdoers may more frequently present such a situation, cf. Lyons v. Westinghouse Electric Corp., 2 Cir., 222 F.2d 184, 188, the character of the parties is not in itself determinative. Past the point where the judgment of the Court would itself be enforcing the precise conduct made unlawful by the Act, the courts are to be guided by the overriding general policy, as Mr. Justice Holmes put it, 'of preventing people from getting other people's property for nothing when they purport to be buying it.' Continental Wall Paper Co. v. Louis Voight & Sons Co., supra, 212 U.S. at page 271, 29 S.Ct. at page 296 (dissenting opinion). Supplying a sanction for the violation of the Act, not in terms provided and capricious in its operation, cf. Bruce's Juices, Inc., v. American Can Co., supra, 330 U.S. at pages 753 754, 67 S.Ct. at pages 1019—1020, is avoided by treating the defense as so confined.
6
Accordingly, while the nondelivery agreement between the parties could not be enforced by a court, if its unlawful character under the Sherman Act be assumed, it can hardly be said to enforce a violation of the Act to give legal effect to a completed sale of onions at a fair price. And while analysis in terms of 'divisibility' or some other verbal formula may well be circular, see 6 Corbin, Contracts, § 1520, in any event, where, as here, a lawful sale for a fair consideration constitutes an intelligible economic transaction in itself, we do not think it inappropriate or violative of the intent of the parties to give it effect even though it furnished the occasion for a restrictive agreement of the sort here in question. Cf. Cincinnati, Portsmouth, Big Sandy & Pomeroy Packet Co. v. Bay, 200 U.S. 179, 185, 26 S.Ct. 208, 210, 50 L.Ed. 428.
7
Affirmed.
8
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.
1
Petitioner also interposed defenses of illegality under the Commodity Exchange Act, § 9, 42 Stat. 1003, as amended, 7 U.S.C. § 13, 7 U.S.C.A. § 13, and the Illinois Antitrust Act, Smith-Hurd Illinois Ann.Stat., c. 38, §§ 569, 573, 574, and a counterclaim alleging respondent's breach of the nondelivery agreement. These issues were decided adversely to the petitioner below and are not preserved by him here.
2
Without deciding the point, we shall assume that the petitioner's allegations duly charged a violation of the Sherman Act.
| 78
|
358 U.S. 576
79 S.Ct. 421
3 L.Ed.2d 516
Edward Leon WILLIAMS, Petitioner,v.STATE OF OKLAHOMA.
No. 124.
Argued Jan. 21, 1959.
Decided Feb. 24, 1959.
Rehearing Denied March 30, 1959.
See 359 U.S. 956, 79 S.Ct. 737.
Mr. John A. Ladner, Jr., Tulsa, Okl., for petitioner, pro hac vice, by special leave of Court.
Mr. Mac Q. Williamson and Sam H. Lattimore, Oklahoma City, Okl., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Upon his plea of guilty to a charge of kidnaping in the District Court of Tulsa County, Oklahoma, petitioner was sentenced to death. On appeal, the Criminal Court of Appeals of Oklahoma affirmed, Okl.Cr., 321 P.2d 990, and certiorari was sought on the ground that the sentence was imposed in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. We granted the writ to determine that question. 357 U.S. 925, 78 S.Ct. 1378, 2 L.Ed.2d 1369.
2
The undisputed facts are that on June 17, 1956, within a few hours after robbing a filling station attendant in Tulsa, Oklahoma, and eluding police in an ensuing chase, petitioner forced his way into an automobile being driven by one Tommy Cooke, a young divinity student, as it stopped for a traffic light in that city, and, at gunpoint, forced Cooke to drive beyond the City and County of Tulsa and for a considerable distance through northeastern Oklahoma to a point on a dead-end road in Muskogee County where he shot and killed him, and then escaped in the car. On June 19, 1956, petitioner was apprehended, and soon afterward he was charged in the District Court of Muskogee County with murdering Cooke in that county. On arraignment, he entered a plea of not guilty, but during the course of his trial petitioner, on November 19, 1956, withdrew that plea and entered a plea of guilty as charged. He was thereupon convicted and sentenced to life imprisonment in the Oklahoma State Penitentiary.1
3
Thereafter, on December 17, 1956, petitioner was charged in the District Court of Tulsa County with kidnaping Cooke in that county on June 17, 1956, in violation of Okl.Stat.1951, Tit. 21, § 745.2 At his arraignment on December 19, 1956, petitioner entered a plea of not guilty, but on January 30, 1957, a few days before the scheduled date of trial, he withdrew that plea and entered a plea of guilty as charged. After interrogating petitioner to make sure that he had entered the plea of guilty voluntarily and that he understood that he might be sentenced to death upon it,3 the court accepted the plea and adjudged petitioner guilty of the crime of kidnaping Cooke as charged. Thereupon the court asked counsel for petitioner if he wished to be heard regarding the sentence to be imposed, and counsel replied that he preferred to reserve his statement until after the State's Attorney had spoken. The State's Attorney then made a statement—reading much of it from a prepared statement recounting the armed robbery of the filling station attendant and the following chase by and elusion of the Tulsa police; reciting the gruesome details of the kidnaping of Cooke in Tulsa County and of his murder in Muskogee County; stating petitioner's past criminal record as shown by the files of the Federal Bureau of Investigation;4 and concluding with a request for a death sentence. Counsel for petitioner objected to any reference to the murder on the ground that sentence for that crime had already been imposed by the District Court of Muskogee County and that it could not again lawfully be considered in imposing sentence on the kidnaping charge. The court, expressing the view that it was 'proper to advise the court of all the facts (occurring while petitioner) had the victim in his charge and under his control,' overruled the objection. After the State's Attorney had concluded, counsel for petitioner put in evidence a transcript of the sentencing proceedings had in the District Court of Muskogee County in the murder case, and made an extended plea for a sentence to life imprisonment rather than a sentence to death.
4
After thus fully hearing the parties, the court deferred the imposition of sentence for two days. Upon reconvening, the court called petitioner to the bar and asked him whether he wished to make any correction in the statement that had been made to the court by the State's Attorney. Petitioner answered that he did not, and that the matters related in that statement were true.5 Thereupon, the court sentenced petitioner to death, and in the course of his pronouncement the judge said, among other things, that he had considered the facts 'which (had) been stated (by counsel) and which (petitioner had) admitted were (involved in) this crime (of kidnaping), committed in Tulsa County, which resulted in the murder of the victim, (all of) which the Court takes into consideration * * * as a continuing thing.'
5
As stated, petitioner's broad claim is that these proceedings show that the death sentence was determined and imposed in violation of the Due Process Clause of the Fourteenth Amendment. In support of that position he makes, and variously repeats, a number of arguments which upon analysis come down to three contentions: first, that the trial court violated the presentence procedure prescribed by Okl.Stat.1951, Tit. 22, §§ 973, 974 and 975, in permitting the State's Attorney to make an unsworn statement to the court of the details of the crime and of petitioner's criminal record, and that this also denied to him the rights of confrontation and cross-examination; second, that the court in taking the murder into consideration in imposing sentence on the kidnaping charge punished him a second time for the same offense; and, third, that in any event the sentence to death for kidnaping was 'disproportionate' to that crime and to the life sentence that had earlier been imposed upon him for the 'ultimate' crime of murder.
6
Petitioner's contentions that the trial court deprived him of his legal rights and of fundamental fairness in failing to pursue the formal presentence procedures prescribed by Okl.Stat.1951, Tit. 22, §§ 973, 974 and 975, and in permitting the State's Attorney to make an unsworn statement to the court of the details of the crime and of petitioner's criminal record were also made by petitioner in the Criminal Court of Appeals of Oklahoma. That court rejected those contentions. Sections 973—975 provide in substance that after a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hold a formal hearing and take evidence thereon.6 The Oklahoma court held that whether those procedures shall be used is discretionary with the trial court, and that, at all events, petitioner waived their use by failing to request a hearing under those statutes. In construing those statutes it said: 'But, two things are clear under the provisions of § 973. First, pursuing this method of procedure is a matter of the trial court's sound discretion. Second, its use is further contingent upon the request of either the state or the defendant.' (321 P.2d 993.) It further said: 'It is contended that under the provisions of § 975 it is the mandatory duty of the court to hear witnesses. But, in construing §§ 974 and 975 in light of the provisions of § 973, we are of the opinion that both the provisions of § 974 and § 975 are contingent upon the request for evidence under the provisions of § 973, (and that) (w)hen the parties fail to make a request for the privilege thereof, the same is waived and some other method of supplying the court with the necessary information for the pronouncement of judgment and sentence may be substituted instead.' This construction of the State's statutes by its court of last resort must be accepted here.
7
It is not contended that petitioner requested or suggested that the trial court hear evidence in mitigation of the sentence. Nor did petitioner request or suggest that the court require the State to offer evidence in support of the aggravating circumstances. In these circumstances, we cannot say that petitioner was deprived of any right or of fundamental fairness by the fact that the trial court did not pursue the presentencing procedures prescribed by the Oklahoma statutes.
8
Nor did the State's Attorney's statement of the details of the crime and of petitioner's criminal record deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination. As we have seen, the Court of Criminal Appeals of Oklahoma held in this case that when petitioner failed to request the privilege of adducing evidence in mitigation of the crime, and thereby waived the presentence procedures prescribed by §§ 973—975, the law of Oklahoma authorized 'some other method of supplying the court with the necessary information for the pronouncement of judgment and sentence (to) be substituted instead,' and it held that the State's Attorney's statement was a proper method in these circumstances under the law of Oklahoma. Moreover, after the State's Attorney had made his statement, petitioner, upon interrogation by the court, stated that the recitals of that statement were true. See Note 5. This alone should be a complete answer to the contention. But we go on to consider this Court's opinion in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. This Court there dealt with very similar contentions and held that, once the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or 'out-of-court' information relative to the circumstances of the crime and to the convicted person's life and characteristics.
9
These considerations make it clear that the State's Attorney's statement of the details of the crime and of petitioner's criminal record—all admitted by petitioner to be true did not deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination.
10
We come now to petitioner's contention that the court in taking the murder into consideration in imposing sentence on the kidnaping charge punished him a second time for the same offense. But murder and kidnaping are not the same offense in Oklahoma. The Oklahoma statutes separately create and define the crimes of murder7 and of kidnaping,8 and it is evident from their terms that, as held by the Oklahoma court in this case, they create 'separate and distinct offenses.' It is not contended that the charge of murder to which petitioner pleaded guilty and was sentenced in Muskogee County made any reference to the crime of kidnaping, and the charge involved in this case made no reference to the murder but was substantially in the language of the kidnaping statute. See Note 2. Petitioner did not object to the charge in the trial court on double jeopardy or double punishment grounds as the Oklahoma courts have held to be necessary to preserve such a point,9 but instead he entered a plea of guilty to the charge. Upon that plea it became the duty of the trial judge to impose an appropriate sentence. The statute made appropriate, and required the imposition of, a sentence within the range of imprisonment for a term of 10 years to the maximum of death (see Note 2), as determined by the sentencing judge in the exercise of his sound discretion. Necessarily, the exercise of a sound discretion in such a case required consideration of all the circumstances of the crime, for '(t)he belief no longer prevails that every offense in a like legal category calls for an identical punishment * * *.' Williams v. People of State of New York, supra, 337 U.S. at page 247, 69 S.Ct. at page 1083. In discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in the crime. The Oklahoma court has so declared in this case and in Powell v. State, 94 Okl.Cr. 1, 229 P.2d 230. This Court, too, has so held. Williams v. People of State of New York, supra. Certainly one of the aggravating circumstances involved in this kidnaping crime was the fact that petitioner shot and killed the victim in the course of its commission. We cannot say that the sentencing judge was not entitled to consider that circumstance, along with all the other circumstances involved, in determining the proper sentence to be imposed for the kidnaping crime. And in view of the obvious fact that, under the law of Oklahoma, kidnaping is a separate crime, entirely distinct from the crime of murder, the court's consideration of the murder as a circumstance involved in the kidnaping crime cannot be said to have resulted in punishing petitioner a second time for the same offense, nor to have denied to him due process of law in violation of the Fourteenth Amendment.
11
Petitioner's further claim that the sentence to death for kidnaping was 'disproportionate' to that crime and to the life sentence that had earlier been imposed upon him for the 'ultimate' crime of murder proceeds on the basis that the sentence for kidnaping was excessive, that the murder was the greater offense, and that the sentence for the lesser crime of kidnaping ought not, in conscience and with due regard for fundamental fairness, exceed the life sentence that was imposed in another jurisdiction for the murder. But the Due Process Clause of the Fourteenth Amendment does not, nor does anything in the Constitution, require a State to fix or impose any particular penalty for any crime it may define or to impose the same or 'proportionate' sentences for separate and independent crimes. Therefore we cannot say that the sentence to death for the kidnaping, which was within the range of punishments authorized for that crime by the law of the State, denied to petitioner due process of law or any other constitutional right. Nor, in view of the fact that kidnaping and murder are separate and independent offenses in Oklahoma, is there any merit in petitioner's collateral claim that what he calls 'the lesser crime' of kidnaping 'merged' in what he calls 'the greater crime' of murder and that the sentence to life imprisonment for the murder was a bar to the imposition of any sentence for the kidnaping, or at least to any greater sentence than was imposed for the murder, and that imposition of a death sentence for the kidnaping deprived him of due process in violation of the Fourteenth Amendment.
12
We have now treated with all of petitioner's claims, and failing to find any deprivation by the Oklahoma courts of any of his fundamental rights, we must hold that petitioner was not denied due process of law.
13
Affirmed.
14
Mr. Justice DOUGLAS, being of the view that petitioner was in substance tried for murder twice in violation of the guarantee against double jeopardy, dissents.
1
Okl.Stat.1951. Tit. 21, § 707, provides, in pertinent part: 'Every person convicted of murder shall suffer death, or imprisonment at hard labor in the State penitentiary for life, at the discretion of the jury, (but) upon a plea of guilty the Court shall determine the (punishment).'
2
Okl.Stat.1951, Tit. 21, § 745, provides, in pertinent part, that 'Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, for the purpose of extorting any money, property or thing of value or advantage from the person so seized * * *, or in any manner threatens (the person so seized) shall be guilty of a felony, and upon conviction shall suffer death or imprisonment in the penitentiary, not less than ten years.'
3
The court's interrogation and petitioner's answers were as follows:
'The Court: (T)he Court is advised by the assistant County Attorney and also by your counsel, that at this time you wish to withdraw your plea of not guilty, which has heretofore been entered
in this case, wherein you are charged with the crime of kidnapping, and enter a plea of guilty to this charge—
'Mr. Williams: Yes, sir.
'The Court: Is that correct?
'Mr. Williams: Yes, sir.
'The Court: Now, you understand the nature of this charge, do you?
'Mr. Williams: That's right.
'The Court: You understand, that it is a charge that is punishable with the extreme penalty of life imprisonment, or death in the electric chair?
'Mr. Williams: Yes, sir.
'The Court: In the light of that knowledge and information and understanding, are you entering this plea freely and voluntarily upon your part?
'Mr. Williams: Yes, sir.
'The Court: Has there been any representation made to you be counsel, or by anyone else, as to the sentence which you might expect from the Court in this case?
'Mr. Williams: I was told I could expect the maximum.
'The Court: Of death in the electric chair?
'Mr. Williams: Yes, sir.
'The Court: In the light of that representation made to you by your counsel, you wish to withdraw your plea of not guilty and enter a plea of guilty to the charge?
'Mr. Williams: Yes, sir.'
4
As recited by the State's Attorney, the FBI files disclosed the commission of five crimes by petitioner, consisting of grand theft in 1944, at the age of 14, resulting in his release to a juvenile bureau; a Dyer Act, 18 U.S.C.A. §§ 10, 2311—2313, violation in 1945, resulting in a three-year sentence to the federal juvenile correctional institution at Inglewood, Colorado; escape from Inglewood and a Dyer Act violation in 1947, resulting in a sentence for a term of 18 months; and armed robbery in 1949, resulting in a sentence for a term of 12 years in the Indiana State Penitentiary.
5
The court's questions and petitioner's answers were as follows:
'The Court: Now, at that time on Wednesday, there was a statement of facts made by the State, relative to this case, and the sequence of events and the facts surrounding the sequence of events and the facts surrounding the commission of this crime. Do you have any correction to make in reference to the statement of counsel for the State, in that regard?
'Mr. Williams: No, sir.
'The Court: Those facts were true?
'Mr. Williams: Yes, sir.
'The Court: And you at this time admit that they were true and that you committed the acts as set forth by the State, that is correct, is it?
'Mr. Williams: Yes, sir.
'The Court (addressing counsel for petitioner): All right. Do you have anything further to say on behalf of this defendant?
'(Counsel for Petitioner): Nothing further.'
6
Sections 973, 974 and 975, Okl.Stat.1951, Tit. 22, provide:
§ 973. 'After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.'
§ 974. 'The circumstances must be presented by the testimony of witnesses examined in open court * * *.'
§ 975. 'No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court or member thereof in aggravation or mitigation of the punishment, except as provided in the last two sections.'
7
Okl.Stat.1951, Tit. 21, § 701 provides:
'Homicide is murder in the following cases.
'1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any othr human being.
'2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
'3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.'
8
See Note 2.
9
Collins v. State, 70 Okl.Cr. 340, 106 P.2d 273; Mowels v. State, 52 Okl.Cr. 193, 11 P.2d 205; Ex parte Zeligson, 47 Okl.Cr. 45, 287 P. 731; Fines v. State, 32 Okl.Cr. 304, 240 P. 1079; White v. State, 23 Okl.Cr. 198, 214 P. 202.
| 01
|
358 U.S. 633
79 S.Ct. 432
3 L.Ed.2d 557
Ray CASH, Petitioner,v.R. O. CULVER, State Prison Custodian.
No. 91.
Argued Jan. 22, 1959.
Decided Feb. 24, 1959.
Mr. Irwin L. Langbein, West Palm Beach, Fla., for petitioner.
Mr. Edward S. Jaffry, Miami, Fla., pro hac vice, by special leave of Court, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner is serving a 15-year prison sentence imposed by a Florida court after conviction by a jury of burglary.1 He was not represented by counsel at the trial. No appeal was taken, and the Supreme Court of Florida denied without a hearing a petition for habeas corpus which he later filed.2 Certiorari was granted to determine whether the circumstances alleged in the habeas corpus petition make this a case where the denial of counsel's assistance at the trial operated to deprive the defendant of the due process of law guaranteed by the Fourteenth Amendment. 357 U.S. 904, 78 S.Ct. 1153, 2 L.Ed.2d 1155. For reasons to be stated, we hold that this is such a case.
2
The record here consists only of the habeas corpus petition and the Florida Supreme Court's bare order of denial. With the case in that posture, the factual allegations of the petition must for present purposes be accepted as true. Hawk v. Olson, 326 U.S. 271, 273, 66 S.Ct. 116, 117, 90 L.Ed. 61. Composed in the penitentiary, the petition, like many such documents, is heavily larded with irrelevant innuendos, unsupported conclusions, and pretentious legalisms. Within its confines, however, are to be found allegations of a chain of events which we now relate.
3
On December 6, 1954, the petitioner, an uneducated farm boy of 20, was first tried by a jury on the burglary charge. At that trial he was represented by experienced counsel of his own choice. At the conclusion of the evidence, the jury was unable to agree on a verdict, and a mistrial resulted.
4
The petitioner was then immediately placed in solitary confinement, where he remained awaiting retrial. He first learned on the evening of February 20, 1955, that his new trial was to take place the next day. Only a few days earlier he had learned through a prison official that his former lawyer had withdrawn from the case. The petitioner's mother on his behalf had tried to engage a number of other lawyers to represent him, but they had all refused, telling her that the fee she could offer was inadequate, and the time for preparation too short.
5
At the opening of the second trial the petitioner asked the court for a continuance to give him time to employ a new lawyer, or in the alternative that the court appoint counsel for him. In making these requests the petitioner called the trial judge's attention to his youth, his lack of education and courtroom experience, and the sudden withdrawal of prior counsel.3 The requests were denied, and the trial proceeded at once, with the petitioner left to conduct his own defense.4
6
His co-defendant, Allen, an alleged accomplice, pleaded guilty and testified for the State. Allen stated, among other things, that he and the petitioner in the company of two others had burglarized stores, stolen a truck, and engaged in a running gun battle with police. He further testified that he (Allen) had 'pulled a $180,000 robbery' in New Orleans with two of the petitioner's older brothers, in which the petitioner had taken no part, and that one of these brothers had also participated in the crime for which the petitioner was on trial. Physical evidence was introduced, including a revolver stolen from the store the petitioner was charged with burglarizing, which had been found in Allen's possession. No evidence in the case except Allen's testimony connected Allen and the petitioner. It is not clear what, if any, objections were made to Allen's testimony, or whether he was cross-examined.5
7
On conviction, the petitioner, a first offender, was sentenced to the 15-year prison term he is now serving. Allen, an ex-convict, was sentenced to 10 years, but placed on probation. No charges were brought against the petitioner's brother or the fourth person named by Allen as a participant in the crime for which the petitioner was convicted.
8
In the 17 years that have passed since its decision in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, this Court, by a traditional process of inclusion and exclusion has, in a series of decisions, indicated the factors which may render state criminal proceedings without counsel so apt to result in injustice as to violate the Fourteenth Amendment.6 The alleged circumstances of the present case so clearly make it one where, under these decisions, federal organic law required the assistance of counsel that it is unnecessary here to explore the outer limits of constitutional protection in this area.
9
'Where the gravity of the crime and other factors—such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto—render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair,' the Constitution requires that the accused must have legal assistance at his trial. Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 186, 93 L.Ed. 127. Of particular relevance here are the decisions of the Court which have held the appointment of counsel necessary to a fair trial because of the complexity of the proceedings. Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; and see Williams v. Kaiser, 323 U.S. 471, 475—476, 65 S.Ct. 363, 366, 89 L.Ed. 398.
10
All that stood between the petitioner and a verdict of acquittal was a testimony of Allen—an admitted accomplice. Although Florida law does not require corroboration of an accomplice's testimony to sustain a conviction, Land v. State, Fla., 59 So.2d 370, the defendant has a right to demand that the trial judge instruct the jury that the 'evidence of an accomplice should be received by the jury with great caution.' Varnum v. State, 137 Fla. 438, 449, 188 So. 346, 351. The Florida decisions also establish the right to cross-examine an accomplice witness as to whether he is testifying under an agreement for leniency, and even as to whether he believes that his testimony will be in his best interest. Leavine v. State, 109 Fla. 447, 147 So. 897; Henderson v. State, 135 Fla. 548, 555, 185 So. 625, 627, 120 A.L.R. 742 (concurring opinion). A layman would hardly be familiar with these rights.
11
Moreover, Allen's testimony concerning the petitioner's commission of other crimes and the commission of a crime by the petitioner's brother, who allegedly also participated in the burglary which was the subject of the trial, if not inadmissible in its entirety, certainly raised serious questions under Florida law. As the Florida Supreme Court has recently noted, 'There are literally thousands of cases in this country discussing the admission of such evidence.' Padgett v. State, Fla., 53 So.2d 106, 108. The problems which this testimony raised were thus beyond the ken of a layman, and it was clearly the kind of testimony that could seriously damage a defendant in the eyes of a jury. Finally, the transcript of the petitioner's previous trial would have offered a lawyer opportunities for impeachment of prosecution witnesses, opportunities of which we cannot assume that a layman would be aware.7
12
For these reasons, the requirements of due process made necessary the assistance of a lawyer if the circumstances alleged in the habeas corpus petition are true. On the present record there is no way to test their truth. But the allegations themselves made it incumbent upon the Florida courts to determine what the true facts were.8
13
Reversed.
1
A noncapital offense in Florida, punishable in this case by a maximum prison term of 20 years. Fla.Stat.1955, § 810.01, F.S.A.
2
The petition was originally filed in that court in accordance with state procedure explained in Sneed v. Mayo, Fla., 66 So.2d 865, 874.
3
On this point the allegations of the petition are as follows: 'Petitioner explained to the Court that he was not capable of representing himself, that he was only 20 years of age and was uneducated and had never heard a court trial except the one time he was tried on the same charge, and then he was represented by Mr. Carr, and that he did not know court procedure or how to conduct his defense, and told the court he had been closely confined in solitary at the Florida State Prison at Raiford, up until the night before, and therefore he had no opportunity to employ new counsel, since the Court had permitted his chosen counsel to abandon him in the face of trial, and it was an absolute necessity that the court grant a continuance, or, in the alternative, for the court to remedy the situation by appointing counsel to represent the petitioner.'
4
Under Florida law a trial court has an absolute duty to provide counsel only for an indigent defendant on trial for a capital offense. Sneed v. Mayo, Fla., 66 So.2d 865; Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585; Fla.Stat., 1955, § 909.21, F.S.A.
5
The habeas corpus petition incorporates, among other things, excerpts from a newspaper account of the trial, a form of pleading to which the Florida Attorney General makes no objection in the present case. An excerpt from this newspaper account reads as follows: 'While making objections and inquiring of the Judge and witnesses, Cash appeared unsure of himself. On several occasions he would start a sentence, then stop to rephrase it or start on another subject. Before making objections Cash raised his hand to attract the attention of the Judge, then in a halting manner would make his statement.'
6
See Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Canizio v. People of State of New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Foster v. People of State of Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962; Bute v. People of State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167.
7
The very fact that the jury failed to convict at the first trial, when the petitioner was represented by counsel, is at least some practical indication of the difference a lawyer's help at the second trial might have made.
8
Counsel has advised us that a transcript of the trial proceedings can be made available by the court reporter.
| 01
|
358 U.S. 354
79 S.Ct. 468
3 L.Ed.2d 368
Francisco ROMERO, Petitioner,v.INTERNATIONAL TERMINAL OPERATING CO., Compania Trasatlantica, also known as Spanish Line, Garcia & Diaz, Inc., and Quin Lumber Co., Inc.
No. 3.
Reargued Oct. 22, 23, 1958.
Decided Feb. 24, 1959.
Rehearing Denied April 6, 1959.
See 359 U.S. 962, 79 S.Ct. 795.
Mr. Narciso Puente, Jr., and Silas Blake Axtell, New York City, for petitioner.
Mr. John L. Quinlan, New York City, for respondents, Compania Trasatlantica and Garcia & Diaz, Inc.
Mr. Sidney A. Schwartz, New York City, for respondent, Quin Lumber Co., Inc.
Submitted on brief by Mr. John P. Smith, New York City, for respondent, Internatl. Terminal Operating Co.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner Francisco Romero, a Spanish subject, signed on as a member of the crew of the S. S. Guadalupe for a voyage beginning about October 10, 1953. The Guadalupe was of Spanish registry, sailed under the Spanish flag and was owned by respondent Compania Trasatlantica (also known as Spanish Line), a Spanish corporation. At the completion of the voyage for which he signed, Romero continued uninterruptedly to work on the Guadalupe. Thereby, under the law of Spain, the terms and conditions of the original contract of hire remained in force. Subsequently the S. S. Guadalupe departed from the port of Bilbao in northern Spain, touched briefly at other Spanish ports, and sailed to the port of New York at Hoboken. From here the ship made a brief trip to the ports of Vera Cruz and Havana returning to Hoboken where, on May 12, 1954, Romero was seriously injured when struck by a cable on the deck of the Guadalupe. Thereupon petitioner filed suit on the law side of the District Court for the Southern District of New York.
2
The amended complaint claimed damages from four separate corporate defendants. Liability of Compania Trasatlantica and Garcia & Diaz, Inc., a New York corporation which acted as the husbanding agent for Compania's vessels while in the port of New York, was asserted under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688, and under the general maritime law of the United States for unseaworthiness of the ship, maintenance and cure1 and a maritime tort. Liability for a maritime tort was alleged against respondents International Terminal Operating Co. and Quin Lumber Co. These two companies were working on board the S. S. Guadalupe at the time of the injury pursuant to oral contracts with Garcia & Diaz, Inc. Quin, a New York corporation, was engaged in carpentry work preparatory to the receipt of a cargo of grain. International Terminal, incorporated in Delaware, was employed as stevedore to load the cargo. The jurisdiction of the District Court was invoked under the Jones Act and §§ 13312 and 13323 of the Judicial Code, 28 U.S.C., 28 U.S.C.A. §§ 1331, 1332.
3
Following a pre-trial hearing the District Court dismissed the complaint. 142 F.Supp. 570.4 The court held that the action under the Jones Act against Compania Trasatlantica must be dismissed for lack of jurisdiction since that Act provided no right of action for an alien seaman against a foreign shipowner under the circumstances detailed above. The claims under the general maritime law against Compania also were dismissed since the parties were not of diverse citizenship and 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, did not confer jurisdiction on the federal law courts over claims rooted in federal maritime law. The District Court dismissed the Jones Act claim against Garcia & Diaz, Inc., pursuant to its finding that Garcia was not the employer of Romero nor, as a husbanding agent for Compania, did it have the operation and control of the vessel. The remaining claims, including those against the other respondents, were dismissed because of lack of the requisite complete diversity under the rule of Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435. Upon examination of the Spanish law the district judge also declined jurisdiction 'even in admiralty as a matter of discretion.' 142 F.Supp. at page 574. The Spanish law provides Romero with a lifetime pension of 35% to 55% of his seaman's wages which may be increased by one-half if the negligence of the shipowner is established; it also allows the recovery of the Spanish counterpart of maintenance and cure. These rights under the Spanish law may be enforced through the Spanish consul in New York.
4
The Court of Appeals affirmed the dismissal of the complaint, 244 F.2d 409. We granted certiorari, 355 U.S. 807, 78 S.Ct. 55, 2 L.Ed.2d 27, because of the conflict among Courts of Appeals as to the proper construction of the relevant provision of the Judiciary Act of 1875 (now 28 U.S.C. § 1331, 28 U.S.C.A. § 1331) and because of questions raised regarding the applicability of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, to the situation before us. The case was argued during the last Term and restored to the calendar for reargument during the present Term. 356 U.S. 955, 78 S.Ct. 991, 2 L.Ed.2d 1064.
I. Jurisdiction.
5
(a) Jurisdiction under the Jones Act.—The District Court dismissed petitioner's Jones Act claims for lack of jurisdiction. 'As frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action.' Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912. Petitioner asserts a substantial claim that the Jones Act affords him a right of recovery for the negligence of his employer. Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. 'A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact.' Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 924.
6
(b) Jurisdiction under 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. Petitioner, a Spanish subject, asserts claims under the general maritime law against Compania Trasatlantica, a Spanish corporation. The jurisdiction of the Federal District Court, sitting as a court of law, was invoked under the previsions of the Judiciary Act of 1875 which granted jurisdiction to the lower federal courts 'of all suits of a civil nature at common law or in equity, * * * arising under the Constitution or laws of the United States, * * *.' (now 28 U.S.C. § 1331, 28 U.S.C.A. § 1331).5 Whether the Act of 1875 permits maritime claims rooted in federal law to be brought on the law side of the lower federal courts has recently been raised in litigation and has become the subject of conflicting decisions among Courts of Appeals. Jurisdiction has been sustained in the First Circuit, Doucette v. Vincent, 194 F.2d 834, and denied in the Second and Third, Jordine v. Walling, 1 Cir., 185 F.2d 662; Paduano v. Yamashita Kisen Kabushiki Kaisha, 2 Cir., 221 F.2d 615. See also Jenkins v. Roderick, D.C., 156 F.Supp. 299. Such conflict in the construction of an old and important statute calls for a full exposition of the problem.
7
Abstractly stated, the problem is the ordinary task of a court to apply the words of a statute according to their proper construction. But 'proper construction' is not satisfied by taking the words as if they were self-contained phrases. So considered, the words do not yield the meaning of the statute. The words we have to construe are not only words with a history. They express an enactment that is part of a serial, and a serial that must be related to Article III of the Constitution, the watershed of all judiciary legislation, and to the enactments which have derived from that Article. Moreover, Article III itself has its sources in history. These give content and meaning to its pithy phrases. Rationally construed, the Act of 1875 must be considered part of an organic growth—part of the evolutionary process of judiciary legislation that began September 24, 1789, and projects into the future.
8
Article III, § 2, cl. 1 (3d provision) of the Constitution and section 9 of the Act of September 24, 1789, have from the beginning been the sources of jurisdiction in litigation based upon federal maritime law. Article III impliedly contained three grants. (1) It empowered Congress to confer admiralty and maritime jurisdiction on the 'Tribunals inferior to the Supreme Court' which were authorized by Art. I. § 8, cl. 9. (2) It empowered the federal courts in their exercise of the admiralty and maritime jurisdiction which had been conferred on them, to draw on the substantive law 'inherent in the admiralty and maritime jurisdiction,' Crowell v. Benson, 285 U.S. 22, 55, 52 S.Ct. 285, 294, 76 L.Ed. 598, and to continue the development of this law within constitutional limits. (3) It empowered Congress to revise and supplement the maritime law within the limits of the Constitution. See Crowell v. Benson, supra, 285 U.S. at page 55, 52 S.Ct. at page 294.
9
Section 9 of the First Judiciary Act6 granted the District Courts maritime jurisdiction. This jurisdiction has remained unchanged in substance to the present day.7 Indeed it was recognition of the need for federal tribunals to exercise admiralty jurisdiction that was one of the controlling considerations for the establishment of a system of lower federal courts.8 Such a system is not an inherent requirement of a federal government. There was strong opposition in the Constitutional Convention to any such inferior federal tribunals.9 No comprehensive system of lower federal courts has been established in Canada or Australia. Congress could leave the enforcement of federal rights to state courts,10 and indeed the state courts, in large measure, now exercise concurrent jurisdiction over a wide field of matters of federal concern, subject to review of federal issues by the Supreme Court.11
10
Section 9 not only established federal courts for the administration of maritime law; it recognized that some remedies in matters maritime had been traditionally administered by common-law courts of the original States.12 This role of the States in the administration of maritime law was preserved in the famous 'saving clause'—'saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.'13 Since the original Judiciary Act also endowed the federal courts with diversity jurisdiction, common-law remedies for maritime causes could be enforced by the then Circuit Courts when the proper diversity of parties afforded access.
11
Up to the passage of the Judiciary Act of 187514 these jurisdictional bases provided the only claim for jurisdiction in the federal courts in maritime matters.15 The District Courts, endowed with 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction,' sat to enforce the comprehensive federal interest in the law of the sea which had been a major reason for their creation. This jurisdiction was exercised according to the historic procedure in admiralty, by a judge without a jury. In addition, common-law remedies were, under the saving clause, enforcible in the courts of the States and on the common-law side of the lower federal courts when the diverse citizenship of the parties permitted. Except in diversity cases, maritime litigation brought in state courts could not be removed to the federal courts.16
12
The Judiciary Act of 1875 effected an extensive enlargement of the jurisdiction of the lower federal courts. For the first time their doors were opened to 'all suits of a civil nature at common law or in equity, * * * arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority * * *.'17 From 1875 to 1950 there is not to be found a hint or suggestion to cast doubt on the conviction that the language of that statute was taken straight from Art. III, § 2, cl. 1, extending the judicial power of the United States 'to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' Indeed what little legislative history there is affirmatively indicates that this was the source.18 Thus the Act of 1875 drew on the scope of this provision of clause 1, just as the Judiciary Act of 1789 reflected the constitutional authorization of Clause 1 of Section 2, which extended the judicial power 'to all Cases of admiralty and maritime Jurisdiction.'
13
These provisions of Article III are two of the nine separately enumerated classes of cases to which 'judicial power' was extended by the Constitution and which thereby authorized grants by Congress of 'judicial Power' to the 'inferior' federal courts. The vast stream of litigation which has flowed through these courts from the beginning has done so on the assumption that, in dealing with a subject as technical as the jurisdiction of the courts, the Framers, predominantly lawyers, used precise, differentiating and not redundant language. This assumption, reflected in The Federalist Papers,19 was authoritatively confirmed by Mr. Chief Justice Marshall in American Ins. Co. v. Canter, 1 Pet. 511, 544, 7 L.Ed. 242:
14
'We are therefore to inquire, whether cases in admiralty, and cases arising under the laws and Constitution of the United States, are identical.
15
'If we have recourse to that pure fountain from which all the jurisdiction of the Federal Courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares, that 'the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction.'
16
'The Constitution certainly contemplates these as three distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over either of the other two. The discrimination made between them, in the Constitution, is, we think, conclusive against their identity.' See also The Sarah, 8 Wheat. 391, 5 L.Ed. 644.
17
This lucid principle of constitutional construction, embodied in one of Marshall's frequently quoted opinions, was never brought into question until 1952.20 It had been treated as black-letter law in leading treatises.21 It was part of the realm of legal ideas in which the authors of the Act of 1875 moved. Certainly the accomplished lawyers who drafted the Act of 187522 drew on the language of the constitutional grant on the assumption that they were dealing with a distinct class of cases, that the language incorporated in their enactment precluded 'identity' with any other class of cases contained in Article III. Thus the grant of jurisdiction over 'suits of a civil nature at common law or in equity * * * arising under the Constitution or laws of the United States, * * *.' in the Act of 1875, as derived from Article III, could not reasonably be thought of as comprehending an entirely separate admiralty and maritime jurisdiction as admiralty and maritime Jurisdiction.'23
18
Of course all cases to which 'judicial power' extends 'arise,' in a comprehensive, non-jurisdictional sense of the term, 'under this Constitution.' It is the Constitution that is the ultimate source of all 'judicial Power'—defines grants and implies limits—and so 'all Cases of admiralty and maritime Jurisdiction' arise under the Constitution in the sense that they have constitutional sanction. But they are not 'Cases, in Law and Equity, arising under this Constitution, the Laws of the United States * * *.'
19
Not only does language and construction point to the rejection of any infusion of general maritime jurisdiction into the Act of 1875, but history and reason powerfully support that rejection. The farreaching extension of national power resulting from the victory of the North, and the concomitant utilization of federal courts for the vindication of that power in the Reconstruction Era, naturally led to enlarged jurisdiction of the federal courts over federal rights. But neither the aim of the Act of 1875 to provide a forum for the vindication of new federally created rights, nor the pressures which led to its enactment, suggest, even remotely, the inclusion of maritime claims within the scope of that statute. The provision of the Act of 1875 with which we are concerned was designed to give a new content of jurisdiction to the federal courts, not to reaffirm one long-established, smoothly functioning since 1789.24 We have uncovered no basis for finding the additional design of changing the method by which federal courts had administered admiralty law from the beginning. The federal admiralty courts had been completely adequate to the task of protecting maritime rights rooted in federal law. There is not the slightest indication of any intention, or of any professional or lay demands for a change in the time-sanctioned mode of trying suits in admiralty without a jury, from which it can be inferred that by the new grant of jurisdiction of cases 'arising under the Constitution or laws' a drastic innovation was impliedly introduced in admiralty procedure, whereby Congress changed the method by which federal courts had administered admiralty law for almost a century. To draw such an inference is to find that a revolutionary procedural change had undesignedly come to pass. If we are now to attribute such a result to Congress the sole remaining justification for the federal admiralty courts which have played such a vital role in our federal judicial system for 169 years will be to provide a federal forum for the small number of maritime claims which derive from state law, and to afford the ancient remedy of a libel in rem in those limited instances when an in personam judgment would not suffice to satisfy a claim.25
20
Indeed, until 1950, in a dictum in Jansson v. Swedish American Line, 1 Cir., 185 F.2d 212, 217—218, 30 A.L.R.2d 1385, followed by an opinion in Doucette v. Vincent, 194 F.2d 834, judges, scholars and lawyers alike made the unquestioned assumption that the original maritime jurisdiction of the federal courts had, for all practical purposes, been left unchanged since the Act of 1789. Thus Mr. Justice Clifford, an experienced admiralty judge, in 1876, one year after the passage of the Act here in question, could reiterate the classic formulation without the faintest indication of doubt as to its continued vitality. 'Parties in maritime cases are not * * * compelled to proceed in the admiralty at all, as they may resort to their common-law remedy in the State courts, or in the Circuit Court, if the party seeking redress and the other party are citizens of different States.'26 On the basis of an examination of sixty-six treatises on federal jurisdiction and on admiralty, and of a search of the reports it can be confidently asserted that for the seventy-four years following Mr. Justice Clifford's opinion there is not a single professional utterance of legal opinion—by judges, lawyers, or commentators—disagreeing with his formulation.27 Negative testimony is often as compelling as bits of affirmative evidence. It is especially compelling when it comes from those whose scholarly or professional specialty was the jurisdiction of the federal courts and the practice of maritime law. Petitioner now asks us to hold that no student of the jurisdiction of the federal courts or of admiralty, no judge, and none of the learned and alert members of the admiralty bar were able, for seventy-five years, to discern the drastic change now asserted to have been contrived in admiralty jurisdiction by the Act of 1875. In light of such impressive testimony from the past the claim of a sudden discovery of a hidden latent meaning in an old technical phrase is surely suspect.
21
The history of archeology is replete with the unearthing of riches buried for centuries. Our legal history does not, however, offer a single archeological discovery of new, revolutionary meaning in reading an old judiciary enactment.27a The presumption is powerful that such a far-reaching, dislocating construction as petitioner would now have us find in the Act of 1875 was not uncovered by judges, lawyers or scholars for seventy-five years because it is not there.
22
It is also significant that in the entire history of federal maritime legislation, whether before the passage of the Act of 1875 (e.g., the Great Lakes Act—also a general jurisdictional statute and one often termed an anomaly in the maritime law because of its jury trial provision), or after (the Jones Act), Congress has not once left the availability of a trial on the law side to inference. It has made specific provision.28 It is difficult to accept that in 1875, and in 1875 alone, a most far-reaching change was made subterraneously.
23
Not only would the infusion of general maritime jurisdiction into the Act of 1875 disregard the obvious construction of that statute. Important difficulties of judicial policy would flow from such an interpretation, an interpretation which would have a disruptive effect on the traditional allocation of power over maritime affairs in our federal system.
24
Thus the historic option of a maritime suitor pursuing a common-law remedy to select his forum, state or federal, would be taken away by an expanded view of § 1331,29 since saving-clause actions would then be freely removable under § 1441 of Title 28, 28 U.S.C.A. § 1441.30 The interpretation of the Act of 1875 contended for would have consequences more deeply felt than the elimination of a suitor's traditional choice of forum. By making maritime cases removable to the federal courts it would make considerable inroads into the traditionally exercised concurrent jurisdiction of the state courts in admiralty matters—a jurisdiction which it was the unquestioned aim of the saving clause of 1789 to preserve. This disruption of principle is emphasized by the few cases actually involved.31 This small number of cases is only important in that it negatives the pressure of any practical consideration for the subversion of a principle so long-established and so deeply rooted. The role of the States in the development of maritime law is a role whose significance is rooted in the Judiciary Act of 1789 and the decisions of this Court.32 Recognition of the part the States have played from the beginning has a dual significance. It indicates the extent to which an expanded view of the Act of 1875 would eviscerate the postulates of the saving clause, and it undermines the theoretical basis for giving the Act of 1875 a brand new meaning.
25
Although the corpus of admiralty law is federal in the sense that it derives from the implications of Article III evolved by the courts, to claim that all enforced rights pertaining to matters maritime are rooted in federal law is a destructive oversimplification of the highly intricate interplay of the States and the National Government in their regulation of maritime commerce. It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system.33 But this limitation still leaves the States a wide scope. State-created liens are enforced in admiralty.34 State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty,35 have been upheld when applied to maritime causes of action.36 Federal courts have enforced these statutes.37 State rules for the partition and sale of ships,38 state laws governing the specific performance of arbitration agreements,39 state laws regulating the effect of a breach of warranty under contracts of maritime insurance40—all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity. 'In the field of maritime contracts,' this Court has said, 'as in that of maritime torts, the National Government has left much regulatory power in the States.'41 Thus, if one thing is clear it is that the source of law in saving-clause actions cannot be described in absolute terms. Maritime law is not a monistic system. The State and Federal Governments jointly exert regulatory powers today as they have played joint roles in the development of maritime law throughout our history.42 This sharing of competence in one aspect of our federalism has been traditionally embodied in the saving clause of the Act of 1789. Here, as is so often true in our federal system, allocations of jurisdiction have been carefully wrought to correspond to the realities of power and interest and national policy. To give a novel sweep to the Act would disrupt traditional maritime policies and quite gratuitously disturb a complementary, historic interacting federal-state relationship.
26
An infusion of general maritime jurisdiction into the 'federal question' grant would not occasion merely an isolated change; it would generate many new complicated problems. If jurisdiction of maritime claims were allowed to be invoked under § 1331, it would become necessary for courts to decide whether the action 'arises under federal law,' and this jurisdictional decision would largely depend on whether the governing law is state or federal. Determinations of this nature are among the most difficult and subtle that federal courts are called upon to make.43 Last Term's decision in McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272, illustrates the difficulties raised by the attempted application of a state statute of limitations to maritime personal injury actions. These problems result from the effort to fit state laws into the scheme of federal maritime law.
27
These difficulties, while nourishing academic speculation, have rarely confronted the courts. This Court has been able to wait until an actual conflict between state and federal standards has arisen, and only then proceed to resolve the problem of whether the State was free to regulate or federal law must govern. For example, if a State allowed the survival of a cause of action based on unseaworthiness as defined in the maritime law it was immaterial whether the standard was federal and governed by decisions of this Court, or was subject to state variations.44 Thus we have been able to deal with such conceptual problems in the context of a specific conflict and a specific application of policy, as is so well illustrated by the McAllister case. However, such practical considerations for adjudication would be unavailable under an expanded view of § 1331. Federal courts would be forced to determine the respective spheres of state and federal legislative competence, the source of the governing law, as a preliminary question of jurisdiction; for only if the applicable law is 'federal' law would jurisdiction be proper under § 1331. The necessity for jurisdictional determinations couched in terms of 'state' or 'federal law' would destroy that salutary flexibility which enables the courts to deal with source-of-law problems in light of the necessities illuminated by the particular question to be answered. Certainly sound judicial policy does not encourage a situation which necessitates constant adjudication of the boundaries of state and federal competence.
28
Typical also of the consequences that are implicit in this proposed modification of maritime jurisdiction, is the restriction of venue that would result from this novel interpretation of § 1331 of the Act of 1875. Litigants of diverse citizenship are now able to invoke the federal law forum for the trial of saving-clause cases. Such litigants are aided in their search for a federal forum by the liberality of the venue provisions applicable to actions based on diversity of citizenship. These provisions allow the action to be brought either 'where all plaintiffs or all defendants reside.'45 If saving-clause actions were to be brought within the scope of § 1331, this choice could be no longer made. Plaintiffs would be subject to the rigid requirement that suit must be 'brought only in the judicial district where all defendants reside * * *,'46 and this would be so even where there is, in fact, diversity of citizenship.47
29
In the face of the consistent and compelling inferences to be drawn from history and policy against a break with a long past in the application of the Act of 1875, what justification is offered for this novel view of the statute? Support is ultimately reduced, one is compelled to say, to empty logic, reflecting a formal syllogism. The argument may thus be fairly summarized. It was not until recently, in a line of decision culminating in Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, that it became apparent that the source of admiralty rights was a controlling body of federal admiralty law. This development led to a deepened consideration of the jurisdictional consequences of the federal source of maritime law. And so one turns to the Act of 1875. The Act of 1875 gave original jurisdiction to the federal courts over all cases arising under the Constitution and laws of the United States. Maritime law was federal law based on a constitutional grant of jurisdiction. Thus maritime cases arose under the Constitution or federal laws. By this mode of reasoning the words of the jurisdictional statute are found to 'fit like a glove'48
30
Although it is true that the supremacy of federal maritime law over conflicting state law has recently been greatly extended, the federal nature of the maritime law administered in the federal courts has long been an accepted part of admiralty jurisprudence. The classic statement of Mr. Justice Holmes in The Western Maid, 257 U.S. 419, 432, 42 S.Ct. 159, 160, 66 L.Ed. 299, summed up the accepted view that maritime law derived its force from the National Government and was part of the laws of the United States; and this was merely a restatement of a view which was clearly set forth in 1874 in The Lottawanna, 21 Wall. 558, 22 L.Ed. 654.49 Thus the theory which underlies the effort to infuse general maritime jurisdiction into the Act of 1875 rests on no novel development in maritime law, but on premises as available in 1875 as they are today.
31
The simple language of the Act of 1875 conceals complexities of construction and policy which have been already examined. When we apply to the statute, and to the clause of Article III from which it is derived, commonsensical and lawyer-like modes of construction, and the evidence of history and logic, it becomes clear that the words of that statute do not extend, and could not reasonably be interpreted to extend, to cases of admiralty and maritime jurisdiction. The statute is phrased in terms which, as a matter of inert language, lifeless words detached from the interpretive setting of history, legal lore, and due regard for the interests of our federal system, may be used as playthings with which to reconstruct the Act to include cases of admiralty and maritime jurisdiction. If the history of the interpretation of judiciary legislation teaches anything, it teaches the duty to reject treating such statutes as a wooden set of self-sufficient words—a failing to which the Court has not been subject since the Pacific Railroad Removal Cases. (Texas & P.R. Co. v. Kirk).50 The Act of 1875 is broadly phrased, but it has been continuously construed and limited in the light of the history that produced it, the demands of reason and coherence, and the dictates of sound judicial policy which have emerged from the Act's function as a provision in the mosaic of federal judiciary legislation. It is a statute, not a Constitution, we are expounding.51
32
The considerations of history and policy which investigation has illuminated are powerfully reinforced by the deeply felt and traditional reluctance of this Court to expand the jurisdiction of the federal courts through a broad reading of jurisdictional statutes. A reluctance which must be even more forcefully felt when the expansion is proposed, for the first time, eighty-three years after the jurisdiction has been conferred. Mr. Justice Stone, speaking of the Act of 1875, pointed out that '(t)he policy of the statute calls for its strict construction. * * * Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.'52 Certainly this wise counsel is deeply persuasive when we are asked to accept a doctrine which would cut into a jurisdiction exercised by the States since Colonial days. Of course if compelling reasons can be found for redefining the statute, if an ancient error cries out for rectification, we should not be deterred from applying new illuminations to the interpretation of past enactments. However, in our examination of the manifold considerations of history, of construction, of the policy which underlies the allocation of competence over maritime matters in our federal system, and the considerations of judicial administration and procedure called into question—all of which direct us to the rejection of the proposed infusion of general maritime jurisdiction into the Act of 1875—we are pointed to no considerations which lead us to overturn the existing maritime jurisdictional system—a system which is as old, and as justified by the experience of history, as the federal courts themselves.
33
(c) 'Pendent' and Diversity Jurisdiction.—Rejection of the proposed new reading of § 1331 does not preclude consideration of petitioner's claims under the general maritime law. These claims cannot, we have seen, be justified under § 1331. However, the District Court may have jurisdiction of them 'pendent' to its jurisdiction under the Jones Act. Of course the considerations which call for the exercise of pendent jurisdiction of a state claim related to a pending federal cause of action within the appropriate scope of the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, are not the same when, as here, what is involved are related claims based on the federal maritime law. We perceive no barrier to the exercise of 'pendent jurisdiction' in the very limited circumstances before us. Here we merely decide that a district judge has jurisdiction to determine whether a cause of action has been stated if that jurisdiction has been invoked by a complaint at law rather than by a libel in admiralty, as long as the complaint also properly alleges a claim under the Jones Act. We are not called upon to decide whether the District Court may submit to the jury the 'pendent' claims under the general maritime law in the event that a cause of action be found to exist.
34
Respondents Garcia & Diaz and Quin Lumber Company, New York corporations, and International Terminal Operating Company, a Delaware corporation, are of diverse citizenship from the petitioner, a Spanish subject. Since the Jones Act provides an independent basis of federal jurisdiction over the non-diverse respondent, Compania Trasatlantica, the rule of Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435, does not require dismissal of the claims against the diverse respondents. Accordingly, the dismissal of these claims for lack of
35
jurisdiction was erroneous. II. The Claims Against Compania Trasatlantica—The Choice-of-Law Problem.
36
We now turn to the claims agains Compania Trasatlantica under the Jones Act and the general maritime law. In light of our recent decision in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, these claims present the narrow issue, whether the maritime law of the United States may be applied in an action involving an injury sustained in an American port by a foreign seaman on board a foreign vessel in the course of a voyage beginning and ending in a foreign country.
37
While Lauritzen v. Larsen involved claims asserted under the Jones Act, the principles on which it was decided did not derive from the terms of that statute. We pointed out that the Jones Act had been written 'not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations.' 345 U.S. at page 577, 73 S.Ct. at page 925. Thus the Jones Act was applied 'to foreign events, foreign ships and foreign seamen only in accordance with the usual doctrine and practices of maritime law.' 345 U.S. at page 581, 73 S.Ct. at page 927. The broad principles of choice of law and the applicable criteria of selection set forth in Lauritzen were intended to guide courts in the application of maritime law generally. Of course, due regard must be had for the differing interests advanced by varied aspects of maritime law. But the similarity in purpose and function of the Jones Act and the general maritime principles of compensation for personal injury, admit of no rational differentiation of treatment for choice of law purposes. Thus the reasoning of Lauritzen v. Larsen governs all claims here.53
38
We are not here dealing with the sovereign power of the United States to apply its law to situations involving one or more foreign contacts.54 But in the absence of a contrary congressional direction, we must apply those principles of choice of law that are consonant with the needs of a general federal maritime law and with due recognition of our self-regarding respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community. These principles do not depend upon a mechanical application of a doctrine like that of lex loci delicti commissi. The controlling considerations are the interacting interests of the United States and of foreign countries, and in assessing them we must move with the circumspection appropriate when this Court is adjudicating issues inevitably entangled in the conduct of our international relations. We need not repeat the exposition of the problem which we gave in Lauritzen v. Larsen. Due regard for the relevant factors we there enumerated, and the weight we indicated to be given to each, preclude application of American law to the claims here asserted.
39
In this case, as in Lauritzen v. Larsen, the ship is of foreign registry and sails under a foreign flag. Both the injured seaman and the owner of the ship have a Spanish status: Romero is a Spanish subject and Compania Trasatlantica a Spanish corporation. Unlike the contract in Lauritizen, Romero's agreement of hire was entered into in Spain. By noting this fact, we do not mean to qualify our earlier view that the place of contracting is largely fortuitous and of little importance in determining the applicable law in an action of marine tort. Here, as in Lauritzen, the foreign law provides a remedy for the injury, and claims under that law may be conveniently asserted before the Spanish consul in New York.55
40
In Lauritzen v. Larsen the injury occurred in the port of Havana and the action was brought in New York. Romero was injured while temporarily in American territorial waters. This difference does not call for a difference in result. Discussing the significance of the place of the wrongful act, we pointed out in Lauritzen that '(t)he test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate. * * * the territorial standard is so unfitted to an enterprise conducted under many territorial rules and under none that it usually is modified by the more constant law of the flag.' 345 U.S. at pages 583—584, 73 S.Ct. at page 929. Although the place of injury has often been deemed determinative of the choice of law in municipal conflict of laws, such a rule does not fit the accommodations that become relevant in fair and prudent regard for the interests of foreign nations in the regulation of their own ships and their own nationals, and the effect upon our interests of our treatment of the legitimate interests of foreign nations. To impose on ships the duty of shifting from one standard of compensation to another as the vessel passes the boundaries of territorial waters would be not only an onerous but also an unduly speculative burden, disruptive of international commerce and without basis in the expressed policies of this country. The amount and type of recovery which a foreign seaman may receive from his foreign employer while sailing on a foreign ship should not depend on the wholly fortuitous circumstance of the place of injury.
41
Thus we hold that the considerations found in Lauritzen v. Larsen to preclude the assertion of a claim under the Jones Act apply equally here, and affirm the dismissal of petitioner's claims against Compania Trasatlantica.
42
III. The Claims Against the Other Respondents.
43
(a) Petitioner made claims based both on the Jones Act and the general maritime law against Garcia & Diaz, Inc. At the pre-trial hearing the District Court concluded that Garcia & Diaz was not Romero's employer and did not operate and control the vessel at the time of the injury. These issues were properly adjudicated, and thus the claims for unseaworthiness and maintenance and cure were properly dismissed. However, the District Court did not consider, and its disposition of the case did not require it to consider, whether petitioner was asserting a claim based upon the negligence of Garcia & Diaz; a claim independent of the employment relationship or operation and control. Thus it is necessary to remand the case for further proceedings as to this respondent.
44
(b) The claims against International Terminal Operating Co., and Quin Lumber Co., for a maritime tort, were dismissed for lack of jurisdiction. Our decision on the jurisdictional issues necessitates the return of the claims against these respondents for further adjudication.
45
The judgment of the Court of Appeals is vacated and the cause remanded to the District Court for further proceedings not inconsistent with this opinion.
46
Vacated and remanded.
Appendix to Opinion of the Court.
47
The following is the list of treatises on federal procedure and jurisdiction and admiralty law which were examined to determine if any commentator gave any intimation that the Act of 1875 had swept admiralty jurisdiction within its scope. No such intimation is found in a single treatise. On the contrary, all those which dealt with the subject specifically assumed that the federal courts on the law side had jurisdiction over a maritime cause after the Act of 1875 as before only when the parties were of diverse citizenship.
48
BOYCE, Manual of the Practice in the Circuit Courts (1869).
49
ABOTT, The United States Courts and Their Practice (1877).
50
PHILLIPS, Statutory Jurisdiction and Practice of the Supreme Court of the United States (1878).
51
DESTY, Manual of the Law Relating to Shipping and Admiralty (1879).
52
CURTIS, Jurisdiction, Practice and Peculiar Jurisprudence of the Courts in the United States (1880).
53
BUMP, Federal Procedure (1881).
54
MILLER and FIELD, Federal Practice (1881).
55
COHEN, Admiralty—Jurisdiction, Law and Practice (1883).
56
FIELD, Constitution and Jurisdiction of the Courts of the United States (1883).
57
SPEAR, Law of the Federal Judiciary (1883).
58
THATCHER (Thatcher's Practice)—A Digest of Statutes, Equity Rules and Decisions upon the Jurisdiction, Pleadings and Practice of the Circuit Courts of the United States (1883).
59
THATCHER (Thatcher's Practice)—A Digest of Statutes, Admiralty Rules and Decisions upon the Jurisdiction, Pleadings and Practice of the District Courts of the United States (1884).
60
HENRY, Jurisdiction and Procedure of the Admiralty Courts (1885).
61
HOLT, The Concurrent Jurisdiction of the Federal and State Courts (1888).
62
CURTIS, Jurisdiction, Practice and Peculiar Jurisprudence of the Courts of the United States (rev. ed. 1896).
63
BENEDIT, The American Admiralty (3d ed. 1898).
64
GARLAND and RALSTON, Constitution and Jurisdiction of the U.S. Courts (1898).
65
SIMONTON, CHARLES H. (U.S. Circuit Judge), The Federal Courts, Their Organization, Jurisdiction and Procedure (2d ed. 1898).
66
CARTER, The Jurisdiction of Federal Courts as Limited by the Citizenship and Residence of the Parties (1899).
67
DESTY, Manual of Practice in the Courts of the United States (9th ed. 1899).
68
MAY, Practice and Procedure of the U.S. Supreme Court (1899).
69
DWYER, The Law and Procedure of United States Courts (1901).
70
HUGHES, Handbook of Admiralty Law (1901).
71
TAYLOR, Jurisdiction and Procedure of the Supreme Court of the U.S. (1905).
72
ROSE, Code of Federal Procedure (1907).
73
BATES, Federal Procedure at Law (1908).
74
ENCYCLOPEDIA OF UNITED STATES SUPREME COURT REPORTS (1908).
75
BENEDICT, The American Admiralty (4th ed. 1910).
76
LOVELAND, Appellate Jurisdiction of the Federal Courts (1911).
77
HUGHES, Handbook of Jurisdiction and Procedure in United States Courts (2d ed. 1913).
78
BUNN, Jurisdiction and Practice of the Courts of the United States (1914) (also 3d ed. 1927; 4th ed. 1939; 5th ed. 1949).
79
THAYER, Jurisdiction of the Federal Courts (1914).
80
CHAPLIN, Principles of the Federal Law (1917).
81
LONG, Outline of the Jurisdiction and Procedure of the Federal Courts (3d ed. 1917).
82
FOSTER, Federal Practice (6th ed. 1920).
83
HUGHES, Handbook of Admiralty Law (2d ed. 1920).
84
LOVELAND, Annotated Forms of Federal Procedure (3d ed. 1922).
85
ROSE, Jurisdiction and Procedure of the Federal Courts (2d ed. 1922).
86
MONTGOMERY, Manual of Federal Jurisdiction and Procedure (3d ed. 1927).
87
WILLIAMS, Federal Practice (2d ed. 1927).
88
DOBIE, Handbook of Federal Jurisdiction and Procedure (1928).
89
LONGSDORF, Cyclopedia of Federal Procedure (1928).
90
ZOLINE, Federal Appellate Jurisdiction and Procedure (3d ed. 1928).
91
HUGHES, Federal Practice, Jurisdiction and Procedure (1931).
92
ROSE, Jurisdiction and Procedure of the Federal Courts (4th ed. 1931).
93
BROWNE, Federal Appellate Practice and Procedure (1932).
94
BROWN, Guide to Federal and Bankruptcy Practice (1933).
95
HOPKINS, Federal Judicial Code and the Judiciary (4th ed. 1934).
96
MARKER, Federal Appellate Jurisdiction and Procedure (1935).
97
ROSE, Jurisdiction and Procedure of the Federal Courts (5th ed. 1938).
98
SIMKINS, Federal Practice (3d ed. 1938) (also 1942 Supplement).
99
ROBINSON, Handbook of Admiralty Law in the United States (1939).
100
BENEDICT, Law of American Admiralty (Knauth ed. 1940).
101
POUND, Organization of Courts (1940).
102
KIRSHBAUM, Outline of Federal Practice and Procedure (1941).
103
O'BRIEN, Manual of Federal Appellate Procedure (3d ed. 1941).
104
MONTGOMERY, Manual of Federal Jurisdiction and Procedure (4th ed. 1942).
105
FEDERAL REDBOOK AND PRACTICE ANNUAL (Schweitzer ed. 2d ed. 1943).
106
BENDER, Federal Practice Manual (1948).
107
SUNDERLAND, Judicial Administration (1948).
108
GUANDOLO, Federal Procedure Forms (1949).
109
MOORE, A Commentary on the Judicial Code (1949).
110
WENDELL, Relations Between the Federal and State Courts (1949).
111
BARRON and HOLTZOFF, Federal Practice and Procedure (1950).
112
FINS, Federal Practice Guide (1950).
113
OHLINGER, Federal Practice (rev. ed. 1950), Replacement Vol. One-A.
114
Mr. Justice BLACK, dissenting.
115
Although this case has aroused much discussion about the scope of jurisdiction under 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, I cannot feel that the issue is either complex or earth-shaking. The real core of the jurisdictional controversy is whether a few more seamen can have their suits for damages passed on by federal juries instead of judges. For the reasons stated by Mr. Justice BRENNAN here and by Judge Magruder in Doucette v. Vincent, 1 Cir., 194 F.2d 834, 839, I believe that federal jurisdiction under 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, lies and a federal jury trial is proper. In particular I feel that technical or esoteric readings should not be given to congressional language which is perfectly understandable in ordinary English.
116
Much the same reason leads me also to dissent from Part II of the Court's opinion. By its terms the Jones Act applies to 'any seaman who shall suffer personal injury in the course of his employment.' 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688. (Italics added.) This Court in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, held that the words 'any seaman' did not include foreign seamen sailing foreign ships and injured in foreign waters. I dissented from that holding. It was based, I thought, on the Court's concepts of what would be good or bad for the country internationally rather than on an actual interpretation of the language of the Jones Act. Thus, it seemed to me that the Lauritzen holding rested on notions of what Congress should have said, not on what it did say. Such notions, weak enough in Lauritzen, seem much weaker still in this case where the tort involved occurred in our own waters. I cannot but feel that, at least as to torts occurring within the United States, Congress knew what it was doing when it said 'any seaman' and I must dissent from today's further and, I believe, unjustifiable reduction in the scope of the Jones Act. Moreover since the tort occurred in the navigable waters of the United States, I think the complaint against Compania Trasatlantica stated a good cause of action under general maritime law whethr jurisdiction of the cause is based, as I believe, on 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, or, as the Court assumes, on some theory of 'pendent jurisdiction.'
117
Mr. Justice DOUGLAS joins in the first paragraph of this opinion. He believes that Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, is inapposite to the present case, because of the numerous incidents connecting this transaction with the United States. He therefore agrees with Mr. Justice Black that the District Court should take jurisdiction over petitioner's claim against Compania Trasatlantica.
118
Mr. Justice BRENNAN, dissenting in part and concurring in part.
I.
119
I regret that I cannot agree with the Court's holding that § 1331 of the Judicial Code does not give jurisdiction to a Federal District Court, sitting at law, over a seaman's claims against his employer for maintenance and cure and for indemnity damages for injury caused by unseaworthiness, where the claims are asserted in the manner of a suit at common law and the requisite jurisdictional amount is in controversy. I believe that the jurisdictional statute and the logic of the principles of this Court's decisions construing it compel a contrary result. I think the Court's opinion attempts to turn aside the statutory language and the thrust of this Court's decisions with reasoning that is altogether too insubstantial.
120
The point on which the Court and I are at issue is one which has been much mooted in the Courts of Appeals, and I agree that it is appropriate that a thorough expression of views on it be presented. I propose first to explain why jurisdiction should be sustained under § 1331, and then to offer some reply to specific arguments set forth by the Court which apparently proceed from supposed practical inconveniences that are thought to arise from sustaining the jurisdiction.
121
The petitioner brought this suit in a Federal District Court. The element in his action with which I am dealing is his claim for money damages from Compania Trasatlantica, his employer, for breach of the shipowner's duty to maintain a seaworthy ship and for maintenance and cure. Since there was no diversity of citizenship between petitioner and Compania Trasatlantica,1 jurisdiction was predicated on the grant in 28 U.S.C. § 1331, 28 U.S.C.A. § 1331 of jurisdiction in 'civil actions wherein the matter in controversy * * * arises under the Constitution, laws or treaties of the United States.'2 Jurisdiction of such claims could have been established on the admiralty side of the District Court since 28 U.S.C. § 1333, 28 U.S.C.A. § 1333 specifically grants jurisdiction in the District Courts in 'case(s) of admiralty or maritime jurisdiction.' The question is whether petitioner can bring this part of his action on the law side of a Federal District Court.
122
First. In a long series of decisions tracing from Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, this Court has made it clear that, in a seaman's action to recover damages for a maritime tort from his employer, the substantive law to be applied is federal maritime law made applicable as part of the laws of the United States by the Constitution itself, and that the right of recovery, if any, is a federally created right.3 Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Cf. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124—125, 44 S.Ct. 274, 277—278, 68 L.Ed. 582.
123
It is true that early in our history maritime law was thought to be an international law merchant which was impartially administered by the several maritime nations of the world. This concept was expressed by Chief Justice Marshall's language in American Ins. Co. v. Canter, 1 Pet. 511, 545—546, 7 L.Ed. 242: 'A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise.' But that this did not mean that there was some supra-national law, by which American courts were bound, was made clear by Mr. Justice Bradley in The Lottawanna, 21 Wall. 558, 572, 22 L.Ed. 654, where he said for the Court: '(I)t is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. . . .' This teaching was emphasized in The Western Maid, 257 U.S. 419, 432, 42 S.Ct. 159, 160, 66 L.Ed. 299, where Mr. Justice Holmes, speaking for the Court, said: '(W)e must realize that however ancient may be the traditions of maritime law, however, diverse the sources from which it has been drawn, it derives its whole and only power in this country from its having been accepted and adopted by the United States. There is no mystic overlaw to which even the United States must bow.'
124
The sovereign power which determines the rules of substantive law governing maritime claims of the sort which petitioner asserts here is federal power, speaking through Congress as in the case of the Jones Act, 46 U.S.C.A. § 688, or through this Court in the case of judicially defined causes of action. Southern Pacific Co. v. Jensen, supra. This is an area where the federal courts have defined substantive rules themselves, and have not applied state law. Indeed, it is federal substantive law so created which the States must enforce in such actions brought in state courts, Garrett v. Moore-McCormack Co., supra, and which the federal courts have applied in actions at law in which diversity of citizenship has been relied upon as a jurisdictional basis, Pope & Talbot, Inc., v. Hawn, supra. The causes of action asserted against his employer by petitioner here present 'no claim created by or arising out of (state) law. His right of recovery * * * is rooted in federal maritime law.' Id., 346 U.S. at page 409, 74 S.Ct. at page 205.
125
Second. Since petitioner's causes of action for unseaworthiness and for maintenance and cure are created by federal law, his case arises under the 'laws * * * of the United States' within the meaning of § 1331, for it is clear that 'a suit arises under the law that creates the cause of action.' Holmes, J., in American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 50 L.Ed. 987.4 The contention cannot be accepted that since petitioner's rights are judicially defined, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, they are not created by 'the laws * * * of the United States' within the meaning of § 1331; or, in other words, that only maritime rights created by Act of Congress are created by 'the laws * * * of the United States.' In another context, that of state law, this Court has recognized that the statutory word 'laws' includes court decisions. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The converse situation is presented here in that federal courts have an extensive responsibility of fashioning rules of substantive law in maritime cases. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 314, 75 S.Ct. 368, 370, 99 L.Ed. 337. These rules are as fully 'laws' of the United States as if they had been enacted by Congress. Cf. Garrett v. Moore-McCormack Co., supra; Warren v. United States, 340 U.S. 523, 526—528, 71 S.Ct. 432, 434—435, 95 L.Ed. 503; and see Mater v. Holley, 5 Cir., 200 F.2d 123.5
126
Third. Notwithstanding these conclusions, jurisdiction under § 1331 would, of course, not lie if it were beyond the constitutional power of Congress to vest jurisdiction over this action of a seaman against his employer, a matter falling admittedly within the 'admiralty or maritime jurisdiction,' in a federal court sitting at law. But it is too late to make such an argument. The jurisdictional treatment of the rights of seamen under the Jones Act, a cause of action bound up with the cause of action in question here, is preclusive on the issue. The Jones Act was held in Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748, to be authorized by the legislative power residing in the Admiralty Clause of Article III. The right of action granted was, however, specifically stated by Congress to be exercisable 'at law, with the right of trial by jury' and in the Federal District Courts. This treatment was upheld, against constitutional challenge, by the Court, which held that jurisdiction properly lay, at the option of the plaintiff, either in admiralty or on the law side of the District Court. '(T)he constitutional provision interposes no obstacle to permitting rights founded on the maritime law or an admissible modification of it to be enforced as such through appropriate actions on the common-law side of the courts * * *.' Id., 264 U.S. at page 388, 44 S.Ct. at page 394. And the unchallenged maintenance of the very cause of action in question here at law in the District Courts under 28 U.S.C. § 1332, 28 U.S.C.A. § 1332, where diversity of citizenship is present, is further proof that no constitutional inhibition to the maintenance of such an action at law under § 1331 exists. Cf. The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266.
127
But despite the constitutional power of Congress, jurisdiction under § 1331 may still be defeated if that power has not there been exercised; in other words, if that jurisdictional grant is to be read as containing an implied exception as to cases falling within the 'admiralty or maritime jurisdiction.' See Paduano v. Yamashita Kisen Kabushiki Kaisha, 2 Cir., 221 F.2d 615; Jenkins v. Roderick, D.C., 156 F.Supp. 299, 302. This I take to be the net effect of the Court's reasoning. The gist of the argument, as it has been developed in the Courts of Appeals, is that § 1331 was enacted 'to insure the availability of a forum designed to minimize the danger of hostility toward, and specially suited to the vindication of, federally created rights * * *.' Paduano v. Yamashita Kisen Kabushiki Kaisha, supra, 221 F.2d at page 618. Continuously since 1789 Congress has provided specially for admiralty courts in which rights under the federal maritime law could be asserted. The argument runs that it follows that claims under the maritime law were not intended to fall within the scope of § 1331. And here, the Court's conclusion rests primarily on an analysis of the terms and background of the 1875 Act which was the ancestor of § 1331, and on various inferences drawn from silence after that Act's passage.
128
The members of the First Congress, in agreement that national courts of admiralty were an imperative necessity of the times, 1 Annals of Cong. 797—798 (1789), gave to the District Courts in § 9 of the First Judiciary Act original jurisdiction over 'all civil causes of admiralty and maritime jurisdiction * * *.' 1 Stat. 76, 77. Under § 21 the Circuit Courts were given appellate jurisdiction 'in causes of admiralty and maritime jurisdiction * * *.' 1 Stat. 83. These phrases followed almost literally the wording of Art. III, § 2, of the Constitution, extending the federal judicial power 'to all Cases of admiralty and maritime Jurisdiction * * *.' Significantly, the First Judiciary Act granted to the District and Circuit Courts no general federal-question jurisdiction.
129
Section 9 of the First Judiciary Act, however, contained the clause '* * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it * * *.' The Saving Clause survives in 28 U.S.C. § 1333, 28 U.S.C.A. § 1333, phrased '* * * saving to suitors in all cases all other remedies to which they are otherwise entitled. * * *' This provision, plainly, was a recognition that there were, prior to 1789, maritime claims within the concurrent jurisdiction of courts of admiralty and law, 1 Benedict, American Admiralty (6th ed. 1940), § 20; Schoonmaker v. Gilmore, 102 U.S. 118, 119, 26 L.Ed. 95, and it was clearly the intention of Congress to perpetuate this duality of remedy. It is true that certain classes of cases, such as the traditional in rem, prize, and seizure cases, lay within the exclusive jurisdiction of the admiralty, 1 Benedict, American Admiralty, § 23; The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397; The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451; The Glide, 167 U.S. 606, 17 S.Ct. 930, 42 L.Ed. 296, but all other suits under the maritime law of an in personam nature might be brought as well in the state courts or, under the diversity jurisdiction, in the Federal Circuit Courts. § 11, 1 Stat. 78.
130
It is thus clear that any argument that § 1333 is an exclusive grant of jurisdiction would be false to the history of enactments allocating the judicial power of the United States. The fact that, in a diversity case under § 1332, the claimant is free to proceed on the law side of the federal court to enforce rights created by the federal maritime law, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 88—89, 66 S.Ct. 872, 874—875, 90 L.Ed. 1099, clearly runs counter to any theory that the federal courts, because of § 9 of the Judiciary Act of 1789, can adjudicate maritime claims only while sitting in admiralty. There is no compelling reason why § 1333, which does not exclude maritime actions from being brought at law in a federal court under § 1332, should exclude them from being so brought under § 1331.6 Indeed, I find it a gross anomaly to hold, as the Court holds today, that an action rooted in federal law can be brought on the law side of a federal court only if the diversity jurisdiction, usually a vehicle for the enforcement of state-created rights, can be invoked.
131
Plainly there is nothing in the language of § 1331 which would exclude jurisdiction of maritime claims of the nature asserted by petitioner. Rather, in more than a manner of speaking, the language of that section fits the cause of action in question here 'like a glove,' Jenkins v. Roderick, D.C., 156 F.Supp. 299, 301. But the Court reasons that the section must be read restrictively because the corresponding jurisdictional grant in the Constitution speaks of 'Cases, in Law and Equity, arising under this Constitution, the Laws of the United States * * *.' This specification of 'law and equity,' reflected in the 1875 ancestor7 of present § 1331 as 'suits of a civil nature at common law or in equity * * * arising under the Constitution or laws * * *' is said to indicate that a suit arising under the substantive maritime law is not comprehended under the section. But the argument mistakes the nature of a Saving Clause action. An action brought under the Saving Clause is maintained 'at law' or 'in equity,' and the very action that Romero would assert here he would assert 'at law.' The mere fact that the substantive claim a court enforces in a particular Saving Clause action is rooted in the general maritime law does not transform the proceedings from a suit 'at law' to one 'in admiralty'; the state courts can hardly be said to sit 'in admiralty' when they try actions under the Saving Clause. Cf. The Hamilton, 207 U.S. 398, 404, 28 S.Ct. 133, 134, 52 L.Ed. 264. The Saving Clause itself, in its 1789 form, stated that what it was 'saving' was 'a common law remedy' to be available in maritime fact situations. It can readily be admitted that a suit 'in admiralty' is not the same thing as a suit 'at law.' But this is not to say that a suit involving a maritime cause of action cannot be the subject of a suit 'at law' in the federal courts. Obviously Saving Clause actions brought on the law side of the federal court, with diversity of citizenship present, are actions 'at law.' In fact, the grant of diversity jurisdiction in the 1875 Act was in the very same terms as the grant of the 'arising under' jurisdiction; the same introductory phrase, 'suits of a civil nature at common law or in equity,' governed both grants. It seems to me very odd to say that this phrase, introducing two grants of jurisdiction, had the effect of excluding maritime causes of action entirely from the one but not at all from the other.
132
The legislative history of § 1331 does not indicate any intent on the part of Congress to exclude claims asserted under federal maritime law from its ambit. The present section is but the latest recodification of the provisions of the Judiciary Act of 1875, 18 Stat. 470, alluded to above, which for the first time with any permanence vested in the federal courts an original general federal-question jurisdiction over any claim which 'arises under the Constitution, laws or treaties of the United States.' The congressional debates focused so largely on proposed changes in the diversity jurisdiction that no considered scrutiny was given to the provisions which have become § 1331. See 2 Cong.Rec. 4978—4988; Frankfurter and Landis, The Business of the Supreme Court (1927 ed.), 65—69. Nothing appears which would indicate a congressional intent to modify, by implication or otherwise, the sweep of the language of this Act, embodying as it does substantially the words of the constitutional grant.8 And nothing appears which would indicate any intention that the Act's coverage be 'frozen' to exclude federal causes of action which were not fully developed in 1875.
133
The Court argues, however, that Congress, aware of Chief Justice Marshall's statement that Article III created the admiralty jurisdiction as 'distinct' from the 'arising under' jurisdiction,9 American Ins. Co. v. Canter, supra, 1 Pet. at page 545, intended that the jurisdictional statutes be mutually exclusive. The manager of the 1875 legislation in the Senate declared of the bill generally that it conferred 'precisely the power which the Constitution confers nothing more, nothing less.' 2 Cong.Rec. 4987. It is difficult to infer that Congress meant to crystallize any particular interpretation of the Constitution in the statute. But even if it were proper, in the absence of concrete indication, speculatively to breathe into our construction of § 1331 views of the Constitution10 which might have served as a silent premise of congressional action, I do not think that the Court here is called on to do so. Marshall's statement is not, when understood in its context, contrary to my position, and in fact its proper scope was recognized before 1875.
134
Before discussing the Canter case, I think it wise to restate the precise nature of the issue before the Court. This is so because I fear the Court, in an expansive reading of Canter not justified either by what was decided there or by what was said there considered in the light of what was decided, has blurred the issue for decision today. The issue before us is not whether all cases 'of admiralty and maritime jurisdiction' are per se encompassed in the statutory 'arising under' jurisdiction. A suit seeking the sort of remedy that the common law is not competent to give could not be fairly contended to lie under § 1331; it would clearly be the sort of suit in which the jurisdictional grant of § 1333 was intended to be exclusive. The issue before us concerns only actions maintainable in some forum 'at law' under the Saving Clause. And again, the issue is not even the narrower one whether Saving Clause actions are per se cognizable under § 1331. The tests of jurisdiction under § 1331 must still be met, and there is no contention that they are met merely by a showing that an action is one maintainable under the Saving Clause and involving the requisite jurisdictional amount. The plaintiff's right to recovery must still be one rooted in federal substantive law, and it has quite recently been made clear that there are Saving Clause actions that do not meet that test. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337. The issue before us is only whether the fact that an action is a Saving Clause action excludes it from § 1331 where it would otherwise be maintainable thereunder.
135
At issue in American Ins. Co. v. Canter was the power of a territorial court to make a decree selling cargo to satisfy a maritime lien in rem existing in favor of its salvors. A state court, even under the Saving Clause, could not pass such a decree at all; it is the enforcement of the classic admiralty remedy, and a matter solely within the competence of the federal admiralty courts. The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451. In the passage from Marshall's opinion relied upon, the Chief Justice was saying only that the Act of Congress which conferred on certain territorial courts jurisdiction in 'cases arising under the laws and constitution of the United States,' § 8, 3 Stat. 752, did not by that token alone grant them power to enforce a remedy peculiarly within the competence of admiralty courts.11 In its broadest permissible interpretation, the dictum only means that the fact that the Constitution creates admiralty jurisdiction does not make all admiralty cases cases arising under the Constitution.12 But Marshall's opinion does not say that an action seeking remedial relief of a sort which the common law is competent to give, and in which the plaintiff's right to recover is rooted in federal law, ceases to be a suit arising under the laws of the United States merely because it is of a maritime nature.13 No one is contending here, of course, that § 1331 is a grant of power to enforce remedies peculiar to the admiralty; the contention is solely that that section, which empowers a federal court to administer common-law remedies in vindication of rights of plaintiffs which take their origin from federal law, is not subject to an exception for rights taking their origin in federal maritime law. Marshall's opinion simply is not addressed to this question or dispositive of it.
136
Much is made by the Court of Marshall's language that the categories of actions he mentions are 'distinct' and not 'identical.' Of course this is so, in a real sense and the only sense in which Marshall meant it. A matter affecting an ambassador or a counsel is not per se an action 'arising under,' just as it is not per se a maritime action. But could not a case involving a consul be also a case of admiralty jurisdiction, under certain fact situation? And could not a suit by or against a consul happen, perchance, to be also one 'arising under'? The fact that the jurisdictional categories are separate and distinct, as Marshall demonstrates, does not mean that a particular action could not come under the heading of more than one of them. Everyone recognizes that this is the case in a maritime matter in which the parties are of diverse citizenship. I see no reason why it should not be true here of Romero's general maritime law claims against his employer.
137
It appears also to be clear that even before 1875 Marshall's opinion was not thought of as creating a situation in which it was impossible to say that there were maritime cases that could be also attributed to other categories of federal jurisdiction. Long before Congress contemplated the jurisdictional grant of 1875, this Court in Taylor v. Carryl, 20 How. 583, 15 L.Ed. 1028, made it clear that there were fact situations which were of maritime cognizance, giving rise to rights for which the admiralty could supply a remedy, or for which alternatively proceedings at the course of common law lay. Maritime torts were specifically conceived of as within this category. The Court in that case followed the view of Mr. Justice Story expressed in his Commentaries on the Constitution, which were quoted with approval:
138
"Mr. Chancellor Kent and Mr. Rawle seem to think that the admiralty jurisdiction given by the Constitution is, in all cases, necessarily exclusive. But it is believed that this opinion is founded on mistake. It is exclusive in all matters of prize, for the reason that, at the common law, this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But in cases where the jurisdiction of common law and admiralty are concurrent, (as in cases of possessory suits, mariners' wages, and marine torts,) there is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive; and there is no better ground, upon general reasoning, to contend for it. The reasonable interpretation * * * would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction exactly according to the nature and extent and modifications in which it existed in the jurisprudence of the common law. When the jurisdiction was exclusive, it remained so; when it was concurrent, it remained so. Hence the States could have no right to create courts of admiralty as such, or to confer on their own courts the cognizance of such cases as were exclusively cognizable in admiralty courts. But the States might well retain and exercise the jurisdiction in cases of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction than cases of common-law jurisdiction.' (3 Story's Com., sec. 1666, note.)' 20 How. at page 598.
139
And it was understood before 1875 that this concurrent jurisdiction at law was not one merely existent in the state courts, but one available to suitors in the federal courts. See The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266, infra, 79 S.Ct. at page 498.
140
Accordingly, I cannot see how it can be concluded that Congress in 1875 read Marshall's opinion as creating some sort of gulf that would make it impossible for any maritime case to be also one 'arising under the Constitution or laws of the United States.'14
141
Of course, one cannot rely, to prove the Court's thesis, on dicta in cases decided before 1875 to the effect that Saving Clause actions could be brought on the law side of a federal court only when there is diversity of citizenship, and the Court does not so rely. The Belfast, 7 Wall. 624, 643—644, 19 L.Ed. 266; Leon v. Galceran, 11 Wall. 185, 188, 20 L.Ed. 74; Steamboat Co. v. Chase, 16 Wall. 522, 533, 21 L.Ed. 369. The 1875 Act for the first time with any permanence granted general federal-question jurisdiction to the federal courts of first instance. It can hardly be denied that these statements were correct when made, but it is equally plain that they are no authority for limiting the law-side jurisdiction to diversity cases once the 1875 Act had been passed. Moreover, I cannot seriously attach any significance, as the Court does, to the repetition, obiter, of their formulation in a case decided shortly after the Act's passage, where the effect of the new statute was not at all presented or discussed. Norton v. Switzer, 93 U.S. 355, 356, 23 L.Ed. 903. In fact, the approach this Court followed in the interpretation of the Saving Clause during this period supports, rather than detracts from, my conclusion here. It was observed in 1869 that the remedies saved by the Saving Clause were saved 'to suitors, and not to the State courts, nor to the Circuit Courts15 of the United States. * * * Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in the State courts or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of his case.' The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266. It is clear from the Court's language that the common-law remedies saved to suitors could properly be enforced in any tribunal otherwise having jurisdiction; the remedies saved were saved generally to suitors without discrimination as to any tribunal.
142
Nor can I consider it sound to place the reliance the Court has placed on the fact that the arguments we are considering today were not raised until 1950. Till then no court ever considered the problem that we discuss here at great length. None of the assortment of commentators listed in the Court's Appendix ever discussed it. The Court's argument, in fact, claims to draw force from the fact that it was not discussed at all. From the fact that the issue was never explored or tried at all till 1950, when Judge Magruder in a dictum in Jansson v. Swedish American Line,16 1 Cir., 185 F.2d 212, 216—218, 30 A.L.R.2d 1385, took a point of view similar to the one expressed here, we are asked to infer that the argument for jurisdiction should not succeed when finally raised. I cannot accept this as a convincing argument in the construction of a broadly written statute which was intended, at least in some aspects, to be as broad and dynamic as the Constitution itself, and which has served as the basic jurisdiction entitlement for the vindication of the numerous and increasing types of federally created rights in the lower federal courts ever since its enactment. It is a modern development in legal science in this country's federal system that increasing concern is taken with the source of the substantive law administered by the courts. Southern Pacific Co. v. Jensen, supra, and notably Erie R. Co. v. Tompkins, supra, are indications of this trend. When lawyers and judges in our federal system came to concentrate more and more on the source of the substantive law administered in the courts, and when this Court's opinions made it increasingly clear that there were kinds of maritime actions where the underlying right to recover was rooted in federally created law, inadmissible of significant modification by the States, it was an inevitable consequence that the relation of § 1331 to maritime matters would come for the first time to be examined, as Judge Magruder examined it in the Jansson and Doucette cases. If one views the history of the common-law system of adjudication as the history of a process, one must conclude that the 'historical' material relied upon by the Court has nothing to do with this sort of history at all, except to illustrate its antithesis.
143
It is, finally, true that this Court has adhered to a policy of construing jurisdictional statutes narrowly. Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248; Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951. In regard to the grant of federal-question jurisdiction to the District Courts, this Court has insisted that a claim created under federal law be a necessary part of the plaintiff's case, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, and that this claim be truly federal in nature, Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. But the present problem is apart from this line of cases, for here it is clear that petitioner is presenting to a federal court a claim created by federal law, and the objection is that somehow Congress intended to exclude claims of this particular sort from the grant in § 1331. But the arguments presented for such a narrow construction appear to me too insubstantial to withstand the logic of petitioner's position. However, willing one might be to resolve doubtful language against jurisdiction, exceptions to statutory language cannot be manufactured in a manner unwarranted by the words themselves and derived from the pertinent history only by a process of futile speculation. I am compelled to the conclusion that it is the effect of the 1875 Act and its intent, judged by the lights by which the courts must discern legislative intent, that the federal courts possess original jurisdiction, at law, to determine claims arising under federal substantive maritime law, where the common law is competent to afford the remedy sought by the plaintiff.
144
Fourth. The Court envisions various unfortunate results, from a practical standpoint, that would ensue from a holding on the jurisdictional issue under § 1331 contrary to its own. I shall comment briefly on its arguments.
145
It is first argued that the recognition of jurisdiction under § 1331 would, combined with the removal provisions of § 1441(b) of the Judicial Code, operate to destroy the competence of the States in maritime matters altogether. A source cited by the Court itself17 indicates that in the five-year period 1953 to 1957 inclusive only about 150 decisions in Saving Clause actions have been rendered in all of the state courts of the country. As I have developed, resolution of the jurisdictional issue contrary to the majority's view would not mean that all these cases would be assertable originally in the federal court or removable there, even present $10,000 in controversy. It is apparent then that the removability point addresses itself to a situation nearly de minimis. Saving Clause suitors seem long ago to have deserted the state courts. I therefore cannot share the concern that state judiciaries will be deprived of their historic active roles in the development of maritime law. Of the few actions that are left in the state courts, many may stay, for aught that can be predicted now. What sort of role do the state judiciaries now have in the development of the maritime law, with thirty-odd Saving Clause actions a year among them? Will the doctrine really put an end to this role, whatever it is? And it must be noted that such legislative competence as they possess remains to the States regardless of what may happen to the number of maritime cases in their courts; the view I have urged does not subtract one iota from the legislative competence of the States. And it is only because of an enlargement of removal that it affects their judicial competence; it does not take away their original jurisdiction at all, if suitors are content with it.
146
In further elaboration of the inroads on state competence which rejection of the Court's view is supposed to entail, it is stated that it is a destructive oversimplification to claim that all enforced rights pertaining to maritime matters are rooted in federal law. So it is; and no one is so claiming. The point is not that all Saving Clause actions meet the 'arising under' test of § 1331.18 It is, however, perfectly evident from the past holdings of this Court that the seaman's action for unseaworthiness and maintenance and cure is rooted in federal law, and it is only this claim that need present the issue of the case as to § 1331. I agree perfectly with the Court's observation that in our federal system allocations of jurisdiction have been carefully wrought to correspond to the realities of power and interest and national policy. I think that § 1331 embodies this approach by vesting in the federal courts, in civil actions, jurisdiction, at the option of the suitors, over all suits seeking a legal or equitable remedy, arising under federal law and involving a specified amount, and that this is so whether they involve maritime matters or not. I cannot see how it fits with the 'realities of power and interest and national policy' to say that there is federal jurisdiction at common law over federally defined maritime causes of action only if there is diversity of citizenship among the parties involved in them.
147
The Court next argues that a holding to the contrary of its own will produce venue problems, and will in fact be unduly restrictive toward plaintiffs in their choice of forums. Where the District Courts have jurisdiction under § 1331 (even though diversity may also be present) § 1391(b) of the Judicial Code rather than § 1391(a) governs, and the suit must be brought in the defendants' residence district, and may not be brought in the plaintiffs' residence district, unless of course it also happens to be the defendants'. But one reading the discussion of the consequences this will have for plaintiffs is apt to forget (for the Court does not inform him) that defendants in maritime actions are most likely to be corporations (particularly in personal injury litigation, the sort of case we have at bar) and that § 1391(c) declares that the residence of a corporation for venue purposes is any district where it is incorporated or any district in which it is licensed to do, or actually doing business. With corporate venue so widely defined, it will be a rare plaintiff (and a rarer personal injury plaintiff, for seamen and longshoremen are apt to live near where their employers carry on business, or where the vessel owners their employers serve do business) who can take much advantage from the fact that he can sue in the district of his own residence in an action based solely on diversity and not otherwise. And of course, the existence of proper venue at his own residence does not mean the plaintiff can sue the defendants there; he must still serve them with process. Except that process can be run throughout the limits of the State, while venue speaks in terms of the district, this means that the broader diversity venue only is of assistance where there is a defendant who, while not 'doing business' in an area, is nonetheless amenable to process there. Of course there are some such, but I think by now the dimensions of this 'practical' reason for the Court's holding are patent.
II.
148
The Court, though it rejects Romero's assertion of jurisdiction over his general maritime law claims against his employer under § 1331, proceeds to adjudicate them on the merits. It reaches them through a 'pendent' jurisdiction theory analogous to Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. The Court's action appears unprecedented, as it appears to recognize. The prior applications of the doctrine recognized here have been limited to caes where claims arising under state law, over which there was no independent jurisdiction in the federal court, have been intertwined with federal claims. The theory has not been here applied to cases where there have been two types of claims, both admittedly within the District Court's jurisdiction, one of which was admittedly cognizable according to the forms of the common law and the other, except for the theory, not. Here a plaintiff comes into court desiring that his claims be adjudicated strictly according to the common law and disclaiming federal jurisdiction in admiralty. In short, he desires that a common-law jury pass upon his claims. If the federal courts do not have such jurisdiction over all his claims, there are state courts which do, and he may well prefer them in that event. The Court today tells him that though it is doubtful whether there is enough common-law jurisdiction in the federal courts to proceed to a plenary adjudication of his claim, there is enough certainly to award summary judgment against him on the merits. I must say I cannot understand a sort of jurisdiction that allows the federal courts to make a preliminary exploration of the merits of the case, and a binding adjudication upon them, but which may not allow them to go further.
149
Obviously what we have here, once the Court's view of § 1331 is accepted, and as claims are presented which can survive summary judgment, is not a problem in pendent jurisdiction but a glaring problem in judicial administration and in the separation of functions between judge and jury. Crew members' maritime tort suits almost invariably urge claims under the Jones Act and under the general maritime law for breach of the duty to maintain a seaworthy vessel. These claims are legally, and generally factually, completely bound up with each other. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272; Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069. It would be productive of extraordinary problems if the two elements of the claim are presented to different triers of fact at the same time, as would be one consequence of holding that there was no jurisdiction at law of any sort over unseaworthiness claims where diversity of citizenship was absent. Cf. Jenkins v. Roderick, D.C., 156 F.Supp. 299, 304—306. Should an advisory jury (with the same membership, doubtless, as the 'mandatory' one hearing the Jones Act claim) hear the unseaworthiness claim? To what extent would its verdict bind the judge? If the judge passes on the issues himself, how to avoid overlapping damages, or contradictory findings? And what would be the effect of a finding of facts common to both claims made by the judge before the rendition of the jury's verdict, or vice versa? Would the doctrine of collateral estoppel apply? These problems arise in the wake of the Court's rejection of jurisdiction under § 1331 and its restricted holding on any other jurisdictional basis (apart from § 1333) of Romero's claims under the general maritime law against his employer. I cannot consider that the Court's solution of the controversy among the lower courts that has prevailed since the Jansson dictum has shed much light on them.
III.
150
Since under my view there would be jurisdiction at law (the only jurisdiction Romero invoked) to consider all his claims, I arrive at the merits of his claims against his employer, Compania Trasatlantica. As to them, I concur in the result set forth in Part II of the Court's opinion. I also agree with the Court's disposition of the claims against the other respondents, as set forth in Part III of its opinion.
151
THE CHIEF JUSTICE joins in this opinion, and Mr. Justice BLACK and Mr. Justice DOUGLAS join in it except to the extent indicated in their dissents.
1
The claim for maintenance and cure under the general maritime law included an amount for wages to the end of the voyage. We have not before us an independent claim for wages due and therefore need express no opinion on such a claim by one in petitioner's position.
2
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy * * * arises under the Constitution, laws or treaties of the United States.'
3
'(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy * * * is between: * * *
'(2) Citizens of a State, and foreign states or citizens or subjects thereof;'
4
Prior to the commencement of the trial respondents moved to dismiss the complaint on the ground that the District Court lacked 'jurisdiction' over the subject matter. The answers of some of the respondents also contained motions to dismiss for failure to state a claim upon which relief can be granted. A pre-trial hearing on the issue of 'jurisdiction' was held and the complaint was dismissed. Although the trial court viewed the issues as jurisdictional in the correct sense, the procedure followed was precisely that provided for a preliminary hearing to determine whether a claim was stated upon which relief can be granted. Fed.Rules Civ.Proc. 12(d), 28 U.S.C.A. Although the court considered evidence outside the pleadings, Federal Rule 12(c) allows such evidence to be admitted, requiring the court then to treat the motion as one for summary judgment under Rule 56. Summary judgment is proper if 'there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law.' Fed.Rules Civ.Proc. 56(c). The determinations made by the District Court, in the course of its hearing on jurisdiction, insofar as they are relevant to our disposition, were within the properly conceived scope of Rule 56. Since all the requirements of Rule 12(c), relating to a hearing on a motion for judgment of the pleadings, were satisfied and the findings made were properly relevant to such a hearing, we need not restrict our disposition to the issue of 'jurisdiction' merely because the proceedings below were inartistically labeled.
5
Act of March 3, 1875, § 1, 18 Stat. 470. The modifications of language to be found in the present version of this Act, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, were not intended to change in any way the meaning or content of the Act of 1875. See Reviser's Note to 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. The recent amendments to this Act, 72 Stat. 415, affected only jurisdictional amount and are not relevant here. See U.S.Code Cong. & Admin.News 1958, p. 2333, 85th Cong., 2d Sess.
6
1 Stat. 76.
7
The present version of § 9 is in 28 U.S.C. § 1333, 28 U.S.C.A. § 1333.
8
See 1 Farrand, Records of the Federal Convention (1911), 124; 2 id., at 46. The 'Court of Appeals in Cases of Capture' was the first national court under the Articles of Confederation. See Appendix, 131 U.S. xix—xxxv. In The Federalist, No. 80, Hamilton wrote: 'The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of martitime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction.' The Federalist, No. 80 (Lodge ed. 1908), at 497—498.
9
The original clause calling for the establishment of inferior tribunals was defeated in the Convention. 1 Farrand, Records of the Federal Convention (1911), 125. A compromise vesting power in Congress to establish such tribunals was agreed to. Ibid. See also id., at 124.
10
Thus Rutledge argued against the establishment of inferior federal tribunals saying 'that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts.' 1 Farrand, Records of the Federal Convention (1911), 124. See Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833; Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967.
11
Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429.
12
See New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 6 How. 344, 390, 12 L.Ed. 465; The Hamilton, 207 U.S. 398, 404, 28 S.Ct. 133, 134, 52 L.Ed. 264; 2 Story, Commentaries on the Constitution of the United States, § 1672. See also Dodd, The New Doctrine of the Supremacy of Admiralty Over the Common Law, 21 ColL.Rev. 647 (1921); Black, Admiralty Jurisdiction: Critique and Suggestions, 50 Col.L.Rev. 259 (1950).
13
Act of Sept. 24, 1789, § 9, 1 Stat. 76.
14
Act of Mar. 3, 1875, 18 Stat. 470.
15
The Belfast, 7 Wall, 624, 644, 19 L.Ed. 266; Leon v. Galceran, 11 Wall. 185, 188, 20 L.Ed. 74.
16
The removal provisions of the original Judiciary Act of 1789, 1 Stat. 79, conferred a limited removal jurisdiction, not including cases of admiralty and maritime jurisdiction. In none of the statutes enacted since that time have saving-clause cases been made removable.
17
Of course federal question jurisdiction was granted in the abortive Act of Feb. 13, 1801, § 11, 2 Stat. 92, repealed by Act of March 8, 1802, 2 Stat. 132.
18
See 2 Cong.Rec. 4986—4987; Frankfurter and Landis, The Business of the Supreme Court (1928), 65—69.
19
See The Federalist, No. 80 (Hamilton), note 8, supra.
20
See treatises cited in Appendix, 79 S.Ct. page 487. Lack of clarity in Marshall's opinion was suggested in Doucette v. Vincent, 194 F.2d 834, 834-844, note 8.
The City of Panama, 101 U.S. 453, 25 L.Ed. 1061, decided in 1879, four years after the passage of the Act of 1875, does not countenance the notion that Chief Justice Marshall's strict differentiation between the two provisions of § 2 of Art. III had been disapproved. That case only held that the Organic Act for the Territory of Washington, 10 Stat. 172, granted the courts of that Territory the combined jurisdiction of the District and Circuit Courts of the United States, thereby including, of course, admiralty jurisdiction. See In re Cooper, 143 U.S. 472, 494, 12 S.Ct. 453, 457, 36 L.Ed. 232. This holding merely recognized the settled practice in the Territory of Washington since the Act of 1853, as well as the practice in other territories with similar Acts. The Court's statement in The City of Panama that 'Select passages of the opinion in that case (Canter), when detached from the context, may appear to support the theory of the respondents, but the actual decision of the court is explicitly and undeniably the other way' merely indicated that Canter, like The City of Panama, interpreted a congressional statute to grant admiralty jurisdiction to territorial courts in light of the purposes of a particular statute. The City of Panama did not reject the principle of constitutional construction which Marshall used by way of reaching his 'actual decision.' It did not question the conclusion in Canter that the two clauses of Article III are distinct grants of jurisdiction and that this truth is to be observed whenever it becomes relevant as it does here. The City of Panama, like other decisions, serves to illustrate that jurisdictional statutes are not to be read literally, and are not to be construed as abstract collections of words, but derive their meaning from their setting in history and practice, with due regard to the consequences of the construction given them. See American Security & Trust Co. v. Commissioners of the District of Columbia, 224 U.S. 491, 32 S.Ct. 553, 56 L.Ed. 856; Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 49 S.Ct. 52, 73 L.Ed. 170.
21
E.g., Abbott in his treatise on the United States Courts and their Practice (3d ed. 1877), 60, discusses the Marshall formulation:
'The several cases to which the judicial power extends are to be regarded as independent, in the sense that any one clause is sufficient to sustain jurisdiction in a case to which it applies, and that it is neither restrained nor enlarged by the other clauses, with the exception of the restraint imposed by amendment XI. . . .' The author then discusses the classes of cases in Article III, concluding 'The grant of jurisdiction over one of these classes does not confer jurisdiction over either of the others; the discrimination is conclusive against their identity. A case of admiralty and maritime jurisdiction is not to be regarded as one 'arising under the Constitution and laws of the United States,' merely because the exercise of judicial power in maritime cases is provided for in the Constitution and laws.' (Citing American Ins. Co. v. Canter.)
See also Spear, The Law of the Federal Judiciary (1883), 46. Discussing the admiralty and maritime jurisdiction as granted by the Constitution, the author says:
'The cases coming within this jurisdiction, as referred to in the Constitution, are not identical with, or embraced in, the cases of law and equity referred to in the same instrument, as arising under the Constitution, laws, or treaties of the United States. They belong to a different category, and are provided for by a distinct and specific grant of judicial power.' He then quotes from Marshall's opinion in Canter.
22
The provision of the Act of 1875 under scrutiny originated in the Senate. The bill was sponsored and managed by Senator Matthew Hale Carpenter of Wisconsin. Its authorship has been attributed to him. 7 Reports of the Wisconsin State Bar Association 155, 186. On his death the bar journal of his state wrote that 'his love of and devotion to legal studies and pursuits not as objects but as subjects—were the controlling passions of his life. * * *
'* * * Such, however, was the devotion of Mr. Carpenter to his profession that his election to the United States senate seemed to be a matter of gratification principally for the broader field of professional labors which it enabled him to cultivate. * * *' 1 Reports of Wisconsin State Bar Association 227.
Among Senator Carpenter's collaborators on the Senate Judiciary Committee were men with outstanding professional experience as lawyers, professors of law and judges: George G. Wright of Iowa (a professor of law and a member of his State's Supreme Court), Allen G. Thurman (Chief Justice of the Ohio Supreme Court), John W. Stevenson (a professor of law, codifier of the law of Kentucky, President of the American Bar Association), and Frederic T. Frelinghuysen (eminent practitioner, Attorney General of New Jersey, subsequently Secretary of State).
After leaving the Senate the bill went to conference and was reported out on the floor of the House by Luke Poland of Vermont, an esteemed Chief Justice of the Vermont Supreme Court.
Such men would not have made a revolutionary change in maritime jurisdiction sub silentio.
23
All suits involving maritime claims, regardless of the remedy sought, are cases of admiralty and maritime jurisdiction within the meaning of Article III whether they are asserted in the federal courts or, under the saving clause, in the state courts. Romero's claims for damages under the general maritime law are a case of admiralty and maritime jurisdiction. The substantive law on which these claims are based derives from the third provision of Art. III, § 2, cl. 1. Without that constitutional grant Romero would have no federal claim to assert. Cf. 2 Story, Commentaries on the Constitution of the United States, § 1672.
24
See Frankfurter and Landis, The Business of the Supreme Court (1928), 64—65; Chadbourn and Levin, Original Jurisdiction of Federal Questions, 90 U. of Pa.L.Rev. 639, 644—645 (1942).
25
Of course, in a few instances, Congress has provided the federal admiralty courts with a specific statutory jurisdiction. E.g., Death on the High Seas Act, 41 Stat. 537 (1920), 46 U.S.C. §§ 761—767, 46 U.S.C.A. §§ 761—767.
26
Norton v. Switzer, 93 U.S. 355, 356, 23 L.Ed. 903.
27
See Appendix, 79 S.Ct. page 487.
27a
For reasons that would take us too far afield to discuss, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, offers us no exception.
28
Such provisions are in the Jones Act, 41 Stat. 1007 (1920), 46 U.S.C. § 688, 46 U.S.C.A. § 688 and in the Great Lakes Act, 5 Stat. 726 (1845), 28 U.S.C. § 1873, 28 U.S.C.A. § 1873. Neither the Suits in Admiralty Act of 1920, 41 Stat. 525, 46 U.S.C. §§ 741—752, 46 U.S.C.A §§ 741—752, nor the Death on the High Seas Act, 41 Stat. 537 (1920), 46 U.S.C. §§ 761—767, 46 U.S.C.A. §§ 761—767, allows a jury trial in personal injury cases. When the Death on the High Seas Act was being debated it was stated that 'That question was thrashed out and it was decided best not to incorporate into this bill a jury trial because of the difficulties in admiralty proceedings.' Congressman Igoe, speaking for the Judiciary Committee, 59 Cong.Rec. 4482, 60th Cong., 2d Sess. (1920).
29
The policy of unremovability of maritime claims brought in the state courts was incorporated by Congress into the Jones Act. See Pate v. Standard Dredging Corp., 5 Cir., 1952, 193 F.2d 498.
30
28 U.S.C. § 1441(b), 28 U.S.C.A § 1441(b): 'Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.'
31
See the compilation of state court cases in Seventh 5-Year Index-Digest of American Martitime Cases, 1953—1957 (1957), XLIII-XLVIII.
32
See, e.g., Madruga v. Superior Court of California, 346 U.S. 556, 560—561, 74 S.Ct. 298, 301, 98 L.Ed. 290: '(T)he jurisdictional act (the Act of 1789) does leave state courts 'competent' to adjudicate maritime causes of action in proceedings 'in personam' * * *. (T)his Court has said that a state, 'having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.' Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582.'
33
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; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. See Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806.
34
Vancouver S.S. Co., Ltd., v. Rice, 288 U.S. 445, 53 S.Ct. 420, 77 L.Ed. 885; Peyroux v. Howard, 7 Pet. 324, 8 L.Ed. 700. See also Edwards v. Elliott, 21 Wall. 532, 22 L.Ed. 487.
35
The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. 'Death is a composer of strife by the general law of the sea as it was for many centuries by the common law of the land.' Cardozo, J., in Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368.
36
The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903.
37
The Hamilton, supra; Just v. Chambers, supra; Western Fuel Co. v. Garcia, supra.
38
Madruga v. Superior Court of California, 346 U.S. 556, 74 S.Ct. 298.
39
Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274.
40
Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337.
41
Id., 348 U.S. at page 313, 75 S.Ct. at page 370.
42
'The grounds of objection to the admiralty jurisdiction in enforcing liability for wrongful death were similar to those urged here; that is, that the Constitution presupposes a body of maritime law, that this law, as a matter of interstate and international concern, requires harmony in its administration and cannot be subject to defeat or impairment by the diverse legislation of the States, and hence that Congress alone can make any needed changes in the general rules of the maritime law. But these contentions proved unavailing and the principle was maintained that a State, in the exercise of its police power, may establish rules applicable on land and water within its limits, even though these rules incidentally affect maritime affairs, provided that the state action 'does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations.' It was decided that the state legislation encountered none of these objections. The many instances in which state action had created new rights, recognized and enforced in admiralty, were set forth in The City of Norwalk, D.C., 55 F. 98, and reference was also made to the numerous local regulations under state authority concerning the navigation of rivers and harbors. There was the further pertinent observation that the martitime law was not a complete and perfect system and that in all maritime countries there is a considerable body of municipal law that underlies the maritime law as the basis of its administration. These views find abundant support in the history of the maritime law and in the decisions of this Court.' Just v. Chambers, 312 U.S. 383, 389—390, 61 S.Ct. 687, 692.
'It is a broad recognition of the authority of the States to create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction.' Id., 312 U.S. at page 391, 61 S.Ct. at page 693.
Thus Congress was careful to make the Death on the High Seas Act applicable only outside state territorial waters so as not to intrude on state legislative competence. 59 Cong.Rec. 4482—4486.
43
See, e.g., Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968.
44
Illustrative of this process is the recent case of Allen v. Matson Navigation Co., 9 Cir., 1958, 255 F.2d 273. The court remarked that 'In discussing the question of the duty which the defendant owed to its passengers, all of the parties agreed that the law of California is to be applied. The trial court made a like assumption. We find it unnecessary to indicate any view as to whether in this the parties were correct for as we see it, no matter which law applies, the rule is the same, whether that of California, or that of the maritime law.' Id., at page 277.
45
28 U.S.C. § 1391(a), 28 U.S.C.A. § 1391(a).
46
28 U.S.C. § 1391(b), 28 U.S.C.A. § 1391(b).
47
Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300. The more restrictive provisions apply in any action 'wherein jurisdiction is not founded solely on diversity of citizenship * * *.' 28 U.S.C. § 1391(b), 28 U.S.C.A. § 1391(b).
There may also well be situations in which the venue provisions prevent the joinder of defendants in a Federal District Court and the state court rules of procedure do not allow their joinder, thus precluding suit altogether.
48
Jenkins v. Roderick, D.C.Mass. 1957, 156 F.Supp. 299, 301.
49
In The Lottawanna, the Court clearly recognized that maritime law was a body of uniform federal law drawing its authority from the Constitution and laws of the United States.
50
115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319. Congress, with an exception having its own justification, has wiped out this unfortunate decision. Act of February 13, 1925, § 12, 43 Stat. 941, now 28 U.S.C. § 1349, 28 U.S.C.A. § 1349.
51
Of course the many limitations which have been placed on jurisdiction under § 1331 are not limitations on the constitutional power of Congress to confer jurisdiction on the federal courts. See Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; see Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 160—163 (1953).
52
Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248.
53
The District Court adjudicated only the Jones Act claim on the merits, dismissing for lack of jurisdiction the claims under the general maritime law. However, since the considerations are identical, we here dispose of all the claims against Compania Trasatlantica.
54
See Wildenhus' Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565.
55
142 F.Supp. 570, 573—574.
1
The grant of diversity of citizenship jurisdiction contained in 28 U.S.C. § 1332, 28 U.S.C.A. § 1332 contains no language which would include a suit by one alien against another, even where there might also be citizen defendants. For the constitutionality of a broader statute, at lease under Art. III, § 2, cl. 1, subclause 8, see Hodgson v. Bowerbank, 5 Cranch 303, 3 L.Ed. 108.
2
At the time of the commencement of petitioner's suit, § 1331 read:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States.'
Section 1, Act of July 25, 1958, 72 Stat. 415, increased the requisite jurisdictional amount to $10,000.
3
It is true that to a certain extent state law may be consulted in this area, at least where it does not work 'material prejudice to the characteristic features of the general maritime law' or interfere with 'the proper harmony and uniformity of that law * * *.' Southern Pacific Co. v. Jensen, supra, 244 U.S. at page 216, 37 S.Ct. at page 529. For example, recovery has made use of state wrongful death acts, The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, and of state survival statutes, Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903.
4
There is not presented here the problem of interpreting, in its periphery where state and federal elements are blended, the scope of the arising-under provisions of § 1331. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194.
5
Since § 1331 is derived from § 1 of the Judiciary Act of 1875, 18 Stat. 470, and since the language of the jurisdictional grant in that Act is taken from Art. III, § 2, it is worthy of note that the earlier draft forms of Article III had provided that the judicial power should extend to 'cases arising under laws passed by the legislature of the United States.' See Madison's Diary, for July 26, August 6, and August 27, 1787 (II Elliot's Debates (2d ed. 1941) 368, 376, 380); Warren, The Making of the Constitution (1937 ed.), 538—539; United States v. Flores, 289 U.S. 137, 148, 53 S.Ct. 580, 582, 77 L.Ed. 1086.
6
It is argued that the policy of § 1331 'to insure the availability of a forum designed to minimize . . . hostility . . . to the vindication of federally created rights,' has no application here because of the availability of a federal forum under § 1333. Substantially the same argument could be made in a diversity case under § 1332 since it would be assumed that the admiralty would be impartial in treatment of out-of-state parties. Cf. Paduano v. Yamashita Kisen Kabushiki Kaisha, supra, 221 F.2d at page 618.
7
§ 1, Act of March 3, 1875, c. 137, 18 Stat. 470. This was the first permanent statute vesting original 'arising under' jurisdiction in the federal courts. Section 11 of the Act of February 13, 1801, c. 4, 2 Stat. 92, extended such jurisdiction, but it was shortly repealed by § 1 of the Act of March 8, 1802, c. 8, 2 Stat. 132.
8
I might say that I do not think impressive the Court's argument that because the members of the Senate Judiciary Committee and other Congressmen in 1875 were men of large legal attainments and learning they could not have intended a result contrary to the Court's when they participated in the enactment of the Judiciary Act. The Court states that public ministers, and consuls; to all cases have made such a 'revolutionary' change in the maritime jurisdiction as a holding these as three distinct classes of supposed to be. But cf. Frankfurter and Landis, op. cit., supra, at 65: 'This development in the Federal Judiciary ('arising-under' jurisdiction), which in retrospect seems revolutionary, received hardly a contemporary comment.' At any rate, the Court's argument, to me, combines an unwarranted historical 'cult of the personality' with an attribution of one's own views to prior generations. What is not involved here is some sort of conspiratorially silent change in federal jurisdiction, but the question whether a tacit exception should be engrafted on a thoroughgoing and explicit new jurisdictional grant; whether we should 'read out' of the statute 'what as a matter of ordinary English speech is in.' United States v. Hood, 343 U.S. 148, 151, 72 S.Ct. 568, 570, 96 L.Ed. 846.
9
Marshall's statement in full is as follows:
'The Constitution and laws of the United States, give jurisdiction to the District Courts over all cases in admiralty; but jurisdiction over the case, does not constitute the case itself. We are therefore to inquire, whether cases in admiralty, and cases arising under the laws and Constitution of the United States, are identical.
'If we have recourse to that pure fountain from which all the jurisdiction of the Federal Courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares, that 'the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers, and counsuls; to all cases of admiralty and maritime jurisdiction.'
'The Constitution certainly contemplates there as three distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over either of the other two. The discrimination made between them, in the Constitution, is, we think, conclusive against their identity. If it were not so, if this were a point open to inquiry, it would be difficult to maintain the proposition that they are the same. A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise.' 1 Pet. at pages 545—546.
10
I advert to these constitutional views only for such light as they may shed on Congress' probable intent at the time the Act of 1875 was under consideration. Marshall's statement may be thought to have been made in constitutional terms. As I have developed above, there can be no constitutional argument against the power of Congress to allocate this type of action, at least concurrently, to the law side of a federal court.
11
The power to enforce the remedy was in fact found in another section of the territorial organic act, § 7, 3 Stat. 752, under which jurisdiction could be vested in the court in question, rather than in the territorial Superior Court, to which § 8 related. Cf. note 14, infra.
12
This seems to be the import of the first sentence from the Marshall dictum quoted in note 9, supra. And see note 13, infra.
13
The opinion of Justice Johnson in the Canter case, rendering the judgment in the Circuit Court which Marshall's opinion affirmed on appeal, makes this very distinction. Johnson rejected the idea that the constitutional grant of admiralty jurisdiction made all admiralty cases cases arising under the Constitution. He did not believe that the cause of action for salvage arose under the Constitution or the laws of the United States. Yet he recognized, and enumerated, cases of a maritime nature where the substantive rights were rooted in federal law, and to which the grant of 'arising under' jurisdiction would extend. American Ins. Co. v. Canter, 1 Fed.Cas. page 662, No. 302a. Johnson sat in the Supreme Court on the appeal, and did not express any indication that Marshall's opinion was contrary to what he had said at circuit. In fact, Marshall's language that 'jurisdiction over the case does not constitute the case itself,' note 9, supra, appears to recognize Johnson's distinction; the constitutional grant of admiralty jurisdiction does not mean that all admiralty cases are 'arising under' cases; the substantive law governing the case is determinative. Cf. People of Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 77 L.Ed. 903.
14
Only four years after the passage of the 1875 Act, the Court rejected Marshall's dictum in the very narrow application that it had at the time it was originally delivered. In The City of Panama, 101 U.S. 453, 25 L.Ed. 1061, the Court again was considering the power of a territorial court to enforce remedies peculiarly within the competence of a court of admiralty. A counterpart to the section on which Marshall finally predicated the jurisdiction in Canter was not presented by the case, and the Court based jurisdiction on a section of the territorial organic act similar to the one Marshall had rejected, i.e., on § 9, 10 Stat. 175, 176, which extended jurisdiction in certain 'cases arising under the constitution and laws of the United States.' In holding that this 'arising under' language granted admiralty jurisdiction, the Court referred to Canter: 'Select passages of the opinion in that case, when detached from the context, may appear to support the theory of the respondents, but the actual decision of the court is explicitly and undeniably the other way.' 101 U.S. at page 458.
Of course, the question whether 'arising under' language in an organic act for a territory should be taken as vesting the entire admiralty jurisdiction, the subject of the Canter and Panama decisions, in itself has no relation to the issue here. It is not contended that § 1331 somehow entitles the federal district courts to exercise all the admiralty power 'at law.' The issue is whether that section grants them a jurisdiction at law over federally based claims that remains unaffected by the circumstance that particular claims may be of a maritime nature.
15
The original repositories of the diversity jurisdiction, § 11, Act of September 24, 1789, c. 20, 1 Stat. 78.
16
Judge Magruder thoroughly developed his views in Doucette v. Vincent, 1 Cir., 194 F.2d 834.
17
The Seventh 5-Year Index-Digest of American Maritime Cases, 1953—1957 (1957), xliii-xlviii. This source reports all state court decisions, including those not published otherwise.
18
The Court later, however, recognizes that no one is arguing that all Saving Clause actions per se are encompassed by § 1331. But the argument then progresses that it will be unfortunate if the courts are forced to determine in limine whether various Saving Clause actions do or do not 'arise under' for § 1331 purposes. Is it really an obstacle to the efficient administration of justice if a trial court, at the first stage of litigation, is called upon precisely to determine what is the legal system that has created the cause of action on which the plaintiff is suing?
| 78
|
3 L.Ed.2d 524
79 S.Ct. 503
358 U.S. 588
THE Vessel M/V 'TUNGUS,' Her Boilers, Etc., and Den Norske Afrika-Ogv.Olga SKOVGAARD, Administratrix Ad Prosequendum of the Estate of Carl E. Skovgaard, Deceased, et al.
No. 43.
Argued Oct. 23, 1958.
Decided Feb. 24, 1959.
[Syllabus from 597 intentionally omitted]
Mr. J. Ward O'Neill, New York City, for the petitioners.
Mr. Bernard Chazen, Hoboken, N.J., for the respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
On the evening of December 5, 1952, the motor vessel Tungus docked at Bayonne, New Jersey, with a cargo of coconut oil in its deeptanks. El Dorado Oil Works had been engaged by the consignee to handle the discharge of this cargo, and for the next several hours the work of pumping the oil ashore was carried on by El Dorado employees, using a pump and hoses furnished by their employer. Two officers and two crew members of the Tungus remained aboard, the latter specifically assigned to assist in the discharge operations. Shortly after midnight the pump became defective, resulting in the spillage of a large quantity of oil over the adjacent deck area. The pump was stopped and the oil cleaned from its immediate vicinity. Efforts to restore the pump to normal operation were unsuccessful, and Carl Skovgaard, an El Dorado maintenance foreman, was therefore summoned from his home to assist in the repair work. After arriving on board he walked through an area from which the oil had not been removed, and in attempting to step from the hatch beams to the top of the partly uncovered port deep tank, he slipped and fell to his death in eight feet of hot coconut oil.
2
His widow and administratrix, the respondent here, commenced this suit in admiralty against the ship and its owners to recover damages for his death, alleging unseaworthiness of the vessel and a negligent failure to provide the decedent with a reasonably safe place to work.1 The District Court dismissed the libel, holding that a wrongful death action for unseaworthiness would not lie, and that the petitioners owed no duty of exercising ordinary care to provide the decedent a safe place to work. 141 F.Supp. 653. The Court of Appeals set aside this decree and remanded the case for further proceedings, a divided en banc court deciding that the New Jersey Wrongful Death Act, N.J.S.A. 2A:31—1 et seq., embraces a claim for unseaworthiness, and also that the District Court had erred with respect to the scope of the petitioners' duty to exercise reasonable care for the decedent's safety. 252 F.2d 14. The court did not decide 'what defenses, if any, might be available,' leaving that question for the District Court to determine. Certiorari was granted primarily to consider the relationship of maritime and local law in cases of this kind. 357 U.S. 903, 78 S.Ct. 1146, 2 L.Ed.2d 1154.
3
We begin as did the Court of Appeals with the established principle of maritime law that in the absence of a statute there is no action for wrongful death. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358. Although Congress has enacted legislation, notably the Jones Act2 and the Death on the High Seas Act,3 providing for wrongful death actions in a limited number of situations,4 no federal statute is applicable to the present case; Skovgaard was not a seaman,5 and his death occurred upon the territorial waters of New Jersey.6 The respondent's rights in this suit depended entirely, therefore, upon the New Jersey wrongful death statute, and the long-settled doctrine that 'where death * * * results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.' Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210.
4
The primary issue in this case, therefore, as the Court of Appeals unanimously saw it, was whether the New Jersey statute giving a right of action where death is caused 'by a wrongful act, neglect or default' is broad enough to encompass an action for death caused by the unseaworthiness of a vessel.7 It was upon this issue—construction of the state statute—that the court divided.
5
The respondent asks us to uphold the interpretation which the majority in the Court of Appeals has put upon the New Jersey statute. Failing that, a much broader alternative argument is advanced—that a court in a case such as this may disregard completely the conditions which the State has put upon the right it has created, and may apply instead the full corpus of the maritime law, free of any qualifications imposed by the State. If death occurs upon navigable waters within a State, the argument runs, the law should seize only upon the blunt fact that there is some kind of state statute providing some kind of a right of action for death caused by some kind of tortious conduct. That, it is said, is enough to fill the 'void' in the maritime law, which then becomes applicable in all its facets, without further inquiry as to what it is that the State has actually enacted.
6
This broad argument must be rejected. The decisions of this Court long ago established that when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached. That is what was decided in The Harrisburg, where the Court's language was unmistakable: '* * * (I)f the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. * * * The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right.' 119 U.S. 199, at page 214, 7 S.Ct. 140, at page 147. That is the doctrine which has been reiterated by the Court through the years.8 See The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; La Bourgogne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319; cf. Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903.
7
'(A)dmiralty courts, when invoked to protect rights rooted in state law, endeavor to determine the issues in accordance with the substantive law of the State.' Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 251, 87 L.Ed. 239. The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all; it may not pick or choose.
8
It is manifest, moreover, that acceptance of the respondent's argument would defeat the intent of Congress to preserve state sovereignty over deaths caused by maritime torts within the State's territorial waters. The legislative history of the Death on the High Seas Act discloses a clear congressional purpose to leave 'unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States.' S. Rep. No. 216, 66th Cong., 1st Sess. 3; H.R.Rep. No. 674, 66th Cong., 2d Sess. 3. The record of the debate in the House of Representatives preceding passage of the bill reflects deep concern that the power of the States to create actions for wrongful death in no way be affected by enactment of the federal law. 59 Cong.Rec. 4482—4486.
9
There is no merit to the contention that application of state law to determine rights arising from death in state territorial waters is destructive of the uniformity of federal maritime law. Even Southern Pacific Co. v. Jensen, which fathered the 'uniformity' concept, recognized that uniformity is not offended by 'the right given to recover in death cases.' 244 U.S. 205, at page 216, 37 S.Ct. 524, at page 529, 61 L.Ed. 1086. It would be an anomaly to hold that a State may create a right of action for death, but that it may not determine the circumstances under which that right exists. The power of a State to create such a right includes of necessity the power to determine when recovery shall be permitted and when it shall not. Cf. Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968.
10
We hold, therefore, that the Court of Appeals was correct in viewing the basic question before it as one of interpretation of the law of New Jersey. It is within that frame of reference that we consider the issues presented.
11
The negligence claim needs little discussion. Obviously the New Jersey wrongful death statute embraces a claim for death negligently caused. The majority in the Court of Appeals pointed out that the officers and crew of the Tungus remained in over-all control of the vessel, and that they were well aware of the existence of the oil spill and of the danger created by it for approximately an hour before Skovgaard arrived on board. Upon these facts it was concluded that the law imposed upon the petitioners a duty of exercising ordinary care to provide Skovgaard with a reasonably safe place to carry on his work of repairing the pump. In reaching this conclusion the court distinguished the New Jersey Supreme Court's decision in Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194. We find no reason to question the disposition of this branch of the case.
12
As to the other issues, a majority of the Court of Appeals concluded that a claim for unseaworthiness is encompassed by the New Jersey Wrongful Death Act as a matter of state law.9 The three dissenting members of the court reached the opposite conclusion. Apparently because the trial court had made no finding as to the decedent's contributory negligence or assumption of risk, the Court of Appeals refrained from deciding what effect state law would give to such findings, leaving that question to be decided if it arose on retrial.
13
In a case such as this it is incumbent upon the admiralty to enforce the New Jersey statute just 'as it would one originating in any foreign jurisdiction.' Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916, 97 L.Ed. 1319. Yet the fact is that the New Jersey courts have simply not spoken upon the question of whether in a case such as this maritime law or common law is applicable under the State's Wrongful Death Act. In sum, there is no way of knowing whether New Jersey would impose uniform legal standards throughout its jurisdiction, or would apply in this case rules different from those that would govern if, instead of meeting his death aboard the Tungus, Skovgaard had been killed on the adjacent dock. An effort to resolve that question here, no less than the effort of the Court of Appeals, could be nothing but a prediction, a prediction that might tomorrow be proved wrong by the courts of New Jersey, which alone have power to render an authoritative interpretation.
14
In view of these considerations, it might plausibly be argued that the judgment should be vacated, and the case remanded to the District Court to be held until the parties can secure from the courts of New Jersey a decision upon the controlling and seriously doubtful question of state law. Under traditional principles of equitable abstention this Court has often followed such a course for the limited and obviously wise purpose of avoiding unnecessary resolution of constitutional issues. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267. Cf. Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876.
15
Before deciding to dispose of a case like the present one in that way, however, important and competing jurisdictional considerations would have to be thoroughly evaluated. See Propper v. Clark, 337 U.S. 472, 486—489, 69 S.Ct. 1333, 1341—1343, 93 L.Ed. 1480; Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. This case has not presented the occasion for full exploration of these jurisdictional questions.10 The Court of Appeals, en banc, has given careful consideration to the meaning of the state statute. We cannot say that its conclusion is clearly wrong. Therefore, despite the inherent uncertainties involved, we will not disturb that court's interpretation of the New Jersey law. Such a course is consistent with the practice that has been followed in the past. Estate of Spiegel v. Commissioner, 335 U.S. 701, 707—708, 69 S.Ct. 301, 303—304, 93 L.Ed. 330; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520; General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 732, 100 L.Ed. 1055.
16
Affirmed.
17
Mr. Justice FRANKFURTER, concurring in the opinion of the Court.*
18
Deeming the proper determination of the substantive issues of admiralty law of such controlling importance, I abstain from stating my strong conviction, heretofore expressed, that in situations like the present, the construction of state law should not, as a matter of the wise administration of law, be made independently by the lower federal courts, but its authoritative construction should be sought, under readily available state procedure, from the state court, while the case is held in the federal court. See my opinions in Sutton v. Leib, 342 U.S. 402, 412-414 (concurring opinion), and Propper v. Clark, 337 U.S. 472, 493-497 (dissenting opinion), in connection with Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500; Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 484.
19
Where an issue is solely concerned with diversity jurisdiction, as was the situation in Meredith v. Winter Haven, 320 U.S. 228, a different consideration may become relevant. "For purposes of diversity jurisdiction a federal court is, 'in effect, only another court of the State.'" Angel v. Bullington, 330 U.S. 183, 187.
20
Mr. Justice BRENNAN, with whom The Chief Justice, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
21
It should be clear from the Court's statement of facts that the respondent's decedent Skovgaard, was at the time of the accident aboard the Tungus in order to assist in repairing the pump used in discharging its cargo of oil—in unloading the vessel. While he was not a member of the crew, but rather an employee of an independent contractor, he was unquestionably one to whom the vessel owed the duty of seaworthiness. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 412—413, 74 S.Ct. 202, 206—207, 98 L.Ed. 143. This means that there was, as it is often put, a 'warranty,' or more precisely stated, an obligation, a duty owed to certain persons, that the vessel and its equipment, appurtenances and crew met a certain standard. For any breach of that duty, any failure to meet that standard, on the part of the vessel, which gave rise to injury to a person to whom that duty was owed, the vessel and its owner were bound to respond in damages. If that duty was in breach here, and Skovgaard's fall, occasioned thereby, had injured him short of death, there would be no doubt that federal law would afford him a remedy for the injury, and that free of any defense imposed by the law of the State in whose territorial waters the accident took place.1 Pope & Talbot, Inc., v. Hawn, supra, 346 U.S. at pages 409 410, 74 S.Ct. at pages 204—205. But Skovgaard's injuries were almost immediately fatal, and, as is evident from the record, the principal, if not the sole, claim for damages arising out of the alleged breach of the duty of seaworthiness must be for the damages caused by his death. It was decided in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, that the federal maritime law did not afford a remedy for the death of a human being, even where the death arose out of a tortious breach of maritime duty.
22
In the light of this holding, the Court addresses itself to the problem whether the New Jersey Wrongful Death Act can be utilized to furnish a remedy for the breach of the federally defined duty owed to Skovgaard. In reaching its solution of this problem, I fear that it has posed the wrong question. The Court takes the view that it is a question of state law whether the respondent can utilize the New Jersey Act to supply a remedy for the breach of the duty of seaworthiness charged here. It accepts the answer of the Court of Appeals to this question. The problem to the Court is one of construction of the State Act to determine whether it 'incorporates' the maritime standard. This is also the view taken by the lower courts of what the basic question in this case is. I think it is wrong, and I shall state my reasons why.
I.
23
First. I have developed that Skovgaard was entitled to the duty of seaworthiness at the time of the accident, and that there would be no concern at all with state law in this regard if he had been injured short of death. But the holding of The Harrisburg, supra, denies the existence of a federally created remedy for wrongful death arising out of maritime torts. Though this holding was far from being at one with the results that had been reached in the lower admiralty courts prior to it, and was based largely on an application of the harsh common-law principle, then rather lately evolved,2 that in the absence of an appropriate statute there was no civil remedy for wrongful death, the holding has become part and parcel of our maritime jurisprudence. But its harshness was averted by the practice in admiralty of drawing on the state wrongful death statutes to furnish remedies for fatal maritime torts. To an extent this practice antedated The Harrisburg, as the cases cited in that opinion illustrate. See, e.g., The Garland, D.C., 5 F. 924. It was continued thereafter, and even extended to torts committed on the high seas, beyond the territorial waters of any State. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264. And after the passage by the Congress of the Death on the High Seas Act in 1920, 41 Stat. 537, 46 U.S.C. § 761 et seq., 46 U.S.C.A. § 761 et seq., which established a federal remedy for cases of wrongful death occurring more than a marine league from shore, state acts continued to be used by the admiralty, pursuant to the terms of the Act, in the case of wrongs occurring in territorial waters.
24
Though the individual statutes vary in terminology and to an extent in concept, all the States have wrongful death acts—acts which provide remedies to a decedent's estate, or to certain specified beneficiaries, for the harm done on account of the tortious killing of the decedent. While the course of development of the common law has brought it about that this remedy has always been embodied in a statutory enactment, the existence of such a remedy is now a basic premise of the law of torts administered throughout the country. And with the Death on the High Seas Act and the state statutes, the federal admiralty law has available a remedy to fashion for the fatal breach of a maritime duty anywhere within its jurisdiction.
25
Second. Can such a remedy, based on a state statute, be afforded for breach of the duty, imposed by federal law, to maintain a vessel in seaworthy condition? I think it can. The question is viewed by the Court today and by the courts below as one of interpretation of the statute of a particular State; the Court of Appeals divided over what intent should be ascribed to the New Jersey Legislature in enacting that State's Wrongful Death Act. The process of divining the 'intent' of the various state legislatures in such circumstances is not a completely fruitful one, as the Court's opinion makes abundantly clear, and, as I have intimated, I do not believe it is part of the real question the Court should be asking here. The Court has simply failed to grasp the important distinction here between duties and remedies; between the law governing the details of human behavior and the law governing the specific application of judicial sanctions for breach of duty. It is vital to an understanding of this case to recall that the duty claimed to have been broken here was one grounded in federal law. It would be a strained statement of the effect of The Harrisburg to say that there was no duty imposed by the maritime law not to kill persons through breach of the duty of seaworthiness. The libel alleged a condition constituting a breach of a federally defined duty and set forth a cause of action under federal law, and this nonetheless because the breach of the federal duty had resulted in death rather than in nonfatal injury. It is the federal maritime law that looks to the state law of remedies here, not the state law that incorporates a federal standard of care. This Court plainly declared in Pope & Talbot, Inc., v. Hawn, supra, 346 U.S. at page 409, 74 S.Ct. at page 205, that even when the injured party seeks to enforce 'a state-created remedy' for the breach of the federally defined duty owing to him, 'federal maritime law would be controlling.' The Court today does not refer to this recent expression, clearly of the greatest relevance here. Given a federal legal system where the remedy for wrongful death is as universal as in ours, I think it unwarrantedly destructive of the uniformity of the federal maritime law, cf. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086,3 to make the applicability of a remedy for the breach of a federally defined duty resulting in death dependent on a frankly suppositious determination of the intent of the various state legislatures, generally acting at a time long before a clear concept of the scope of the federal duty had emerged. And of course this determination will almost invariably be made by the federal courts.
26
The Court's solution not only creates potential differences in the availability of a remedy for breach of the federally created duty where the victim dies as opposed to cases where he is injured short of death; those differences may exist in varying degrees as to maritime torts occurring in the territorial waters of various States. I cannot think that any such variation is appropriate or necessary in the enforcement of the cause of action for unseaworthiness. The federal duty need not be subject to this potential diversity of remedies. Cf. Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 251, 87 L.Ed. 239.4 The existence of a remedy for wrongful death has become almost a postulate of our legal system, though the remedy was generally provided by legislation rather than by the decisional law. It is against this background that the federal law must look for an appropriate remedy to enforce its duties in a complete and rational way. Cf. Cox v. Roth, 348 U.S. 207, 210, 75 S.Ct. 242, 244, 99 L.Ed. 260. Any state statute which generally provides remedies for tortious death can and should be drawn upon by the maritime law in enforcing the federal cause of action. Cf. Just v. Chambers, 312 U.S. 383, 389, 61 S.Ct. 687, 692, 85 L.Ed. 903.
27
It is true that for state-law purposes these statutes are frequently spoken of as creating a 'new cause of action.' See Turon v. J. & L. Construction Co., 8 N.J. 543, 556, 86 A.2d 192, 198; Ake v. Birnbaum, 156 Fla. 735, 751, 25 So.2d 213, 215, 216;5 cf. Seward v. The Vera Cruz, 10 A.C. 59, 67. And so they do, in the sense that they give remedies where frequently none existed before, in favor of classes of persons potentially different from the distributees of a decedent's estate, and in the large to an extent designed to furnish redress for the death. And it is further true that not every tort duty imposed by a particular State's law may be afforded a remedy by them. But insofar as these acts have as their purpose the effecting of a general and rough equivalency between the duties for breach of which a remedy lies in the case of injuries causing death and those short of it, they can be proper subjects for the flexibility of the federal maritime law in fashioning a remedy for breach of the duty of seaworthiness. The content of the concept of 'cause of action' is a variable and uncertain one, and there is little point in analyzing the various senses in which it has been used in connection with the state statutes. In a real sense the state acts are remedial, and as such they can be used by the admiralty Used in this way for remedial purposes, they would not interfere with the uniform character of the general maritime law, cf. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384, 38 S.Ct. 501, 504, 62 L.Ed. 1171, but rather would be an effective method of promoting it.
28
Of course there is no objection to using state remedial incidents to supplement and enforce duties arising under federal law. The federal courts of their own initiative have used state statutes for remedial purposes when federal duties were concerned. State statutes of limitation applicable to analogous types of claims have been utilized to define the limitations of federal rights of action for which no federal statute of limitations has been provided. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; cf. Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743; Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers Union, 6 Cir., 193 F.2d 209, 215. This remedial incident, tied up with the felt necessity of having some statutory definition, is drawn upon not because of any intent of the state legislatures to make their statute applicable to federal claims, but because it could be rationally utilized through analogy by courts charged with the enforcement of federal rights and duties and the construction of a proper pattern of remedies to that end. It is on such a basis that the federal maritime law here, in my view, can make use of the New Jersey statute to enforce those duties that are grounded in federal law.
29
I am supported in this conclusion by two carefully reasoned opinions of the New York Court of Appeals. Kuhn v. City of New York, 274 N.Y. 118, 8 N.E.2d 300; Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718. Both cases considered actions brought in the state courts under the Saving Clause, 28 U.S.C. § 1333(1), 28 U.S.C.A. § 1333(1), to redress maritime torts which resulted in death. The actions were based upon the maritime theories of negligence and unseaworthiness. The New York Court of Appeals held that the State's Wrongful Death Statute, Decedent Estate Law, § 130, afforded only an appropriate remedy for breaches of duties which were to be recognized as essentially federal in their source and uniform in their application: '(W)e must look to the decisions of the Federal courts to define the liabilities of shipowners for maritime torts, leaving out of consideration decisions of our own courts or statutes of the State which conflict with the rules of liability established in the Federal courts.' Riley v. Agwilines, Inc., 296 N.Y. 402, 405—406, 73 N.E.2d 718, 719. The court clearly viewed the issue of the duties alleged to have been in breach to be not a matter of interpretation of the New York Wrongful Death Statute but to be a question upon which the federal maritime law was compelling.6 Cf. O'Leary v. United States Lines Co., 1 Cir., 215 F.2d 708, 711.
30
Third. I find no reason to reach a contrary result in the authorities relied upon by the Court, or urged by the petitioner. It is true that there is language in The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358, describing the state Wrongful Death Act enforced by the admiralty as creating both a liability and a remedy. But the legal source of the duty sought to be enforced there was not claimed or recognized to be rooted in federal law. The case was decided long before the cause of action for unseaworthiness reached its present mature state, recognized as being federal in its origin and incidents. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, supra; Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. And The Harrisburg, on this point, together with Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, on which there is also reliance, actually held that in an admiralty action using the state Wrongful Death Act the state statute of limitations applicable to actions under the state law using the state act would be utilized. This was a solution to one aspect of the limitations problem in maritime personal tort actions, see McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224, 228—229, 78 S.Ct. 1201, 1206—1207, 2 L.Ed.2d 1272. The most readily available limitations period for an action making use of a state Wrongful Death Act was the period stated therein, and the Court relied on it rather than the admiralty rule of laches. In Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, the Court was not concerned with a situation in which the duty alleged to have been broken was as clearly federal as is that in the instant case, and it was apparently assumed that the right to be enforced was grounded in state law. The action was not a seaman's or harbor worker's action at all, but rather arose out of a collision between two motorboats on the Ohio River, fatal to a girl riding in one of them. And of course the holding of the Court there is of no assistance to the majority, since a state-law procedural incident, alleged to be binding since the admiralty was making use of the state act, was in fact rejected. Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686, which held that a seaman's representative could not sue for unseaworthiness under a state Wrongful Death Act, does not govern this point at all. The opinion dealt primarily with the effect of the Jones Act's wrongful death provision in removing the seaman's right to invoke the remedies of State Death Acts for the identical gravamen of negligence. And, although the libel did not allege unseaworthiness, the Court briefly observed that the Jones Act's death provision would be construed equally as foreclosing a state statute's use on that count. The case provides no rule here, since its holding was premised on the Jones Act, and to Skovgaard's injury and death the Jones Act is not applicable.7 Finally, there is not presented here any question of the extent to which a State is required to supply a forum for the enforcement of the duties here involved. Cf. Caldarola v. Eckert, 332 U.S. 155, 158, 67 S.Ct. 1569, 1570, 91 L.Ed. 1968;8 but cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967.
31
The Court's reasoning that the Death on the High Seas Act is somehow dispositive of the question presented today appears to me to continue its confusion between the rights and duties of the parties and the remedial pattern to be followed in enforcing them. No one is contending that the state statutes are to be given no operation in this area; they are an important remedial incident of the right that respondent seeks to assert here. Of course Congress in the Death on the High Seas Act was interested in preserving their availability. There is, however, no suggestion in the Act or its legislative history that Congress intended that the substantive law of the States be the only law applicable in death cases in territorial waters, or that in fact it be applicable at all in particular proceedings. The effect of Congress' action was to leave the state statutes available as remedial measures in territorial water death cases. It offers no guide for any conclusion as to what substantive law is to apply under the state acts in situations where federally created rights and duties would have prevailed had the injury not been fatal. The only concrete examples of what the Congress was interested in saving to the States given on the floor of the House were the jurisdiction of the state courts, which was dwelt on at length, 59 Cong.Rec. 4484—4485, and the maintenance of the state scheme of beneficiaries, ibid., which is not challenged here. It is odd to draw restrictive inferences from a statute whose purpose was to extend recovery for wrongful death. The legislative history does not reveal the utmost precision in thought regarding the role of state law here, but certainly there is no clear basis in it from which to infer that the Court's anomalous result is a necessary one.
32
Clearly, then, neither the decided cases nor legislative materials foreclose the question of the approach to state Wrongful Death Acts that should be taken by the federal admiralty law in fashioning remedies for breach of the federally defined duty with which we are here concerned. And as I have indicated, the vital principles of the admiralty law as defined by this Court in the past point to the result I have indicated. A proper uniformity on essential matters of maritime cognizance, see Just v. Chambers, 312 U.S. 383, 389, 61 S.Ct. 687, 692, 85 L.Ed. 903, cannot be reached by making the availability of this remedy dependent upon exegesis of the statute of each State. It is enough for me that the State provide such a remedy in a general way; the remedy is now a universal feature of the common-law system in this country, and in its essential features offers a sufficient basis for the operation of the general maritime law. While there is ground for local variation on nonessential matters, on the essentials the admiralty may look to uniform features in these statutes rather than to the diverse. The Court's anomalous result that different systems of law govern in determining the tortious character of conduct, depending on whether it kills or merely injures its victim, is a conscious choice of a nonuniform solution on an essential matter, and as such contrary to one of the basic principles of admiralty law.
33
It might be contended that the contours of the various state remedies are so diverse in the varying lists of statutory beneficiaries they provide that the area becomes one in which uniformity cannot in any event be attained, and accordingly it could be said to be inappropriate to seek uniformity even in the content of the duty to be enforced. I cannot find such a contention persuasive. The distribution of funds accruing to a decedent's representatives by reason of his death is a matter, in our federal system, peculiarly within the competence of the States. Certainly it is not a matter more destructive of the uniform character of the maritime law than were the state statutes of limitations enforced in Western Fuel Co. v. Garcia, supra. And it is no more disturbing to the maritime law whether the state distributional scheme is one provided generally by its law or one peculiar to its Wrongful Death statute.9
II.
34
Petitioner contends that, on the respondent's negligence claim, the Court of Appeals improperly applied federal law to the determination of the question whether a duty to furnish a reasonably safe place to work was owed the decedent by the respondent vessel and its owner. On this aspect of the case, the Court of Appeals, citing both New Jersey and federal cases, indicated that such a duty existed and that it would have been tortious for the respondent negligently to have failed to provide a safe place. It remanded the case to the District Court for findings on the issue of negligence and on any defenses on that issue that might be available to the petitioner. Petitioner contends here that New Jersey law applies to the question whether such a duty was owed, alleging that the New Jersey precedents are contrary to the result reached by the court below. Although it believes that the Court of Appeals properly applied New Jersey law, the Court accepts the contention that state law applies here. In view of what I have said above, I cannot agree. In Pope & Talbot, Inc., v. Hawn, supra, 346 U.S. at page 409, 74 S.Ct. at page 204, it was made clear that the duty imposed by the theory of negligence to act in accordance with a standard of reasonable care, when coupled with the duty to maintain a seaworthy ship, owed to a person in Skovgaard's statuts, was a federally created duty. Cf. The Max Morris, 137 U.S. 1, 14—15, 11 S.Ct. 29, 32—33, 34 L.Ed. 586. The factual circumstances involving proof of negligence and of unseaworthiness, where both are claimed, are generally intertwined. Pope & Talbot, Inc., v. Hawn, supra, 346 U.S. at page 416, 74 S.Ct. at page 208 (concurring opinion); McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224—225, 78 S.Ct. 1201, 1203—1204, 2 L.Ed.2d 1272. Cf. Baltimore S.S. Co. v. Philips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069. My view is that it is plain that in enforcing the related duty imposed by the obligation not negligently to inflict harm the federal courts must look to state Wrongful Death Acts in the same light as I have indicated it is appropriate to look at them in enforcing the duty to maintain a seaworthy vessel. The basis for the holding that New Jersey law applies is the Court's acceptance of a distinction in primary legal duties in respect to maritime accidents causing fatal as opposed to nonfatal injuries. As I have developed above, I cannot view any such distinction as tenable. Since the Court of Appeals' holding on the negligence issue was correct as a matter of federal law, its judgment should be affirmed on this point, except to the extent that it directed the District Court to determine what defenses were available as a matter of New Jersey law.
III.
35
Admiralty law is primarily judgemade law. The federal courts have a most extensive responsibility of fashioning rules of substantive law in maritime cases. See Wilburn Boat Co. v. Fireman's Fund Inc. Co., 348 U.S. 310, 314, 75 S.Ct. 368, 370, 99 L.Ed. 337; cf. The John G. Stevens, 170 U.S. 113, 126—127, 18 S.Ct. 544, 549—550, 42 L.Ed. 969. This responsibility places on this Court the duty of assuring that the product of the effort be coherent and rational. Admiralty law is an area where flexibility and creativity have been demonstrated in accomplishing this. Today the Court announces the strange principle that the substantive rules of law governing human conduct in regard to maritime torts vary in their origin depending on whether the conduct gives rise to a fatal or a nonfatal injury. I have demonstrated that it does so under no compulsion of binding precedent here or of Act of Congress. Its anomalous result is purely of its own making. Certainly the responsibility incumbent upon this Court in this area demands more by way of fulfillment than the Court has furnished today.10
36
For the reasons I have stated, I concur in the judgment affirming the judgment of the Court of Appeals, except to the extent I have just indicated.
1
The libel also asserted a claim, presumably under the New Jersey survival statute, N.J.S.A. 2A:15—3, for damages sustained by the decedent prior to his death. This claim has been abandoned.
2
41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688.
3
41 Stat. 537 et seq., 46 U.S.C. § 761 et seq., 46 U.S.C.A. § 761 et seq.
4
See also the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424 et seq., 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. In the present case, the record shows that the respondent was awarded compensation under the New Jersey compensation act upon a finding that her decedent's death occurred in the 'twilight zone.' See Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246.
5
The Jones Act applies 'in case of the death of any seaman * * *.' 46 U.S.C.A. § 688.
6
The Death on the High Seas Act creates a right of action only for a 'wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State * * *.' 46 U.S.C. § 761, 46 U.S.C.A. § 761.
7
The relevant text of the New Jersey statute is as follows:
'When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.' N.J.S.A. 2A:31—1.
8
That this is the law has been generally understood by the other federal courts. Halecki v. United New York and New Jersey Sandy Hook Pilots Ass'n, 2 Cir., 251 F.2d 708, judgment vacated and cause remanded 358 U.S. 613, 79 S.Ct. 517; Continental Casualty Co. v. The Benny Skou, 4 Cir., 200 F.2d 246; Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223; Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711; Klingseisen v. Costanzo Transp. Co., 3 Cir., 101 F.2d 902; The H.S., Inc., No. 72, 3 Cir., 130 F.2d 341; Feige v. Hurley, 6 Cir., 89 F.2d 575; Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30; O'Brien v. Luckenbach S.S. Co., 2 Cir., 293 F. 170; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A., N.S., 303; The A. W. Thompson, D.C.S.D.N.Y., 39 F. 115; but cf. Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718; Kuhn v. City of New York, 274 N.Y. 118, 8 N.E.2d 300; O'Leary v. United States Line Co., 1 Cir., 215 F.2d 708.
9
The Court of Appeals also determined that the decedent was within the class protected by the warranty of seaworthiness as developed by federal maritime law, which it found the New Jersey statute had incorporated. This subsidiary determination is clearly correct. The decedent's status is practically indistinguishable from that of the plaintiff in Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, the only difference being that the cargo here was oil instead of grain, and was being unloaded instead of loaded.
10
Indeed, such a disposition has not even been suggested by counsel.
1
Clearly so where the action was pursued in admiralty. In other forums, and in some circumstances, there might arguably be some room for the application of such defensive features of state remedial law as statutes of limitations. See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224, note 5, 78 S.Ct. 1201, 1204, 2 L.Ed.2d 1272.
2
The principle was finally settled for the federal courts sitting at law, under the regime of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, by Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580.
3
The Court's citation of Jensen as lending some support to its position is not well taken. The language quoted, 244 U.S. at page 216, 37 S.Ct. at page 529, says no more than that the state statutes are allowed to perform a function in this area, which everyone concedes is correct. I fear, too, that in its somewhat deprecatory reference to the Jensen case, the Court may be ignoring the basically sound and enduring principle of that decision, the necessity that the federal maritime law exhibit independence of the varying rules of state law. Of course, there is more warranted criticism of Jensen for the unfortunate practical results it created in its own specific area of application. Cf. Gilmore and Black, The Law of Admiralty, § 1—17.
4
The Court's quotation from Garrett, '(A)dmiralty courts, when invoked to protect rights rooted in state law, endeavor to determine the issues in accordance with the substantive law of the State,' made in support of its conclusion, is a patent begging of the question at issue here. The issue is what system of law gives rise to the rights and duties here involved. No one would doubt that the federal law gives rise to the substantive standards by which the conduct of the parties here involved would have been judged if Skovgaard's injuries had not been fatal. The question is whether his rights, and those of his representatives in respect to the conduct that injured and killed him, remain rooted in federal law here, where the suit is for damages for his death. The Court's confusion of rights and duties with remedies is apparent again here.
5
The Ake case, like others, suggests that there may possibly be two 'rights' infringed by a tort causing death—one of the injured party and the other of his beneficiaries. But this is not an analytically helpful way of viewing the situation. The measure of the duty of conduct owed the injured party is typically the limit of the substantive liability of tort-feasor and of the 'right' enjoyed by the beneficiaries. It is clear that what is meant by the 'right' of the beneficiaries is a special and distinct remedial incident attributable to a single breach of duty.
6
Judge Learned Hand's opinion in Guerrini v. United States, 2 Cir., 167 F.2d 352, 354, took the view that the New York cases were decided as compelled by the federal law, as is amply evident from the opinions themselves.
7
The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, cited by the Court, only holds that a state-created death remedy could be applied to a collision on the high seas. It appears from the opinion that Mr. Justice Holmes considered the general federal maritime law relevant to a determination of liability under it. Id., 207 U.S. at pages 406—407, 28 S.Ct. at page 135. And in La Bourgogne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973, where recovery made use of the French death remedy, liability was found as a matter of substantive law where France would not have found it. Finally, The Corsair, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727, held that the Louisiana Death Act, LSA—C.C. art. 2315, did not create a maritime lien. It was not there considered whether the breach of a federally defined duty could have created such a lien, even though the breach resulted in death, and in fact the source of the duty being enforced through the Louisiana Act was not discussed.
8
The New York Court of Appeals did not consider its own decision in Caldarola v. Moore-McCormack Lines, 295 N.Y. 463, 68 N.E.2d 444, affirmed 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, as preclusive of its decision less than a year later in Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718. See 79 S.Ct. at page 513, supra.
9
Despite Judge Learned Hand's initial suggestion in Puleo v. H. E. Moss & Co., 2 Cir., 159 F.2d 842, 845, quickly retracted in Guerrini v. United States, 2 Cir., 167 F.2d 352, 355, the Conservation Act, 45 Stat. 54, 16 U.S.C. § 457, 16 U.S.C.A. § 457, is not relevant to the problem here. That Act makes applicable state death acts (as well as state personal injury law generally), to torts 'within a national park or other place subject to the exclusive jurisdiction of the United States.' The state cerritorial waters, while within the cognizance of the federal maritime law, are also subject to the jurisdiction of the States, Toomer v. Witsell, 334 U.S. 385, 393, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460, and hence one need go no further than its terms to find the Act inapposite.
10
I might likewise say that even if the source of substantive law here be considered as state law, it hardly would comport with the responsibility of the federal courts for them to sent the parties to an admiralty action before them to the state courts to obtain an adjudication of the legal issues involved. Though the Court does not make such a disposition here, certain inclinations in this direction are discernible in its opinion. The words of Chief Justice Stone in Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, might furnish the lesson here; we must recollect that jurisdiction creates the duty of decision, and that, like the diversity, the admiralty jurisdiction 'was not conferred for the benefit of the federal courts or to serve their convenience.' Id., 320 U.S. at page 234, 64 S.Ct. at page 11.
| 78
|
358 U.S. 613
79 S.Ct. 517
3 L.Ed.2d 541
UNITED NEW YORK AND NEW JERSEY SANDY HOOK PILOTS ASSOCIATION, a Corporation, Petitioners,v.Anna HALECKI, Administratrix Ad Prosequendum of the Estate of Walter Joseph Halecki, Deceased.
No. 56.
Argued Oct. 23, 1958.
Decided Feb. 24, 1959.
Mr. Lawrence J. Mahoney, New York City, for the petitioners.
Mr. Nathan Baker, New York City, for the respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The administratrix of the estate of Walter J. Halecki brought this action against the owners of the pilot boat New Jersey to recover damages for Halecki's death, allegedly caused by inhalation of carbon tetrachloride fumes while working aboard that vessel. The action, based upon the New Jersey Wrongful Death Act, N.J.S.A. 2A:31—1, was brought in the federal court by reason of diversity of citizenship. Under instructions that either unseaworthiness of the vessel or negligence would render the defendants liable and that contributory negligence on the part of the decedent would serve only to mitigate damages, a jury returned a verdict for the administratrix, upon which judgment was entered. The Court of Appeals affirmed, holding that the New Jersey Wrongful Death Act incorporates liability for unseaworthiness, as developed by federal law, and adopts the admiralty rule of comparative negligence when death occurs as a result of tortious conduct upon the navigable waters of that State. 251 F.2d 708.
2
For the reasons stated in M/V Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, we hold that the Court of Appeals was correct in viewing its basic task as one of interpreting the law of New Jersey. For reasons also stated in Tungus, we accept in this case the Court of Appeals' determination of the effect which New Jersey law would accord to the decedent's contributory negligence. But even if the Wrongful Death Act of New Jersey be interpreted as importing the federal maritime law of unseaworthiness, the court was in error in holding that the circumstances of this case were such as to impose liability under that doctrine.
3
The essential facts are not in dispute. In September of 1951 the vessel was brought to Jersey City, New Jersey, for its annual overhaul at the shipyard of Rodermond Industries, Inc. One of the jobs to be done was the dismantling and overhaul of the ship's generators, requiring, among other things, that they be sprayed with carbon tetrachloride. Since Rodermond Industries was not equipped to do electrical work, this job was subcontracted to K. & S. Electrical Company, Halecki's employer.
4
The generators were in the ship's engine room, and both Halecki and his foreman, Donald Doidge, were aware of the necessity of taking special precautions in undertaking the job of spraying them with tetrachloride, a toxic compound.1 They arranged to do the work on Saturday, a day chosen because, as Doidge testified, '(W)e know it has to be done when there is nobody else on board ship.'
5
Halecki and Doidge came aboard on the appointed day, equipped with gas masks. They found only a watchman, to whom they gave instructions not to permit anyone to enter the engine room. Before starting the job they rigged an air hose underneath the generators to blow the fumes away from the man spraying. A high-compression blower was placed so that it would exhaust foul air through one of the two open doorways. These pieces of equipment belonged to Rodermond Industries and had been brought aboard by Doidge and Halecki the previous day. Together with the engine room's regular ventilating system, the air hoses and blower were operated by electrical power supplied from the dock. Halecki did most of the spraying, working for 10- or 15-minute periods with intervening rests of equal length. The ventilating equipment was in operation, and Halecki wore a gas mask during the entire period that he worked. He became sick the next day and died two weeks later of carbon tetrachloride poisoning.
6
The eventful development of the doctrine of unseaworthiness in this Court is familiar history. Although of dubious ancestry,2 the doctrine was born with The Osceola3 and emerged full-blown 40 years later in Mahnich v. Southern S.S. Co.4 as an absolute and nondelegable duty which the owner of a vessel owes to the members of the crew who man her. The justification for this rigid standard was clearly stated in the Court's opinion in Mahnich:
7
'He (the seaman) is subject to the rigorous discipline of the sea, and all the conditions of his service constrain him to accept, without critical examination and without protest, working conditions and appliances as commanded by his superior officers.' 321 U.S. 96, at page 103, 64 S.Ct. 455, at page 459.
8
With the nature of the duty thus defined, it remained for two other decisions of the Court to amplify its scope. Seas Shipping Co. v. Sieracki and Pope & Talbot, Inc., v. Hawn5 made clear that the shipowner could not escape liability for unseaworthiness by delegating to others work traditionally done by members of the crew. Whether their calling be labeled 'stevedore,' 'carpenter,' or something else, those who did the 'type of work' traditionally done by seamen, and were thus related to the ship in the same way as seamen 'who had been or who were about to go on a voyage,' were entitled to a seaworthy ship. See 346 U.S. at page 413, 74 S.Ct. at page 207.
9
Neither these decisions nor the policy that underlies them can justify extension of liability for unseaworthiness to the decedent in the present case. The work that he did was in no way 'the type of work' traditionally done by the ship's crew. It was work that could not even be performed upon a ship ready for sea, but only when the ship was 'dead' with its generators dismantled. Moreover, it was the work of a specialist, requiring special skill and special equipment—portable blowers, air hoses, gas masks, and tanks of carbon tetrachloride, all brought aboard the vessel for this special purpose, and none connected with a ship's seagoing operations.6 Indeed, the work was so specialized that the repair yard engaged to overhaul the vessel was not itself equipped to perform it, but had to enlist the services of a subcontractor. A measure of how foreign was the decedent's work to that ordinarily performed by the ship's crew is that it could be performed only at a time when all the members of the crew were off the ship.
10
It avails nothing to say that the decedent was an 'electrican,' and that many modern ships carry electricians in their crew. Pope & Talbot, Inc., v. Hawn explicitly teaches that such labels in this domain are meaningless. See 346 U.S. at page 413, 74 S.Ct. at page 207. It is scarcely more helpful to indulge in the euphemism that the decedent was 'cleaning' part of the ship, and to say that it is a traditional duty of seamen to keep their ship clean. The basic fact is, in the apt words of Judge Lumbard's dissenting opinion in the Court of Appeals, that the decedent 'was not doing what any crew member had ever done on this ship or anywhere else in the world so far as we are informed.' 251 F.2d 708, at page 715. To extend liability for unseaworthiness to the decedent here would distort the law of Mahnich, of Hawn and of Sieracki beyond recognition. We therefore hold that it was error to instruct the jury that the shipowner could be held liable in this case even if they should find that the shipowner had exercised reasonable care.7
11
As to the claim based upon negligence, for which the New Jersey Wrongful Death Act clearly gives a right of action,8 we agree with the Court of Appeals that 'the evidence created an issue that could be decided only by a verdict.' The defendants owed a duty of exercising reasonable care for the safety of the decedent. They were charged with knowledge that carbon tetrachloride was to be used in the confined spaces of the engine room. It was for the triers of fact to determine whether the defendants were responsibly negligent in permitting or authorizing the method or manner of its use.
12
It follows from what has been said that a new trial will be required, for there is no way to know that the invalid claim of unseaworthiness was not the sole basis for the verdict.
13
Vacated and remanded.
14
For concurring opinion of Mr. Justice FRANKFURTER see 79 S.Ct. 523.
15
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, dissenting.
16
On September 29, 1951, the pilot boat New Jersey was standing at a pier in the Jersey City repair yard of a marine overhaul and repair firm for its annual overhaul. The overhaul job was scheduled to take three weeks, and the 29th was the Saturday after the first week of work. Crew members participated in maintenance work on the vessel during this period, on a five-day-work-week basis. Cleaning the vessel's generators was the work scheduled for the 29th, and since the cleaning work was to be done with carbon tetrachloride, known to have toxic properties, a Saturday was chosen for the job to minimize the number of persons aboard the vessel. Walter Halecki, respondent's decedent, was an employee of an electrical firm doing the cleaning job as a subcontractor to the general overhaul contractor; he and another employee of the subcontractor came aboard and spent the day spraying the generators in the ship's engine room. Halecki did most of the work in the engine room. The men wore gas masks and from time to time rest periods above decks were observed. At the end of the day, Halecki complained of an odd taste in his mouth, and he was thereafter admitted to a hospital where he died of carbon tetrachloride poisoning.
17
His widow commenced this action against the vessel's owners in the Federal District Court for the Southern District of New York, predicating jurisdiction on diversity of citizenship. The complaint alleged unseaworthiness of the vessel in that harmful concentrations of carbon tetrachloride were allowed to stand in the engine room, unremoved either by the vessel's ordinary ventilation system or by auxiliary equipment brought aboard the vessel by the workmen for the purpose. It further alleged negligence in the failure to use reasonable care in furnishing the decedent, as a business invitee, a safe place to work. The New Jersey Wrongful Death Act was pleaded by the plaintiff to support these claims. The case went to the jury on both grounds, and a general verdict was returned for the plaintiff; judgment thereon was affirmed by the Court of Appeals.
18
The Court today reverses, holding that the verdict, which must of course be supportable on each aspect in which the case was left to the jury, cannot be supported on the grounds of unseaworthiness. The Court, following its decision in M/V Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, holds that the basic source of law in this case, since it is a wrongful death case, is the law of New Jersey. My separate opinion in that case sets forth the basis on which I think that that holding is erroneous. The Court in the present case holds, apparently as a matter of federal law, that the vessel did not owe any duty of seaworthiness to the respondent's decedent. Paradox may be found in this after the Court's characterization of the governing law as state law, and there well may be confusion as to the precise role that federal law is to play in these maritime death actions as a result of the Court's holding.1 But in any event, since I view the unseaworthiness question as a matter of federal law, as apparently the Court does here, I shall set forth briefly the grounds on which I think it has clearly erred in the light of the decisions in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, and Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, none of which the Court today purports to overrule.
19
In Seas Shipping Co. v. Sieracki, the question was whether the duty of maintaining a seaworthy vessel extended to persons who performed the ship's service aboard the vessel but who were not employed directly by the shipowner. The Court concluded that this duty was 'not confined to seamen who perform the ship's service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement.' 328 U.S. at page 95, 66 S.Ct. at page 877. The Court declared that the 'liability arises as an incident, not merely of the seaman's contract, but of performing the ship's service with the owner's consent.' Id., 328 U.S. at page 97, 66 S.Ct. at page 878. The Court quoted with specific approval the language of the court below in that case: 'when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights.' Ibid. The Court stressed that the division of labor due to increased specialization did not operate to diminish the scope of the duty of maintaining a seaworthy vessel. The shipowner, it was said, 'is at liberty to conduct his business by securing the advantages of specialization in labor and skill brought about by modern divisions of labor. He is not at liberty by doing this to discard his traditional responsibilities.' Id., 328 U.S. at page 100, 66 S.Ct. at page 880.
20
In Pope & Talbot, Inc. v. Hawn, the Sieracki doctrine was reaffirmed and applied in another fact situation, and it was pointed out that the protection of a shipboard worker by the duty of seaworthiness was not based on the title of the position he occupied in the doing of the shipboard work but 'on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness.' 346 U.S. at page 413, 74 S.Ct. at page 207.
21
Today the Court holds that not all workers engaged in doing 'ship's service' aboard a vessel are entitled to the warranty. It essays distinctions as to whether the ship's power is functioning at the time of the accident, whether the ship is ready for an immediate voyage.2 It stresses that the work done by Halecki was specialized work on a modern vessel, of a sort which is now habitually contracted out. But it takes only a casual reference to the principles of the Sieracki decision to be reminded that the fact that a worker is doing specialized work on a modern vessel under a contract is no reason for exempting him from the scope of the seaworthiness duty's 'humanitarian policy,' 328 U.S. at page 95, 66 S.Ct. at page 877; it is rather one of the very bases on which the Sieracki doctrine was bottomed. The Court refers to the extensive specialized equipment the contractor was required to bring aboard, but in Petterson this was, over dissent, rejected as a basis for distinction of Sieracki, 347 U.S. 396, 400, 74 S.Ct. 601, 603. Nor would one think that the fact that the work being done posed dangers to a degree which made it desirable that the crew members not be present aboard the vessel militated against the existence of the seaworthiness duty. The duty was held in Sieracki to extend to others than members of the crew precisely to avoid the consequence that the shipowner would escape his responsibilities by contracting out dangerous work.
22
The Court declines to find that Halecki was engaged in ship's service of a sort that would entitle him to the warranty because the precise sort of work he was doing is one which is habitually contracted out. It rejects clear categorical analogies between Halecki's work and that historically done by crew members, with the observation that the work Halecki was doing was different because the vessel was modern, had complicated equipment, and required specialized treatment efficiently to perform the work on it. Thus the whole point of the Sieracki decision is turned around, and today's shipowner escapes his absolute duty because his vessel is modern and outfitted with complicated and dangerous equipment, and because a pattern of contracting out a sort of work on its has become established.
23
The Court gives no reason based in policy for its inversion of the Sieracki principle. I fear also that it gives no workable guide to the lower courts in this actively litigated field of federal law. They may now have the impression that some degree of specialization in the tasks performed by the injured shipboard worker disqualifies him from the scope of the shipowner's duty, but further than that, there is left uncertain the extent to which the decisions of the lower courts based on the Sieracki and Hawn cases are now under a cloud.3 And so confusion is left to breed further litigation in an already heavily litigated area of the law.
24
I would adhere to the principles of Sieracki and Hawn and affirm the judgment of the Court of Appeals.
1
Carbon tetrachloride, a somewhat volatile compound five times heavier than air, is toxic to humans if present in the atmosphere in concentrations of more than 100 parts to 1,000,000. It therefore is essential when working with this chemical to provide adequate ventilation, a task that is complicated because the density of the compound may result in a high concentration of the fumes in the lower portions of an enclosed area.
2
See Gilmore and Black, The Law of Admiralty, p. 316.
3
189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760.
4
321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561.
5
328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. See also Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, and Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120.
6
It was established that the ship's own ventilating system was entirely adequate to perform its intended function of ventilating the engine room while the ship was in regular operation.
7
We do not reach the question, discussed in the amicus curiae brief of the United States, whether a shipowner can ever be liable for the unseaworthiness of a vessel 'to a shore based worker who performs labor on a ship which is not ready for a voyage but is out of navigation and docked in a private shipyard for its annual overhaul and repair.'
8
N.J.S.A. 2A:31—1; see M/V Tungus v. Skovgaard, supra.
1
Further paradox may be found in the Court's acceptance, without independent examination, of the view of the Court of Appeals for the Second Circuit as to the defenses available under the New Jersey Wrongful Death Act as applicable to the negligence claim here. The Court of Appeals held contributory negligence unavailable as an absolute defense. The usual reasons given for deferring to the Courts of Appeals on state law questions may not be entirely applicable to a circuit not embracing the State in question. In the Tungus case, 358 U.S. 588, 79 S.Ct. 503, the Court today affirms a judgment of the Court of Appeals for the Third Circuit (which includes New Jersey), 252 F.2d 14, leaving open this identical issue for the District Court. It would appear clear, in the light of the Court's disposition of this case, what the answer on this issue must be in the Tungus case.
2
A brief filed as amicus curiae by the United States urges that the doctrine of seaworthiness imports only a warranty of seaworthiness for a voyage, and that since the ship was not about to engage in a voyage, the duty was owed to no one at the time of the accident. This theory, like the Court's, would result in an unwarranted restriction of the Sieracki doctrine, particularly since there were crew members working aboard ship on a regular work week basis during the period in question who would be denied the doctrine's protection under the Government's theory. The Government's argument is based primarily on Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205, where there was no issue of unseaworthiness and the vessels had been hauled up on land for the winter. In Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, the duty of seaworthiness was held to be present in regard to a vessel which had completed a voyage and which was not shown to be about to embark on a new voyage.
3
Cases in which holdings of the lower courts have interpreted this Court's decisions in the Sieracki and Hawn cases as extending the duty of seaworthiness to independent contractors' employees substantially similarly circumstanced to Halecki include Torres v. The Kastor, 2 Cir., 227 F.2d 664 (cleaning vessel of pitch to make it suitable for future voyages); Read v. United States, 3 Cir., 201 F.2d 758 (reconversion of Liberty Ship into troop carrier; worker engaged in converting deep tanks); Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d 784 (boiler cleaning company's employee cleaning accumulated rust and dirt from deep tank); Pinion v. Mississippi Shipping Co., D.C.E.D.La., 156 F.Supp. 652 (plumbing repair contractor's helper carying on home port repairs). See also Pioneer S.S. Co. v. Hill, 6 Cir., 227 F.2d 262, 263 (vessel in winter lay-up; regular officers and crew not aboard; substantial repairs being effected; dictum that a shipfitter's helper 'was probably within the broadened class of workers to whom the protection of the seaworthiness doctrine has now been extended'); Imperial Oil, Ltd., v. Drlik, 6 Cir., 234 F.2d 4, 8 (shipbuilding company employee engaged in repairing drydocked ship materially damaged by explosion; dictium that worker 'would fall within the protection of the rule so extended'); Lester v. United States, 2 Cir., 234 F.2d 625 (electrician working on general overhaul of drydocked vessel; extension of warranty assumed).
| 78
|
358 U.S. 415
79 S.Ct. 451
3 L.Ed.2d 407
Lurton Lewis HEFLIN, Jr., Petitioner,v.UNITED STATES of America.
No. 137.
Argued Jan. 14, 1959.
Decided Feb. 24, 1959.
Mr. Jerome A. Cooper, Birmingham, Ala., for petitioner.
Mr. Theodore G. Gilinsky, Sioux City, Iowa, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner and two others were indicted and convicted under three counts charging violations of the Federal Bank Robbery Act, 18 U.S.C. § 2113, 18 U.S.C.A. § 2113. One count charged taking the property by force and violence, and assaulting and jeopardizing the lives of several persons in the course of the taking, in violation of § 2113(d).1 Another count charged that they did 'receive, possess, conceal, store, and dispose' of the stolen money in violation of § 2113(c).2 A third count charged a conspiracy. The sentence imposed3 was 10 years on the first count mentioned above, 3 years on the conspiracy count to begin to run on expiration of the first, and 1 year and 1 day on the count charging receipt of the stolen property, this sentence to begin to run on expiration of the sentence on the conspiracy count.
2
All these events took place before our decision in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. Shortly thereafter petitioner instituted this proceeding under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255,4 complaining that he could not be lawfully convicted under both subsections (c) and (d) of § 2113, i.e., of feloniously receiving and feloniously taking the same property. The District Court denied the motion. The Court of Appeals affirmed. 251 F.2d 69. We granted certiorari (357 U.S. 935, 78 S.Ct. 1388, 2 L.Ed.2d 1550) because of an apparent conflict between that decision and the Prince case.
3
I. There is a preliminary question of jurisdiction. Petitioner is now in custody under the 10-year sentence which admittedly is valid. Since he has not completed that sentence nor the consecutive conspiracy sentence, it is argued that relief by way of § 2255 may not be had.
4
We reviewed in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, the history of § 2255 and emphasized that its purpose was to minimize some of the difficulties involved in the use of habeas corpus. It is now argued that when consecutive sentences are imposed, § 2255, no more than habeas corpus (McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 27, 79 L.Ed. 238), can be used to question a sentence which the prisoner has not begun to serve. The Court is divided on that issue. Some think that when § 2255 says 'A motion for such relief may be made at any time.' it means what it says. To them the correction of sentence, if made, will affect 'the right to be released,' protected by § 2255, even though that right will not be immediately realized. A majority, however, are of the view, shared by several Courts of Appeals,5 that § 2255 is available only to attack a sentence under which a prisoner is in custody. Yet in their view relief under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.6 is available (at least where matters dehors the record are not involved), the only question here being whether the sentence imposed was illegal on its face.7
5
II. We held in Prince v. United States, supra, that the crime of entry into a bank with intent to rob was not intended by Congress to be a separate offense from the consummated robbery. We ruled that entering with intent to steal, which is 'the heart of the crime,' id., 352 U.S. at page 328, 77 S.Ct. at page 407, 'merges into the completed crime if the robbery is consummated.' Ibid. We gave the Act that construction because we resolve an ambiguity in favor of lenity when required to determine the intent of Congress in punishing multiple aspects of the same criminal act.
6
Subsection (c) of § 2113, with which we are now primarily concerned, came into the law in 1940. The legislative history is meagre. The Senate Report (S.Rep.No.1801, 76th Cong., 3d Sess.) is captioned 'Punishment for Receivers of Loot From Bank Robbers.' The Report states, 'This bill would add another subsection to further make it a crime, with less severe penalties (maximum $5,000 fine and 10 years imprisonment, or both) to willfully become a receiver or possessor of property taken in violation of the statute,' p. 1. Similarly the House Report states 'Present law does not make it a separate substantive offense knowingly to receive or possess property stolen from a bank in violation of the Federal Bank Robbery Act, and this bill is designed to cover the omission.' H.R.Rep.No.1668, 76th Cong., 3d Sess., p. 1.
7
This clue to the purpose of Congress argues strongly against the position of the Government. From these Reports it seems clear that subsection (c) was not designed to increase the punishment for him who robs a bank but only to provide punishment for those who receive the loot from the robber. We find no purpose of Congress to pyramid penalties for lesser offenses following the robbery. It may be true that in logic those who divide up the loot following a robbery receive form robbers and thus multiply the offense. But in view of the legislative hstory of subsection (c) we think Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves.
8
Reversed.
9
Mr. Justice STEWART, whom Mr. Justice FRANKFURTER, Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITTAKER join, concurring.
10
While joining the Court's opinion, I think it clear that a motion for relief under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 is available only to attack a sentence under which a prisoner is in custody. That is what the statute says. That is what the legislative history shows. That is what federal courts, faced almost daily with the statute's application, have unanimously concluded. Personal notions as to the kind of a post-conviction statute that Congress might have enacted or should enact are, of course, entirely irrelevant to the inquiry.
11
First. The words which Congress has used are not ambiguous. Section 2255 provides that: 'A prisoner in custody under sentence * * * claiming the right to be released * * * may move the court which imposed the sentence to vacate, set aside or correct the sentence.' The statute further provides: 'A motion for such relief may be mad at any time.' This latter provision simply means that, as in habeas corpus, there is no statute of limitations, no res judicata, and that the doctrine of laches is inapplicable.
12
Second. The legislative history of § 2255 is reviewed at length in the opinion which Mr. Chief Justice Vinson wrote for the Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. No chronicle of the genesis and purpose of a legislative enactment could be more authentic, because almost the entire legislative history is to be found in the deliberations and recommendations of the Judicial Conference of the United States, over which Mr. Chief Justice Vinson then presided. The opinion in Hayman clearly shows that, 'the sole purpose' of the statute 'was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.' 342 U.S. at page 219, 72 S.Ct. at page 272. Those difficulties are detailed in the opinion. There is not one word to indicate any intent to alter the basic principle of habeas corpus that relief is available only to one entitled to be released from custody.
13
The very office of the Great Writ, its only function, is to inquire into the legality of the detention of one in custody. It is unnecessary to paraphrase here Mr. Justice Stone's penetrating discussion in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, or to incorporate the thorough review of legal history there contained. It will suffice to note only the Court's conclusion: 'Without restraint of liberty, the writ will not issue. * * * Equally, without restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry.' (Citations omitted.) 293 U.S. at page 138, 55 S.Ct. at page 27.
14
Third. It is something of an understatement simply to say that these views are 'shared by several Courts of Appeals.' So far as I have been able to find, these courts, at least since the Hayman decision, have been unanimous in holding that a motion under § 2255 may be filed only by a prisoner claiming the right to be released. These are the courts continually faced with problems arising under § 2255, and many of them have given careful consideration to this very issue. United States v. Bradford, 2 Cir., 194 F.2d 197; United States v. McGann, 2 Cir., 245 F.2d 670; United States ex rel. Bogish v. Tees, 3 Cir., 211 F.2d 69, 71; Fooshee v. United States, 5 Cir., 203 F.2d 247; Duggins v. United States, 6 Cir., 240 F.2d 479; Juelich v. United States, 6 Cir., 257 F.2d 424; Oughton v. United States, 9 Cir., 215 F.2d 578; Williams v. United States, 9 Cir., 236 F.2d 894; Hoffman v. United States, 9 Cir., 244 F.2d 378; Toliver v. United States, 9 Cir., 249 F.2d 804; Miller v. United States, 9 Cir., 256 F.2d 501; Smith v. United States, 9 Cir., 259 F.2d 125.
15
Although believing that relief in this case was not available under § 2255, I think, and indeed the Government concedes, that relief was available to the petitioner by virtue of Rule 35 of the Fed.Rules Crim.Proc. That rule provides: 'The court may correct an illegal sentence at any time.' The rule became effective more than two years before the enactment of § 2255 and has an entirely different history. It was a codification of existing law and was intended to remove any doubt created by the decision in United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129, as to the jurisdiction of a District Court to correct an illegal sentence after the expiration of the term at which it was entered.*
16
Whether Rule 35 covers the broader field of collateral attack where a hearing to consider matters dehors the record is necessary, we need not here determine. The Rule certainly covers a case like the present one where the claim is that the sentence imposed was illegal on its face. For this reason, and because I agree with the Court's construction of the Federal Bank Robbery Act, I concur in the opinion and the judgment.
1
This subsection provides:
'Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.'
2
This subsection states:
'Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.'
3
This was a corrected sentence imposed after the appeal, as reported in Heflin v. United States, 5 Cir., 223 F.2d 371.
4
Section 2255 reads in relevant part as follows:
'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
'A motion for such relief may be made at any time.
'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
'A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. * * *' 62 Stat. 967, amended 63 Stat. 105.
5
United States v. Bradford, 2 Cir., 194 F.2d 197; United States v. McGann, 2 Cir., 245 F.2d 670; United States ex rel. Bogish v. Tees, 3 Cir., 211 F.2d 69, 71; Fooshee v. United States, 5 Cir., 203 F.2d 247; Duggins v. United States, 6 Cir., 240 F.2d 479; Crow v. United States, 9 Cir., 186 F.2d 704; Oughton v. United States, 9 Cir., 215 F.2d 578; Hoffman v. United States, 9 Cir., 244 F.2d 378; Miller v. United States, 9 Cir., 256 F.2d 501.
6
Rule 35 provides in part:
'The court may correct an illegal sentence at any time.'
7
Since the motion under Rule 35 is made in the original case, the time within which review by certiorari of the Court of Appeals decision should be sought is 30 days. Supreme Court Rule 22(2), 28 U.S.C.A. The petition for writ of certiorari in this case was not filed until after the passage of 30 days from the judgment below. Nevertheless, because successive motions may be made under Rule 35 and because no jurisdictional statute is involved, the majority agrees to dispense with the requirements of our Rule in order to avoid wasteful circuity. To those of us who deem that § 2255 is available, there is no question but that the petition was in time. It was filed within the 90-day period provided by 28 U.S.C. § 2101(c), 28 U.S.C.A. § 2101(c) governing this type of suit. For a motion under § 2255, like a petition for a writ of habeas corpus (Riddle v. Dyche, 262 U.S. 333, 336, 43 S.Ct. 555, 556, 67 L.Ed. 1009), is not a proceeding in the original criminal prosecution but an independent civil suit.
*
See Judge Shackelford Miller's discussion of the relationship between § 2255 and Rule 35 in Duggins v. United States, 6 Cir., 240 F.2d 479.
| 01
|
358 U.S. 625
79 S.Ct. 406
3 L.Ed.2d 550
Joseph KERMAREC, Petitioner,v.COMPAGNIE GENERALE TRANSATLANTIQUE.
No. 22.
Argued Nov. 13, 1958.
Decided Feb. 24, 1959.
Mr. Edward J. Malament, New York City, for petitioner.
Mr. George A. Garvey, New York City, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
On November 24, 1948, the respondent's vessel, the S. S. Oregon, was berthed at a pier in the North River, New York City. About noon on that day Joseph Kermarec came aboard to visit Henry Yves, a member of the ship's crew. The purpose of the visit was entirely personal, to pay a social call upon Yves and to give him a package to be delivered to a mutual friend in France. In accordance with customary practice permitting crew members to entertain guests aboard the vessel, Yves had obtained a pass from the executive officer authorizing Kermarec to come aboard.1 As he started to leave the ship serveral hours later, Kermarec fell and was injured while descending a stairway.
2
On the theory that his fall had been caused by the defective manner in which a canvas runner had been tacked to the stairway, Kermarec brought an action for personal injuries in the District Court for the Southern District of New York, alleging unseaworthiness of the vessel and negligence on the part of its crew. Federal jurisdiction was invoked by reason of the diverse citizenship of the parties, and a jury trial was demanded.
3
The district judge was of the view that the substantive law of New York was applicable. Accordingly, he eliminated the unseaworthiness claim from the case and instructed the jury that Kermarec was 'a gratuitous licensee' who could recover only if the defendant had failed to warn him of a dangerous condition within its actual knowledge, and only if Kermarec himself had been entirely free of contributory negligence.2
4
The jury returned a verdict in Kermarec's favor. Subsequently the trial court granted a motion to set the verdict aside and dismiss the complaint, ruling that there had been a complete failure of proof that the shipowner had actually known that the stairway was in a dangerous or defective condition. A divided Court of Appeals affirmed. The opinion of that court does not make clear whether affirmance was based upon agreement with the trial judge that New York law was applicable, or upon a determination that the controlling legal principles would in any event be no different under maritime law. 245 F.2d 175. Certiorari was granted to examine both of these issues. 355 U.S. 902, 78 S.Ct. 335, 2 L.Ed.2d 259.
5
The District Court was in error in ruling that the governing law in this case was that of the State of New York. Kermarec was injured aboard a ship upon navigable waters. It was there that the conduct of which he complained occurred. The legal rights and liabilities arising from that conduct were therefore within the full reach of the admiralty jurisdiction and measurable by the standards of maritime law. See The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Philadelphia, Wilmington and Baltimore Railroad Co. v. Philadelphia and Havre de Grace Steam Tugboat Co., 23 How. 209, 215, 16 L.Ed. 433; The Commerce, 1 Black 574, 579, 17 L.Ed. 107; The Rock Island Bridge, 6 Wall. 213, 215, 18 L.Ed. 753; The Belfast, 7 Wall. 624, 640, 19 L.Ed. 266; Leathers v. Blessing, 105 U.S. 626, 630, 26 L.Ed. 1192; The Admiral Peoples, 295 U.S. 649, 651, 55 S.Ct. 885, 886, 79 L.Ed. 1633. If this action had been brought in a state court, reference to admiralty law would have been necessary to determine the rights and liabilities of the parties. Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct. 475, 476, 66 L.Ed. 927. Where the plaintiff exercises the right conferred by diversity of citizenship to choose a federal forum, the result is no different, even though he exercises the further right to a jury trial. Whatever doubt may once have existed on that score was effectively laid to rest by Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 410—411, 74 S.Ct. 202, 204, 98 L.Ed. 143. It thus becomes necessary to consider whether prejudice resulted from the court's application of the substantive law of New York.
6
In instructing the jury that contributory negligence on Kermarec's part would operate as a complete bar to recovery, the district judge was clearly in error. The jury should have been told instead that Kermarec's contributory negligence was to be considered only in mitigation of damages. The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 408—409, 74 S.Ct. 202, 204. It is equally clear, however, that this error did not prejudice Kermarec. By returning a verdict in his favor, the jury necessarily found that Kermarec had not in fact been guilty of contributory negligence 'even in the slightest degree.'
7
The district judge refused to submit the issue of unseaworthiness to the jury for the reason that an action for unseaworthiness is unknown to the common law of New York. Although the basis for its action was inappropriate, the court was correct in eliminating the unseaworthiness claim from this case. Kermarec was not a member of the ship's company, nor of that broadened class of workmen to whom the admiralty law has latterly extended the absolute right to a seaworthy ship. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202. Kermarec was aboard not to perform ship's work, but simply to visit a friend.
8
It is apparent, therefore, that prejudicial error occurred in this case only if the maritime law imposed upon the shipowner a standard of care higher than the duty which the district judge found owing to a gratuitous licenses under the law of New York. If, in other words, the shipowner owed Kermarec the duty of exercising ordinary care, then upon this record Kermarec was entitled to judgment, the jury having resolved the factual issues in his favor under instructions less favorable to him than should have been given.3 Stated broadly, the decisive issue is thus whether admiralty recognizes the same distinctions between an invitee and a licensee as does the common law.
9
It is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192; The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633.4 But this Court has never determined whether a different and lower standard of care is demanded if the ship's visitor is a person to whom the label 'licensee' can be attached. The issue must be decided in the performance of the Court's function in declaring the general maritime law, free from inappropriate common-law concepts. The Lottawanna, 21 Wall. 558, 22 L.Ed. 654; The Max Morris, 137 U.S. 1, 11 S.Ct. 29.5
10
The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each.6 Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict.7 As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards 'imposing on owners and occupiers a single duty of reasonable care in all the circumstances.'8
11
For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality. The Lottawanna, 21 Wall. 558, at page 575, 22 L.Ed. 654. The incorporation of such concepts appears particularly unwarranted when it is remembered that they originated under a legal system in which status depended almost entirely upon the nature of the individual's estate with respect to real property, a legal system in that respect entirely alien to the law of the sea.9 We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.10 It follows that in the present case the judgment must be vacated and the case remanded to the District Court with instructions to reinstate the jury verdict and enter judgment accordingly.
12
It is so ordered.
13
Judgment vacated and case remanded with instructions.
1
The pass contained the following language: 'The person accepting this pass, in consideration thereof, assumes all risks of accidents, and expressly agrees that the Compagnie Generale Transatlantique shall not be held liable under any circumstances whether by negligence of their employees, or otherwise, for any injury to his person or for any loss or injury to his property.' The district judge instructed the jury that this attempted disclaimer could have no effect unless it had been made known to Kermarec. The evidence showed that Kermarec had not seen the pass. By its verdict the jury implicitly found that Kermarec had not been informed of the language appearing on it. Since that finding is not disputed here, we need not consider what effect the attempted disclaimer would have had if Kermarec had been aware of it. See Moore v. American Scantic Line, Inc., 2 Cir., 121 F.2d 767. Compare 46 U.S.C. § 183c, 46 U.S.C.A. § 183c.
2
'With respect to the first issue of fact, namely, the alleged negligence of the defendant, you must bear in mind that the owner of a ship such as the defendant is subject to liability for bodily harm caused to a gratuitous licensee, such as the plaintiff, by any artificial condition on board the ship, only if both of the following conditions are present: (1) if the defendant knows of the unsafe condition and realizes that it involves an unreasonable risk to the plaintiff and has reason to believe that the plaintiff will not discover the condition or realize the risk; and (2) if the defendant invites or permits the plaintiff to enter or remain upon the ship without exercising reasonable care either to make the condition reasonably safe or to warn the plaintiff of the condition and risk involved therein.
'In short, in order that the plaintiff recover in this case, he must establish by a fair preponderance of the evidence that the defendant knew of the unsafe condition and invited the plaintiff aboard without either correcting the condition or warning him of it.
'In connection with damages, if you find that the plaintiff's injuries were the proximate result of the defendant's negligence and the plaintiff's own contributory negligence, even in the slightest degree, then the plaintiff cannot recover at all.'
3
The record clearly justifies a finding that the canvas runner was defectively tacked to the stairway, and that this caused a dangerous condition of which the shipowner's agent would have known in the exercise of ordinary care. By its verdict, the jury found that much and more.
4
Cf. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760.
5
Where there is no impingement upon legislative policy. Cf. United States v. Atlantic Mut. Ins. Co., 343 U.S. 236, 72 S.Ct. 666, 96 L.Ed. 907; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318.
6
Random selection of almost any modern decision will serve to illustrate the point. E.g., Chicago G.W.R. Co. v. Beecher, 8 Cir., 150 F.2d 394 (licensee by express invitation; licensee by implied invitation; bare licensee).
7
For example, the duty of an occupier toward a licensee under the law of New York, which the District Court thought applicable in the present case, appears far from clear. Compare Fox v. Warner-Quinlan Asphalt Co., 204 N.Y. 240, 245, 97 N.E. 497, 498, 38 L.R.A.,N.S., 395; Mendelowitz v. Neisner, 258 N.Y. 181, 184, 179 N.E. 378, 379; Paquet v. Barker, 250 App.Div. 771, 293 N.Y.S. 983 (2d Dept.); Byrne v. New York C. & H.R.R. Co., 104 N.Y. 362, 10 N.E. 539; Higgins v. Mason, 255 N.Y. 104, 109, 174 N.E. 77, 79; Ehret v. Village of Scarsdale, 269 N.Y. 198, 208, 199 N.E. 56, 60; Mayer v. Temple Properties, 307 N.Y. 559, 563—564, 122 N.E.2d 909, 911—913; Friedman v. Berkowitz, 206 Misc. 889, 136 N.Y.S.2d 81.
8
See Chief Judge Clark's dissenting opinion in the Court of Appeals, 245 F.2d 175, at 180. A survey here of the thousands of judicial decisions in this area during the last hundred years is as unnecessary as it would be impossible. A recent critical review is to be found in 2 Harper and James, The Law of Torts, c. XXVII, passim (1956). See also, Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573; Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 359.
9
This is not to say that concepts of status are not relevant in the law of maritime torts, but only that the meaningful categories are quite different. Membership in the ship's company, for example, a status that confers an absolute right to a seaworthy ship, is peculiar to the law of the sea. Such status has now been extended to others aboard 'doing a seaman's work and incurring a seaman's hazards.' Seas Shipping Co. v. Sieracki, 328 U.S. 85, at page 99, 66 S.Ct. 872, at page 880, 90 L.Ed. 1099.
10
The inconsistent and diverse results reached by courts which have tried to apply to the facts of shipboard life common-law distinctions between licensees and invitees reinforce the conclusion here reached. As to a seaman crossing another vessel to reach the pier, see Radoslovich v. Navigazione Libera Triestina, S.A., 2 Cir., 72 F.2d 367 (invitee); Aho v. Jacobsen, 1 Cir., 249 F.2d 309 (licensee); Anderson v. The E. B. Ward, Jr., C.C., 38 F. 44 (invitee); Griffiths v. Seabord Midland Petroleum Corp., D.C.Md., 33 A.M.C. 911 (invitee); see also Lauchert v. American S.S. Co., D.C., 65 F.Supp. 703 (licensee). As to a guest of a passenger, see McCann v. Anchor Line, 2 Cir., 79 F.2d 338 (invitee); Zaia v. 'Italia' Societa, 324 Mass. 547, 87 N.E.2d 183, 11 A.L.R.2d 1071 (licensee); The Champlain, 151 Misc. 498, 270 N.Y.S. 643, 34 A.M.C. 25 (invitee). See also Metcalfe v. Cunard S.S. Co., 147 Mass. 66, 16 N.E. 701 (licensee).
The English courts appear to have differentiated between an invitee and a licensee in cases of personal injury on shipboard, without critical inquiry. See, e.g., Smith v. Steele, L.R. 10 Q.B. 125 (1875) and Duncan v. Cammell Laird & Co., Ltd., (1943) 2 All E.R. 621. These distinctions have after thorough study (Law Reform Committee, Third Report, Cmd. No. 9305 (1954), been eliminated entirely from the English law by statutory enactment. Occupiers' Liability Act, of 1957, 5 and 6 Eliz. 2, c. 31.
| 78
|
359 U.S. 1
79 S.Ct. 564
3 L.Ed.2d 585
PEOPLE OF THE STATE OF NEW YORK Petitioner,v.Joseph C. O'NEILL.
No. 53.
Argued Nov. 20, 1958.
Decided March 2, 1959.
Mr. Reeves Bowen, Tallahassee, for petitioner.
Mr. L. J. Cushman, Miami, for respondent.
[Syllabus intentionally omitted]
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case is before us to determine the constitutionality of a Florida statute entitled 'Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.' Fla.Stat.1957, §§ 942.01—942.06, F.S.A. Respondent, a citizen of Illinois, had traveled to Florida to attend a convention. In accordance with the Florida statute, the Circuit Court of Dade County, Florida, responded to a certificate executed by a judge of the Court of General Sessions, New York County (under N.Y.Code Crim.Proc. § 618—a), by summoning respondent before it to determine whether he was to be given into the custody of New York authorities to be transported to New York to testify in a grand jury proceeding in that State. The Circuit Court, ruling that the Florida statute violated the Florida and the United States Constitutions, refused to grant New York's request. 9 Fla.Supp. 153. The Supreme Court of Florida affirmed this decision on the ground that the statute violated the United States Constitution. 100 So.2d 149. We granted certiorari, 365 U.S. 972, 78 S.Ct. 1137, 2 L.Ed.2d 1146, inasmuch as this holding brings into question the constitutionality of a statute now in force in forty-two States and the Commonwealth of Puerto Rico. (Thirty-nine States and Puerto Rico joined in an amici brief in support of the Uniform Act.) The certificate filed with the Circuit Court of Dade County recites that respondent's testimony is desired by a New York County grand jury. That certificate is, under the terms of the statute, 'prima facie evidence of all the facts stated therein.' Fla.Stat., 1957, § 942.02(2), F.S.A. Therefore, on the face of the record, respondent's attendance at a grand jury investigation in New York is required by the certificate filed with the Florida court and not withdrawn from it. Neither party has suggested that this is not a live litigation nor do we find any ground for deeming the case to be moot.
2
The Uniform Act as enacted by the Florida Legislature in 1941 was formulated by the National Conference of Commissioners on Uniform State Laws in its present form in 1936. See Handbook of the National Conference of Commissioners on Uniform State Laws 333 (1936); 9 U.L.A. 91 (1957). The Uniform Act is reciprocal. It is operative only between States which have enacted it or similar legislation for compelling of witnesses to travel to, and testify in, sister States.
3
The terms of the statute make quite clear the procedures to be followed. The judge of the court of the requesting State files in any court of record in the State in which the witness may be found a certificate stating the necessity of the appearance of such witness in a criminal prosecution or grand jury investigation in the requesting State. The certificate must also state the number of days the witness would be required to attend. Upon receipt of such a certificate a hearing is held by the court in which it is filed. In the hearing, at which under the Florida Act the witness is entitled to counsel, the court which received this certificate is obliged to determine whether an order to attend the prosecution or grand jury investigation in the requesting State would comply with conditions set forth in the statute: that the witness is material and necessary; that the trip to the requesting State would not involve undue hardship to the witness; that the laws of the requesting State and States through which the witness must travel grant him immunity from arrest and the service of civil and criminal process. Furthermore, the statute provides that the witness must be tendered ten cents a mile for each mile to and from the requesting State and five dollars for each day that he is required to travel and attend as a witness. Under the statute the order of the forwarding State to the witness may take two forms: first, the court may issue a summons directing the witness to attend and testify in the requesting State; second, if the certificate of the requesting State so recommends, and if the recommendation is found to be desirable by the court of the forwarding State, the court may immediately deliver the witness to an officer of the requesting State. Furthermore, if such a recommendation is made by the requesting State, instead of the initial notification of hearing the court of the forwarding State may take the witness into immediate custody. Whether the procedure be by notification and then summons or by apprehension and then delivery, the hearing and the issues to be determined therein are the same.
4
In Commonwealth of Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717, Mr. Chief Justice Taney, speaking of the obligation imposed by the Constitution upon the Governor of Ohio to deliver to Kentucky one accused of violation of the criminal laws of Kentucky, called attention 'to the obvious policy and necessity of this provision to preserve harmony between States, and order and law within their respective borders * * *.' 24 How. at page 103. The same 'policy and necessity' underlie the measure adopted by Florida and forty-two other jurisdictions. Unless there is some provision in the United States Constitution which clearly prevents States from accomplishing this end by the means chosen, this Court must sustain the Uniform Act. The absence of a provision in the United States Constitution specifically granting power to the States to legislate respecting interstate rendition of witnesses presents no bar. To argue from the declaratory incorporation in the Constitution, Art. IV, § 2, of the ancient political policy among the Colonies of delivering up fugitives from justice an implied denial of the right to fashion other cooperative arrangements for the effective administration of justice, is to reduce the Constitution to a rigid, detailed and niggardly code. In adjudging the validity of a statute effecting a new form of relationship between States, the search is not for a specific constitutional authorization for it. Rather, according the statute the full benefit of the presumption of constitutionality which is the postulate of constitutional adjudication, we must find clear incompatibility with the United States Constitution. The range of state power is not defined and delimited by an enumeration of legislative subject-matter. The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being devisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution.
5
The Supreme Court of Florida found that the statute violated the Privileges and Immunities Clauses found in Art. IV, § 2, and in the Fourteenth Amendment. The Privileges and Immunities Clause of Art. IV, § 2, proscribes discrimination by a State against a citizen of another State. Slaughter-House Cases, 16 Wall. 36, 77, 21 L.Ed. 394. There is no such discrimination here. The Florida statute applies to all persons within the boundaries, and therefore subject to the jurisdiction, of Florida. The finding of the Florida Supreme Court that the right to ingress and egress is a privilege of national citizenship protected by the Fourteenth Amendment raises an issue that has more than once been stirred in opinions of this Court. See concurring opinions in Edwards v. People of State of California, 314 U.S. 160, 178 and 184, 62 S.Ct. 164, 169, and 171, 86 L.Ed. 119, in connection with Crandall v. State of Nevada, 6 Wall. 35, 18 L.Ed. 744. However, even if broad scope be given to such a privilege, there is no violation of that privilege by the Florida statute. Florida undoubtedly could have held respondent within Florida if he had been a material witness in a criminal proceeding within that State. And yet this would not have been less of a limitation on his claim of the right of ingress and egress than is an order to attend and testify in New York. There are restrictions on the exercise of the claimed constitutional right. One such restriction derives from the obligation to give testimony. This obligation has been sustained where it necessitated travel across the Atlantic Ocean. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375.1
6
More fundamentally, this case does not involve freedom of travel in its essential sense. At most it represents a temporary interference with voluntary travel. Particularly is this so in an era of jet transportation when vast distances can be traversed in a matter of hours. Respondent was perfectly free to return to Florida after testifying in New York. Indeed, New York was obligated to pay his way back to Florida. Or, after testifying, he could return to Illinois or remain in New York. The privilege of ingress and egress among the States which has been urged in opinions is of hardier stuff. The privilege was to prevent the walling off of States, what has been called the Balkanization of the Nation. The requirement which respondent resists conduces, it merits repetition, toward a free-willed collaboration of independent States.
7
The more relevant challenge to the statute invalidated by the Supreme Court of Florida is that it denies due process of law in violation of the Fourteenth Amendment. Because of the generous protections to be accorded a person brought or summoned before the court of the forwarding State, procedural due process in the hearing itself must be accorded and this is firmly established. The Circuit Court of Dade County ruled that the absence of any provision for bail in the procedure of apprehension and delivery violated due process of law. Since the Supreme Court of Florida expressly refrained from ruling whether the failure of the statute to provide for bail for persons attached and delivered violated either the Florida Constitution, F.S.A.Const. Declaration of Rights, § 9, or the Fourteenth Amendment, and since silence on bail is not tantamount to proscription of bail, the claim that this silence of the statute is a violation of the Fourteenth Amendment is a hypothetical question which need not now be considered. We may add that the sole claim before us, as it was the sole claim dealt with by the Supreme Court of Florida, is that the statute is unconstitutional on its face. No claim is before us that the administration of the statute in the particular circumstances of this case violates due process.
8
The Supreme Court of Florida held that inasmuch as what was ordered was to be carried on in a foreign jurisdiction, the Florida courts could not constitutionally be given jurisdiction to order it (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565). However, the Florida courts had immediate personal jurisdiction over respondent by virtue of his presence within that State. Insofar as the Fourteenth Amendment is concerned, this gave the Florida courts constitutional jurisdiction to order an act even though that act is to be performed outside of the State. See Steele v. Bulova Watch Co., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252; Restatement, Conflict of Laws, § 94.
9
The primary purpose of this Act is not eleemosynary. It serves a self-protective function for each of the enacting States. By enacting this law the Florida Legislature authorized and enabled Florida courts to employ the procedures of other jurisdictions for the obtaining of witnesses needed in criminal proceedings in Florida. Today forty-two States and Puerto Rico may facilitate criminal proceedings, otherwise impeded by the unavailability of material witnesses, by utilizing the machinery of this reciprocal legislation to obtain such witnesses from without their boundaries. This is not a merely altruistic, disinterested enactment.
10
In any event, to yield to an argument that benefiting other States is beyond the power of a State would completely disregard the inherent implications of our federalism within whose framework our organic society lives and moves and has its being—the abundant and complicated interrelationship between national authority and the States, see Hopkins Federal Savings & Loan Ass'n V. Cleary, 296 U.S. 315, 56 S.Ct. 235, 80 L.Ed. 251, and between the States inter sese. To yield to this argument would foreclose to the States virtually all arrangements which increase comity among the States. These extra-constitutional arrangements are designed to solve 'problems created by a constitutional division of powers without disturbance of the federal nature of our government.' Clark, Joint Activity Between Federal and State Officials, 51 Pol.Sci.Q. 230, 269. Reciprocal legislation, such as the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings and the Acts providing reciprocal periods of grace in the registration of out-of-state automobiles, see Kane v. State of New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222, is one such arrangement. The uniform laws proposed by the National Conference of Commissioners on Uniform State Laws and adopted by individual States have (among other benefits) increased ease of interstate commercial relationships by providing uniformity in commercial laws through uniform Acts governing sales and negotiable instruments. Uniform laws have frequently been concerned with enforcement of criminal laws. Thus, the Uniform Criminal Extradition Act, 9 U.L.A. 263 (1957), provides for rendition of alleged criminals whose conduct does not bring them within the constitutional extradition provision. U.S.Const., Art. IV, § 2; Hyatt v. People of State of New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657. There are numerous cooperative undertakings among States by the formation of agencies which study joint problems and make suggestions for internal management within individual States calculated to increase comity among the several States. Interstate preserves are regulated through the device of fusion of distinct state administrative agencies by means of joint sessions and joint action. The Federal Government has also acted in aid of States in matters of local concern through auxiliary legislation (in game statutes, for example), through grants-in-aid, and through legislation calling for cooperation between particular state administrative agencies and federal agencies operating within the same general area of regulation. See Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685, 688—691. About such instances it has been said that they 'illustrate extraconstitutional forms of legal invention for the solution of problems touching more than one state. They were neither contemplated nor specifically provided for by the Constitution.' Frankfurter and Landis, supra, at 691.
11
The manifold arrangements by which the Federal and State Governments collaborate constitute an extensive network of cooperative governmental activities not formulated in the Constitution but not offensive to any of its provisions or prohibitions. See Clark, supra. Among the examples of such devices discussed by Dr. Clark are the Selective Service System, Civilian Conservation Corps, deportation law enforcement, administration of the Pure Food and Drugs Act, 21 U.S.C.A. § 301 et seq. and the federal game statutes, and federal-state contracts for the boarding of federal prisoners in state facilities, 18 U.S.C.A. §§ 4002, 4003.
12
To hold that these and other arrangements are beyond the power of the States and Federal Government because there is no specific empowering provision in the United States Constitution would be to take an unwarrantedly constricted view of state and national powers and would hobble the effective functioning of our federalism. Diffusion of power has its corollary of diffusion of responsibilities with its stimulus to cooperative effort in devising ways and means for making the federal system work. That is not a mechanical structure. It is an interplay of living forces of government to meet the evolving needs of a complex society.
13
The Constitution of the United States does not preclude resourcefulness of relationships between States on matters as to which there is no grant of power to Congress and as to which the range of authority restricted within an individual State is inadequate. By reciprocal, voluntary legislation the States have invented methods to accomplish fruitful and unprohibited ends. A citizen cannot shirk his duty, no matter how inconvenienced thereby, to testify in criminal proceedings and grand jury investigations in a State where he is found. There is no constitutional provision granting him relief from this obligation to testify even though he must travel to another State to do so. Comity among States, an end particularly to be cherished when the object is enforcement of internal criminal laws, is not to be defeated by an a priori restrictive view of state power.
14
The judgment of the Supreme Court of Florida is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion.
15
Reversed and remanded.
16
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
17
The right to free ingress and egress within the country and even beyond the borders is a basic constitutional right, though it is not contained in haec verba in the Constitution. It had been included in the Articles of Confederation, Article IV of which provided in part:
18
'The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State * * *.'
19
As Chafee, Three Human Rights in the Constitution (1956), p. 185, states, the failure to make specific provision for this right in the Constitution must have been on the assumption that it was already included. For it is impossible to think that a right so deeply cherished in the Colonies was rejected outright. 'The Convention carefully prevented states from passing tariff laws; surely it did not want state immigration laws.' Chafee, op. cit., supra, at 185. The Constitution was designed 'to secure the freest intercourse between the citizens of the different States,' said Chief Justice Taney in Smith v. Turner (The Passenger Cases), 7 How. 283, 492, 12 L.Ed. 702. And he added: 'For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.' Id., 492. This right of free ingress and egress is one 'arising out of the nature and essential character of the federal government.' Duncan v. State of Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 572, 38 L.Ed. 485; Twining v. State of New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97. As stated by the Court in Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186:
20
'Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution.'
21
It has often been called a right or privilege of national citizenship, Crandall v. State of Nevada, 6 Wall. 35, 44, 49, 18 L.Ed. 744; Ward v. State of Maryland, 12 Wall. 418, 430, 20 L.Ed. 449; Slaughter House Cases, 16 Wall. 36, 79, 21 L.Ed. 394; Twining v. State of New Jersey, supra, 211 U.S. at page 97, 29 S.Ct. at page 18; Edwards v. People of State of California, 314 U.S. 160, 178—181, 183, 62 S.Ct. 164, 169—170, 171, 86 L.Ed. 119 (concurring opinions). As such, it is protected against state action by the Privileges and Immunities Clause of the Fourteenth Amendment. Slaughter House Cases, supra, 16 Wall. at pages 74—79; In re Kemmler, 136 U.S. 436, 448, 10 S.Ct. 930, 34 L.Ed. 519.
22
It has at times been considered under the protective care of the Commerce Clause subject to control by Congress but free from stoppage or impairment by the States. Edwards v. California, supra.
23
In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, we held that this right to travel was a part of the citizen's 'liberty' within the meaning of the Due Process Clause of the Fifth Amendment.
24
'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.' Id., 357 U.S. at page 126, 78 S.Ct. at page 1118.
25
Whatever may be the sources of this right of free movement the right to go to any State or stay home as one chooses—it is an incident of national citizenship and occupies a high place in our constitutional values.
26
This right of national citizenship has been qualified. One qualification was made by the Extradition Clause of Art. IV, § 2, of the Constitution:1
27
'A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.'
28
But that limitation on the right of free movement applies only when the citizen is a fugitive from the law.
29
Yet O'Neill is not a fugitive from justice. He carries no criminal taint. He is wanted as a witness in New York. But there is no provision of the Constitution which provides for the extradition of witnesses by the States. That power is today judicially created. But I find no authority on the part of the States to enlarge and expand the power of extradition specifically restricted by the Constitution to criminals. As stated in People ex rel. Corkran v. Hyatt, 172 N.Y. 176, 182, 64 N.E. 825, 826, 60 L.R.A. 774, affirmed 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657, '* * * no person can or should be extradited from one state to another unless the case falls within the constitutional provision, * * * power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the states.' We allow today only what a constitutional amendment could achieve. We in effect amend Art. IV, § 2, by construction to add 'witnesses' to the group now embraced in Art. IV, § 2.
30
This right of freedom of movement even of the innocent may not be absolute. Perhaps a State could stop a migrant at its borders for health inspection. There may be other narrow and limited qualifications to this right of free ingress and egress which a State may impose. But I know of no power on the part of a State to pick a citizen up and forcibly remove him from its boundaries where there is no basis of extradition. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 19, 76 L.Ed. 371, is of no help here. There the United States was requiring a citizen, resident abroad, to return to this country to testify and penalizing him for his refusal. This was his home, to which he was rooted and where his loyalties lay. The obligation was exacted by the Federal Government as a requirement of national citizenship. Congress has stated this responsibility in an Act, 62 Stat. 755, 18 U.S.C. § 1073, 18 U.S.C.A. § 1073, which, inter alia, makes it a federal crime for a person to move in interstate commerce 'to avoid giving testimony' in certain criminal proceedings. And Congress has made explicit provision concerning the State to which the witness may be removed.2 I can understand how this regulation of national citizenship can be made by Congress which speaks with authority in the federal field of interstate commerce.3 I fail to see how a State can regulate any of the incidents of national citizenship. I see no greater power on the part of a State to snatch a law-abiding citizen from his abode and send him to another State than to stop him at the border, as was done in Edwards v. People of State of California, supra, because it does not like the cut of his jib. State action was precluded in Edwards v. People of State of California, supra, even though Congress had not acted. It is ever more obviously precluded where Congress has acted.4
31
Reciprocal and uniform laws, like interstate compacts, doubtless serve many useful purposes. But a State does not increase its sovereign powers by making an agreement with another State. Whether the right of ingress and egress be bottomed on the Privileges and Immunities Clause of the Fourteenth Amendment, the Commerce Clause, Const. art. 1, § 8, cl. 3, or a basic 'liberty' inherent in national citizenship, I know of no way in which a State may take it from a citizen. To say that there is no interference here because O'Neill will be free to return to Florida later is to trifle with a basic human right. The Court's argument neables the States through reciprocal laws to generate power that they lack acting separately. It speaks of the importance of encouraging 'resourcefulness of relationships between States on matters as to which there is no grant of power to Congress and as to which the range of authority restricted within an individual State is inadequate.' Yet if the power is inadequate for either Florida or New York acting separately (as I am sure it is), I fail to see how it can be made adequate by the pooling of their inadequacies. To make it such is indeed a saltatorial achievement. The fact that a resident of a State can be compelled to testify in that State is no ground for compelling him 'to leave his State and go to some other State to testify viva voce.' In re Allen, 49 Pa.Dist. & Co.R. 631, 640. His right to go or stay is an incident of national citizenship, qualified only by an appropriate exercise of federal power.5
32
The power of extradition was an expression of a 'policy of mutual support, in bringing offenders to justice', Commonwealth of Kentucky v. Dennison, 24 How. 66, 100, 16 L.Ed. 717; and to substitute a system of law, superior to state authority, for the system of comity prevailing among sovereign nations. Innes v. Tobin, 240 U.S. 127, 130—131, 36 S.Ct. 290, 291, 60 L.Ed. 562. The Federal Act governing witnesses who are fugitives is an assertion by Congress of control over our nationals. Any policy of providing compulsory delivery of witnesses from one State to another is in other words a federal policy. If we allow the States to exercise that power as they like, we might as well permit them to sanction compulsory delivery of citizens from one State into another for purposes of being sued. See Commonwealth of Massachusetts v. Klaus, 145 App.Div. 798, 130 N.Y.S. 713, 722 (dissenting opinion). If it took Art. IV, § 2, of the Constitution to provide for the compulsory delivery of a person charged with a crime from one State to another, and a Federal Act to require the delivery of witnesses over state lines, it would seem to follow a fortiori that further constitutional provisions would be required to authorize one State to provide for the compulsory delivery of an innocent person to another State. See In re Allen, supra.
33
This is not giving the Constitution a niggardly construction. I urge a liberal construction which will respect the civil rights of the citizens. This right of people to choose such State as they like for their abode, to remain unmolested in their dwellings, and to be protected against being whisked away to another State6 has been, until today, zealously guarded. Until now, it has been part and parcel of the cherished freedom of movement protected by the Constitution.
34
I would affirm the judgment entered by a unanimous vote of the Florida Supreme Court.
1
Compulsion to travel across State boundaries to testify in sister States antedates the United States Constitution. See Laws of Maryland, November 1785, Chapter I, An ACT to approve, confirm and ratify, the compact made by the commissioners appointed by the general assembly of the Commonwealth of Virginia, and the commissioners appointed by this state, to regulate and settle the jurisdiction and navigation of Patowmack and Pocomoke rivers, and that part of Chesapeake bay which lieth within the territory of Virginia: 'And in all cases of trial in pursuance of the jurisdiction settled by this compact, citizens of either state shall attend as witnesses in the other, upon a summons from any court or magistrate having jurisdiction, being served by a proper officer of the county where such citizen shall reside.'
1
This provision is implemented by an Act of Congress. 18 U.S.C. c. 209, 18 U.S.C.A. § 3181 et seq.
2
Section 1073 provides: 'Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed or in which the person was held in custody or confinement.'
3
See H.R.Rep. No. 1458, 73d Cong., 2d Sess., p. 2; H.R.Rep. No. 1596, 73d Cong., 2d Sess., p. 2; Hemans v. United States, 6 Cir., 163 F.2d 228, 238—239.
4
In situations no less impressive than the present we have barred state action where, as here, Congress has acted in the same field. Charleston & W.C.R. Co. v. Varnville Furniture Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137; 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. In Charleston & W.C.R. Co. v. Varnville Furniture Co., supra, 237 U.S. at page 604, 35 S.Ct. at page 717, Mr. Justice Holmes speaking for the Court said:
'When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.'
5
The Report of Committee on Securing Compulsory Attendance of Non-Resident Witnesses of the National Conference of Commissioners on Uniform State Laws, as reported in 8 Wigmore on Evidence, § 2195(e), states: 'This character of legislation is not free from constitutional difficulties, and the only case which we have found in which the constitutionality thereof has been directly upheld is the case of Commonwealth of Massachusetts v. Klaus, 145 App.Div. 798, 130 N.Y.S. 713. In the case cited the constitutionality of the New York statutes was upheld in an opinion by Judge Scott, but there is a strong dissenting opinion by Judge Laughlin.'
6
The harshness of this procedure is emphasized by a feature of this extradition law on which the Florida Supreme Court has not yet passed. The New York statute (N.Y.Code Crim.Proc. § 618—a; and see Fla.Stat., 1957, § 942.02) gives the witness who is extradited only $5 a day for his maintenance in New York, a sum plainly inadequate in light of today's cost of living.
| 01
|
359 U.S. 19
79 S.Ct. 560
3 L.Ed.2d 597
Nathaniel HARRIS, Petitioner,v.UNITED STATES of America.
No. 11.
Argued Jan. 13, 14, 1959.
Decided March 2, 1959.
Rehearing Denied April 20, 1959.
See 359 U.S. 976, 79 S.Ct. 873.
Mr. Sidney M. Glazer, Berkeley, Mo., for petitioner.
Mr. John L. Murphy, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
In this narcotics case a two-count indictment charged petitioner with (1) the purchase of 224 grains of heroin from an unstamped package, in violation of 26 U.S.C. § 4704(a), 26 U.S.C.A. § 4704(a);1 and (2) receiving and concealing this same drug knowing it to have been unlawfully imported, in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174.2 The Government introduced into evidence the heroin itself, and testimony that petitioner had been in possession of it. On each count it relied, for proof of the elements of the offense, on the statutory presumptions provided by Congress. While petitioner took the stand, his defense was an alibi and there was therefore a total absence of any explanation by him of his possession of the prohibited drug. Upon being found guilty on each count by a jury, on an instruction that proof of possession of unstamped heroin, in the absence of explanation, might support a conviction on each of the charges in view of the separate statutory presumptions, petitioner wrs sentenced to consecutive sentences of five years' imprisonment and a $1 fine on each count. Attack is made not only on the validity of the instructions but also on the consecutive sentences. The Court of Appeals affirmed, 8 Cir., 1957, 248 F.2d 196. In view of the importance of the question in the enforcement of the narcotic laws, we granted certiorari. 1958, 357 U.S. 935, 78 S.Ct. 1380, 2 L.Ed.2d 1549. We agree with the Court of Appeals. This disposition requires neither a detail of the facts which may be found in the opinion of the Court of Appeals, supra, nor of the court's instructions, of which petitioner now complains.3
2
Congress provided in 1919 that buying narcotics, except in or from the original stamped package, was an offense4 punishable by fine of not more than $2,000 and imprisonment for not more than five years.5 The 1919 Act specifically provided that 'the absence of appropriate tax-paid stamps * * * shall be prima facie evidence of a violation of this section by the person in whose possession same may be found.'6 Long before, on February 9, 1909, Congress had provided that receiving and concealing unlawfully imported narcotics should likewise be an offense. The Act provided that once the defendant on trial '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 shall explain the possession to the satisfaction of the jury.'7
3
Petitioner does not challenge the power of the Congress to adopt these statutes, nor does he attack the separateness of the offenses created, the distinct punishments provided, nor the presumptions therein authorized. But he says that where the presumptions are coupled with a single act of possession of unstamped narcotics cumulative sentences are not permissible and the ones here imposed must fall under the doctrine of Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. We think not.
4
As we see it, Gore v. United States, 1958, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405, controls the question here. There, consecutive sentences were upheld on three counts of an indictment charging (1) sale of narcotics not pursuant to a written order form; (2) purchase, sale and distribution not in or from a stamped package; and (3) transportation and concealment of illegally imported narcotics. The three offenses derived from one transaction, as sale of narcotics. It will be noted that two of the offenses there charged are present here where the one fact proved by direct evidence is possession, rather than a sale. The Court reasoned that 'three violations of three separate offenses created by Congress at three different times,' indicated a clear and continuing purpose on its part '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.' 357 U.S. at page 391, 78 S.Ct. at page 1284, supra.8 We see no significant differences between the two cases. The direct proof in Gore was of a sale of heroin without a written order charged in one of the three counts upon which the consecutive sentences were based. Resort to the statutory presumptions was made to establish the other two counts on which those sentences were assessed. Here the direct evidence proved possession of the unstamped drug, and resort was made to the statutory presumptions for support of the two offenses charged.
5
Petitioner insists that each offense here requires proof of only the single fact of possession, which brings it within the rule in Blockburger, supra. However, petitioner completely overlooks the fact that the 'acts or transactions' prohibited by the respective statutes cannot be equated to possession alone. Let us analyze the offenses. Under the first count of the indictment, the prosecution must prove a purchase of narcotics, other than in or from the original stamped package. In order to establish these ultimate facts, the prosecutor may put on direct evidence of possession of the unstamped heroin and the statutory presumption of § 4704(a) then has the effect of establishing, prima facie, that there was in fact a purchase and that the purchase was other than in or from the original stamped package. In this case, the heroin itself was introduced in evidence, thus the jury could determine whether or not it was stamped. Similarly, under the second count, the prosecution was obligated to prove three ultimate facts: (1) that the heroin was received and concealed; (2) that it had been imported contrary to law; and (3) that petitioner knew of the unlawful importation. After putting on direct evidence of the possession, the prosecution was aided by the statutory presumption of § 174 that the ultimate facts of the violation—entirely different, it must be noted, from those of the first count—were also present.
6
Thus, the violation, as distinguished from the direct evidence offered to prove that violation, was distinctly different under each of the respective statutes. Instead of limiting his proof to an alibi, petitioner could, by offering evidence tending to controvert one presumption or the other as to the ultimate facts, have earned an acquittal on either count and still have been found guilty on the other. Furthermore, to take advantage of the presumption of § 174 it is necessary only to prove possession by direct evidence; whereas to take advantage of the presumption of § 4704(a) it is necessary to prove by direct evidence that the narcotic was unstamped as well as that it was in the defendant's possession. It follows, even if the Blockburger test were applicable, that the offenses were separate and that consecutive sentences could be imposed on each count.
7
We have considered the other contentions raised by petitioner and found them to be without merit. The judgment of the Court of Appeals is
8
Affirmed.
9
Mr. Chief Justice WARREN concurs in the result.
10
Mr. Justice BLACK and Mr. Justice DOUGLAS, dissent.
1
Section 4704(a) of the Internal Revenue Code of 1954, which provides as follows:
'It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and 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.'
See also § 7237 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7237, which at the time of this trial provided a maximum penalty, for first offenders, of a $2,000 fine and imprisonment for five years.
2
Section 2(c) of the Narcotic Drugs Import and Export Act, 35 Stat. 614, as amended by the Act of November 2, 1951, 65 Stat. 767, which provided in pertinent part as follows:
'Whoever * * * receives, conceals, * * * or in any manner facilitates the transportation, concealment, or sale of any * * * narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, * * * shall be fined not more than $2,000 and imprisoned not less than two or more than five years. * * *
'Whenever on trial for a violation of this subdivision 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.'
3
Petitioner made no objection to the court's charge at the time of the trial. See Fed.Rules Crim.Proc. 30, 18 U.S.C.A.
4
40 Stat. 1131.
5
38 Stat. 789.
6
40 Stat. 1131.
7
35 Stat. 614.
8
Although enacted subsequent to this conviction, the continuing purpose of Congress to wipe out the narcotics traffic is shown in § 201 of the Narcotic Control Act of 1956, 70 Stat. 572, 18 U.S.C. (1952 ed., Supp. V) § 1402, 18 U.S.C.A. § 1402, wholly outlawing any possession of heroin.
| 01
|
359 U.S. 41
79 S.Ct. 539
3 L.Ed.2d 609
Emanuel BROWN, Petitioner,v.UNITED STATES of America.
No. 4.
Argued Oct. 16, 1958.
Decided March 9, 1959.
Rehearing Denied April 20, 1959.
See 359 U.S. 976, 79 S.Ct. 873.
Mr. Myron L. Shapiro, New York City, for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was sentenced to 15 months' imprisonment for criminal contempt stemming from his refusal to testify before a federal grand jury. His conviction was affirmed by the Court of Appeals, 247 F.2d 332. The case was brought here primarily to review the validity of the procedure which resulted in the contempt adjudication. 356 U.S. 926, 78 S.Ct. 713, 2 L.Ed.2d 758. Other issues relate to the nature and extent of immunity from prosecution conferred by § 205(e) of the Interstate Commerce Act, as amended,1 and the severity of the punishment imposed by the District Court.
2
A grand jury in the Southern District of New York investigating possible violations of Part II of the Interstate Commerce Act2 issued a subpoena directing the petitioner to appear and testify as to 'all and everything which you may know in regard to an alleged violation of Sections 309, 322 Title 49, United States Code (49 U.S.C.A. §§ 309, 322).' In response to this subpoena the petitioner appeared and, after being sworn, answered a few preliminary questions. He was then asked six further questions concededly relevant to the grand jury's inquiry. These he refused to answer upon the ground of possible self-incrimination. After consulting with his lawyer, who was continuously present in an adjoining anteroom, the petitioner persisted in his refusal to answer, although advised at length by the Assistant United States Attorney that the applicable statute conferred complete immunity from prosecution as to any matter concerning which the petitioner might testify, and that, therefore, 'you do not have any privilege to plead the Fifth Amendment.'
3
Thereupon the scene of the proceedings shifted to the courtroom, where the grand jury sought the aid of the district judge. After being apprised of what had transpired in the grand jury room, the district judge heard extensive argument by counsel as to the scope of immunity afforded a grand jury witness under the applicable statute.
4
Following a weekend recess the district judge ruled that under the statute the petitioner would be accorded immunity as extensive as the privilege he had asserted, and directed that the petitioner therefore return to the grand jury room and answer the questions. Later the same day the grand jury again returned to the courtroom 'to request the aid and assistance of the Court.' The district judge was advised through the official reporter that the petitioner had refused to obey the court's order to answer the questions.
5
The judge then addressed the same questions to the petitioner in the grand jury's presence. Each question was met with a refusal to answer upon the ground of possible self-incrimination. The petitioner was thereupon explicitly directed by the judge to answer each question, and he just as explicitly refused. The judge inquired whether the petitioner would persist in his refusal if he returned to the grand jury room and were again asked the questions there. The petitioner replied that he would. After further argument by counsel, the district judge held the petitioner in contempt and imposed sentence.
6
Throughout the proceedings in the courtroom the petitioner was represented by counsel, who unsuccessfully advanced three basic contentions: (1) A witness who testifies before a grand jury investigating offenses under the Motor Carrier Act is accorded no statutory immunity from subsequent prosecution based upon his testimony. (2) Even if some immunity is conferred, it is not coextensive with the constitutional privilege against self-incrimination. (3) In any event, the District Court, by adjudging the petitioner in criminal contempt without following the procedural requirements of Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., deprived the petitioner of due process of law. The same contentions are advanced here. In addition, we are asked to hold that the sentence of 15 months' imprisonment was an abuse of the District Court's discretion.
7
In determining that § 205(e) of the Motor Carrier Act clothed the petitioner with statutory immunity coextensive with his constitutional privilege not to incriminate himself, the District Court and the Court of Appeals were plainly correct. The relevant statutory language is unambiguous: '* * * and any person subpenaed or testifying in connection with any matter under investigation under this chapter shall have the same rights, privileges, and immunities and be subject to the same duties, liabilities, and penalties as though such matter arose under chapter 1 of this title (Part I of the Interstate Commerce Act) * * *.'3 The obvious purpose and effect of this language is to confer the same immunity upon a witness testifying in an investigation under Part II of the Interstate Commerce Act as is conferred upon one testifying in an investigation under Part I. Both Part I and Part, II contain criminal sanctions, and the power of a grand jury to investigate violations of either Part is unquestioned.
8
The statute which confers immunity upon a witness testifying in a grand jury investigation under Part I was enacted in 1893.4 For more than half a century it has been settled that this statute confers immunity from prosecution coextensive with the constitutional privilege against self-incrimination, and that the witness may not therefore lawfully refuse to testify. Brown v. Walker, 1896, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819. The context in which the doctrine originated and the history of its reaffirmance through the years have been so recently re-examined by this Court in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511, as to make it a needless exercise to retrace that ground here. Suffice it to repeat that Brown v. Walker has become 'part of our constitutional fabric.' 350 U.S. at page 438, 76 S.Ct. at page 506. It is thus clearly too late in the day to question the constitutional sufficiency of the immunity provided under Part I of the Act.
9
In contending that this immunity is not fully imported into Part II the petitioner grasps at straws. He points out that the above-quoted language of 49 U.S.C. § 305(d), 49 U.S.C.A. § 305(d), which incorporates into Part II the immunity provisions of Part I is separated by only a semi-colon from a provision which gives the Commission investigative powers under Part II. See footnote 3. He would therefore have us rewrite the section so as to make the immunity provision applicable only to witnesses appearing before the Commission, not to those appearing before a grand jury or in a court. Such a construction would not only do violence to plain language, but also, as the Court of Appeals observed, to the whole structure of the Interstate Commerce Act. See 247 F.2d at pages 336, 337.
10
The petitioner argues alternatively that even if some immunity is granted by Part II to a grand jury witness, the immunity is not commensurate with that of Part I, and that its scope is therefore constitutionally insufficient. The contention is that § 305(d) provides immunity from prosecution only for offenses related to violations of the Motor Carrier Act itself because of the clause appearing at the beginning of the section—'So far as may be necessary for the purposes of this chapter.' See footnote 3. Assuming that this clause limits the immunity provision of the section at all, it clearly limits only the class of witnesses to whom the immunity will attach, not the scope of the immunity conferred. The petitioner 'subpoenaed * * * in connection with (a) matter under investigation under this chapter * * * necessary for the purposes of this chapter' was clearly within that class.
11
Congress thus provided that the petitioner could not and would not incriminate himself by answering the questions put to him. He could not 'be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he (might) testify * * *.' 49 U.S.C. § 46, 49 U.S.C.A. § 46. He therefore had an unqualified duty to answer the questions as he was directed to do.
12
We turn then to the petitioner's attack upon the validity of the procedure which the District Court followed in adjudicating him in contempt.5 This procedure, it is contended, robbed the petitioner not only of the safeguards of notice, opportunity to prepare a defense, and a hearing, but also of the presumption of innocence and other rights basic to a fair criminal trial.
13
In view of the apparent breadth of the petitioner's argument, it may promote analysis of this aspect of the case to emphasize at the outset what it does not involve. This is not a situation where the contempt was in any sense personal to the judge, raising issues of possible unfairness resulting from the operation of human emotions. Cf. Coke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767; 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. This is not a case of 'misbehavior' involving factual issues as to the nature of the petitioner's conduct and whether it occurred in the 'presence' of the court or 'so near thereto as to obstruct the administration of justice.'6 Cf. Ex parte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150; Ex parte Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; Nye v. United States, 313 U.S. 33, 44—53, 61 S.Ct. 810, 813—818, 85 L.Ed. 1172. Moreover, the petitioner does not question the power of the court to punish disobedience of its lawful order as a criminal contempt,7 and to do so summarily, if the disobedience occurs in the presence of the court and in the sight or hearing of the judge.8
14
The issue presented is thus considerably narrower than the broad strokes of the petitioner's argument would at first suggest. Indeed, the argument boils down to the contention that when the petitioner first disobeyed the court's order in the grand jury room the court had no choice but to initiate criminal contempt proceedings against him at once, under the provisions of Rule 42(b) of the Federal Rules of Criminal Procedure,9 and that it therefore violated his rights by calling him before it and giving him another opportunity to answer the questions before adjudicating him in contempt. This argument disregards the historic relationship between court and grand jury. It finds support in neither precedent nor reason.
15
A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court's aid, because powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.
16
When the petitioner first refused to answer the grand jury's questions, he was guilty of no contempt. He was entitled to persist in his refusal until the court ordered him to answer. Unless, therefore, it was to be frustrated in its investigative purpose, the grand jury had to do exactly what it did—turn to the court for help. If the court had ruled that the privilege against self-incrimination had been properly invoked, that would have been the end of the matter. Even after an adverse ruling upon his claim of privilege, the petitioner was still guilty of no contempt. It was incumbent upon the court unequivocally to order the petitioner to answer. Cf. Wong Gim Ying v. United States, 98 U.S.App.D.C. 23, 231 F.2d 776. The court did so.
17
When upon his return to the grand jury room the petitioner again refused to answer the grand jury's questions, now in direct disobedience of the court's order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42(b). See Carlson v. United States, 1 Cir., 209 F.2d 209, 216.
18
A judge more intent upon punishing the witness than aiding the grand jury in its investigation might well have taken just such a course. Instead, the court made another effort to induce the petitioner to testify. Again unequivocally advising the petitioner that the statute afforded him complete immunity, the court directed him to answer the questions. Had the petitioner done so, he would have purged himself of contempt, and the grand jury's investigation could have proceeded.10 His deliberate refusal, continuing his contempt, cf. Yates v. United States, 355 U.S. 66, 75, 78 S.Ct. 128, 134, 2 L.Ed.2d 95, left the court no choice.11 Since the disobedience occurred in the court's presence, it was clearly proper to proceed under Rule 42(a).
19
Rule 42 of the Federal Rules of Criminal Procedure is no innovation. It simply makes 'more explicit' the long-settled usages of law governing the procedure to be followed in contempt proceedings.12 No decision of this Court has ever questioned the propriety of summary contempt proceedings in aid of a grand jury investigation. Repeated decisions of this Court and the Courts of Appeals have, at least sub silentio, approved such a procedure, stemming as it does from the usages of the common law.13 Indeed less than a decade ago this Court did not consider the question sufficiently doubtful to merit discussion.14 In the light, therefore, of both reason and authority, we hold that the court's action in affording the petitioner a locus penitentiae before finally adjudicating him in contempt was entirely proper.
20
We hold, finally, that the sentence of 15 months' imprisonment was not an abuse of the District Court's discretion. Because there is no statutory limit upon a District Court's sentencing power in cases of criminal contempt, Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672, this Court is not without power to review its exercise. Cf. Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837; Nilva v. United States, 352 U.S. 385, 396, 77 S.Ct. 431, 438, 1 L.Ed.2d 415. But the decision is one primarily for the District Court, to be made 'with the utmost sense of responsibility and circumspection.' Green v. United States, supra, 356 U.S. at page 188, 78 S.Ct. at page 645. The record does not indicate that the district judge's decision was otherwise reached. Before sentence was imposed, the petitioner's counsel was fully, repeatedly and patiently heard.15
21
Affirmed.
22
Mr. Chief Justice WARREN, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join, dissenting.
23
I find myself in disagreement with the majority opinion, not because of its interpretation of the scope of the immunity provisions here in question, but because it sanctions the procedure used below to convict petitioner summarily of criminal contempt and to sentence him to 15 months' imprisonment under Rule 42(a) when the proceeding should have been in accordance with Rule 42(b). The denial of even the minimal protections accorded by Rule 42(b) deprived petitioner of an opportunity to prepare a legal defense, or to demonstrate extenuating circumstances,1 and satisfied neither the plain intent of Rule 42 nor the principles of fair play.
24
Rule 42(b) prescribes that criminal contempts 'shall' be prosecuted on notice allowing a 'reasonable time for the preparation of the defense' and other protections, except in those instances wherein Rule 42(a) provides that contempts committed in the presence of the court 'may' be punished summarily. This demonstrates that the general mode of procedure was to be that prescribed by Rule 42(b). On the other hand, Rule 42(a) covers only specific situations and even then the contempt procedure need not be summary. In the light of the concern long demonstrated by both Congress2 and this Court3 over the possible abuse of the contempt power, it is obvious that Rule 42(a) was reserved for exceptional circumstances. These might include threatening the judge, United States v. Hall, 2 Cir., 176 F.2d 163, or other acts disrupting court proceedings and obstructing the administration of the court's business. United States v. Landes, 2 Cir., 97 F.2d 378.
25
Rule 42(a) was not inserted in the Rules in order to ease the difficulties of prosecuting contempts. It was not meant to authorize the practice of having government prosecutors force persons who had already committed contempts outside of the presence of the court to repeat the action before the court and thus subject themselves to deprivation of their rights under Rule 42(b). Given the purpose of Rule 42(a) with its admittedly precipitous character and extremely harsh consequences, this Court should not countenance a procedure whereby a contempt already completed out of the court's presence may be reproduced in a command performance before the court to justify summary disposition. That is not to say the Government could not properly bring the petitioner before the court a second time. Of course, both the Government and the grand jury could use such additional persuasion to obtain answers to the questions. But that second refusal should not constitute a second contempt. Nor should this procedure alone justify imposing a more severe penalty than would have been appropriate for contempt of the grand jury.4
26
After petitioner refused to answer the questions the judge might very properly have summarily committed the petitioner to jail for civil contempt until he answered the questions. Oriel v. Russell, 278 U.S. 358, 363, 49 S.Ct. 173, 174, 73 L.Ed. 419. See Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797. This is not disputed. In such a proceeding the recalcitrant witness although summarily committed is said to carry the keys to the jail in his own pocket. See In re Nevitt, 8 Cir., 117 F. 448, 461. Or, upon presentment, the judge might have given notice in open court of a criminal contempt proceeding to be commenced under the procedures set forth in Rule 42(b), and the Government so concedes. That is the normal manner of proceeding in these cases. See Wong Gim Ying v. United States, 98 U.S.App.D.C. 23, 27, 231 F.2d 776, 780; Carlson v. United States, 1 Cir., 209 F.2d 209, 216.
27
But the Government was not satisfied with such a procedure. On April 8, though ostensibly seeking the court's assistance in obtaining the answers to the questions, the prosecutor never even faintly suggested any coercivr remedy.5 Rather, from the outset he spoke in terms assuming that petitioner would continue his refusal to testify and made known to the court that he would seek a summary disposition under Rule 42(a) immediately. After the finding of contempt, he asked the judge to give petitioner a substantial sentence and the judge complied—with 15 months in the penitentiary. He then asked the judge to omit a purge clause which the judge did.6 Thereafter he urged the judge to deny bail and the judge promptly acceded to that request.
28
Beyond a short statement, nothing was offered by the Assistant United States Attorney to show the seriousness of the contempt.7 The offense the grand jury was investigating was punishable by no more than a fine. 71 Stat. 352, 49 U.S.C. (Supp. V) § 322(a), 49 U.S.C.A. § 322(a).
29
I do not assert that the contempt could not be more serious than the offense under investigation,8 but where there is a disparity such as exists in this case, a hearing should be held to demonstrate, subject to rebuttal, at least the purpose and significance of the grand jury investigation, the witness' relationship to the subject matter under investigation, and the effect of the witness' recalcitrance on the future of the investigation.
30
The Court's opinion observes that the judge may reduce the sentence within 60 days of the termination of these proceedings under Rule 35. But that power has been held to be discretionary, Flores v. United States, 9 Cir., 238 F.2d 758; Miller v. United States, 5 Cir., 224 F.2d 561, and does not in any sense make a term in the penitentiary comparable to a jail commitment for civil contempt. Exercise of Rule 35 power does not make petitioner any less a convicted criminal. Also, the failure to invoke civil contempt indicates that the judge intended the sentence to be punitive and not coercive.9
31
It is asserted that only a legal issue is involved here—the scope of immunity—so that there was no need to give petitioner time to prepare a defense under Rule 42(b).10 But this overlooks the right of petitioner to present evidence in extenuation and to show what other courts had done in similar circumstances. This argument also neglects the importance of affording the judge an opportunity for reflection. A judge should not be forced—or goaded into spur-of-the-moment decisions where the imprisonment of a person is in the balance. There is no indication that the district judge expected the grand jury to return on the afternoon of April 8. Yet, within a short time after its return, the judge had convicted the petitioner and sentenced him to 15 months in prison for his conduct and had denied bail. Neither counsel discussed the sentences given in comparable cases and, from the severity of the sentence here, it is clear that the judge was not advised how other judges were treating similar offenses.11 There is no statutory limit for the length of sentence in contempts of this character. Apparently, the 15-month sentence in this case is the longest contempt sentence ever sustained by any appellate court in the federal system for a refusal to answer questions of a court or grand jury.12 Even a short delay might have given the judge enough time for research to establish that the Government's reason for seeking omission of the purge clause was groundless.13 Also, the judge took no time to consider the bail question. After a minimum of argument by counsel, the judge denied bail pending appeal.14
32
Shortcuts in criminal procedure are always confusing15 and dangerous, but they are particularly so here, because if sanctioned by this Court, prosecutors throughout the federal system will be tempted to do all they can to make Rule 42(b) a dead letter. The contempt power traditionally has been utilized sparingly and only when necessary to uphold the dignity of the courts. Early in our history, the limits of the power to punish for contempt were said to be 'the least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242. As Mr. Justice Frankfurter has said in Sacher v. United States, 343 U.S. 1, 24—25, 72 S.Ct. 451, 462, 96 L.Ed. 717 (dissenting opinion):
33
'To dispense with indictment by grand jury and trial by a jury of twelve does not mean the right to disregard reason and fairness. Reason and fairness demand, even in punishing contempt, procedural safeguards within which the needs for the effective administration of justice can be amply satisfied while at the same time the reach of so drastic a power is kept within limits that will minimize abuse. While experience has shown the necessity of recognizing that courts possess this authority, experience has also proven that restrictions appropriate to the purposes of the power must fence in its exercise. Hence Congress, by legislation dating back more than a hundred years, has put geographic and procedural restrictions upon the power of the United States courts to punish summarily for contempt. * * *
34
'The Court did so for a reason deeply imbedded in our legal system and by that very fact too often neglected. Times of tension, which are usually periods of war and their aftermath, bring it to the surface. Reflecting no doubt their concern over untoward events in law enforcement arising out of the First World War, Mr. Justice Brandeis and Mr. Justice Holmes gave quiet warning when they observed that 'in the development of our liberty insistence upon procedural regularity has been a large factor.' Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048. It is not for nothing that most of the provisions of our Bill of Rights are concerned with matters of procedure.
35
'That is what this case is about—'procedural regularity.' Not whether these petitioners have been guilty of conduct professionally inexcusable, but what tribunal should sit in judgment; not whether they should be punished, but who should mete out the appropriate punishment; not whether a Federal court has authority to prevent its proceedings from being subverted, but how that authority should be exercised so as to assure the rectitude of legal proceedings and at the same time not detract from the authority of law itself.'
36
And, shortly thereafter, the Court adopted this viewpoint. See Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11. The importance of procedural regularity often lies in advising the defendant of the procedure he must expect and giving him time to prepare. Also, judicial reflection is an invaluable by-product of procedures that are designed to be no more precipitous than necessary to meet the demands of the situation. Here, there was no demonstrated need for haste and no resultant benefit (except in saving the United States Attorney's office the time and effort of preparing for a hearing on notice). There had already been a fully committed contempt before the grand jury which might have been prosecuted within a short time giving petitioner only 'a reasonable time for the preparation of the defense.' This Court with its supervisory power over the administration of criminal justice in the federal courts, McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819, should not permit the utilization of summary contempt procedures where immediate action is not necessary for the preservation of the respect and dignity of the federal courts. Improvident use of summary procedures only weakens that respect.16
37
In the light of the sentences given in this type of case, I doubt if any judge in the federal system would summarily send a witness to the penitentiary for 15 months for merely refusing to testify in a grand jury investigation of whether a trucker is operating without an ICC certificate. It is quite obvious that much of the sentence was for some reason collateral to that investigation. It is not sufficient for the purpose of increasing punishment to act on the suspicion that the refusal of the witness to testify may redound to the interest of a racketeer, and on that basis deny him the protections that Congress has seen fit to accord to all witnesses before grand juries. If such factors are to play a part in the sentence the witness is entitled to a hearing on notice.
38
Unfortunately, the failure to adhere to procedural regularity may be glossed over in the investigation of matters of burning public interest, but it should be remembered that the deprivation of the rights of a witness in such an investigation must apply as a precedent to people in all walks of life, both good and bad. I suggest that the full import of the decision in this case will not be recognized until it is applied at some future time in other types of investigations and to other people.
39
I would reverse the conviction.
1
49 Stat. 550; 54 Stat. 922, 49 U.S.C. § 305(d), 49 U.S.C.A. § 305(d).
2
Commonly known as the Motor Carrier Act, 49 Stat. 543, as amended, 54 Stat. 919, 49 U.S.C. § 301 et seq., 49 U.S.C.A. § 301 et seq.
3
The full text of the subsection, as it appears in the United States Code, is as follows: 'So far as may be necessary for the purposes of this chapter, the Commission and the members and examiners thereof and joint boards shall have the same power to administer oaths, and require by subpena the attendance and testimony of witnesses and the production of books, papers, tariffs, contracts, agreements, and documents, and to take testimony by deposition, relating to any matter under investigation, as the Commission has in a matter arising under chapter 1 of this title; and any person subpenaed or testifying in connection with any matter under investigation under this chapter shall have the same rights, privileges, and immunities and be subject to the same duties, liabilities, and penalties as though such matter arose under chapter 1 of this title, unless otherwise provided in this chapter.' 49 U.S.C. § 305(d), 49 U.S.C.A. § 305(d).
4
27 Stat. 443, 49 U.S.C. § 46, 49 U.S.C.A. § 46. 'No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, whether such subpoena be signed or issued by one or more commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of chapter 1 of this title on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $100 nor more than $5,000, or by imprisonment for not more than one year or by both such fine and imprisonment.'
See also 32 Stat. 904, 49 U.S.C. § 47, 49 U.S.C.A. § 47, which provides: 'No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under chapter 1 of this title or any law amendatory thereof or supplemental thereto: Provided, That no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.'
5
The petitioner and his counsel were advised in advance what the procedure was to be. 'Mr. Wachtell: The Government's understanding of the nature of this proceeding is this: At this point the grand jury is still merely requesting the assistance of the Court. What the Government would request is that if it appears, as will be shown by the testimony of the grand jury reporter, that the witness is persisting in his refusal, the Government will then request of this Court that the Court itself, in the presence of the grand jury, will put the six questions to the witness and ask him, first, whther he is willing to answer them now, and, second, would he answer them if he were sent back to the grand jury again. And if the witness again refuses here and now in the physical presence of the Court or persists in his refusal to answer, that the witness be held in summary contempt under Rule 42(a) of the Federal Rules of Criminal Procedure.
'The Court: That is what I propose.'
6
18 U.S.C. § 401(1), 18 U.S.C.A. § 401(1).
7
18 U.S.C. § 401, 18 U.S.C.A. § 401. Power of court:
'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—
'(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.'
8
Rule 42. Criminal Contempt:
'(a) Summary Disposition. 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 order of contempt shall recite the facts and shall be signed by the judge and entered of record.'
9
Rule 42. Criminal Contempt: '(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrepect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.'
10
The petitioner's contention that the court's very act of directing him to answer somehow violated his privilege against self-incrimination is thus clearly incorrect.
11
We do not discuss the petitioner's claim, first advanced in the Court of Appeals, that the District Court proceeding was conducted in 'secrecy,' because the record does not show this to be the fact.
12
Sacher v. United States, 343 U.S. 1, 7, 72 S.Ct. 451, 454, 96 L.Ed. 717; Notes of Advisory Committee on Rules, 18 U.S.C.A., Rule 42, note.
13
Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Wilson v. United States, 221 U.S. 361, 369, 31 S.Ct. 538, 540, 55 L.Ed. 771, semble; Hale v. Henkel, 201 U.S. 43, 46, 26 S.Ct. 370, 372, 50 L.Ed. 652; United States v. Curcio, 2 Cir., 234 F.2d 470, 473, reversed on other grounds, 1957, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225; Lopiparo v. United States, 8 Cir., 216 F.2d 87; United States v. Weinberg, 2 Cir., 65 F.2d 394, 396. For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 1874, 2 Hun 226, 4 Thomp. & C. 467; People ex rel. Hackley v. Kelly, 1861, 24 N.Y. 74, 79—80; In re Harris, 1884, 4 Utah 5, 8—9, 5 P. 129, 130—132; Heard v. Pierce, 1851, 62 Mass. 338, 342—345.
14
In Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, the petitioner attacked the validity of the summary procedure by which she was found guilty of criminal contempt for refusing to testify before a grand jury. (See Petitioner's brief Nos. 20, 21, 22, O.T., 1950, pp. 54—58; brief of United States, ibid., pp. 51—53.) Neither the opinion of the Court nor the dissenting opinion discussed the question. A petition for rehearing which complained of the Court's silence on this issue (Petition for Rehearing No. 20, O.T., 1950, pp. 6—10) was denied. 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348.
15
The petitioner points out that the sentence imposed was in excess of the maximum punishment authorized by statute for substantive violations of the Motor Carrier Act. A more relevant comparison might be made to the stautory offenses involving obstruction of the administration of justice, punishable by a maximum of five years' imprisonment. 18 U.S.C. § 1503, 18 U.S.C.A. § 1503. The record shows that the grand jury was investigating suspected violations of the Motor Carrier Act not by the petitioner, but by others. The District Court was informed that the testimony the grand jury 'desired to elicit from this witness * * * is of the very greatest importance, and the witness's refusal to answer is a very great stumbling block to this investigation and to all these investigations.' If within 60 days of the termination of these proceedings the petitioner indicates his willingness to testify, the District Court will no doubt consider that fact in passing upon a motion for reduction of his sentence under Rule 35 of the Federal Rules of Criminal Procedure.
1
The prosecutor indicated to the court that the inquiry, though directed toward minor violations of the Interstate Commerce Act, was really part of an effort to discover facts concerning notorious gangsters suspected of complicity in the Victor Riesel acid-throwing incident and general racketeering in the Southern District of New York. In view of the total absence of any intimation that petitioner had violated the Interstate Commerce Act or was himself guilty of criminal conduct, the actual basis for his refusal to testify may well have been fear of gangster reprisals, a not unreasonable fear in such circumstances. Regardless of the legal significance of such a defense, see Widger v. United States, 5 Cir., 244 F.2d 103, a hearing would have provided an opportunity for presentation of such facts to the judge and might well have affected the length of sentence.
2
See, generally, Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts A Study in Separation of Powers, 37 Harv.L.Rev. 1010.
3
See, e.g., Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242.
4
Although the district judge asked petitioner other questions during this second proceeding in the courtroom, the judge's certificate makes clear that the contempt found was for refusal to answer the six substantive questions and not for any other answers. Cf. Carlson v. United States, 1 Cir., 209 F.2d 209, 216.
In practice, contempts before the court are punished no more severely than those before the grand jury. See n. 11, infra.
5
See the statement in n. 5 of the Court's opinion. But see n. 9, infra.
6
See n. 13, infra.
7
The only expression by the Assistant United States Attorney about the connection of petitioner with the grand jury investigation then in progress was the following statement made during discussion of the punishment:
'The information that it is desired to elicit from this witness, I represent to the Court, is of the very greatest importance, and the witness' refusal to answer is a very great stumbling block to this investigation and to all these investigations.'
8
Comparing this sentence with that possible under the penalty for obstructing the administration of justice, 18 U.S.C. § 1503, is not meaningful because in such a prosecution petitioner would have been entitled to all of the safeguards normally afforded criminal defendants, including, of course, the very basic protection of trial by jury.
9
This would seem true despite the confusion existent in the courtroom just before the sentencing wherein the prosecutor asked the judge for a 'substantial sentence, and that is done not so much for any punitive effect as it would be for the coercive effect of the sentence.' This was stated just after the prosecutor had requested the judge to omit a purge clause!
10
Although this Court disagrees with petitioner's argument concerning the breadth and applicability of the immunity provisions in question, the Court of Appeals did grant bail and its opinion recognized that the point had some 'novel aspects.' 247 F.2d 332, 338. Thus, when considering the action taken by the district judge, it must be recognized that the question of immunity was not frivolous.
11
The following cases involving contempt of the grand jury appear to be the only appellate decisions in the Second Circuit: O'Connell v. United States, 2 Cir., 40 F.2d 201 (three months with purge clause), certiorari granted 281 U.S. 716, 50 S.Ct. 461, 74 L.Ed. 1136, certiorari dismissed on stipulation of counsel 296 U.S. 667, 51 S.Ct. 658, 75 L.Ed. 1472; Lang v. United States, 2 Cir., 55 F.2d 922 (90 days with purge clause), certiorari granted 285 U.S. 533, 52 S.Ct. 408, 76 L.Ed. 928, certiorari dismissed 286 U.S. 523, 52 S.Ct. 495, 76 L.Ed. 1267; United States v. Weinberg, 2 Cir., 65 F.2d 394 (60 days); United States v. Zwillman, 2 Cir., 108 F.2d 802 (six-month sentence reversed); United States v. Weisman, 2 Cir., 111 F.2d 260 (six-month sentence reversed); United States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240 (five-month sentence), certiorari dismissed as moot 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199. The following cases in the Second Circuit definitely adopted the procedure here in question: United States v. Trock, 2 Cir., 232 F.2d 839 (four-month sentence with purge clause), reversed 351 U.S. 976, 76 S.Ct. 1048, 100 L.Ed. 1493; United States v. Curcio, 2 Cir., 234 F.2d 470 (six-month sentence with purge clause) reversed 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225; United States v. Gordon, 2 Cir., 236 F.2d 916 (six-month sentence containing a purge clause reversed); United States v. Courtney, 2 Cir., 236 F.2d 921 (three-month sentence reversed); United States v. Miranti, 2 Cir., 253 F.2d 135 (two 5-year sentences reversed with a comment on the district judge's anger at the witnesses).
Cases from other Circuits involving grand jury contempts: United States v. Caton, 25 Fed.Cas. p. 350 No. 14,758 ($5 fine); In re Counselman, C.C., 44 F. 268 ($500 fine and civil contempt) reversed sub nom. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Elwell v. United States, 7 Cir., 275 F. 775 ($500 fine and civil contempt); Camarota v. United States, 3 Cir., 111 F.2d 243 (six months); United States v. Hoffman, 3 Cir., 185 F.2d 617 (five months), reversed 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118; Healey v. United States, 9 Cir., 186 F.2d 164 (four sentences of one year or more and one $10 fine reversed); United States v. Greenberg, 3 Cir., 187 F.2d 35 (five-month sentence), reversed 341 U.S. 944, 71 S.Ct. 1013, 95 L.Ed. 1369; Carlson v. United States, 1 Cir., 209 F.2d 209 (18-month sentence vacated); Hooley v. United States, 1 Cir., 209 F.2d 219 (nine-month sentence vacated); O'Keefe v. United States, 1 Cir., 209 F.2d 223 (nine-month sentence vacated); Maffie v. United States, 1 Cir., 209 F.2d 225 (one-year sentence vacated); Daly v. United States, 1 Cir., 209 F.2d 232 (one-year sentence vacated); Hooley v. United States, 1 Cir., 209 F.2d 234 (one-year sentence vacated).
The following cases involve contempts for refusals to answer in the courtroom: Rogers v. United States, 10 Cir., 179 F.2d 559, affirmed 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (four-month sentence for refusal before court to testify before grand jury); Green v. United States, 2 Cir., 193 F.2d 111 (six-month sentence for telling court he would not obey order to produce records before the grand jury at a later date); United States v. Field, 2 Cir., 193 F.2d 92 (one sentence of 90 days and two sentences of 6 months, all with purge clauses for refusals to answer certain questions and produce certain documents at hearing before the court); Enrichi v. United States, 10 Cir., 212 F.2d 702 (six-month sentence and $500 fine for refusal before court to testify before grand jury).
Even refusals to testify during the course of trial have not been punished as severely: In re Cashman, D.C.S.D.N.Y., 168 F. 1008 (8 months and $750 fine for refusal to answer questions at bankruptcy hearing); United States v. Barker, D.C., 11 F.R.D. 421 (90 days and $1,000 fine for refusal to testify on cross-examination during trial); United States v. Flegenheimer, 2 Cir., 82 F.2d 751 (six-months for witness' refusal to give direct testimony); United States v. Gates, 2 Cir., 176 F.2d 78 (30 days with purge clause for refusal to answer question on cross-examination during trial); Widger v. United States, 5 Cir., 244 F.2d 103 (one-year sentence for refusal to testify reversed).
12
All of the longer sentences have been vacated or reversed on appeal: United States v. Miranti, 2 Cir., 253 F.2d 135; Carlson v. United States, 1 Cir., 209 F.2d 209; Healey v. United States, 9 Cir., 186 F.2d 164. The 18-month sentence sustained in Lopiparo v. United States, 8 Cir., 216 F.2d 87, was not for a refusal to testify. Rather, the contempt there was based upon the judge's disbelief of defendant's story that he could not find the corporate books which he was ordered to produce before the grand jury. 216 F.2d at page 91. Even the sentence in that case contained a purge clause.
13
The stated reason for requesting omission of a purge clause was the legal effect it might have in shortening the fixed term. But see Lopiparo v. United States, 8 Cir., 222 F.2d 897. Cf. Loubriel v. United States, 2 Cir., 9 F.2d 807, relied on by the Government.
14
Eight days later, the Court of Appeals granted bail and petitioner has been at large since.
15
The question of whether the April 8 proceedings were conducted in secret is the subject of some confusion caused by the swift procedure invoked. It is clear that on April 5 the courtroom was cleared. It is also clear that on April 8 the grand jury returned to the courtroom ostensibly for further aid and assistance, and that the grand jury reporter read to the court what had happened earlier. Though the transcript does not so indicate, it would seem most likely that secrecy was again in effect. In fact, petitioner's counsel objected to the procedure and asked that he be served in 'open court' with notice of the charges. There is no indication of any change in this situation after the refusal to answer and before the actual contempt proceeding. The Assistant United States Attorney has stated that in fact there were no spectators in the courtroom on April 8. A secret proceeding is no less secret because the defendant is allowed to have counsel. See also n. 10, supra.
16
Reliance upon the improper application of Rule 42(a) to petitioner in this case, makes it unnecessary to discuss the issue raised in Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672 (dissenting opinion).
| 01
|
359 U.S. 29
79 S.Ct. 554
3 L.Ed.2d 601
UNITED STATES of America, Petitioner,v.EMBASSY RESTAURANT, INC., et al.
No. 174.
Argued Jan. 22, 1959.
Decided March 9, 1959.
Mr. John F. Davis, Washington, D.C., for petitioner.
Mr. Richard H. Markowitz, Philadelphia, Pa., for respondents.
Mr. Justice CLARK, delivered the opinion of the Court.
1
The sole issue involved here is whether contributions by an employer to a union welfare fund which are required by a collective bargaining agreement are entitled, in bankruptcy, to priority as being 'wages * * * due to workmen' under § 64, sub. a(2) of the Bankruptcy Act, as amended.1 Both the trial court, D.C., 154 F.Supp. 141, and the Court of Appeals, 3 Cir., 254 F.2d 475, held that such contributions enjoyed priority. This resulted in a conflict with the Court of Appeals for the Second Circuit, Local 140 Security Fund v. Hack, 242 F.2d 375, in view of which we granted certiorari, 358 U.S. 811, 79 S.Ct. 42, 3 L.Ed.2d 55.
2
The facts are undisputed. Embassy Restaurant, Inc., was bound in collective bargaining agreements with Local Unions 111 and 301. The agreements related to hours, wages and other conditions of employment. Under these agreements Embassy was obligated to contribute to the trustees of the welfare funds of Locals 111 and 301 $8 per month per full-time employee. The welfare plans were organized to maintain 'life insurance, weekly sick benefits, hospital and surgical benefits' and other advantages for members of the locals. Trustees administered each plan under a formal trust agreement and were authorized to formulate and establish the conditions of eligibility for benefits, control all the funds received, collect all contributions, and in their 'sole discretion' to handle all legal proceedings incident thereto. Title to all of the funds, property and income was placed in the trustees exclusively and no employee or anyone claiming under him had any right whatsoever in the plan or any part thereof. In the bankruptcy proceeding the trustees filed proofs of a cliam for unpaid contributions due by Embassy, and asserted a second priority for all amounts that had accrued during the three months immediately preceding the bankruptcy. This priority was disallowed by the Referee but, on review, it was granted by both the trial court and the Court of Appeals. We have concluded that such contributions are not entitled to such priority in payment.
3
At the outset we point out that 'The broad purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt's estate * * *.' Kothe v. R. C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382, and that 'if one claimant is to be preferred over others, the purpose should be clear from the statute.' Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83. 97 L.Ed. 23.2 Moreover, if the contributions are placed in the wage priority class, they will likewise be rendered nondischargeable under § 17 of the Act,3 resulting in their remaining outstanding debts of the bankrupt if the assets of the estate are insufficient to discharge them for three months prior to the bankruptcy.
4
The trustees attempt to bring contributions within this preferred class by claiming them to be 'wages * * * due to workmen.' This class of claim has been given a preferred position in the Bankruptcy Act for over 100 years,4 long before welfare funds played any part in labor negotiations. True, the Congress has amended the Act, but such amendments have been few and guarded ones, such as raising the ceiling on the amount permitted,5 shifting the relative priorities6 and enlarging the class to salesmen, clerks, etc.7 If it had wished to include contributions, Congress could easily have included them at any of these times. On the contrary, however, the purpose of Congress has constantly been to enable employees displaced by bankruptcy to secure, with some promptness, the money directly due to them in back wages, and thus to alleviate in some degree the hardship that unemployment usually brings to workers and their families. Evidence of this purpose is found in a 1934 amendment to the Bankruptcy Act.8 In that year, Congress amended § 63 to allow workmen's compensation claims as provable debts. In awarding them priority, however, Congress relegated these claims to a seventh priority in contrast to the then fourth priority of wages.9 Only four years later, Congress abolished the priority status of these compensation claims, though it continued them as provable debts under § 63, 11 U.S.C. § 103, sub. a(6), 11 U.S.C.A. § 103, sub. a(6). It is therefore evident that not all types of obligations due employees from their employers are regarded by Congress as being within the concept of wages, even though having some relation to employment. Moreover, such action indicated the care Congress has exercised in regard to the protection it has granted 'wages * * * due to workmen.'
5
Let us examine the nature of these contributions. They are flat sums of $8 per month for each workman. The amount is without relation to his hours, wages or productivity. It is due the trustees, not the workman, and the latter has no legal interest in its whatsoever. A workman cannot even compel payment by a defaulting employer. Moreover it does not appear that the parties to the collective agreement considered these welfare payments as wages. The contract here refers to them as 'contributions.' Finally, Embassy's obligation is to contribute sums to the trustees, not to its workmen; it is enforceable only by the trustees who enjoy not only the sole title, but the exclusive management of the funds.
6
It is contended, however, that since 'unions bargain for these contributions as though they were wages' and industry likewise considers them 'as an integral part of the wage package,' they must in law be considered 'wages.' This approach overlooks the fact that we deal with a statute, not business practice. Nor do we believe that holdings that various fringe benefits are wages under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.10 or the Social Security Act, 42 U.S.C.A. § 301 et seq.,11 are apposite. We construe the priority section of the Bankruptcy Act, not those statutes. It specifically fixes the relative priority of claims of classes of creditors. Here that class is 'wages * * * due to workmen.'
7
The contributions here are not 'due to workmen,' nor have they the customary attributes of wages. Thus, they cannot be treated as being within the clear, unequivocal language of 'wages * * * due to workmen' unless it is clear that they satisfy the purpose for which Congress established the priority. That purpose was to provide the workman a 'protective cushion' against the economic displacement caused by his employer's bankruptcy.12 These payments, owed as they are to the trustee rather than to the workman, offer no support to the workman in periods of financial distress. Furthermore, if the claims of the trustees are to be treated on a par with wages, in a case where the employer's assets are insufficient to pay all in the second priority, the workman will have to share with the walfare plan, thus reducing his own recovery.
8
Respondents argue that precedent allows the priority to be asserted by one other than the workman himself. We are cited to Shropshire, Woodliff & Co. v. Bush, 204 U.S. 186, 27 S.Ct. 178, 51 L.Ed. 436, and United States for Benefit and on Behalf of Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776. In Shropshire, wages due a workman had been assigned by him, and the assignee was seeking the wage priority enjoyed by his assignor. In allowing the claim to have priority, the Court said:
9
'When one has incurred a debt for wages due to workmen, * * * that debt * * * is entitled to priority * * *.
10
'* * * The character of the debts was fixed when they were incurred, and could not be changed by an assignment,' 204 U.S., at page 189, 27 S.Ct. at page 179, and also, that 'The priority is attached to the debt, and not to the person of the creditor * * *.' Ibid. Application of these principles to the facts here helps respondents not at all; the obligation to make contributions, when incurred, was to the trustees, not to the workmen. The debt was never owed the workmen. Furthermore, assignability of wage claims as in Shropshire, may benefit the bankrupt's employees, who are thus enabled to obtain their money sooner than they might by waiting out the bankruptcy procedure.
11
Nor does the Carter case, supra, support the granting of a priority to these contributions. There we dealt with the Miller Act,13 which granted to every person furnishing labor or material the right to sue on the contractor's payment bond 'for the sum or sums justly due him.' The contractor defaulted and the trustees of a welfare fund similar to that involved here sued on the bond for recovery of contributions 'justly due.' Our opinion did not hold that contributions were part of 'wages * * * due to workmen.' In fact we pointed out that the trust agreement provided that the contributions 'shall not constitute or be deemed to be wages.' The basis of the opinion was that the Miller Act 'does not limit recovery on the statutory bond to 'wages," id., at page 217, 77 S.Ct. at page 797. The Act having the broad protective purposes of securing all claims that are 'justly due,' we held that the trustees might recover. In short, though the contributions were not wages, they were 'justly due' as a claim within 'the purposes of the Miller Act.' Under the Bankruptcy Act, however, not all claims 'justly due' have priority. They must be within a class, such as 'wages * * * due to workmen.' The claims here are not. If this class is to be so enlarged, it must be done by the Congress.
12
The judgment is reversed.
13
Reversed.
14
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
15
I believe payments made by employers to union welfare funds are 'wages * * * due to workmen * * *,' under the Bankruptcy Act's priority section.1 The history of the section is one of continuous congressional expansion. Priority for the 'full amount of the wages due' on account of 'any labor as an operative in the service of any bankrupt' was first granted in the 1841 Bankruptcy Act; it was limited to $25.2 The Bankruptcy Acts of 1867 and 1898 increased the sum available to each claimant and broadened the coverage of the priority beyond 'operatives' or 'workmen' to 'workmen, clerks, or servants.'3 In 1906 Congress brought still more workers into the protected category by defining the group as 'workmen, clerks, traveling or city salesmen, or servants.'4 The priority was once again increased, now to $600, in 1926.5
16
The Chandler Act passed in 1938 raised the workers' priority to second behind expenses of administration and ahead of federal and local taxes. At the same time its scope was further broadened to cover 'workmen, servants, clerks, or traveling or city salesmen on a salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt.'6 Finally, in 1956, Congress took occasion to guard against narrow interpretation of the class of workers covered by adding to the priority section of the Chandler Act the words 'and for the purposes of this clause, the term 'traveling or city salesmen' shall include all such salesmen, whether or not they are independent contractors selling the products or services of the bankrupt on a commission basis, with or without a drawing account or formal contract.'7
17
This last change in the priority section was the sole subject of a very short Act passed by Congress. Like most of the earlier changes, it was enacted after court decisions barring some workers from the protected class or indicating that others might be barred.8 We should, I think, be warned by the foregoing history of the wage priority section against niggardly interpretations of the language used in that section.
18
The Court argues however, that payments to welfare funds are neither 'wages' nor 'due to workmen.' It is hard for me to see how they could not be 'wages.' The payments are certainly not gifts. As was stated less than a year ago by a Senate Committee, which had made an extended study of plans such as those here involved, 'regardless of the form they take, the employers' share of the costs of these plans or the benefits the employers provide are a form of compensation.'9 Courts have long held that compensation for services rendered is a valid definition of 'wages' both in the priority section of the Bankruptcy Act and in other contexts.10 This is certainly in accord with the customary meaning of the word. It appears, moreover, that unions and employees consider such payments as the equivalent of wages and that they have been treated as wages in other statutes.11 In fact, where such treatment has seemed undesirable, Congress has expressly excluded them from the category.12 Of course, a word need not mean the same thing in different statutes, but the meaning attributed in one Act is far from irrelevant to the interpretation of another.
19
It cannot be argued that a sum paid by an employer for a worker's services loses its status as wages merely because it is used to purchase insurance benefits.13 For the Bankruptcy Act has as yet authorized no investigation of how a worker spends his money to determine if he is entitled to a priority for it. And in all events insurance payments would not seem to be the type of expenditure which Congress would discourage.
20
It is also hard for me to imagine how the fact that the moneys are paid to parties other than the workmen is in any way connected with the question of whether the payments are wages, whatever its relevance might be to whether the sums are 'due to workmen.' This is especially true in the light of Shropshire, Woodliff & Co. v. Bush, 204 U.S. 186, 27 S.Ct. 178, 51 L.Ed. 436, which held that moneys due an assignee of the worker were entitled to priority as wages. The Government admits that if a formal assignment had been made here, wage status might be granted. It does not explain, however, how the lack of a formal assignment can change payments from 'wages' to something else or make granting a priority less in line with congressional policy.14
21
The question of whether the payments are 'due to workmen' is on its face somewhat more difficult. But to my way of thinking, the correct answer has been made easy by prior cases in this Court. In the Shropshire case, the Court said, 'The priority is attached to the debt, and not to the person of the creditor; to the claim, and not to the claimant. The act does not enumerate classes of creditors and confer upon them the privilege of priority in payment, but, on the other hand, enumerates classes of debts as 'the debts to have priority." 204 U.S., at page 189, 27 S.Ct. at page 179. It then held that an assignee of a worker had priority since the debt was wages due to workmen.
22
Even if it could be meaningfully argued that in Shropshire the money was at one time due to workmen, and therefore remained so after assignment, while here it never was due to them, we are, I think, precluded from that position unless we depart from the reasoning of United States for Benefit and On Behalf of Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776. That case construed § 2(a) of the Miller Act, 49 Stat. 794, 40 U.S.C. § 270b(a), 40 U.S.C.A. § 270b(a), which provides that 'Every person who has furnished labor * * * and who has not been paid in full * * * shall have the right to sue on (a) payment bond * * * for the sum or sums justly due him.' The Court held that, for the purposes of the Miller Act, payments to welfare funds are, 'as much 'justly due' to the employees who have earned them as are the wages payable directly to them in cash.' 353 U.S., at page 220, 77 S.Ct. at page 798. In fact, the Court stated that trustees of the welfare fund have an even better right to sue then most assignees since the trustees, unlike the usual assignee, sue for the benefit of the workers. Ibid. I cannot see why the Bankruptcy Act should be construed differently from the Miller Act on the question of whether welfare fund contributions are due to workmen. This is especially true since the polices of the relevant provisions of the two Acts are quite similar.
23
Finally it seems to me undesirable to make a distinction in this area between payments on assignment and payments in trust. At best it would let the carrying out of congressional policy depend on the skill with which unions prepare legal documents, and on the various state laws covering the validity of wage assignments. At worst it would give priorities to assignees of the workmen, usually creditors, while denying them to insurance funds for their benefit. Unless we are prepared to repudiate what we said in the Carter and Shropshire cases, I think § 64, sub. a(2) of the Bankruptcy Act means that the sums which Embassy contracted to pay to these employees for their labor by making payments to welfare funds are wages due to workers. If the provision granting priority to wages is to be narrowed, It should be done by Congress—not by this Court.
24
I would affirm.
1
30 Stat. 563, § 64, as amended, 11 U.S.C. (Supp. V) § 104, sub. a(2), 11 U.S.C.A. § 104, sub. a(2), provides:
'(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be * * * (2) wages * * * not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; * * * (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof: * * *'
2
See also Kuehner v. Irving Trust Co., 299 U.S. 445, 452, 57 S.Ct. 298, 81 L.Ed. 340; Sampsell v. Imperial Paper & Color Corporation, 313 U.S. 215, 219, 61 S.Ct. 904, 85 L.Ed. 1293.
3
30 Stat. 550, as amended, 11 U.S.C. § 35 sub. a(5), 11 U.S.C.A. § 35, sub. a(5).
4
The Act of August 19, 1841, c. 9, 5 Stat. 445, established a third priority for those who had performed 'labor as an operative' of the bankrupt.
5
E.g., Act of May 27, 1926, c. 406, § 15, 44 Stat. 666.
6
E.g., Act of June 22, 1938, c. 575, § 64, 52 Stat. 874, 11 U.S.C. § 104, 11 U.S.C.A. § 104.
7
E.g., Act of June 15, 1906, c. 3333, 34 Stat. 267.
8
Act of June 7, 1934, c. 424, 48 Stat. 924.
9
Id., 923.
10
Inland Steel Co. v. National Labor Relations Board, 7 Cir., 170 F.2d 247, 251, 12 A.L.R.2d 240 (contributions to an employee pension plan).
11
MacPherson v. Ewing, D.C., 107 F.Supp. 666 (sick pay).
12
In re Victory Apparel Mfg. Corp., D.C., 154 F.Supp. 819, 822; Blessing v. Blanchard, 9 Cir., 223 F. 35, 37.
13
49 Stat. 793, 40 U.S.C. §§ 270a—270d, 40 U.S.C.A. §§ 270a 270d.
1
64, 30 Stat. 563, as amended, 11 U.S.C. § 104, 11 U.S.C.A. § 104. The question has caused considerable difficulty in the federal courts. Compare, e.g., the opinions below in this case, 3 Cir., 254 F.2d 475, D.C., 154 F.Supp. 141 and In re Otto, D.C., 146 F.Supp. 786, with Local 140 Security Fund v. Hack, 2 Cir., 242 F.2d 375; In re Brassel, D.C., 135 F.Supp. 827; In re Victory Apparel Mfg. Corp., D.C., 154 F.Supp. 819. Similarly commentators have split. Compare, e.g., Notes, 19 Ga.B.J. 107; 66 Yale L.J. 449; 44 Va.L.Rev. 995; 57 Mich.L.Rev. 403, with Notes, 34 Chi.-Kent L.Rev. 235; 42 Minn.L.Rev. 295.
2
Act of August 19, 1841, 5 Stat. 445.
3
Act of March 2, 1867, 14 Stat. 529; Act of July 1, 1898, 30 Stat. 563.
4
Act of June 15, 1906, 34 Stat. 267.
5
Act of May 27, 1926, 44 Stat. 667.
6
Act of June 22, 1938, 52 Stat. 874.
7
70 Stat. 725, 11 U.S.C. (Supp. V) § 104, 11 U.S.C.A. § 104.
8
See, e.g., In re Scanlan, D.C., 97 F. 26; In re Greenewald, D.C., 99 F. 705; In re Kominers, 2 Cir., 252 F. 183; In re Collin, D.C., 18 F.Supp. 848; In re Clover Dairies, Inc., D.C., 42 F.Supp. 1006; In re Herbert Candy Co., D.C., 43 F.Supp. 588. In recommending the latest change the House Judiciary Committee stated '* * * language in some court cases has been confusing * * *. (T)here is language from which one might infer that a salesman who was a 'separate contractor' could not qualify.' H.R.Rep. No. 921, 84th Cong., 1st Sess. 2.
9
S.Rep. No. 1440, 85th Cong., 2d Sess. 4. The Committee also called attention to the fact that 'In little more than a decade private employee welfare and pension plans have grown from relatively small significance to a position where approximately 84 million persons are depending in some manner upon the benefits which they promise.' Id., at 3.
10
E.g., In re Gurewitz, 2 Cir., 121 F. 982; Glandzis v. Callinicos, 2 Cir., 140 F.2d 111; National Labor Relations Board v. Bemis Bro. Bag. Co., 5 Cir., 206 F.2d 33, 37. See also Note, 19 Ga.B.J. 107.
11
See, e.g., Inland Steel Co. v. National Labor Relations Board, 7 Cir., 170 F.2d 247, 251, 12 A.L.R.2d 240. See also Note, 66 Yale L.J. 449, 458, 460.
12
68A Stat. 32, 26 U.S.C. (Supp. IV) § 106, 26 U.S.C.A § 106; 68A Stat. 417, 26 U.S.C. (Supp. IV) § 3121(a), 26 U.S.C.A. § 3121(a); 68A Stat. 447, 26 U.S.C. (Supp. IV) § 3306(b)(2), 26 U.S.C.A. § 3306(b)(2). Cf. Brown v. State of Maryland, 12 Wheat. 419, 438, 6 L.Ed. 678, '* * * the exception of a particular thing from general words, proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made * * *.'
13
See In re Otto, D.C., 146 F.Supp. 786, 790; In re Ross, D.C., 117 F.Supp. 346.
14
The Court notes that workmen's compensation claims were at one time given priority by Congress and were subsequently removed. As compensation rights are not contracted for in exchange for labor I do not see how their disposition is relevant to the problem in this case.
| 78
|
359 U.S. 117
79 S.Ct. 720
3 L.Ed.2d 673
Donald JOSEPH et al., petitioners,v.INDIANA.
No. 8.
Supreme Court of the United States
March 23, 1959
Mr. William S. Isham, for petitioners.
Mr. Robert M. O'Mahoney, Deputy Atty. Gen. of Indiana (Messrs. Edwin K. Steers, Atty. Gen. and Owen S. Boling, Asst. Atty. Gen., on the brief), for respondent.
Certiorari to the Supreme Court of Indiana.
Former opinion, 355 U.S. 812, 78 S.Ct. 64; 355 U.S. 948, 78 S.Ct. 533.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
| 89
|
359 U.S. 102
79 S.Ct. 637
3 L.Ed.2d 662
TAK SHAN FONG, Petitioner,v.UNITED STATES of America.
No. 110.
Argued Feb. 24, 1959.
Decided March 23, 1959.
Mr. William B. Mahoney, for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner, a native and citizen of China, seeks naturalization pursuant to the provisions of an Act of Congress, passed in 1953, designed to facilitate the naturalization of aliens who served in our armed forces during the general period of the Korean hostilities.1 The statute provides for the naturalization of aliens serving at least 90 days in the armed forces after June 24, 1950, and not later than July 1, 1955:
2
'(1) having been lawfully admitted to the United States for permanent residence, or (2) having been lawfully admitted to the United States, and having been physically present within the United States for a single period of at least one year at the time of entering the Armed Forces * * *.'
3
Petitioner first entered the United States on August 24, 1951, at Honolulu on a seaman's 29-day pass, and departed from the country with his ship. On January 27, 1952, petitioner again entered the United States at Newport News, where the vessel on which he was employed was then touching. The exact circumstances of this entry are disputed, but it is conceded on all sides that it was unlawful. Petitioner did not depart with his ship, but remained within the United States. He was apprehended in June 1952, and deportation proceedings were commenced against him; but the proceedings were halted when it became known that on May 4, 1953, he had been inducted into the Army. He served honorably until his discharge on May 3, 1955, and on December 22, 1955, instituted the present proceedings based on the statute to which we have referred.2 The District Court granted his petition for naturalization, but the Court of Appeals reversed. 254 F.2d 4. We granted certiorari. 358 U.S. 811, 79 S.Ct. 30, 3 L.Ed.2d 55.
4
Congress has shown varying degrees of liberality in granting special naturalization rights to aliens serving in our armed forces at various times. For example, the Immigration and Nationality Act of 1952 allows such rights to those having served honorably in World War I or during the period September 1, 1939, to December 31, 1946, if at the time of their induction or enlistment they simply were physically present in the United States or certain named outlying territories.3 On the other hand, that Act's general provision allowing aliens with three years' armed service at any time to be naturalized fee of certain residence requirements4 provides no exemption from the requirement that they had been 'lawfully admitted to the United States for permanent residence.'5 We must examine the extent to which Congress has made these rights available here, in this statute aimed at service during the Korean hostilities. Petitioner contends that, under clause (2), one year's presence in the United States at the time of induction entitles him to them if at any time theretofore he had been lawfully admitted to the country. He relies on his lawful admittance and brief stay in the country at Honolulu in 1951 as providing this. The Government contends that the lawful admittance must have been the means whereby the alien commenced his year's presence in the country, and that accordingly the lawful Honolulu entry is irrelevant. We are in agreement with the Government's view of the statute.
5
While perhaps a verbal construction of the statute can be made as not implying any connection between the required lawful admittance and the re-required year's presence, we think the only fair and natural construction of the words is that one is implied. As distinguished from its policy toward World War I and II service, Congress was not prepared to allow special naturalization rights to aliens serving at the time of Korea simply if they entered the service while physically, for any length of time and lawfully or unlawfully, within the United States. Nor was it prepared to make one year's residence alone the condition; it also imposed the requirement of lawful admittance. It would not be a meaningful requirement to attribute to Congress if it could have been satisfied of the year's presence. We before and unconnected with the commencement the year's presence. We believe that Congress must have been referring to the last entry before the year's presence—the entry into the country which provided the occasion for that presence. Cf. Bonetti v. Rogers, 356 U.S. 691, 78 S.Ct. 976, 2 L.Ed.2d 1087. Under this construction, clause (2) of the statute requires a 'single period' of residence commencing with a lawful admission and continuing for a year thereafter. It does not demand that the alien's continuing status in the country be lawful, but it does make that requirement of the entry which gives rise to his presence.
6
Such legislative history as is relevant to the meaning of the statute bears out this construction. The Act was passed in the First Session of the Eighty-third Congress, and when the bill that became the Act was first brought to the House floor after Committee consideration during that Session,6 the member reporting it stated that it was identical with the law that existed during 'the war' (presumably World War II)7 with the exception that it applied only to aliens who were 'legally and lawfully in the United States.' 99 Cong.Rec. 2639. This must be read in the context of the House Committee Report's statement that 'lawful admission' was a prerequisite to the bill's benefits, and its explanation that it had rejected a proposal of the Justice Department that would have required the presence of the alien at the time of entrance into the armed services also be lawful. The Committee had felt that the alien should not be saddled with 'the technicalities involved in connection with the continuance of such (lawful) status at the time of entering the Armed Forces.' H.R.Rep. No. 223, 83d Cong., 1st Sess., p. 4. The House bill required only lawful admission and physical presence at the time of entering the service;8 later the Senate inserted the one year's presence requirement,9 but we do not perceive any change in the distinction we have set forth above. To us, this indicates that Congress desired that the alien's presence in the country be the consequence of a lawful admission, even though the continuance of his stay be beyond the terms on which he was admitted. It is true that the present statute does not in terms state the nexus between admission and the required period of residence as positively as did a 1932 alien veterans' statute which petitioner urges on us for comparison, and which required that the alien have 'resided continuously within the United States for at least two years, in pursuance of a legal admission for permanent residence.'10 § 1, Act of May 25, 1932, c. 203, 47 Stat. 165. But, as we have explained, Congress did not wish this Act to imply a requirement that the continuance of the alien's presence here be lawful, and such language might have done so. We find the language it in fact used was apt to draw the lines we have indicated above.
7
Of course, we must be receptive to the purpose implicit in legislation of this sort, to express the gratitude of the country toward aliens who render service in its armed forces in its defense. But that does not warrant our rationalizing to an ambiguity where fairly considered none exists, or extending the generosity of the legislation past the limits to which Congress was willing to go. The service petitioner has rendered this country might inspire legislative relief in his behalf; but here we take the statute as it stands, and under it the judgment of the Court of Appeals was correct.
8
Affirmed.
9
The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS dissent.
1
§ 1 of the Act of June 30, 1953, c. 162, 67 Stat. 108, 8 U.S.C.(Supp. V) § 1440a, 8 U.S.C.A. § 1440a.
2
The statute requires that petitions for naturalization filed under it be filed not later than December 31, 1955.
3
§ 329, 66 Stat. 250, 8 U.S.C. § 1440, 8 U.S.C.A. § 1440. See also note 7, infra.
4
§ 328, 66 Stat. 249, 8 U.S.C. § 1439, 8 U.S.C.A. § 1439.
5
§ 318, 66 Stat. 244, 8 U.S.C. § 1429, 8 U.S.C.A. § 1429. The 1953 Act explicitly exempts those who can qualify under its terms from the requirements of § 318.
6
There had been activity within Congress in this direction during the Eighty-second Congress, but no bill was passed. See H.R.Rep. No. 1176, 82d Cong., 1st Sess.; S.Rep. No. 1713, 82d Cong., 2d Sess.
7
The statute actually in effect during World War II was § 701 of the Nationality Act of 1940, added by Title X of the Second War Powers Act, 1942, 56 Stat. 182. The requirement of lawful admittance, at first made by the Act, was substantially dispensed with through an amendment by the Act of December 22, 1944, c. 662, 58 Stat. 886.
8
The bill then extended to 'any person, not a citizen, who, after June 24, 1950, and not later than July 1, 1955, has actively served or actively serves, honorably, in the Armed Forces of the United States for a period or periods totaling not less than 30 days and who, having been lawfully admitted to the United States * * * shall have been at the time of entering the Armed Forces within such area * * *.' See 99 Cong.Rec. 2639.
9
See S.Rep. No. 378, 83d Cong., 1st Sess., p. 4. The alternative now found in clause (1), admission for permanent residence, was also introduced in the Senate.
10
The provision relates to the period before filing the naturalization petition, rather than before entrance into the service, but this difference does not affect the comparison asserted.
| 12
|
359 U.S. 108
79 S.Ct. 641
3 L.Ed.2d 667
Edgar B. SIMS, Petitioner,v.UNITED STATES of America.
No. 88.
Argued Feb. 26, 1959.
Decided March 23, 1959.
Mr. Fred H. Caplan, Charleston, W.Va., for petitioner.
Miss Melva Graney, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The Commissioner of Internal Revenue assessed an income tax deficiency against each of three residents of West Virginia and forwarded the assessment lists to the Director of Internal Revenue at Parkersburg for collection. The deficiencies remaining unpaid for more than 10 days after demand for payment and the taxpayers being then employed by the State of West Virginia, the Director issued notices of levy directed to the State of West Virginia and served them on petitioner, as the State Auditor, seizing the accrued salaries of the taxpayers pursuant to § 6331 of the 1954 Internal Revenue Code, 26 U.S.C. (Supp. V) § 6331, 26 U.S.C.A. § 6331.1 Petitioner refused to honor the levies and instead issued and delivered payroll warrants to the taxpayers for their then accrued net salaries aggregating $519.71.2 Thereafter the Government brought this suit in the Federal District Court against petitioner under § 6332 of the 1954 Internal Revenue Code, 26 U.S.C. (Supp. V) § 6332, 26 U.S.C.A. § 6332,3 to recover from him personally the $519.71 that he had so paid to the taxpayers in disobedience to and defeat of the Government's levies. The District Court rendered judgment for the Government and the Court of Appeals affirmed, 252 F.2d 434. Certiorari was sought on the grounds that § 6331 does not authorize a levy on the accrued salaries of employees of a State, and that, if it be held that it does, petitioner was not a person 'obligated with respect to' the accrued and seized salaries, within the meaning of § 6332, and, therefore, is not personally liable for refusing to surrender them to the Government. We granted the writ to determine those questions. 358 U.S. 809, 79 S.Ct. 24, 3 L.Ed.2d 54.
2
Nothing in the Constitution requires that the salaries of state employees be treated any differently, for federal tax purposes, than the salaries of others, Helvering v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969, 82 L.Ed. 1427; Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927, and it is quite clear, generally, that accrued salaries are property and rights to property subject to levy.4 In plain terms, § 6331 provides for the collection of assessed and unpaid taxes 'by levy upon all property and rights to property' belonging to a delinquent taxpayer.5 Pursuant to that statute a regulation was promulgated expressly interpreting and declaring § 6331 to authorize levy on the accrued salaries of employees of a State to enforce collection of any federal tax.6
3
Although not disputing these principles, petitioner advances two arguments in support of his claim that the statutes do not authorize a levy on the accrued salaries of employees of a State. First, he contends that a State is not a 'person' within the meaning of § 6332, and, second, he argues that Congress, by specifically authorizing in § 6331 a levy 'upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality' thereof, but not similarly specifically authorizing levy upon the accrued salaries or wages of employees of a State, evinced its intention to exclude the latter from such levies.
4
Though the definition of 'person' in § 6332 does not mention States or any sovereign or political entity or their officers among those it 'includes' (Note 3), it is equally clear that it does not exclude them. This is made certain by the provisions of § 7701(b) of the 1954 Internal Revenue Code that 'The terms 'includes' and 'including' when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.' 26 U.S.C. (Supp. V) § 7701(b), 26 U.S.C.A. § 7701(b). Whether the term 'person' when used in a federal statute includes a State cannot be abstractly declared, but depends upon its legislative environment, State of Ohio v. Helvering, 292 U.S. 360, 370, 54 S.Ct. 725, 727, 78 L.Ed. 1307; State of Georgia v. Evans, 316 U.S. 159, 161, 62 S.Ct. 972, 973, 86 L.Ed. 1346. It is clear that § 6332 is stated in all-inclusive terms of general application. 'In interpreting federal revenue measures expressed in terms of general application, this Court has ordinarily found them operative in the case of state activities even though States were not expressly indicated as subjects of tax.' Wilmette Partk Dist. v. Campbell, 338 U.S. 411, 416, 70 S.Ct. 195, 198, 94 L.Ed. 205, and cases cited. We think that the subject matter, the context, the legislative history, and the executive interpretation, i.e., the legislative environment, of § 6332 make it plain that Congress intended to and did include States within the term 'person' as used in § 6332.
5
Nor is there merit in petitioner's contention that Congress, by specifically providing in § 6331 for levy upon the accrued salaries of federal employees, but not mentioning state employees, evinced an intention to exclude the latter from levy. The explanation of that action by Congress appears quite clearly to be that this Court has held in Smith v. Jackson, 246 U.S. 388, 38 S.Ct. 353, 62 L.Ed. 788, that a federal disbursing officer might not, in the absence of express congressional authorization, set off an indebtedness of a federal employee to the Government against the employee's salary, and, pursuant to that opinion, the Comptroller General ruled that an 'administrative official served with (notices of levy) would be without authority to withhold any portion of the current salary of such employee in satisfaction of the notices of levy and distraint.' 26 Comp.Gen. 907, 912 (1947). It is evident that § 6331 was enacted to overcome that difficulty and to subject the salaries of federal employees to the same collection procedure as are available against all other taxpayers, including employees of a State.
6
Accordingly we hold that §§ 6331 and 6332 authorize levy upon the accrued salaries of state employees for the collection of any federal tax.
7
This brings us to petitioner's contention that even if the salaries of state employees are subject to levy, he is not personally liable to the Government for refusing to honor its levies because, contrary to the holding of the courts below, he was not a person 'obligated with respect to' the salaries covered thereby. Congress did not define the questioned phrase, nor do we feel called upon here to delimit its scope, for we think it includes, at least, a person who has the sole power to control disposition of the fund, and we also think that, under the West Virginia law, petitioner both had and exercised that power. By a West Virginia statute, 1 W.Va.Code, 1955, § 1013(1), (12—3—13a) he was empowered and obligated to deduct and withhold from the salaries of state employees sums 'to pay taxes as may be required by an act or acts of the congress of the United States of America'; and, similarly, another West Virginia statute, 2 W.Va.Code, 1955, § 3834(18), (38—5B—5), authorizes garnishments to be served upon him to sequester the salaries of state employees. He alone has the obligation and power to issue warrants for the payment of salaries, and state employees entitled to payment for services may enforce their rights by mandamus against him. State ex rel. Board of Governors of West Virginia University v. Sims, 133 W.Va. 239, 55 S.E.2d 505; State ex rel. Board of Governors of West Virginia University v. Sims, 136 W.Va. 789, 68 S.E.2d 489; State ex rel. Board of Governors of West Virginia University v. Sims, 140 W.Va. 64, 82 S.E.2d 321. By and to the extent of these West Virginia laws petitioner was obligated and empowered in respect to the sequestered salaries. These laws empowered him completely to control the disposition of that fund. He exercised that power by refusing to honor the Government's valid levies and to surrender the fund to the Government. Instead he surrendered the fund to the taxpayers. That action by petitioner resulted in defeat of the Government's valid levies.
8
Upon these principles four judges who are constantly required to pass upon West Virginia laws have held that, under the law of that State, petitioner is a person who was obligated with respect to the salaries covered by the Government's levies. Their conclusion appears to be founded on reason and authority, and under familiar principles will be accepted here. Propper v. Clark, 337 U.S. 472, 486—487, 69 S.Ct. 1333, 1341—1342, 93 L.Ed. 1480. Being a person who, under the law of West Virginia, was obligated with respect to the salaries covered by the Government's levies, petitioner is, by § 6332(b), made personally liable to the Government in a sum equal to the amount, not exceeding the delinquent taxes, which he refused to surrender to the Government but surrendered instead to the taxpayers in defeat of the Government's levies. The judgment of the Court of Appeals was therefore correct and must be affirmed.
9
Affirmed.
1
26 U.S.C.(Supp. V) § 6331, 26 U.S.C.A. § 6331, in pertinent part, provides:
'(a) Authority of Secretary or delegate.—If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax * * * by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer * * *.
'(b) Seizure and sale of property.—The term 'levy' as used in this title includes the power of distraint and seizure by any means. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).'
2
The assessment against each of the taxpayers substantially exceeded in amount the accrued salary owing to each at the time of the levies.
3
26 U.S.C.(Supp. V) § 6332, 26 U.S.C.A. § 6332, provides:
'(a) Requirement.—Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.
'(b) Penalty for violation.—Any person who fails or refuses to surrender as required by subsection (a) any property or rights to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes for the collection of which such levy has been made, together with costs and interest on such sum at the rate of 6 percent per annum from the date of such levy.
'(c) Person defined.—The term 'person,' as used in subsection (a), includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.'
4
Glass City Bank of Jeanette, Pa. v. United States, 326 U.S. 265, 268, 66 S.Ct. 108, 110, 90 L.Ed. 56; United States v. Long Island Drug Co., 2 Cir., 115 F.2d 983, 986; 9 Mertens, Law of Federal Income Taxation (Rev.), § 49.205.
5
The only property exempt from levy is that listed in § 6334(a) of the 1954 Internal Revenue Code, 26 U.S.C.(Supp. V) § 6334(a), 26 U.S.C.A. § 6334(a), consisting of certain personal articles and provisions. It does not exempt salaries or wages.
6
Section 301.6331—1(a)(4)(ii) of Treasury Regulations relating to Seizure of Property for Collection of Taxes (1954), 26 CFR (Revised as of Jan. 1, 1958) § 301.6331—1(a)(4)(ii), in pertinent part, provides:
'State and municipal employees. Accrued salaries, wages, or other compensation of any officer, employee, or elected or appointed official of a State or Territory, or of any agency, instrumentality, or political subdivision thereof, are also subject to levy to enforce collection of any Federal tax.'
This Regulation became effective on January 1, 1955, 1955—1 Cum.Bull., p. 195, § 7851, and therefore prior to the service on petitioner of the Government's notices of levy in October 1955.
| 1112
|
359 U.S. 115
79 S.Ct. 721
3 L.Ed.2d 673
Jerome S. SPEVACK, petitioner,v.Lewis L. STRAUSS et al.
No. 339.
Supreme Court of the United States
March 23, 1959
Messrs. Carleton U. Edwards II, and Joseph Y. Houghton (Mr. Bernard Margolius, on the brief), for petitioner.
Mr. Leonard B. Sand (Solicitor General Rankin, Assistant Attorney General Doub, Messrs. Samuel D. Slade, Lionel Kestenbaum, Loren K. Olson and Roland A. Anderson, on the brief), for respondents.
1
Messrs. Elisha Hanson, Arthur B. Hanson and Calvin H. Cobb, Jr., for the American Chemical Society, as amici curiae.
2
Messrs. Carlton S. Dargusch and Carlton S. Dargusch, Jr., for Engineers Joint Council, Inc., as amici curiae.
3
On writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
4
Former opinion, 358 U.S. 871, 79 S.Ct. 112; 79 S.Ct. 577.
5
PER CURIAM.
6
Upon oral argument, it appeared that in the normal course the fee for petitioner's United States patent must be paid by May 25, 1959, and that the patent will issue shortly after payment of the fee. Accordingly, the case is remanded to the District Court and that court is instructed: (1) If petitioner has by May 25, 1959, paid the patent fee for his patent, and has not requested a suspension or delay in the issuance thereof, or has withdrawn any such request theretofore made, to continue the case and the restraining orders entered herein by The Chief Justice until the patent issues, and then to dismiss the complaint as moot; (2) otherwise, on May 25, 1959, to dismiss the complaint on the ground that, apart from the eri ts of the controversy, the grant of the extraordinary equitable relief of an injunction at that stage of the proceedings would not be warranted. Upon the fulfillment of either of these conditions, the proceedings heretofore had in the two lower courts are vacated.
| 89
|
359 U.S. 65
79 S.Ct. 618
3 L.Ed.2d 640
SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.VARIABLE ANNUITY LIFE INSURANCE COMPANY OF AMERICA, and The Equity Annuity Life Insurance Company. NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., Petitioner, v. VARIABLE ANNUITY LIFE INSURANCE COMPANY OF AMERICA, and The Equity Annuity Life Insurance Company.
Nos. 290, 237.
Argued Jan. 15 and 19, 1959.
Decided March 23, 1959.
Mr. Thomas G. Meeker, Washington, D.C., for petitioner S.E.C.
Mr. John H. Dorsey, Washington, D.C., for petitioner National Ass'n of Securities Dealers.
Mr. Benjamin H. Dorsey, Washington, D.C., for respondent Equity Annuity Life Ins. Co.
Messrs. Roy W. McDonald, New York City, and James M. Earnest, Washington, D.C., for respondent Variable Annuity Life Ins. Co. of America.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is an action instituted by the Securities and Exchange Commission1 to enjoin respondents from offering their annuity contracts to the public without registering them under the Securities Act of 1933, 48 Stat. 74, 15 U.S.C. § 77a et seq., 15 U.S.C.A. § 77a et seq., and complying with the Investment Company Act of 1940, 54 Stat. 789, 15 U.S.C. § 80a—1 et seq., 15 U.S.C.A. § 80a—1 et seq. The District Court denied relief, 155 F.Supp. 521; and the Court of Appeals affirmed, 103 U.S.App.D.C. 197, 257 F.2d 201. The case is here on petitions for writs of certiorari which we granted, 358 U.S. 812, 79 S.Ct. 63, 3 L.Ed.2d 56, because of the importance of the question presented.
2
Respondents are regulated under the insurance laws of the District of Columbia and several other States. It is argued that that fact brings into play the provisions of the McCarran-Ferguson Act, 59 Stat. 33, 15 U.S.C. § 1011 et seq., 15 U.S.C.A. § 1011 et seq., § 2(b) of which provides that '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 * * *.' It is said that the conditions under which that law is applicable are satisfied here. The District of Columbia and some of the States are 'regulating' these annuity contracts and, if the Commission is right, the Federal Acts would at least to a degree 'supersede' the state regulations since the Federal Acts prescribe their own peculiar requirements.2 Moreover, 'insurance' or 'annuity' contracts are exempt from the Securities Act when 'subject to the supervision of the insurance commissioner * * * of any State * * *.'3 Respondents are also exempt from the Investment Company Act if they are 'organized as an insurance company, whose primary and predominant business activity is the writing of insurance * * * and which is subject to supervision by the insurance commissioner * * * of a State * * *.'4 While the term 'security' as defined in the Securities Act5 is broad enough to include any 'annuity' contract, and the term 'investment company' as defined in the Investment Company Act6 would embrace an 'insurance company,' the scheme of the exemptions lifts pro tanto the requirements of those two Federal Acts to the extent that respondents are actually regulated by the States as insurance companies, if indeed they are such. The question common to the exemption provisions of the Securities Act and the Investment Company Act and to § 2(b) of the McCarran-Fergusion Act is whether respondents are issuing contracts of insurance.
3
We start with a reluctance to disturb the state regulatory schemes that are in actual effect, either by displacing them or by superimposing federal requirements on transactions that are tailored to meet state requirements. When the States speak in the field of 'insurance,' they speak with the authority of a long tradition. For the regulation of 'insurance,' though within the ambit of federal power (United States v. South-Eastern Underwriters' Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440), has traditionally been under the control of the States.
4
We deal, however, with federal statutes where the words 'insurance' and 'annuity' are federal terms. Congress was legislating concerning a concept which had taken on its coloration and meaning largely from state law, from state practice, from state usage. Some States deny these 'annuity' contracts any status as 'insurance.'7 Others accept them under their 'insurance' statutes.8 It is apparent that there is no uniformity in the rulings of the States on the nature of these 'annuity' contracts. In any event how the States may have ruled is not decisive. For, as we have said, the meaning of 'insurance' or 'annuity' under these Federal Acts is a federal question.
5
While all the States regulate 'annuities' under their 'insurance' laws, traditionally and customarily they have been fixed annuities, offering the annuitant specified and definite amounts beginning with a certain year of his or her life. The standards for investment of funds underlying these annuities have been conservative. The variable annuity introduced two new features. First, premiums collected are invested to a greater degree in common stocks and other equities. Second, benefit payments vary with the success of the investment policy. The first variable annuity apparently appeared in this country about 1952 when New York created the College Retirement Equities Fund9 to provide annuities for teachers. It came into existence as a result of a search for a device that would avoid paying annuitants in depreciated dollars.10 The theory was that returns from investments in common stocks would over the long run tend to compensate for the mounting inflation. The holder of a variable annuity cannot look forward to a fixed monthly or yearly amount in his advancing years. It may be greater or less, depending on the wisdom of the investment policy. In some respects the variable annuity has the characteristics of the fixed and conventional annuity: payments are made periodically; they continue until the annuitant's death or in case other options are chosen until the end of a fixed term or until the death of the last of two persons; payments are made both from principal and income; and the amounts vary according to the age and sex of the annuitant. Moreover, actuarially both the fixed-dollar annuity and the variable annuity are calculated by identical principles. Each issuer assumes the risk of mortality from the moment the contract is issued. That risk is an actuarial prognostication that a certain number of annuitants will survive to specified ages. Even if a substantial number live beyond their predicted demise, the company issuing the annuity—whether it be fixed or variable—is obligated to make the annuity payments on the basis of the mortality prediction reflected in the contract. This is the mortality risk assumed both by respondents and by those who issue fixed annuities. It is this feature, common to both, that respondents stress when they urge that this is basically an insurance device.11
6
The difficulty is that, absent some guarantee of fixed income, the variable annuity places all the investment risks on the annuitant, none on the company.12 The holder gets only a pro rata share of what the portfolio of equity interests reflects which may be a lot, a little, or nothing. We realize that life insurance is an evolving institution. Common knowledge tells us that the forms have greatly changed even in a generation. And we would not undertake to freeze the concepts of 'insurance' or 'annuity' into the mold they fitted when these Federal Acts were passed. But we conclude that the concept of 'insurance' involves some investment risk-taking on the part of the company. The risk of mortality, assumed here, gives these variable annuities an aspect of insurance. Yet it is apparent, not real; superficial, not substantial. In hard reality the issuer of a variable annuity that has no element of a fixed return assumes no true risk in the insurance sense. It is no answer to say that the risk of declining returns in times of depression is the reciprocal of the fixed-dollar annuitant's risk of loss of purchasing power when prices are high and gain of purchasing power when they are low. We deal with a more conventional concept of risk-bearing when we speak of 'insurance.' For in common understanding 'insurance' involves a guarantee that at least some fraction of the benefits will be payable in fixed amounts. See Spellacy v. American Life Ins. Ass'n, 144 Conn. 346, 354—355, 131 A.2d 834, 839; Couch, Cyclopedia of Insurance Law, Vol. 1, § 25; Richards, Law of Insurance, Vol. 1, § 27; Appleman, Insurance Law and Practice, Vol. 1, § 81. The companies that issue these annuities take the risk of failure. But they guarantee nothing to the annuitant except an interest in a portfolio of common stocks or other equities13—an interest that has a ceiling but no floor.14 There is no true underwriting of risks,15 the one earmark of insurance as it has commonly been conceived of in popular understanding and usage.
7
Reversed.
8
Mr. Justice BRENNAN, with whom Mr. Justice STEWART joins, concurring.
9
I join the opinion and judgment of the Court. However, there are additional reasons which lead me to the Court's result, and since the nature of this case lends it to rather extended treatment, I will express these reasons separately.
10
First. The facts of this case are quite complex, but the basic problem involved is much more simple. I will try to point it up before developing the details of the sort of contracts sold by the respondents. It is one of the coverage of two Acts of Congress which concentrated on applying specific forms of regulatory controls to the various ways in which organizations get and administer other people's money—the Securities Act of 19331 and the Investment Company Act of 1940.2 These Acts were specifically drawn to exclude any 'insurance policy' and any 'annuity contract' (Securities Act § 3(a)(8)) and any 'insurance company'3 (Investment Company Act § 3(a)(3)) from their coverage. These exclusions were to take effect where the issuer of the policy or contract was subject to the supervision of the state 'insurance commissioner, bank commissioner, or any agency or officer performing like functions' (Securities Act § 3(a)(8)) or where a company classifiable as an 'insurance company' was 'subject to supervision by the insurance commissioner or a similar official or agency of a State' (Investment Company Act § 2(a) (17)). The exclusions left these contracts and companies to the sole control of such state officials. Except for these exclusions, there is little doubt that these contracts and the companies issuing them would be subject to the Federal Acts.4
11
Why these exclusions? They could not have been made out of some general desire on the part of Congress to avoid any concurrent regulation by both the Federal Government and the States of investments or companies subject to the two Acts. On the contrary, § 18 of the Securities Act and § 50 of the Investment Company Act preserve generally the jurisdiction of state officials over their subject matter; the former in terms of 'the jurisdiction of the securities commission (or any agency or office performing like functions) of any State' and the latter in terms of 'the jurisdiction of any other commission, board, agency, or officer of * * * any State or political subdivision.' Conversely, of course, however adequately State Securities Commissioners might regulate an investment, it was not for that reason to be freed from federal regulation. Concurrent regulation, then, was contemplated by the Acts as a quite generally prevailing matter. Nor is it rational to assume that Congress thought that any business whatsoever regulated by a specific class of officials, the State Insurance Commissioners, would be for that reason so perfectly conducted and regulated that all the protections of the Federal Acts would be unnecessary. This approach of personally selective deference to the state administrators is hardly to be attributed to Congress. The point must have been that there then was a form of 'investment' known as insurance (including 'annuity contracts') which did not present very squarely the sort of problems that the Securities Act and the Investment Company Act were devised to deal with, and which were, in many details, subject to a form of state regulation of a sort which made the federal regulation even less relevant.
12
At this time, of course, the sort of 'variable annuity' contract with which we are concerned in this case did not exist. When Congress made the exclusions provided for in the Acts, it did not make them with the 'variable annuity' contract before it. Of course, the point is not that if the insurance industry seeks to retain its exemption, it must limit itself to the forms of policies and contracts in effect in 1933 and 1940. But if a brand-new form of investment arrangement emerges which is labeled 'insurance' or 'annuity' by its promoters, the functional distinction that Congress set up in 1933 and 1940 must be examined to test whether the contract falls within the sort of investment form that Congress was then willing to leave exclusively to the State Insurance Commissioners. In that inquiry, an analysis of the regulatory and protective purposes of the Federal Acts and of state insurance regulation as it then existed becomes relevant.5
13
At the core of the 1933 Act are the requirements of a registration statement and prospectus to be used in connection with the issuance of 'securities'—that term being very broadly defined.6 Detailed schedules, set forth in the Act, list the material that the registration statement and the prospectus are to contain.7 The emphasis is on disclosure; the philosophy of the Act is that full disclosure of the details of the enterprise in which the investor is to put has money should be made so that he can intelligently appraise the risks involved.
14
The regulation of life insurance and annuities by the States proceeded, and still proceeds, on entirely different principles. It seems as paternalistic as the Securities Act of 1933 was keyed to free, informed choice. Prescribed contract clauses are ordained legislatively or administratively. Solvency and the adequacy of reserves to meet the company's obligations are supervised by the establishment of permissible categories of investments and through official examination.8 The system does not depend on disclosure to the public, and, once given this form of regulation and the nature of the 'product,' it might be difficult in the case of the traditional life insurance or annuity contract to see what the purpose of it would be.
15
This congressional division of regulatory functions is rational and purposeful in the case of a traditional life insurance or annuity policy, where the obligations of the company were measured in fixed-dollar terms and where the investor could not be said, in any meaningful sense, to be a sharer in the investment experience of the company. In fact, one of the basic premises of state regulation would appear to be that in one sense the investor in an annuity or life insurance company not become a direct sharer in the company's investment experience; that his investment in the policy or contract be sufficiently protected to prevent this. But the situation changes where the coin of the company's obligation is not money but is rather the present condition of its investment portfolio. To this extent, the historic functions of state insurance regulation become meaningless. Prescribed limitations on investment and examination of solvency and reserves become perfectly circular to the extent that there is no obligation to pay except in terms measured by one's portfolio. But beyond controlling corporate solvency and the adequacy of reserves, and maintaining observance of the legal list of investments, the state plans of regulation do not go in regulating investment policy. Where the nature of the obligation assumed is such, the federally protected interests in disclosure to the investor of the nature of the corporation to whom he is asked to entrust his money and the purposes for which it is to be used become obvious and real. The contract between the investor and the organization no longer squares with the sort of contract in regard to which Congress in 1933 thought its 'disclosure' statute was unnecessary.
16
The provisions of the Investment Company Act of 1940, which passes beyond a simple 'disclosure' philosophy, also are informed by policies that are very relevant to the contracts involved in this case. While the Act does cover face-amount certificate companies whose obligations are specified in fixed-dollar amounts,9 the majority of its provisions are of greatest regulatory relevance in the case of the much more common sort of investment company, where the investors (or at least certain categories of them) participate on an 'equity' basis in the investment experience of the enterprise. Salient regulatory provisions call for registration and recital, by in investment company, of its investment policies and operating practices;10 regulate the relationships between the company and its investment adviser, including fees and provisions for termination of the contract;11 regulate trading practices,12 changes in investment policy,13 the issuance of senior securities,14 proxies and voting trusts,15 the terms of redemption by investors of their interests in the company;16 regulate, in the case of periodic investment plans (which were made subject to special regulation), the 'sales load,' or amount of the investor's payment that does not become part of his interest in the enterprise;17 and provide for detailed reports to investors.18 While these controls apply in many cases to fixed-dollar obligations, like face-amount certificates and the bonds of closed-end investment companies, they are of particular relevance to situations where the investor is committing his funds to the hands of others on an equity basis, with the view that the funds will be invested in securities and his fortunes will depend on the success of the investment. The traditional state insurance department regulation of contract terms, reserves, solvency, and permissible investments simply does not touch the points of definition of investment policy and investment technique, and control over investment policy changes and over the interests of the men who shape the policies of investment and furnish investment advice that the 1940 Federal Act provides. These controls may be largely irrelevant to traditional banks and insurance companies, which Congress clearly exempted; they were not investing heavily in equity securities and holding out the possibilities of capital gains through fund management; but where the investor is asked to put his money in a scheme for managing it on an equity basis, it is evident that the Federal Act's controls become vital.
17
This is not to say that because subjection of the contracts in question here to federal regulation is desirable, it has in fact been accomplished; but one must apply a test in terms of the purposes of the Federal Acts as a guide to interpreting the scope of an exemption from their coverage for 'insurance.' Cf. Securities and Exchange Comm. v. W. J. Howey Co., 328 U.S. 293, 299, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244. When Congress passed the Securities Act of 1933 and the Investment Company Act of 1940, no State Insurance Commissioner was, incident to his duties in regulating insurance companies, engaged in the sort of regulation, outlined above as provided in the Federal Acts, that Congress thought would be appropriate for the protection of people entrusting their money to others to be invested on an equity basis. There is no reason to suppose that Congress intended to make an exemption of forms of investment to which its regulatory scheme was very relevant in favor of a form of state regulation which would not be relevant to them at all.
18
Second. Much bewilderment could be engendered by this case if the issue were whether the contracts in question were 'really' insurance or 'really' securities—one or the other. It is rather meaningless to view the problem as one of pigeonholing these contracts in one category or the other. Obviously they have elements of conventional insurance, even apart from the fixed-dollar term life insurance and the disability waiver of premium insurance sold with some of these contracts (both of which are quite incidental to the main undertaking). They patently contain a significant annuity feature (unless one defines an annuity as a contract necessarily providing fixed-sum payments),19 and the granting of annuities has been considered part of the business of life insurance.20 Of course, some urge that even the traditional annuity has few 'insurance' features and is basically a form of investment. 1 Appleman, Insurance Law and Practice, § 83; Prudential Ins. Co. v. Howell, 29 N.J. 116, 121 122, 148 A.2d 145, 148. But the point is that, even though these contracts contain, for what they are worth, features of traditional annuity contracts, administering them also involves a very substantial and in fact predominant element of the business of an investment company, and that in a way totally foreign to the business of a traditional life insurance and annuity company, as traditionally regulated by state law. This is what leads to the conclusion that it is not within the intent of the 1933 and 1940 statutes to exempt them.
19
The individual deferred variable annuity contract of respondent Variable Annuity Life Insurance Company (VAL IC) gives a basis for exploration of this. A sample contract, given in evidence in the District Court, is one issued to a 35-year-old male, providing for his making 30 annual payments of $1,000 each. Of this, $39.60 is the consideration for an undertaking by the company by which payment of the annual $1,000 is waived in the event of disability. Of the remaining $960.40, designated the 'basic annuity premium,' specified percentages are used to credit to the account of the investor certain 'accumulation units.' Of the first year's 'basic annuity premium,' less than 45% is so used; for the next 4 years, the percentage is in the approximate range of 85% to 87%;21 for years 6 through 10, the figure is 89%, and for the remainder of the 30-year pay-in period it is 92%. Declining term life insurance in a fixed-dollar amount, beginning at five times the annual 'basic annuity premium' the first year and declining through a period of 5 years to nil, is provided as a benefit over and above the 'accumulation units' credited to the account of the investor.22 The contract is said to build up a 'cash value' as the investor's payment 'buys' further accumulation units, but while the value is one which can and would be finally settled by the payment of dollars, the obligation owed by the company to the investor is not one owed to him in dollar terms. It is one which is measured only in terms of 'units'—the petitioners suggest § resemblance to 'shares'—in a portfolio. The units are established by an arbitrary computation which has the effect of dividing the company's investment assets as of a starting day into a number of units, and assigning to each unit its share of the over-all market value—though the division is not in fact made.23 Then monthly the value of the units is recomputed. This is done, broadly, by taking into account all interest and dividends paid on the company's portfolio and all realized capital gains and losses, with relevant income taxes, together with all unrealized capital shrinkage and increase, less a monthly surcharge of 0.15% (1.8% per annum) of asset value.24 New dollars from investors which 'buy' units buy them at the new rate, thus preventing dilution, and those investors who draw down their accumulated units receive cash for them at such rate.25
20
The contract uses insurance terminology throughout and many of the common features of life insurance and annuity policies are operative in regard to it at this 'pay-in' stage. There are 'incontestability' and 'suicide' clauses (which mainly relate to the term insurance); a 'grace period' allowed for the payment of premiums; a provision for 'policy loans' (the drawing down of accumulated units in cash, subject to replacement later to the extent that repayment of the amount of money received will then permit, the transaction bearing a resemblance to the liquidation by a common stock investor of his holdings in anticipation of a 'bear market'); and provision for a 'cash value' (that, is, for the cashing in of the accumulated units, subject to a surrender charge in the early years). And very certainly the commitment of the company eventually to disburse the accumulated values on a life annuity basis once the pay-in period is over is present throughout this period. But what the investor is participating in during this period, despite its acknowledged 'insurance' features, is something quite similar to a conventional open-end management investment company, under a periodic investment plan. The investor's cash (less a charge analogous to a loading charge, which is, at least in the early years, very high, but which, it should be said, has to cover annuity premium taxes and some quite conventional mortality risks) goes to buy 'units' in a portfolio managed by the persons in control of the corporation. His 'units' fluctuate with the income and capital gain and loss experience of the management of the portfolio. He may cash them in, wholly or partially. The amount of his equity is subjected to a charge, on asset value, of 1.8% per annum. Except for the temporary term insurance and the waiver of premium coverage, the entire nature of the company's obligation to its investor during this period is not in dollars (though of course it will be converted into them, just as a commodity transaction can be), but solely in terms of the value of its portfolio. In this sort of operation, examination by state insurance officials to determine the adequacy of reserves and solvency becomes less and less meaningful. The disclosure policy of the Securities Act of 1933 becomes, by comparison, more and more relevant. And the detailed protections of the 1940 legislation—disclosure of investment policy, regulation of changes of that policy, of capital structure, conflicts of interest, investment advisers—all become relevant in an acute way here. These are the basic protections that Congress intended investors to have when they put their money into the hands of an investment trust; there is no adequate substitute for them in the traditional regulatory controls administered by state insurance departments, because these controls are not relevant to the specific regulatory problems of an investment trust.26
21
The same conclusions follow from a consideration of the next stage of this contract. Before the maturity date, when the schedule of payments in on the contract ceases and the payments out commence, the investor can draw down his 'units' in cash, and dispense with all 'annuity' features. Failing this, he is entitled to elect one of several annuity alternatives. These are in the sample policy, a straight life annuity on the life of the investor, a straight life annuity with 10 years' payments certain, and a joint and survivor annuity on the life of the investor and another. Again, while the duration of the company's obligation to pay is independent of its investment experience, the amount of each payment is not a direct money obligation but a function of the status of the company's portfolio. The amounts of the payments are calculated in this fashion: The dollar value of the accumulated units credited to the investor throughout the years is ascertained. A standard annuity table (including a 3 1/2% interest assumption) is used to determine the dollar amount of the first monthly pay-out, based on a capital contribution of the accumulated amount, under the option selected by the investor. The number of 'annuity units' (which are functions of the fluctuating asset value of the portfolio of the company) that this amount would buy is computed, and this number of annuity units in paid (transmuted into a varying cash payment) to the investor every subsequent month for the duration of the company's commitment under the option selected. Like that of an 'accumulation unit' during the pay-in period, the value in dollars of an 'annuity unit' is readjusted monthly to give effect to the investment income of the securities in the company's portfolio for the period, as well as to capital gains and losses, realized and unrealized. Since the first payment (which forms the basis for measurement of the subsequent payments) contains an assumed interest factor, and since the monthly valuation change includes income items—interest and dividends—received in respect of the company's portfolio, to avoid paying double 'interest' the 3 1/2% assumed interest factor is wrung out every month by multiplying the preceding month's valuation by 0.9971.27 And the 1.8% annual surcharge on asset value is applied also.28
22
The effect of this is that the investor, during the pay-out period, is in almost every way as much a participant in something equivalent to an investment trust as before. His monthly payment is not really a dollar payment, though it is converted into dollars before it is paid to him; it is a payment in terms of a portfolio of securities. It is true that the company has a fixed obligation to continue payments, and that the duration and the amount of the payments are not affected by collective longevity in excess of the company's assumptions; the company's obligation to continue payments is not limited in any way by reference to the number of units owned by all the investors at the start of their annuity periods. If the lives of the group of investors exceed the longevity assumptions of the table, the proceeds of what might otherwise have been characterized as a very high 'loading charge' (8% at its lowest application, with 11% the minimum for the first 10 years) and a substantial 'annual management fee' (1.8% of asset value annually) will have to provide, with the company's other surplus and capital, enough to continue payments. But the individual payment is still a payment measured basically in the same way as one's interest in an investment trust is measured. And in a very real sense the investor is more vitally interested in the investment experience of the company at this period than he ever was in the pay-in period, and in a way more vitally than any holder of an open-end investment company certificate, or share in a publicly traded closed-end company ever is: he has become completely 'locked in.' He obviously cannot draw down the present value of his 'units' once the option to receive annuity payments has been exercised; he cannot 'cash in his chips' that he bought in the faith of the management of the fund; his rights are technically assignable, but practically unmarketable since they depend on his individual life span. The company can radically change investment policies, change advisers, do whatever it pleases (so long as it does not run afoul of the minimal investment regulations of the State), and there is nothing the contract holder can do about it. It is not rational to say that Congress abandoned the very appropriate protections of the Investment Company Act in this investor's case in favor of provisions of state regulation that are quite irrelevant to the basic problems of protecting him.
23
The respondents seek to equate this contract with a fixed-dollar 'participating' annuity sold by a mutual company, or one sold by a stock company on a participating basis. This contention is not persuasive. While investment experience in a 'participating' contract can redound to the benefit of the policyholder, the contracts are sold as fixed-dollar obligations. The 'dividends' are promoted as such. During the pay-in period, they might be though of as a reduction of premium.29 They may very well represent favorable mortality risk experience, particularly where the company's investments are conservative. And the annuity-paying insurance company's investments are doubtless administered in the light of the fixed obligation of the company. The company is not committed by its literature to perform part of the job of a common-stock investment trust.30 No one has yet tried to follow the academic suggestion of respondent VALIC, and reduce the fixed guarantee of a traditional life annuity to the point of insignificance and make the rest of the return to the contract holder variable, by selling it on a 'participating' basis.31 The comparison of the premium cost of such a contract to its fixed return might well make it unsalable to the public. Even more unpersuasive is the respondents' argument that even in a traditional annuity the policyholder bears the investment risk in the sense that he stands the risk of the company's insolvency. The prevention of insolvency and the maintenance of 'sound' financial condition in terms of fixed-dollar obligations is precisely what traditional state regulation is aimed at. The protection of share interests in a fluctuating, managed fund has received the attention of specific federal legislation. Both are 'investment risks' in a sense, buy they differ vastly in kind and lend themselves to different regulatory schemes.
24
Accordingly, while these contracts contain insurance features, they contain to a very substantial degree elements of investment contracts as administered by equity investment trusts. They contain these elements in a way different in kind from the way that insurance and annuity policies did when Congress wrote the exemptions for them in the 1933 Act and the 1940 Act. Since Congress was intending a broad coverage in both these remedial Acts and since these contracts present regulatory problems of the very sort that Congress was attempting to solve by them, I conclude that Congress did not intend to exclude contracts like these by reason of the 'insurance' exemptions.
25
Third. The respondents contend that a reversal of the judgment will put them out of business. The reason given is that if the Investment Company Act of 1940 applies to them, they are probably categorizable under it as open-end management companies,32 and it is declared unlawful by § 18 of the Act for an open-end company to have outstanding any 'senior security,' that is, any security senior to any other class of securities. These companies have capital stock, and the contracts in question would be securities senior to the stock.33 If one assumes that this is correct, there is of course the possibility that the SEC might use its broad dispensing powers in this regard, and, in any event, the whole point would be of no concern at all if the contracts in question were issued by mutual companies.34 But in the final analysis, it is not decisive of the issues here that a holding that these contracts are subject to the Federal Acts might require some modification in the business of issuing them. Since these contracts are in fact covered by the Acts, there can be no reason why their issuers should be able to carry on the investment business in a way which Congress has forbidden.
26
Similarly, it may be conceded freely that this form of investment contract may be one of great potential benefit to the public. So, of course, may be orthodox open-end investment trusts, and they clearly are regulated by federal law. In short, notions that this form of arrangement is a desirable one and that it might be well to allow it to exist for a while immune from federal regulation are not relevant to the matter for decision. Congress regulates by general statutes. The passage of a federal regulatory statute is a delicate balancing of many national legislative interests and political forces. Congress need not go through the initial travail of re-enacting its general regulatory scheme every time a new form of enterprise is introduced, if that new form falls within the scheme's coverage. If there is deemed wise any adjustment of the regulatory scheme in the light of new developments in the subject matter to which it extends, Congress may make it.
27
Mr. Justice HERLAN, whom Mr. Justice FRANKFURTER, Mr. Justice CLARK and Mr. Justice WHITTAKER join, dissenting.
28
The issue in these cases is whether Variable Annuity Life Insurance Company of America (VALIC) and The Equity Annuity Life Insurance Company (EALIC) are subject to regulation by the Securities and Exchange Commission under the Securities Act of 1933 and the Investment Company Act of 1940 with respect to their variable annuity business.
29
Section 3(a)(8) of the Securities Act, 48 Stat. 74, 76, 15 U.S.C. § 77c(a)(8), 15 U.S.C.A. § 77c(a)(8), provides that the statute shall not apply to:
30
'Any insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia.'
31
Section 3(c)(3) of the Investment Company Act, 54 Stat. 789, 798, 15 U.S.C. § 80a—3(c)(3), 15 U.S.C.A. § 80a—3(c)(3), puts outside the coverage of the Act '(a)ny * * * insurance company,' and § 2(a)(17), 54 Stat. 789, 793, 15 U.S.C. § 80a—2(a)(17), 15 U.S.C.A. § 80a—2(a)(17), defines an insurance company as:
32
'a company which is organized as an insurance company, whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies, and which is subject to supervision by the insurance commissioner or a similar official or agency of a State; or any receiver or similar official or any liquidating agent for such a company, in his capacity as such.'
33
These two insurance companies are organized under the Life Insurance Act of the District of Columbia, Title 35 D.C.Code 1951, §§ 35—301 to 35—803, and are subject to regulation by the Superintendent of Insurance of the District of Columbia, who has approved the annuity policies written by them. At the time of trial VALIC had also qualified to do business in Arkansas, Kentucky, and West Virginia, and its annuity policies had likewise been approved by the insurance departments of those States.1 Both companies in the District of Columbia, and VALIC in the other States, offer their policies to the public only through insurance agents duly licensed by the local insurance authority.
34
Variable annuity policies are a recent development in the insurance business designed to meet inflationary trends in the economy by substituting for annuity payments in fixed-dollar amounts payments in fluctuating amounts, measured ultimately by the company's success in investing the premium payments received from annuitants. One of the early pioneers in this field was Teachers Insurance and Annuity Association, a New York regulated life insurance organization engaged in selling annuities to college personnel. The Association in 1950 made exhaustive studies into the feasibility and soundness of variable annuities. Two years later, it incorporate College Retirement Equities Fund, a companion company under joint management with Teachers Insurance, which, subject to regulation under the New York Insurance Law, commenced offering such annuity contracts in the teaching profession.2 The first life insurance company to offer such contracts generally appears to have been the Participating Annuity Life Insurance Company, which since 1954 has been selling variable annuity policies under the supervision of the Arkansas insurance authorities. VALIC and EALIC entered the field in 1955 and 1956 respectively.
35
The characteristics of a typical variable annuity contract have been adumbrated by the majority. It is sufficient to note here that, as the majority concludes, as the two lower courts found, and as the SEC itself recognizes, it may fairly be said that variable annuity contracts contain both 'insurance' and 'securities' features. It is certainly beyond question that the 'mortality' aspect of these annuities—that is the assumption by the company of the entire risk of longevity—involves nothing other than classic insurance concepts and procedures, and I do not understand how that feature can be said to be 'not substantial,' determining as it does, apart from options, the commencement and duration of annuity payments to the policyholder. On the other hand it cannot be denied that the investment policies underlying these annuities, and the stake of the annuitants in their success or failure, place the insurance company in a position closely resembling that of a company issuing certificates in a periodic payment investment plan. Even so, analysis by fragmentization is at best a hazardous business, and in this instance has, in my opinion, led the Court to unsound legal conclusions. It is important to keep in mind that there are not cases where the label 'annuity' has simply been attached to a securities scheme, or where the offering companies are traveling under false colors, in an effort to avoid federal regulation. The bona fides of this new development in the field of insurance is beyond dispute.
36
The Court's holding that these two companies are subject to SEC regulation stems from its preoccupation with a constricted 'color matching' approach to the construction of the relevant federal statutes which fails to take adequate account of the historic congressional policy of leaving regulation of the business of insurance entirely to the States. It would be carrying coals to Newcastle to re-examine here the history of that policy which was fully canvassed in the several opinions of the Justices in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, and which was again implicitly recognized by this Court as recently as last Term when, in Federal Trade Comm. v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540, we declined to give a niggardly construction to the McCarran Act. Suffice it to say that in consequence of this Court's decision 90 years ago in Paul v. State of Virginia, 8 Wall. 168, 19 L.Ed. 357, and the many cases following it,3 there had come to be 'widespread doubt' prior to the time the Securities and Investment Company Acts were passed 'that the Federal Government could enter the field (of insurance regulation) at all.' Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 318, 75 S.Ct. 368, 373, 99 L.Ed. 337; see also Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 414, 66 S.Ct. 1142, 1146, 90 L.Ed. 1342.
37
I can find nothing in the history of the Securities Act of 1933 which savors in the slightest degree of a purpose to depart from or dilute this traditional federal 'hands off' policy respecting insurance regulation. On the contrary, the exemption of insurance from that Act, which is couched in the broadest terms, reflected not merely adherence to tradition but also compliance with a supposed command of the Constitution. In a study of the proposed Act, the Department of Commerce concluded that the legislation could be bottomed on the federal power over commerce because securities did have the independent general commercial existence and value which the Paul decision had found lacking in insurance policies. See A Study of the Economic and Legal Aspects of the Proposed Federal Securities Act, reprinted in Hearings before Senate Committee on Banking and Currency on S. 875, 73d Cong., 1st Sess. 312, at 330, and in Hearings before House Committee on Interstate and Foreign Commerce on H.R. 4314, 73d Cong., 1st Sess. 87, at 105. This distinction between securities and insurance, mistaken or not, underlay the passage of the final bill. When the proposed act was considered by the Senate and House Committees, it did not contain an express exemption of insurance. The House Committee explained that the exemption in the final bill (§ 3(a)(8) of the Act):
38
'makes clear what is already implied in the act, namely, that insurance policies are not to be regarded as securities subject to the provisions of the act. The insurance policy and like contracts are not regarded in the commercial world as securities offered to the public for investment purposes. The entire tenor of the act would lead, even without this specific exemption, to the exclusion of insurance policies from the provisions of the act, but the specific exemption is included to make misinterpretation impossible.' H.R.Rep. No. 85, 73d Cong., 1st Sess. 15.
39
That this distinction stemmed from the feared implications of the Paul decision appears from the House debates. See 73d Cong., 1st Sess., 77 Cong.Rec. 2936, 2937, 2938, 2946. Moreover, two days after the Senate began consideration of the proposed act, Senator Robinson introduced a resolution (S.J.Res. 51) calling for a constitutional amendment because, in his view, 'the National Government at present has no authority whatever over insurance companies.' 73d Cong., 1st Sess., 77 Cong.Rec. 3109.
40
Similarly, I can find nothing in the history of the Investment Company Act of 1940 which points in any way to a change in federal policy on this score. Here tradition, perhaps more than constitutional doubt, explains the exemption of insurance companies from the Act. In hearings before the House Committee, Commissioner Healy of the SEC discussed the 'face-amount installment certificates' issued by certain investment companies and often 'sold on the basis of the comparison with savings bank deposits and insurance policies.' The major factor appearing to distinguish these investment companies from insurance companies for purposes of federal control was the strict state regulation present over insurance policies but absent over investment certificates. Hearings before House Committee on Interstate and Foreign Commerce on H.R. 10065, 76th Cong., 3d Sess. 61—62. Likewise, in the Senate debates, preservation of state regulation over insurance companies appears as the crucial factor distinguishing them from investment trusts. 76th Cong., 3d Sess., 86 Cong.Rec. 10070. Stating that 'the bill has nothing to do with the regulation of insurance companies,' Senator Byrnes went on to say: 'The platforms of both political parties have urged supervision of insurance by the several States, but not regulation by the Federal Government.' Id., at 10071. See also United States v. South-Eastern Underwriters Ass'n, supra, 322 U.S. at pages 584, 591—592, note 12, 64 S.Ct. at pages 1189, 1193 (dissenting opinion).
41
In 1944, this Court removed the supposed constitutional basis for exemption of insurance by holding, in United States v. South-Eastern Underwriters Ass'n, supra, that the business of insurance was subject to federal regulation under the commerce power. Congress was quick to respond. It forthwith enacted the McCarran Act, 59 Stat. 33, 15 U.S.C. §§ 1011—1015, 15 U.S.C.A. §§ 1011—1015, which on its face demonstrates the purpose 'broadly to give support to the existing and future state systems for regulating and taxing the business of insurance,' Prudential Ins. Co. v. Benjamin, supra, 328 U.S. at page 429, 66 S.Ct. at page 1155, and 'to assure that existing state power to regulate insurance would continue.' Wilburn Boat Co. v. Fireman's Fund Ins. Co., supra, 348 U.S. at page 319, 75 S.Ct. at page 373. Thus, rather than encouraging Congress to enter the field of insurance, the South-Eastern decision spurred reiteration of its undeviating policy of abstention.
42
In this framework of history the course for us in these cases seems to me plain. We should decline to admit the SEC into this traditionally state regulatory domain.
43
Admittedly the variable annuity was not in the picture when the Securities and Investment Company Acts were passed. It is a new development combining both substantial insurance and securities features in an experiment designed to accommodate annuity insurance coverage to contingencies of the present day economic climate.4 This, however, should not be allowed to obscure the fact that Congress intended when it enacted these statutes to leave the future regulation of the business of insurance wholly with the States. This intent, repeatedly expressed in a history of which the Securities and Investment Company Acts were only a part, in my view demands that bona fide experiments in the insurance field, even though a particular development may also have securities aspects, be classed within the federal exemption of insurance, and not within the federal regulation of securities.5 Certainly these statutes breathe no notion of concurrent regulation by the SEC and state insurance authorities. The fact that they do not serves to reinforce the view that the congressional exemption of insurance was but another manifestation of the historic federal policy leaving regulation of the business of insurance exclusively to the States.6
44
It is asserted that state regulation, as it existed when the Securities and Investment Company Acts were passed, was inadequate to protect annuitants against the risks inherent in the variable annuity and that therefore such contracts should be considered within the orbit of SEC regulation. The Court is agreed that we should not 'freeze' the concept of insurance as it then existed. By the same token we should not proceed on the assumption that the thrust of state regulation is frozen. As the insurance business develops new concepts the States adjust and develop their controls. This is in the tradition of state regulation and federal abstention. If the innovation of federal control is nevertheless to be desired, it is for the Congress, not this Court, to effect.
45
I would affirm.
1
National Association of Securities Dealers, Inc., petitioner in No. 237, and the Equity Annuity Life Ins. Co., a respondent in each case, were allowed to intervene.
2
For example, the Investment Company Act has provisions governing the size of investment companies, § 14; the affiliations of directors, officers, and employees, § 10; the relation of investment advisers and underwriters of investment companies, § 15; the transactions between investment companies and their affiliates and underwriters, § 17; the capital structure of investment companies, § 18; their dividend policies, § 19; their loans, § 21.
3
§ 3(a)(8).
4
§§ 3(c)(3) and 2(a)(17).
5
Section 2(1) provides:
'When used in this title, unless the context otherwise requires—
'(1) The term 'security' means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profitsharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a 'security,' or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.' 15 U.S.C. § 77b(1), 15 U.S.C.A. § 77b(1).
6
Section 3(a) provides in part:
'When used in this title, 'investment company' means any issuer which—
'(1) is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities;
'(3) is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 per centum of the value of such issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis.'
7
See 1 CCH, Blue Sky Reporter (1956) No. 4711; Spellacy v. American Life Ins. Ass'n, 144 Conn. 346, 131 A.2d 834.
8
See In re People by Dineen (In re Supreme or Cosmopolitan Council of Brotherhood of Commonwealth) 193 Misc. 996, 86 N.Y.S.2d 127.
9
N.Y.Laws 1952, c. 124.
10
See Morrisey, Dispute Over the Variable Annuity, 35 Harv.Bus.Rev. 75; Johnson, The Variable Annuity: What It is and Why It is Needed, Ins.L.J., June 1956, p. 357; Day and Melnikoff, The Variable Annuity as a Life Insurance Company Product, 10 J.Am.Soc. Ch. L. Under. 45; Barrons, Vol. 36, Jan. 23, 1956, p. 3.
11
See Day, A Variable Annuity is Not a 'Security,' 32 Notre Dame Law. 642.
12
See Bellinger, Hagmann and Martin, The Meaning and Usage of the Word 'Annuity,' 9 J.Am.Soc.Ch.L.Under. 261; Haussermann, The Security in Variable Annuities, Ins.L.J., June 1956, p. 382.
13
See Securities and Exchange Comm. v. W. J. Howey Co., 328 U.S. 293, 298—299, 66 S.Ct. 1100, 1102—1103, 90 L.Ed. 1244.
'* * * an investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise.' See Loss and Cowett, Blue Sky Law (1958), pp. 351, 356—357.
14
These companies use an assumed net investment rate of 3 1/2 percent per annum in the actuarial calculation of the initial annuity payment. If the net investment rate were at all times precisely 3 1/2 percent, the amount of annuity payments would not vary. But there is no guarantee as to this. The companies use a reporting device, the annuity unit, the value of which informs the annuity holder of the variations in the company's actual returns from the assumed investment rate of 3 1/2 percent. To state the matter in more detail: the amount of any payment depends on the value of the 'annuity unit' and the number of such units held by the annuitant. At the time when he has paid all of his premium and is entitled to his first annuity payment, he will have a certain monetary interest in the fund (determined by the number of 'accumulation units' he holds). The first payments is determined by reference to standard annuity tables, assuming a net investment return of 3 1/2 percent per annum. It is the amount per month which a capital contribution of the annuitant's interest in the fund by a person of his age and sex would buy. This figure is converted into annuity units by dividing it by the then value of an annuity unit. The number of annuity units held by the annuitant remains constant throughout the payout period.
The value of an annuity unit is determined each month as follows: The value of the unit for the preceding month is multiplied by the net investment factor (adjusted to neutralize the 3 1/2 percent interest factor used in the annuity table), which is the sum of one plus the net investment rate. The net investment rate is (after a slight reduction for a margin to cover expenses, and provide for contingency reserves and addition to surplus) the ratio of investment income plus (minus) net realized and unrealized capital gains (losses) less certain taxes to the value of the fund during that month. The number of annuity units held times the value of each unit in a month produces the annuity payment for that month.
15
There is one true insurance feature to some of these policies, though it is ancillary and secondary to the annuity feature. If the applicant is insurable and 60 years of age or under, he gets life insurance on a decreasing basis for a term of five years.
1
48 Stat. 74, as amended, 15 U.S.C. §§ 77a—77aa, 15 U.S.C.A. §§ 77a—77aa.
2
54 Stat. 789, as amended, 15 U.S.C. §§ 80a—1 to 80a—52, 15 U.S.C.A. §§ 80a—1 to 80a—52.
The Court's opinion makes it clear why the issue is identical under the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. §§ 1011—1015, 15 U.S.C.A. §§ 1011—1015.
3
Defined as a 'company which is organized as an insurance company, whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies, and which is subject to supervision by the insurance commissioner or a similar official or agency of a State * * *.' Investment Company Act § 2(a)(17). The business of the respondents here consists solely of issuing contracts of the nature of those in question here.
4
Under the Securities Act, it would appear that in the case of the ordinary insurance policy, the exemption would be just confirmatory of the policy's noncoverage under the definition of security. See H.R.Rep. No. 85, 73d Cong., 1st Sess. 15. The status of an ordinary annuity contract might be different. But, in any event, absent the specific insurance exclusion, it would appear that the variable annuity contract would come under the term 'investment contract' or possibly 'certificate of interest or participation in any profit-sharing agreement' in the definition of security, § 2(1). On the other hand, even an ordinary insurance company might be an investment company within the meaning of § 3(a)(1) and § 3(a)(3) of the Investment Company Act, were it not for the specific exemption. The Chief Counsel of the SEC's Investment Trust Study testified that the specific exemption was necessary in the light of the definition. See Hearings before Subcommittee of the Senate Committee on Banking and Currency on s. 3580, 76th Cong., 3d Sess. 181. A fortiori a company issuing the sort of contracts in question here would be included if there were no question of the insurance exemption.
5
No subsequent development in state insurance regulation appears to have occurred which would better adapt the system to regulation of companies performing the functions of investment trusts; but of course, in any event, the issue is the scope of state regulation in 1933 and 1940. The basic patterns do not appear to have changed and present-day regulation (apart from any measures which may have been taken specifically to deal with the contracts in question) can be examined to see the sort of regulation that Congress was deferring to in the Acts.
6
'* * * any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a 'security,' or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.' Securities Act § 2(1), 15 U.S.C. § 77b(1), 15 U.S.C.A. § 77b(1).
7
Securities Act §§ 7 and 10 and Schedules A and B.
8
A leading text on life insurance outlines the areas of state life insurance regulation as follows: the establishment of a standard of solvency for the setting up of minimum reserves; the organization of domestic companies and the admission of foreign insurers; the rendition of annual statements and the making (frequently on a cooperative basis among the States) of periodic examinations; overseeing the equitable treatment of policyholders by prescribing contract terms and checking misrepresentation, discrimination, rebating and 'twisting'; licensing and regulating the conduct of agents; and supervision of investments in accord with a statutory permissive list. Huebner and Black. Lefe Insurance (5th ed. 1958), pp. 518—524.
9
See § 3(a)(2). Specific regulatory provisions for this sort of company are found in § 28. Reserve requirements are established by the Federal Act as a method of regulation.
10
§ 8.
11
§ 15.
12
§ 12.
13
§ 13.
14
§ 18.
15
§ 20.
16
§ 22.
17
§ 27.
18
§ 30(d).
19
The important insurance State of Connecticut has. See Spellacy v. American Life Ins. Ass'n, 144 Conn. 346, 355, 131 A.2d 834, 839. In any event, these contracts are annuities, 'life annuities,' in the sense that they provide for payments at periodic intervals for a period measured by a human life or lives, with the payments representing both an income element and a liquidation of contributed capital, with no further return of the investor's capital after the annuity period runs. Cf. Heubner and Black, op. cit., supra, at 99—100. Of course, there are annuity contracts which provide payments only for terms of years. See Vance, Insurance (3d ed. 1951), p. 1020. These have no mortality factor, and, it would appear, no insurance element at all. One of the alternative settlement options under one respondent's policies is a 'variable' form of such an arrangement.
20
State statutes make it clear that the writing of traditional annuities is part of the usual business of life insurance companies. See, e.g., Cal. Insurance Code § 101; Conn.Gen.Stat.1949, c. 295, § 6144; Smith-Hurd Ill.Ann.Stat. Ch. 73, § 616; N. Y. Insurance Law, McKinney's Consol. Laws, c. 28 §§ 46, 190. Cf. Huebner and Black, op. cit., supra, at 92; Mehr and Osler, Modern Life Insurance (rev. ed. 1956), pp. 69—70.
21
The precise percentages are: first year, 44.79%; second, 85.27%; third, 85.82%; fourth, 86.45%; fifth, 87.17%. The pattern for the second through fifth years would appear to reflect the diminishing cost of declining term insurance sold as part of the contract.
22
The cost of such insurance, bought separately, would be about 2% of the first 5-years' pay-ins. Longer terms than the 5-year are available. The contract is sold without term life insurance and without waiver of premium on disability to persons who are deemed 'uninsurable.' The fixed-dollar term insurance and the disability waiver risks of VALIC are heavily reinsured in orthodox insurance companies.
23
Even before there are contract holders, a 'unit' is set up in terms of the then value of the company's investment portfolio. While the number of units credited to investors does not accordingly account for the entire value of the 'fund,' the value of the units fluctuates as the value of the company's investment portfolio fluctuates in the same fashion as if they were shares in an open-end investment fund.
24
The surcharge is accounted for in the same way as that part of the premium gross income that does not go toward the crediting of accumulation units. The analogy is to an annual 'management fee' in an investment trust. Of course, the surcharge is not in fact paid to anyone as a fee for any specific purpose; but to the extent that it is made, a portion of the company's assets is freed from being charged with the valuation of units credited to investors. To this extent, the company's assets become available for the payment of expenses, for the satisfaction of its obligations in the event the investors as a group outlive their tabular expectancy, and for dividends to common stockholders.
25
A concrete example of a few years' hypothetical experience during the pay-in period may illustrate the workings of these contracts. If is based on the specific contract described in the text.
Assume a unit value of $1 at the start of the contract. The investor's first annual payment of $1,000, less the disability waiver premium and the 'loading charge,' buys 430 units at the $1 rate.
Assume a favorable year in the company's portfolio's market performance; net capital gains (realized and unrealized) of 15% and
interest and dividends of 3% of original value, all net of income taxes. On the average asset value at month ends during the year, the 1.8% annual charge would come to about 2% of original value. This would make the value of a unit after a year about $1.16.
Of the second annual premium of $1,000, $819 goes toward buying 706 units at the new rate of $1.16. Thus after the second annual premium, the investor has, 1,136 units to his credit.
Assume a very favorable second year in the market, with net capital gains of 25% of the year's beginning value (29 cents a unit) and income items of 5% of beginning value (about 6 cents a unit), all net of income taxes. The annual charge of 1.8% will come to about 2.4 cents per unit, and the resulting value at year end will be about $1.49 per unit.
Of the third annual premium of $1,000, $824 goes toward buying 553 units at the new rate of $1.49. Thus after the third annual premium, the investor has 1,689 units to his credit.
Assume a bear market the third year, with a 12% net capital shrinkage in the company's portfolio (about 18 cents a unit) and income at 2% of beginning value (3 cents a unit), all net of income taxes. The 1.8% charge would come to about 2.5 cents a unit. These adjustments would give a year end unit value of about $1.31 a unit.
If instead of going on with the contract, the investor then 'cashed in his chips,' he would get $2,212.59 for his 1,689 units, less a $10 surrender charge.
26
The least-subtle example of the absent protections is that regarding investment policy. The state investment lists are minima; within the limits of the lists, the companies have very broad discretion in making investments, see Mehr and Osler, op. cit., supra, at 612, and there appears to be no control at all over their changing their investment policies. The difference in emphasis between the two forms of regulation and the obvious correspondence of the contract in question with an investment trust in this essential regulatory matter hardly needs underscoring.
Even the minimal controls over investment policy furnished by the prescribed lists are administered primarily by one State, the State of incorporation. New York's Insurance Law, § 90, applying in terms the local controls, at least 'in substance,' to foreign companies doing business within the State, appears the exception rather than the rule. See Vance, op. cit., supra, at 43. Other States insist on their own requirements as to part of the assets of a foreign insurance company doing a local business. See Cal. Insurance Code § 1153. Some States explicitly make some deference to the State of incorporation. See Smith-Hurd Ill.Ann.Stat., ch. 73, § 723(e).
27
The reciprocal of 1.000 plus monthly interest at the rate of 3 1/2% per annum.
28
A concrete hypothetical example of the workings of the contract in the pay-out period may by useful. Assume that the investor described in the text and in footnote 25 did not cash in his contract, but kept it during the entire 30-year pay-in period. Assume that he has accumulated, through premium-payment 'purchases' at varying prices throughout the years, 14,000 units and that the value of a unit has mounted to $3 over the years. The investor can now take his $42,000 in cash, if he chooses. But let us assume that he is healthy and without dependents, so that he is moved to elect the option of a straight life annuity. This capital contribution of $42,000 by a 65-
year-old male would buy a fixed-dollar annuity of $286 a month. This is in fact what our investor will get the first month. But this first monthly payment will be used to fix the number of annuity units he will receive monthly for the rest of his life.
Assume that the value at this time of an annuity unit is $2. (While the value of an annuity unit tends to move in the same direction as the value of an accumulation unit, it differs from it because every month it is multiplied by 0.9971 to 'wring out' the assumed interest factor in the annuity table. So over the years, the current values of the two sorts of units will drift apart, even though they move the same way with the fluctuations of the company's portfolio). At the $2 rate, the first monthly payment is 143 units, and this number of units will be paid the investor monthly for life.
Assume that there is a sharp break in the market during the first month of the pay-out period. (Actually, there is a one-month lag in computation, but for the purposes of demonstration this can be ignored.) Suppose this market break shrinks the capital value of the company's portfolio by 8% (16 cents a unit). Assume income items during the month at 3% per annum (0.5 cents). Then deduct the omnipresent 1.8% annual charge (0.3 cents). This puts the current value at $1.842; the 0.9971 multiplier must be applied to wring out the interest assumption in the annuity table. This gives an adjusted value of $1.8367. The investor is then paid, for his second monthly payment, 143 units at this new rate, or $262.65.
The recomputation of the unit value takes place monthly, and every month the investor is paid 143 units at the new rate, whatever this may come to in dollars.
29
See Mehr and Osler, op. cit., supra, at 583; cf. Fuller v. Metropolitan Life Ins. Co., 70 Conn. 647, 666, 41 A. 4, 11.
30
In the traditional form of insurance, the appreciation potential of common stocks is said not to be the predominant reason for an insurer's investing in them. While many States allow investment in them in varying degrees, commentators emphasize that the purpose of such investment is primarily diversification of investment; in certain industries, common stock may be the only sort of available investment. Huebner and Black, op. cit., supra, at 505. Of course, the primary investment aim of the traditional insurer is preservation of dollar capital with income. Id., at 507.
31
VALIC's hypothetical is an annuity based on an investment return of 1/2% per annum and an average mortality at 110 years.
32
According to § 5, "Open-end company' means a management company (i.e., an investment company other than a unit investment trust or a face-amount certificate company, § 4) which is offering for sale or has outstanding any redeemable security of which it is the issuer.' The redeemability of these contracts during the pay-in period would appear to make their issue come under this definition. Even if the companies were considered closed-end companies, they argue that other provisions of § 18 would pose very difficult problems for them. See § 18(a).
33
The companies say that this is because their contracts are debt obligations. It is quite doubtful whether the contracts can be described as debts; certainly they are not much more of a debt than a redeemable share in an orthodox open-end company is; here the redemption feature is expressed in outright redeemability during the pay-in period and in liquidation on an annuity basis in the pay-out period. But in any event, whether the contracts are debts or not, they have priority over the companies' stock, and the provisions dealing with senior securities would appear to cover them.
34
The most basic purpose of the provision might be viewed by the SEC as the protection, in the case of the traditional open-end company, of the investment certificate holders from the creation of securities senior to their interest (as well as preventing, in the interest of their purchasers, the creation of a class of 'senior' securities which would be senior only to freely redeemable junior securities). Since it is the senior securities here which are the analogs of open-end investment trust certificates, quite the contrary situation might be though to be presented. The SEC's dispensing authority in regard to the Investment Company Act is found in § 6(c), which provides: 'The Commission, by rules and regulations upon its own motion, or by order upon application, may conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of this title or of any rule or regulation thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of this title.'
1
Since the trial VALIC has also qualified in Alabama and New Mexico, and VALIC in North Dakota.
2
By the end of 1956 the College Retirement Fund had issued such annuities to more than 31,000 individuals, and the value of its annuity units had increased from $10 to $18.51.
3
The cases are collected in United States v. South-Eastern Underwriters Ass'n, supra, 322 U.S. at page 544, note 18, 64 S.Ct. at page 1168.
4
See Morrissey, Dispute Over the Variable Annuity, 35 Harv.Bus.Rev. 75 (1957).
5
It is worth observing that in reporting the proposed Securities Act of 1933 the House Committee stated that insurance policies 'and like contracts' were to be exempt from federal regulation. See 359 U.S. at pages 97, 98, 79 S.Ct. at pages 635, 636.
6
In contrast, § 18 of the Securities Act, 48 Stat. 74, 85, 15 U.S.C. § 77r, 15 U.S.C.A. § 77r, provides that the Act shall not affect the jurisdiction of state securities commissions, thus recognizing a system of dual regulation where the exemptive provisions are not applicable. The Investment Company Act has a similar provision, § 50. 54 Stat. 789, 846, 15 U.S.C. § 80a—49, 15 U.S.C.A. § 80a—49.
| 78
|
359 U.S. 171
79 S.Ct. 714
3 L.Ed.2d 717
SERVICE STORAGE & TRANSFER CO., Inc., Petitioner,v.COMMONWEALTH OF VIRGINIA.
No. 92.
Argued Feb. 26, 1959.
Decided March 30, 1959.
Mr. Francis W. McInerny, Washington, D.C., for the petitioner.
Mr. Robert D. McIlwaine, III, Richmond, Va., for the respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner, an interstate motor carrier certificated by the Interstate Commerce Commission, but without a permit from Virginia allowing intrastate operations, was fined $5,000 by the State Corporation Commission for carrying 10 shipments of freight alleged to have been of in intrastate character and, therefore, in violation of Chapter 12, Title 56, of the Code of Virginia.1 The shipments in question originated at Virginia points and were destined to Virginia points but were routed through Bluefield, West Virginia, where petitioner maintains its main terminal. They were transported in a vehicle with freight destined to points outside of Virginia. Upon arrival at Bluefield the freight destined to Virginia was removed and consolidated with freight coming to the terminal from non-Virginiaori gins. It then moved back into Virginia to its destinations. The Corporation Commission found that the routes thus employed through Bluefield were a subterfuge to evade state law. The Virginia Court of Appeals agreed but directed that the fine be reduced to $3,500 because of a failure of the Commonwealth's case on three of the shipments. 199 Va. 797, 102 S.E.2d 339. Petitioner pleads that Virginia's interpretation of its operations conflicts with its interstate certificate as well as an interpretation thereof by the Interstate Commerce Commission. It claims that respondent was without power thus to impose criminal sanctions on its certificated interstate operations. We granted certiorari, 358 U.S. 810, 79 S.Ct. 25, 3 L.Ed.2d 54, to test out the conflicting contentions. We agree with the petitioner that under the facts here the interpretation of petitioner's interstate commerce certificate should first be litigated before the Interstate Commerce Commission under the provision of § 204(c) of the Interstate Commerce Act, 49 U.S.C. § 304(c), 49 U.S.C.A. § 304(c).2
2
Petitioner operates its truck lines in parts of Virginia and West Virginia. Its activity is carried on under a certificate of convenience and necessity issued by the Interstate Commerce Commission. The petitioner's present I.C.C. certificate is a combination of its original 1941 certificate and a second certificate issued in 1943 upon its purchase of the operating rights of another carrier. Neither it nor its predecessor held a certificate from the State Corporation Commission authorizing any intrastate carriage. It is authorized under the relevant parts of its interstate certificate to transport general commodities as a motor common carrier in interstate commerce:
3
'Between Bluefield, Va., Bluefield, W. Va., and points and places within five miles of Bluefield, W. Va.
4
'Between Bluefield, Va., and points and places within five miles of Bluefield, Va., and those within five miles of Bluefield, W. Va., respectively, on the one hand, and, on the other, points and places in that part of Virginia and West Virginia within 75 miles of that territory. Between Bluefield, W. Va., on the one hand, and, on the other, points and places in West Virginia, that part of Virginia west of U.S. Highway 29 and south of U.S. Highway 60 including points and places on the indicated portions of the highways specified, and that part of Virginia north of U.S. Highway 60 which is within 80 miles of Bluefield, W. Va.'
5
Petitioner's metho of operation is uncontradicted in the record. It maintains its headquarters in Bluefield, West Virginia, and terminal points in Virginia at Bristol and Roanoke. Its main activity is the movement of freight of less-than-truckload shipments. In order to gather the shipments and, by combining them, make up a full truck load it operates 'peddler runs' from its Virginia terminals which serve as pick ups for freight in the vicinity. All of the traffic is directed through the Bluefield, West Virginia, terminal. About three percent of the traffic consists of shipments destined from one Virginia point to another while the remainder is directed from points within to those outside that State. The freight gathered by the 'peddler runs' is combined at a terminal and placed in an 'over the road' tractor trailer unit and carried to Bluefield, West Virginia. There it is broken down and combined with other shipments received from all of the other runs of petitioner. That part destined to points in and around Bluefield is delivered locally through 'peddler runs' operated from that terminal. The remainder is sorted out for forwarding to the terminal nearest its destination and is 'filed out' by 'over the road' operation. Upon arrival at the latter terminal it is delivered by 'peddler runs' to its local destination.
6
The Commonwealth's criminal case is bottomed on shipments the origin and final destination of which are in Virginia. While it stipulated that all of these shipments were routed through Bluefield, West Virginia, and were, therefore, on their face interstate shipments,3 Virginia takes the position that they were clearly intrastate in character because had they been moved over direct routes none would ever have left the Commonwealth. It contends that petitioner's circuitous and unnecessarily long routes were a mere subterfuge to escope intrastate regulation and evade its jurisdiction. Aside from the testimony of highway officers as to the actual shipments, none of which is disputed, the Commonwealth's evidence consisted solely of maps substantiating its position that petitioner's routes were circuitous and often long, sometimes exceeding twice the shortest possible route. However, it offered no direct evidence of bad faith on the part of petitioner in moving its traffic through Bluefield, West Virginia.
7
On the other hand, petitioner offered the testimony of its manager and others as to the bona fides of its operation. It proved that it and its predecessor-operator had been carrying on its business in Virginia in a similar manner for many years and that it enjoyed certificates from the Interstate Commerce Commission authorizing its operations. Petitioner admits that some of its routes are circuitous but claims this is because of its method of gathering less-than-truckload shipments regardless of final destination and routing them through its 'gateway' terminal at Bluefield where they are assorted according to final destination. It stands uncontradicted that its operation is not only practical, efficient and profitable, but also that the creation of this 'flow of traffic' is a timesaver to the shipper since there is less time lost waiting for the making up of a full truckload. It also claims a unique service for less-than-truckload shipments of central Virginians who ship commodities to southwest Virginia and Kentucky and who otherwise would suffer long delays on deliveries or would be obliged to ship by special truck at higher rates. While these considerations are not controlling, they throw light on petitioner's claim of bona fides.
8
In Castle v. Hayes Freight Lines, 1954, 348 U.S. 61, 63—64, 75 S.Ct. 191, 192, 99 L.Ed. 68, we observed that 'Congress in the Motor Carrier Act adopted a comprehensive plan for regulating the carriage of goods by motor truck in iners tate commerce.' We pointed out that 49 U.S.C. § 312, 49 U.S.C.A. § 312, provides 'that all certificates, permits or licenses issued by the Commission 'shall remain in effect until suspended or terminated as herein provided'. * * * Under these circumstances, it would be odd if a state could take action amounting to a suspension or revocation of an interstate carrier's commission-granted right to operate.' To uphold the criminal fines here assessed would be tantamount to a partial suspension of petitioner's federally granted certificate. Even though the questioned operations constitute only a minor, i.e., three percent, portion of the petitioner's business, that portion is nevertheless entitled to the same protection as are the other operations which are conducted under the certificate. In fact, the method of handling is identical and the freight is often transported in the same vehicle. The certificate on its face covers the whole operation. In fact, in 1953, in approving the acquisition of petitioner by another carrier, the I.C.C. expressly approved the very type of operation now being carried on. In its unpublished report, the Commission noted:
9
'Under its existing authority, Service Storage may lawfully perform a cross-haul service under a combination of its radial rights by operating, for example, between points in West Virginia within 75 miles of the base area, on the one hand, and, on the other, points in Virginia on and west of U.S. Highway 29 and on the south of U.S. Highway 60, and points in the three Kentucky counties provided such operations under a combination of the various rights are routed through Bluefield as a gateway.' MC—F—5361, Smith's Transfer Corporation of Staunton, Va.—Control—Service Storage and Transfer Company, Inc., 59 M.C.C. 803 (report not published.)
10
It appears clear that interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action. The Commission has long taken this position. Compare Atlantic Freight Lines, Inc., v. Pennsylvania Public Utility Commission, 163 Pa.Super. 215, 60 A.2d 589, with Atlantic Freight Lines, Inc.—Petition for Declaratory Order, 51 M.C.C. 175. The wisdom of such a practice is highlighted by the facts of this case. Between the close of the hearing, and the announcement of the Virginia Commission's decision, Service petitioned the I.C.C. for a declaratory order interpreting its certificate. The Commonwealth, although it had notice of the I.C.C. proceeding, elected not to participate. After the Virginia Commission had found petitioner to be operating in intrastate commerce and fined it for such operation, the I.C.C. issued an opinion, 71 M.C.C. 304, in which it construed petitioner's certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, West Virginia.4 This was but a reaffirmation of its prior interpretation of the certificate. 59 M.C.C. 803, supra. Such conflicts can best be avoided if the interpretation of I.C.C. certificates is left to the Interstate Commerce Commission.
11
Nor is Eichholz v. Public Service Commission, 1939, 306 U.S. 268, 622, 59 S.Ct. 532, 83 L.Ed. 641, to the contrary. There Missouri revoked a carrier's interstte permit because it crossed state lines into Kansas City, Kansas, for the sole purpose of creating an interstate operation. Eichholz, however, had no certificate from the Interstate Commerce Commission, and this Court's opinion was premised on this fact rather than that the interstate operations were merely a subterfuge and hence not bona fide. The words of Chief Justice Hughes there clearly distinguish that case from the present:
12
'When the (Missouri) Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant's application under the Federal Motor Carrier Act and meanwhile the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not been superseded.' 306 U.S. at page 273, 59 S.Ct. at page 534.
13
Eichholz followed naturally from the holding of the Court in Welch Co. v. State of New Hampshire, 1939, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500, that the enactment of the Motor Carrier Act did not, without more, supersede all reasonable state regulation, the latter continuing in effect until the Interstate Commerce Commission acted on the same subject matter. That it has admittedly done here.
14
Finally, the Commonwealth is not helpless to act. If it believes that petitioner's operation is not bona fide interstate but is merely a subterfuge to escape its jurisdiction, it can avail itself of the remedy Congress has provided in the Act. Section 204(c), supra, note 2, authorizes the filing of a 'complaint in writing to the Commission by any * * * State board * * * (that) any * * * carrier * * *' has abused its certificate. See also Castle v. Hayes Freight Lines, supra. Thus the possibility of a multitude of interpretations of the same federal certificate by several States will be avoided and a uniform administration of the Act achieved.
15
The judgment is reversed.
16
Reversed.
1
Va.Code, 1950, § 56—278, provides:
'No common carrier by motor vehicle or restricted common carrier by motor vehicle not herein exempted shall engage in intrastate operation on any highway within the State without first having obtained from the Commission a certificate of public convenience and necessity authorizing such operation, and a statement of the State Highway Commission that the law applicable to the proposed route or routes has been complied with as to size, weight, and type of vehicles to be used, and a like statement as to any increase in size, weight, and type of vehicles proposed to be operated by the applicant after such application is granted.'
2
That section provides:
(c) 'Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.' 49 U.S.C. § 304(c), 49 U.S.C.A. § 304(c).
3
49 U.S.C. § 303(a)(10), 49 U.S.C.A. § 303(a)(10), defines 'interstate commerce' as including 'commerce * * * between places in the same State through another State, * * *.' 49 Stat. 544.
4
In its declaratory opinion the Commission noted:
'In the absence of any showing that petitioner's use of its authorized route is a subterfuge to avoid State regulation, or other than a logical and normal operation through the carrier's headquarters, we are of the opinion that petitioner's operations, in the manner described, constitute bona fide transportation in interstate commerce.
'We find that the operations described between points in Virginia through Bluefield, W. Va., are bona fide operations in interstate commerce within the authority granted to petitioner in certificate No. MC—30471.' Service Storage & Transfer Co., Inc. Petition for Declaratory Order, 71 M.C.C. 304, 306.
| 78
|
359 U.S. 187
79 S.Ct. 666
3 L.Ed.2d 729
Louis Joseph ABBATE and Michael Louis Falcone, Petitioners,v.UNITED STATES of America.
No. 7.
Argued Oct. 22, 1958.
Decided March 30, 1959.
Mr. Charles A. Bellows, Chicago, Ill., for petitioners.
Mr. Leonard B. Sand, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
During a strike against the Southern Bell Telephone and Telegraph Company, the petitioners and one McLeod were solicited in Chicago, Illinois, by a union official, Shelby, to dynamite facilities of the telephone company located in the States of Mississippi, Tennessee, and Louisiana. The four men met in Chicago where Shelby gave the petitioners and McLeod the plans of the facilities to be dynamited and instructed them as to the method to be used. After Shelby left Chicago the petitioners told McLeod that they would not go though with the plan. McLeod, however, obtained dynamite and went to Mississippi to destroy telephone company facilities located there. The petitioners thereupon disclosed the plot to the telephone company and the Chicago police.
2
The petitioners, with Shelby and McLeod, were subsequently indicted by the State of Illinois for violating an Illinois statute making it a crime to conspire to injure or destroy the property of another.1 The indictment describes the property as 'communication facilities belonging to the Southern Bell Telephone & Telegraph Company' and 'belonging to the American Telephone and Telegraph Company.' The petitioners entered pleas of guilty to the indictment and were each sentenced to three months' imprisonment.
3
Thereafter indictments were returned in the United States District Court for the Southern District of Mississippi against the petitioners and Shelby, and also against one Perry who pointed out to McLeod the property to be dynamited. This indictment does not refer to the facilities as belonging to the telephone companies, but charges the offense of violating 18 U.S.C. § 371, 18 U.S.C.A. § 3712 by conspiring to destroy, contrary to 18 U.S.C. § 1362, 18 U.S.C.A. § 1362,3 'certain works, property and material known as coaxial repeater stations and micro-wave towers * * * located in the States of Mississippi, Tennessee and Louisiana * * * which were essential and integral parts of systems and means of communication operated and controlled by the United States.' McLeod confessed to his part in the conspiracy and testified on the federal trial to petitioners' acts of participation in the conspiracy. These same acts were the basis of the Illinois convictions. The Government also introduced proof that the Strategic Air Command, the Civil Aeronautics Administration, the Navy and other federal agencies have the exclusive use of some of the circuits within the coaxial cables carried by the repeater stations and micro-wave towers that were to be destroyed. The federal jury found the four defendants guilty as charged. On appeal the Fifth Circuit Court of Appeals reversed the convictions of Shelby and Perry for error in the admission of evidence, but affirmed the convictions of the petitioners, 247 F.2d 410. We granted certiorari limited to consideration of the claim that the federal prosecutions, based on the same acts as were the prior state convictions, placed petitioners twice in jeopardy contrary to the Fifth Amendment, 355 U.S. 902, 78 S.Ct. 330, 2 L.Ed.2d 258.
4
In Bartkus v. People of Illinois, 359 U.S. 121, 79 S.Ct. 676, the order of the prosecutions was the reverse of the order in this case. Here the federal prosecution came after the Illinois convictions. Thus this case squarely raises the question whether a federal prosecution of defendants already prosecuted for the same acts by a State subjects those defendants 'for the same offense to be twice put in jeopardy of life or limb' in violation of the Fifth Amendment.4
5
We do not write on a clean slate in deciding this question. As early as 1820 in Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19, it was recognized that this issue would arise from the concurrent application of state and federal laws.5 During the following three decades a number of state courts reached differing conclusions as to whether a state prosecution would bar a subsequent federal prosecution of the same person for the same acts.6 Against this background this Court thoroughly considered the question in three cases between 1847 and 1852. In Fox v. State of Ohio, 5 How. 410, 12 L.Ed. 213, the petitioner had been convicted of passing a counterfeit coin of the United States within the State of Ohio in violation of a state statute. She contended that the Fifth Amendment prohibited successive state and federal prosecutions for the same acts, and therefore that a prosecution under the Ohio statute would prevent federal authorities from prosecuting the same act under the federal counterfeiting laws. Thus, the argument continued, the Court should declare the Ohio statute unconstitutional under the Supremacy Clause in order to preserve the effectiveness of federal law enforcement. Houston v. Moore and some of the leading state authorities bearing on whether the Fifth Amendment applied to successive state and federal prosecutions were argued to the Court. All members of the Court agreed that the Fifth Amendment would not prohibit a federal prosecution even though based on the same act of passing the counterfeit coin that resulted in the state prosecution. There was a division, however, as to what disposition of the case was required by this conclusion. The majority reasoned that since the Ohio prosecution would not render the Federal Government powerless to enforce its counterfeit laws there was no basis for declaring the Ohio statute unconstitutional under the Supremacy Clause, Const. art. 6. Mr. Justice McLean, dissenting, thought that since 'the punishment under the State law would be no bar to a prosecution under the law of Congress,' 5 How. at page 439, this undesirable result should be avoided by declaring the state statute unconstitutional, for, he said, 'Nothing can be more repugnant * * * than two punishments for the same act,' id., 5 How. at page 440. Three years later, in United States v. Marigold, 9 How. 560, 13 L.Ed. 257, a unanimous Court affirmed a conviction under the federal counterfeiting statute that was discussed in Fox. The Court, in holding that a state and a federal statute could both apply to the same conduct, accepted the conclusion of Fox that 'the same act might * * * constitute an offense against both the State and Federal governments, and might draw to its commission the penalties denounced by either * * *.' 9 How. at page 569.
6
The third case, Moore v. People of State of Illinois, 14 How. 13, 14 L.Ed. 306, gave clear expression to the emerging principle that the Fifth Amendment did not apply to a federal prosecution subsequent to a state prosecution of the same person for the same acts. That case involved a conviction of Moore under an Illinois statute for harboring an escaped slave. A federal statute outlawed the same act as an interference with the rights of the owner of the slave. Moore urged that the Illinois statute was void 'as it subjects the delinquent to a double punishment for a single offence,' 14 How. at page 19. The Court rejected this argument, saying:
7
'Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. * * * That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. State of Ohio, * * * that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens; and, in the case of the United States v. Marigold, * * * that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States.' 14 How. at page 20.
8
Justice McLean again dissented on the ground of his dissent in Fox, namely, that the state law should be declared invalid for the very reason that 'the conviction and punishment under the State law would be no bar to a prosecution under the law of Congress.' Id., 14 How. at page 21.
9
The reasoning of the Court in these three cases was subsequently accepted by this Court, in dictum, in the following cases: United States v. Cruikshank, 92 U.S. 542, 550, 23 L.Ed. 588; Coleman v. Tennessee, 97 U.S. 509, 518, 24 L.Ed. 1118; Ex parte Siebold, 100 U.S. 371, 389, 25 L.Ed. 717; United States v. Arjona, 120 U.S. 479, 487, 7 S.Ct. 628, 631, 30 L.Ed. 728; Cross v. State of North Carolina, 132 U.S. 131, 139, 10 S.Ct. 47, 50, 33 L.Ed. 287; In re Loney, 134 U.S. 372, 375, 10 S.Ct. 584, 585, 33 L.Ed. 949; Pettibone v. United States, 148 U.S. 197, 209, 13 S.Ct. 542, 547, 37 L.Ed. 419; Crossley v. People of State of California, 168 U.S. 640, 641, 18 S.Ct. 242, 42 L.Ed. 610; Sexton v. People of State of California, 189 U.S. 319, 322—323, 23 S.Ct. 543, 544—545, 47 L.Ed. 833; Matter of Heff, 197 U.S. 488, 507, 25 S.Ct. 506, 511, 49 L.Ed. 848; Grafton v. United States, 206 U.S. 333, 353 354, 27 S.Ct. 749, 754—755, 51 L.Ed. 1084; Southern R. Co. v. Railroad Comm'n of Indiana, 236 U.S. 439, 445, 35 S.Ct. 304, 305, 59 L.Ed. 661; and McKelvey v. United States, 260 U.S. 353, 358 359, 43 S.Ct. 132, 134—135, 67 L.Ed. 301. Typical of the statements adopting the principle is that of Chief Justice Taney, on circuit, in United States v. Amy, C.C.D.Va.1859, 24 Fed.Cas. p. 792, at page 811, No. 14,445, that 'from the nature of our government, the same act may be an offence against the laws of the United States and also of a state, and be punishable in both.'
10
Culminating this development was United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, where the issue was directly presented to this Court. Lanza was convicted by the State of Washington for 'manufacturing, transporting, and having in possession' a quantity of liquor in violation of a state statute. He was subsequently convicted in a Federal District Court of violating the Volstead Act, 41 Stat. 305, for performing the same acts with regard to the same liquor. The Court held that the prior state conviction did not bar the federal prosecution. It pointed out that the State could constitutionally make Lanza's acts criminal under its original powers reserved by the Tenth Amendment, and the Federal Government could constitutionally prohibit the acts under the Eighteenth Amendment. Thus this case presented the situation hypothesized in Fox v. State of Ohio and other early cases; two sovereigns had, within their constitutional authority, prohibited the same acts, and each was punishing a breach of its prohibition. A unanimous Court, in an opinion by Chief Justice Taft, held:
11
'We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. * * * Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
12
'It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government, * * * and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority.' 260 U.S., at page 382, 43 S.Ct. at page 142.
13
The Lanza principle has been accepted without question in Hebert v. State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270, also a Volstead Act case, and in the following cases in this Court arising under other statutes: Westfall v. United States, 274 U.S. 256, 258, 47 S.Ct. 629, 71 L.Ed. 1036; People of Puerto Rico v. Shell Co., 302 U.S. 253, 264—266, 58 S.Ct. 167, 172—173, 82 L.Ed. 235; Jerome v. United States, 318 U.S. 101, 105, 63 S.Ct. 483, 486, 87 L.Ed. 640; Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495. And see People of State of California v. Zook, 336 U.S. 725, 752—753, 758, 69 S.Ct. 841, 853 854, 856, 93 L.Ed. 1105 (dissenting opinion). Similarly, Lanza has been considered in many cases in the Courts of Appeals to have established the general principle that a federal prosecution is not barred by a prior state prosecution of the same person for the same acts.7
14
Petitioner asks us to overrule Lanza. We decline to do so. No consideration or persuasive reason not presented to the Court in the prior cases is advanced why we should depart from its firmly established principle. On the contrary, undesirable consequences would follow if Lanza were overruled. The basic dilemma was recognized over a century ago in Fox v. State of Ohio. As was there pointed out, if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. For example, the petitioners in this case insist that their Illinois convictions resulting in three months' prison sentences should bar this federal prosecution which could result in a sentence of up to five years. Such a disparity will very often arise when, as in this case, the defendants' acts impinge more seriously on a federal interest than on a state interest. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes. See Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495; Jerome v. United States, 318 U.S. 101, 104—105, 63 S.Ct. 483, 485—486, 87 L.Ed. 640. Thus, unless the federal authorities could somehow insure that there would be no state prosecutions for particular acts that also constitute federal offenses, the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions. Needless to say, it would be highly impractical for the federal authorities to attempt to keep informed of all state prosecutions which might bear on federal offenses.
15
The conclusion is therefore compelled that the prior Illinois conviction of the petitioners did not bar the instant federal prosecution.
16
Affirmed.
17
By Mr. Justice BRENNAN.
18
The Government, in its brief and on oral argument in this case, urged that the judgment of the Court of Appeals should be affirmed on an alternative ground to that upon which the Court rests the decision. The Government argued that it was unnecessary to delimit the application of the Double Jeopardy Clause of the Fifth Amendment to successive state and federal prosecutions of the same acts beyond holding that the clause does not apply when those prosecutions, as in this case, are under statutes which require different evidence for a conviction and which protect different interests. The contention is that in this case additional evidence is necessary to convict under the federal statute, namely, proof that federal property was knowingly to be destroyed, and that the two statutes are designed to protect different interests, the state statute to protect 'the sanctity of privately-owned property' and the federal statute to prevent injury to 'means of communication, operated or controlled by the United States.' The gist of the argument is that two prosecutions are not 'for the same offense' within the meaning of the Fifth Amendment when they are based upon the violation of two statutes designed to vindicate different governmental interests and requiring different evidence to support convictions. Although the Court considered that it was unnecessary to discuss this suggested ground for decision, I consider its implications to be so disturbing as to require comment.1 I cannot escape the fact that this reasoning would apply equally if each of two successive federal prosecutions based on the same acts was brought under a different federal statute, and each statute was designed to protect a different federal interest. Indeed, the Government supports its argument by citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405; and Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, cases which involved only federal prosecutions, and Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, which involved successive prosecutions by the same State. The argument then obviously is that the mere fact that there are two statutes which vindicate different interests and require different evidence of itself means that the Fifth Amendment does not prohibit successive prosecutions of the same acts under the respective statutes.
19
However, whatever the case under the Fourteenth Amendment as to successive state prosecutions, Hoag v. State of New Jersey, supra, or under the Fifth Amendment as to consecutive federal sentences imposed upon one trial, e.g., Gore v. United States, supra, I think it clear that successive federal prosecutions of the same person based on the same acts are prohibited by the Fifth Amendment even though brought under federal statutes requiring different evidence and protecting different federal interests. It is true that this Court has said: '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 an additional fact which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. But, so far as appears, neither this 'same evidence' test nor a 'separate interests' test has been sanctioned by this Court under the Fifth Amendment except in cases in which consecutive sentences were imposed on conviction of several offenses at one trial.2 The accused, although punished separately and cumulatively for various aspects of a single transactions, is subject to only one prosecution and one trial. If the Government attempted multiple prosecutions of the same offenses, an entirely different constitutional issue would be presented, cf. Hoag v. State of New Jersey, 356 U.S. at page 467, 78 S.Ct. at page 832. The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts. 'The underlying idea * * * is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity * * *.' Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. In short, 'The prohibition is not against being twice punished, but against being twice put in jeopardy * * *.' United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300.
20
Obviously separate prosecutions of the same criminal conduct can be far more effectively used by a prosecutor to harass an accused than can the imposition of consecutive sentences for various aspects of that conduct. It is always within the discretion of the trial judge whether to impose consecutive or concurrent sentences, whereas, unless the Fifth Amendment applies, it would be solely within the prosecutor's discretion to bring successive prosecutions based on the same acts, thereby requiring the accused to defend himself more than once. Furthermore, separate prosecutions, unlike multiple punishments based on one trial, raise the possibility of an accused acquitted by one jury being subsequently convicted by another for essentially the same conduct.3 See Hoag v. State of New Jersey, surpa; cf. Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983. Thus to permit the Government statutorily to multiply the number of offenses resulting from the same acts, and to allow successive prosecutions of the several offenses, rather than merely the imposition of consecutive sentences after one trial of those offenses, would enable the Government to 'wear the accused out by a multitude of cases with accumulated trials.' Palko v. State of Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 82 L.Ed. 288. Repetitive harassment in such a manner goes to the heart of the Fifth Amendment protection.4 This protection cannot be thwarted either by the 'same evidence' test or because the conduct offends different federal statutes protecting different federal interests. The prime consideration is the protection of the accused from the harassment of successive prosecutions, and not the justification for or policy behind the statutes violated by the accused. If the same acts violate different federal statutes protecting separate federal interests those interests can be adequately protected at a single trial by the imposition of separate sentences for each statute violated. See, e.g., Bell v. United States, 349 U.S. 81, 82—83, 76 S.Ct. 620, 621—622, 99 L.Ed. 905; Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405.
21
The holding of the Court In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, establishes the governing principle. The defendant in that case, a Mormon with more than one wife, had been convicted of violating a congressional statute, applicable to the territory of Utah, which prohibited males from cohabiting with more than one woman. Subsequently he was prosecuted and convicted of adultery in violation of another congressional statute, the second prosecution being based on the same acts as the prior conviction. Despite the fact that it was necessary to prove a fact in the second prosecution not necessary for the first conviction, i.e., that the defendant was married to another woman, and that a different federal interest was protected by each statute, the Court held that the second prosecution unconstitutionally put the defendant twice in jeopardy for the same offense.
22
In short, though the Court in Gore has found no violence to the guarantee against double jeopardy when the same acts are made to do service for several convictions at one trial, I think not mere violence to, but virtual extinction of, the guarantee results if the Federal Government may try people over and over again for the same criminal conduct just because each trial is based on a different federal statute protecting a separate federal interest.
23
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
24
Petitioners, Abbate and Falcone, were convicted in an Illinois State Court of conspiracy to blow up certain property located in Mississippi and adjoining States. After receiving prison sentences in Illinois they were indicted and convicted of the same conspiracy in the Federal District Court of Mississippi and again sentenced to prison. The Court now affirms their second sentences over the contention that the federal conviction violates the double jeopardy provision of the Fifth Amendment.
25
In support of its affirmance, the Court points to United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314. In that case, this Court sustained Lanza's conviction for handling liquor contrary to federal law, after Lanza had been convicted under state law of handling the same liquor at the same time and place. Some writers have explained Lanza as justified by the broad language of the Prohibition Amendment which was then in effect and which gave the States and the Federal Government concurrent power to control liquor traffic.1 The Court's opinion, in Lanza, however, seemed rather to rely on dicta in a number of past cases in this Court. These had assumed that identical conduct of an accused might be prosecuted twice, once by a State and once by the Federal Government, because the 'offense' punished by each is in some, meaningful, sense different. The legal logic used to prove one thing to be two is too subtle for me to grasp. See, generally, Bartkus v. People of Illinois, 359 U.S. 150, 79 S.Ct. 695 (dissenting opinion).2
26
I am also not convinced that a State and the Nation can be considered two wholly separate sovereignties for the purpose of allowing them to do together what, generally, neither can do separately.3 In the first place, I cannot conceive that our States are more distinct from the Federal Government than are foreign nations from each other.4 And it has been recognized that most free countries have accepted a prior conviction elsewhere as a bar to a second trial in their jurisdiction.5 In the second place, I believe the Bill of Rights' safeguard against double jeopardy was intended to establish a broad national policy against federal courts trying or punishing a man a second time after acquittal or conviction in any court. It is just as much an affront to human dignity and just as dangerous to human freedom for a man to be punished twice for the same offense, once by a State and once by the United States, as it would be for one of these two Governments to throw him in prison twice for the offense. Perhaps a belief that this is true was responsible for the fact that a proposed amendment to the Double Jeopardy Clause was rejected in our First Congress while the Bill of Rights was being considered. If that amendment had been adopted the Clause apparently would have barred double prosecutions for 'the same offense' only if brought under 'any law of the United States.' 1 Annals of Cong., 753 (1789).6 I fear that this limitation on the scope of the Double Jeopardy Clause, which Congress refused to accept, is about to be firmly established as the constitutional rule by the Court's holding in this case and in Bartkus v. People of Illinois, 359 U.S. 121, 79 S.Ct. 676.
27
I would reverse both convictions.
1
38 Smith-Hurd Ill.Stat.Ann. (1957 Supp.) § 139 provides in pertinent part: 'If any two or more persons conspire or agree together * * * with the fraudulent or malicious intent wrongfully and wickedly to injure the * * * property of another * * * they shall be deemed guilty of a conspiracy * * *.' The statute applies to conspiracies within Illinois to destroy property outside the State. See People v. Buckminster, 282 Ill. 177, 118 N.E. 497.
2
18 U.S.C. § 371, 18 U.S.C.A. § 371 provides in pertinent part: 'If two or more persons conspire * * * to commit any offense against the United States * * * and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
3
The relevant part of 18 U.S.C. § 1362, 18 U.S.C.A. § 1362 is as follows: 'Whoever willfully or maliciously injures or destroys and of the * * * property * * * of any * * * telephone, or cable, line, station, or system, or other means of communication, operated or controlled by the United States * * *' is guilty of a crime.
4
The Double Jeopardy Clause of the Fifth Amendment provides: 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *.' The circumstances of this case do not require us to consider the suggestion in the Government's brief that 'no state prosecution can preclude the federal government from enforcing federal law.' For example, there is nothing in this record to indicate any federal participation in the Illinois prosecution.
5
Justice Johnson, in another case at the same Term, recognized the related problem of the scope to be given the plea of autrefois acquit when based on an acquittal by the courts of another country. United States v. Furlong, 5 Wheat. 184, 197, 5 L.Ed. 64.
6
Compare, e.g., Mattison v. State, 3 Mo. *421, and Hendrick v. Commonwealth, 5 Leigh, Va., 707, with e.g., State v. Randall, 2 Aikens, Vt., 89, and Harlan v. People, 1 Doug., Mich., 207.
7
See, e.g., Rios v. United States, 9 Cir., 1958, 256 F.2d 173; Smith v. United States, 6 Cir., 1957, 243 F.2d 877; Jolley v. United States, 5 Cir., 1956, 232 F.2d 83; United States v. Levine, 2 Cir., 1942, 129 F.2d 745.
1
'It cannot be suggested that in cases where the author is the mere instrument of the Court he must forego expression of his own convictions.' Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576, 69 S.Ct. 1291, 1299, 93 L.Ed. 1544 (separate opinion). See also Helvering v. Davis, 301 U.S. 619, 639—640, 57 S.Ct. 904, 908, 81 L.Ed. 1307.
2
Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, upheld a prosecution for insulting a public officer despite a prior prosecution for indecent behavior in public based on essential the same acts. However, that decision was an interpretation of a congressional statute against double jeopardy applicable to the Philippine Islands, a territory 'with long-established legal procedures that were alien to the common law.' Green v. United States, 355 U.S. 184, 197, 78 S.Ct. 221, 228, 2 L.Ed.2d 199. It has not been considered an authoritative interpretation of the constitutional provision. Green v. United States, supra; see Hoag v. State of New Jersey, 356 U.S. 464, 478, note 3, 78 S.Ct. 829, 838, 2 L.Ed.2d 913 (dissenting opinion). Flemister v. United States, 207 U.S. 372, 28 S.Ct. 129, 130, 52 L.Ed. 252, decided under the same statute, involved two prosecutions of two different assaults on two police officers at two different times, although in 'one continuing attempt to defy the law.' Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, was decided on a demurrer, the Court holding that the pleadings did not necessarily show that a count in a second indictment alleging the receipt of a bribe from a corporation charged the same offense as a count in a prior indictment alleging the receipt of a bribe from a named person who was an officer of the corporation. In United States v. Adams, 281 U.S. 202, 50 S.Ct. 269, 74 L.Ed. 807, the defendant had attempted to conceal an embezzlement by making false entries in bank books and, at a later date, by falsifying a report. A federal statute prohibited both such falsifications. Although both falsifications were attempts to conceal the same embezzlement, the statute outlawed the falsifications themselves, and thus the Court held that since they were made at different times and in different circumstances each could be prosecuted separately.
3
The Double Jeopardy Clause of the Fifth Amendment applies in the same manner to a prosecution following a prior conviction as it does to a prosecution following a prior acquittal. See Ex parte Lange, 18 Wall. 163, 169, 172, 21 L.Ed. 872; United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300. This is consistent with the fact that, although autrefois acquit and autrefois convict were separate pleas in bar in the English law, they have historically been given the same scope. See 4 Blackstone Commentaries *335—336; 2 Hawkins, Pleas of the Crown (8th ed. 1824), pp. 515—529.
4
The doctrine of collateral estoppel may not provide adequate protection. Of course, it will be of no help to an accused who has been previously convicted. But even if he has previously been acquitted, the doctrine may be of little help because in many cases it cannot be ascertained whether the controlling factual issues in the second prosecution were necessarily resolved in the prior trial. See Hoag v. State of New Jersey, 356 U.S. 464, 471—472, 78 S.Ct. 829, 834—835, 2 L.Ed.2d 913; United States v. Dockery, 49 F.Supp. 907; United States v. Halbrook, D.C., 36 F.Supp. 345. Furthermore, the protection of an essentially procedural concept such as collateral estoppel, see Hoag v. State of New Jersey, supra, 356 U.S. at page 471, 78 S.Ct. at page 834, is less substantial than the constitutional protection of the Double Jeopardy Clause. For example, a second trial that placed the accused in double jeopardy could be collaterally attacked, whereas query whether the failure to apply collateral estoppel could be challenged by a post-conviction motion for relief. See Sunal v. Large, 332 U.S. 174, 178—179, 67 S.Ct. 1588, 1590—1591, 91 L.Ed. 1982.
1
U.S.Const., Amend. XVIII. See, e.g., Note 55, Col.L.Rev. 83, 89, n. 38. Lanza is severely criticized in Grant, The Lanza Rule of Successive Prosecutions, 32 Col.L.Rev. 1309; Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 U.C.L.A.L.Rev. 1.
2
The Court today seems to rely on the argument, also made in Lanza, 260 U.S. at page 385, 43 S.Ct. at page 143, that failure to allow federal prosecutions after state trials might endanger federal law. States, the argument runs, might establish minor punishments for conduct which violates United States statutes. Criminals could then plead guilty in state courts and be safe from federal justice. Whatever the merits of the argument in the context of the Eighteenth Amendment, it can have no validity here. As we pointed out in Bartkus v. People of Illinois, 359 U.S. 150, 79 S.Ct. 695 (dissenting opinion), if Congress has power to make certain conduct a federal crime, it also has power to protect the national interest. It can take exclusive jurisdiction over the crime or, if it wishes to allow the States concurrent power, it can define the offense and set minimum penalties which would be applicable in both state and federal courts. In addition, should the state trial prove to be a sham, it might be that no jeopardy could be shown and that a subsequent federal trial would be constitutional. See, e.g., Edwards v. Commonwealth, 233 Ky. 356, 25 S.W.2d 746. Cf. United States v. Mason, 213 U.S. 115, 125, 29 S.Ct. 480, 483, 53 L.Ed. 725. It therefore appears that federal laws can easily be safeguarded without requiring defendants to undergo double prosecutions.
3
Almost all of the States have constitutional provisions similar to the Double Jeopardy Clause of the Federal Constitution. See Brock v. State of North Carolina, 344 U.S. 424, 429, 435, 73 S.Ct. 349, 351, 354, 97 L.Ed. 456 (dissenting opinion).
4
Cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967.
5
See Grant, The Lanza Rule of Successive prosecutions, 32 Col.L.Rev. 1309; Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 U.C.L.A.L.Rev. 1.
6
At the time the amendment was offered the Double Jeopardy Clause under discussion read: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offense.' 1 Annals of Cong., 434 (1789). If the amendment had passed the clause would have read: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence by any law of the United States.' Id., at page 753.
| 01
|
359 U.S. 121
79 S.Ct. 676
3 L.Ed.2d 684
Alfonse BARTKUS, Petitioner,v.PEOPLE OF the STATE OF ILLINOIS.
No. 1.
Reargued Oct. 21, 22, 1958.
Decided March 30, 1959.
Rehearing Denied June 8, 1959.
See 360 U.S. 907, 79 S.Ct. 1283.
Mr. Walter T. Fisher, Chicago, Ill., for petitioner.
Mr. William C. Wines, Chicago, Ill., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner was tried in the Federal District Court for the Northern District of Illinois on December 18, 1953, for robbery of a federally insured savings and loan association, the General Savings and Loan Association of Cicero, Illinois, in violation of 18 U.S.C. § 2113, 18 U.S.C.A. § 2113. The case was tried to a jury and resulted in an acquittal. On January 8, 1954, an Illinois grand jury indicted Bartkus. The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment. The Illinois indictment charged that these facts constituted a violation of Illinois Revised Statutes, 1951, c. 38, § 501, a robbery statute. Bartkus was tried and convicted in the Criminal Court of Cook County and was sentenced to life imprisonment under the Illinois Habitual Criminal Statute. Ill.Rev.Stat.1951, c. 38, § 602.
2
The Illinois trial court considered and rejected petitioner's plea of autrefois acquit. That ruling and other alleged errors were challenged before the Illinois Supreme Court which affirmed the conviction. 7 Ill.2d 138, 130 N.E.2d 187. We granted certiorari because the petition raised a substantial question concerning the application of the Fourteenth Amendment. 352 U.S. 907, 77 S.Ct. 150, 1 L.Ed.2d 116; 352 U.S. 958, 77 S.Ct. 358. On January 6, 1958, the judgment below was affirmed by an equally divided Court. 355 U.S. 281, 78 S.Ct. 336, 2 L.Ed.2d 270. On May 26, 1958, the Court granted a petition for rehearing, vacated the judgment entered January 6, 1958, and restored the case to the calendar for reargument. 356 U.S. 969, 78 S.Ct. 1004, 2 L.Ed.2d 1075.
3
The state and federal prosecutions were separately conducted. It is true that the agent of the Federal Bureau of Investigation who had conducted the investigation on behalf of the Federal Government turned over to the Illinois prosecuting officials all the evidence he had gathered against the petitioner. Concededly, some of that evidence had been gathered after acquittal in the federal court. The only other connection between the two trials is to be found in a suggestion that the federal sentencing of the accomplices who testified against petitioner in both trials was purposely continued by the federal court until after they testified in the state trial. The record establishes that the prosecution was undertaken by state prosecuting officials within their discretionary responsibility and on the basis of evidence that conduct contrary to the penal code of Illinois had occurred within their jurisdiction. It establishes also that federal officials acted in cooperation with state authorities, as is the conventional practice between the two sets of prosecutors throughout the country.1 It does not support the claim that the State of Illinois in bringing its prosecution was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal. It does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.
4
Since the new prosecution was by Illinois, and not by the Federal Government, the claim of unconstitutionality must rest upon the Due Process Clause of the Fourteenth Amendment. Prior cases in this Court relating to successive state and federal prosecutions have been concerned with the Fifth Amendment, and the scope of its proscription of second prosecutions by the Federal Government, not with the Fourteenth Amendment's effect on state action. We are now called upon to draw on the considerations which have guided the Court in applying the limitations of the Fourteenth Amendment on state powers. We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such.2 The relevant historical materials have been canvassed by this Court and by legal scholars.3 These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.
5
Evidencing the interpretation by both Congress and the States of the Fourteenth Amendment is a comparison of the constitutions of the ratifying States with the Federal Constitution. Having regard only to the grand jury guarantee of the Fifth Amendment, the criminal jury guarantee of the Sixth Amendment, and the civil jury guarantee of the Seventh Amendment, it is apparent that if the first eight amendments were being applied verbatim to the States, ten of the thirty ratifying States would have impliedly been imposing upon themselves constitutional requirements on vital issues of state policies contrary to those present in their own constitutions.4 Or, to approach the matter in a different way, they would be covertly altering provisions of their own constitutions in disregard of the amendment procedures required by those constitutions. Five other States would have been undertaking procedures not in conflict with but not required by their constitutions. Thus only one-half, or fifteen, of the ratifying States had constitutions in explicit accord with these provisions of the Fifth, Sixth, and Seventh Amendments. Of these fifteen, four made alterations in their constitutions by 1875 which brought them into important conflict with one or more of these provisions of the Federal Constitution. One of the States whose constitution had not included any provision on one of the three procedures under investigation adopted a provision in 1890 which was inconsistent with the Federal Constitution. And so by 1890 only eleven of the thirty ratifying States were in explicit accord with these provisions of the first eight amendments to the Federal Constitution. Four were silent as to one or more of the provisions and fifteen were in open conflict with these same provisions.5
6
Similarly imposing evidence of the understanding of the Due Process Clause is supplied by the history of the admission of the twelve States entering the Union after the ratification of the Fourteenth Amendment. In the case of each, Congress required that the State's constitution be 'not repugnant' to the Constitution of the United States.6 Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact all twelve have provisions obviously different from the requirements of the Fifth Sixth, or Seventh Amendments. And yet, in the case of each admission, either the President of the United States, or Congress, or both have found that the constitution was in conformity with the Enabling Act and the Constitution of the United States.7 Nor is there warrant to believe that the States in adopting constitutions with the specific purpose of complying with the requisites of admission were in fact evading the demands of the Constitution of the United States.
7
Surely this compels the conclusion that Congress and the States have always believed that the Due Process Clause brought into play a basis of restrictions upon the States other than the undisclosed incorporation of the original eight amendments. In Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232, this Court considered due process in its historical setting, reviewed its development as a concept in Anglo-American law from the time of the Magna Carta until the time of the adoption of the Fourteenth Amendment and concluded that it was intended to be a flexible concept, responsive to thought and experience—experience which is reflected in a solid body of judicial opinion, all manifesting deep convictions to be unfolded by a process of 'inclusion and exclusion.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. Time and again this Court has attempted by general phrases not to define but to indicate the purport of due process and to adumbrate the continuing adjudicatory process in its application. The statement by Mr. Justice Cardozo in Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, has especially commended itself and been frequently cited in later opinions.8 Referring to specific situations, he wrote:
8
'In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.' 302 U.S. at pages 324—325, 58 S.Ct. at page 151.
9
About the meaning of due process, in broad perspective unrelated to the first eight amendments, he suggested that it prohibited to the States only those practices 'repugnant to the conscience of mankind.' 302 U.S. at page 323, 58 S.Ct. at page 151. In applying these phrases in Palko, the Court ruled that, while at some point the cruelty of harassment by multiple prosecutions by a State would offend due process, the specific limitation imposed on the Federal Government by the Double Jeopardy Clause of the Fifth Amendment did not bind the States.
10
Decisions of this Court concerning the application of the Due Process Clause reveal the necessary process of balancing relevant and conflicting factors in the judicial application of that Clause. In Chambers v. State of Floriday, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, we held that a state conviction of murder was void because it was based upon a confession elicited by applying third-degree methods to the defendant. But we have also held that a second execution necessitated by a mechanical failure in the first attempt was not in violation of due process. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422. Decisions under the Due Process Clause require close and perceptive inquiry into fundamental principles of our society. The Anglo-American system of law is based not upon transcendental revelation but upon the conscience of society ascertained as best it may be by a tribunal disciplined for the task and environed by the best safeguards for disinterestedness and detachment.
11
Constitutional challenge to successive state and federal prosecutions based upon the same transaction or conduct is not a new question before the Court though it has now been presented with conspicuous ability.9 The Fifth Amendment's proscription of double jeopardy has been invoked and rejected in over twenty cases of real or hypothetical successive state and federal prosecution cases before this Court. While United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, was the first case in which we squarely held valid a federal prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion in Fox v. State of Ohio, 5 How. 410, 12 L.Ed. 213, more than one hundred years ago.
12
In Fox v. State of Ohio argument was made to the Supreme Court that an Ohio conviction for uttering counterfeit money was invalid. This assertion of invalidity was based in large part upon the argument that since Congress had imposed federal sanctions for the counterfeiting of money, a failure to find that the Supremacy Clause precluded the States from punishing related conduct would expose an individual to double punishment. Mr. Justice Daniel, writing for the Court (with Mr. Justice McLean dissenting), recognized as true that there was a possibility of double punishment, but denied that from this flowed a finding of pre-emption, concluding instead that both the Federal and State Governments retained the power to impose criminal sanctions, the United States because of its interest in protecting the purity of its currency, the States because of their interest in protecting their citizens against fraud.
13
In some eight state cases decided prior to Fox the courts of seven States had discussed the validity of successive state and federal prosecutions. In three, Missouri,10 North Carolina,11 and Virginia12 it had been said that there would be no plea in bar to prevent the second prosecution Discussions in two cases in South Carolina were in conflict—the earlier opinion13 expressing belief that there would be a bar, the later,14 without acknowledging disagreement with the first, denying the availability of a plea in bar. In three other States, Vermont,15 Massachusetts,16 and Michigan,17 courts had stated that a prosecution by one government would bar prosecution by another government of a crime based on the same conduct. The persuasiveness of the Massachusetts and Michigan decisions is somewhat impaired by the precedent upon which they relied in their reasoning. In the Supreme Court case cited in the Massachusetts and Michigan cases, Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19, there is some language to the effect that there would be a bar to a second prosecution by a different government. 5 Wheat. at page 31. But that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanctions for violation of a federal criminal law. 5 Wheat. at page 28. As he viewed the matter, the two trials would not be of similar crimes arising out of the same conduct; they would be of the same crime. Mr. Justice Johnson agreed that if the state courts had become empowered to try the defendant for the federal offense, then such a state trial would bar a federal prosecution. 5 Wheat. at page 35. Thus Houston v. Moore can be cited only for the presence of a bar in a case in which the second trial is for a violation of the very statute whose violation by the same conduct has already been tried in the courts of another government empowered to try that question.18
14
The significance of this historical background of decisions prior to Fox is that it was, taking a position most favorable to advocates of the bars of autrefois acquit and autrefois convict in cases like that before this Court, totally inconclusive. Conflicting opinions concerning the applicability of the plea in bar may manifest conflict in conscience. They certainly do not manifest agreement that to permit successive state and federal prosecutions for different crimes arising from the same acts would be repugnant to those standards of outlawry which offend the conception of due process outlined in Palko. (It is worth noting that Palko sustained a first degree murder conviction returned in a second trial after an appeal by the State from an acquittal of first degree murder.) The early state decisions had clarified the issue by stating the opposing arguments. The process of this Court's response to the Fifth Amendment challenge was begun in Fox v. State of Ohio, continued in United States v. Marigold, 9 How. 560, 13 L.Ed. 257, and was completed in Moore v. People of State of Illinois, 14 How. 13, 14 L.Ed. 306. Mr. Justice Grier, writing for the Court in Moore v. People of State of Illinois, gave definitive statement to the rule which had been evolving:
15
'An offence, in its legal signification, means the transgression of a law.' 14 How. at page 19.
16
'Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.' 14 How. at page 20.
17
'That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.' Ibid.
18
In a dozen cases decided by this Court between Moore v. People of State of Illinois and United States v. Lanza this Court had occasion to reaffirm the principle first enunciated in Fox v. State of Ohio.19 Since Lanza the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment.20 Indeed Mr. Justice Holmes once wrote of this rule that it 'is too plain to need more than statement.'21 One of the post-Lanza cases, Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640, involved the same federal statute under which Bartkus was indicted and in Jerome this Court recognized that successive state and federal prosecutions were thereby made possible because all States had general robbery statutes. Nonetheless, a unanimous Court, as recently as 1943, accepted as unquestioned constitutional law that such successive prosecutions would not violate the proscription of double jeopardy included in the Fifth Amendment. 318 U.S. at page 105, 63 S.Ct. at page 486.22
19
The lower federal courts have of course been in accord with this Court.23 Although some can be cited only in that they follow the decisions of this Court, others manifest reflection upon the issues involved and express reasoned approval of the two-sovereignty principle. In United States v. Barnhart, 22 F. 285, the Oregon Circuit Court was presented with a case just the obverse of the present one: the prior trial and acquittal was by a state court; the subsequent trial was by a federal court. The Circuit Court rejected defendant's plea of autrefois acquit, saying that the hardship of the second trial might operate to persuade against the bringing of a subsequent prosecution but could not bar it.
20
The experience of state courts in dealing with successive prosecutions by different governments is obviously also relevant in considering whether or not the Illinois prosecution of Bartkus violated due process of law. Of the twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution was or would be barred.24 These States were not bound to follow this Court and its interpretation of the Fifth Amendment. The rules, constitutional, statutory, or common law which bound them, drew upon the same experience as did the Fifth Amendment, but were and are of separate and independent authority.
21
Not all of the state cases manifest careful reasoning, for in some of them the language concerning double jeopardy is but offhand dictum. But in an array of state cases there may be found full consideration of the arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not proscribing a second prosecution where the first was by a different government and for violation of a different statute.
22
With this body of precedent as irrefutable evidence that state and federal courts have for years refused to bar a second trial even though there had been a prior trial by another government for a similar offense, it would be disregard of a long, unbroken, unquestioned course of impressive adjudication for the Court now to rule that due process compels such a bar. A practical justification for rejecting such a reading of due process also commends itself in aid of this interpretation of the Fourteenth Amendment. In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, defendants were tried and convicted in a federal court under federal statutes with maximum sentences of a year and two years respectively. But the state crime there involved was a capital offense. Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines. It would be in derogation of our federal system to displace the reserved power of States over state offenses by reason of prosecution of minor federal offenses by federal authorities beyond the control of the States.25
23
Some recent suggestions that the Constitution was in reality a deft device for establishing a centralized government are not only without factual justification but fly in the face of history. It has more accurately been shown that the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power. Mr. Justice Brandeis has written that separation of powers was adopted in the Constitution 'not to promote efficiency but to preclude the exercise of arbitrary power.'26 Time has not lessened the concern of the Founders in devising a federal system which would likewise be a safeguard against arbitrary government. The greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy.
24
The entire history of litigation and contention over the question of the imposition of a bar to a second prosecution by a government other than the one first prosecuting is a manifestation of the evolutionary unfolding of law. Today a number of States have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense.27 A study of the cases under the New York statute,28 which is typical of these laws, demonstrates that the task of determining when the federal and state statutes are so much alike that a prosecution under the former bars a prosecution under the latter is a difficult one.29 The proper solution of that problem frequently depends upon a judgment of the gravamen of the state statute. It depends also upon an understanding of the scope of the bar that has been historically granted in the State to prevent successive state prosecutions. Both these problems are ones with which the States are obviously more competent to deal than is this Court. Furthermore, the rules resulting will intimately affect the efforts of a State to develop a rational and just body of criminal law in the protection of its citizens. We ought not to utilize the Fourteenth Amendment to interfere with this development. Finally, experience such as that of New York may give aid to Congress in its consideration of adoption of similar provisions in individual federal criminal statutes or in the federal criminal code.30
25
Precedent, experience, and reason alike support the conclusion that Alfonse Bartkus has not been deprived of due process of law by the State of Illinois.
26
Affirmed.
30
In specific instances Congress has included provisions to prevent federal prosecution after a state prosecution based upon similar conduct. See, e.g., 18 U.S.C. § 2117, 18 U.S.C.A. § 2117 (burglary of vehicle of transportation carrying interstate or foreign shipments).
Appendix to Opinion of the Court.
r
Year of ratification of the Fourteenth Amendment.
c
Year of adoption of constitution in effect on date of ratification or admission.
ad
Year of admission to the Union.
Fifth Amendment
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."] Sixth Amendment
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury * * *." Seventh Amendment
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *."
States Listed in Proclamation of Ratification Connecticut.
1866.r
1818.c Art. I, § 9, gives right to grand jury indictment only if crime is punishable by death or imprisonment for life. Art. I, § 9, similar. Art. I, § 21: "The right of trial by jury shall remain inviolate." New Hampshire.
1866.r
1792.c
Silent. Art. XVI guarantees jury trial only in capital cases. Art. XX similar, but amendments to Part II, § 77, ratified in 1852, permitted trial by Justices of the Peace in cases under one hundred dollars. Tennessee.
1866.r
1834.c
Art. I, § 14, similar. Art. I, §§ 9, 14, similar. Art. I, § 6, similar. New Jersey.
1866.r
1844.c
Art. I, § 9, similar. Art. I, § 8, similar. Art. I, § 7, preserves jury right except that legislature may authorize trial by jury of six when the amount in controversy is less than fifty dollars.
Oregon.
1866.r
1857.c Silent. Art. I, § 11, similar. Art. I, § 18, similar. Vermont.
1866.r
1793.c
Silent. Chap. I, Art. 10, similar. Chap. I, Art. 12, similar. New York.
1867.r
1846.c
Art. I, § 6, similar. Art. I, § 2, similar. Art. I, § 2, similar. Ohio.
1867.r
1851.c Art. I. § 10, similar. See Fairman, p. 97.* Art. I, § 10, similar. Art. I, § 5, similar. Illinois.
1867.r
1848.c
Art. XIII, § 10, similar. Constitution of 1870 provided that the grand jury could be
abolished in all cases.
Art. II, § 8. Art. XIII, § 9, similar. Art. XIII, § 6, similar. Constitution of 1870 provided that legislature could provide for jury of less than twelve in civil cases before Justices of the Peace. Art. II, § 5. West Virginia.
1867.r
1861-63.c
Art. II, § 1, similar. Art. II, § 8, similar. Art. II, § 7, similar. Constitution of 1872 provided that legislature could establish jury of six in trials before Justices of the Peace. Art. III, § 13. Such judges were given jurisdiction to try cases up to three hundred dollars. Art. VIII, § 28.
Fifth Amendment
27
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."] Sixth Amendment
28
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
29
trial, by an impartial jury * * *." Seventh Amendment
30
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *."
31
States Listed in Proclamation of Ratification Kansas.
1867.r
1859.c
32
Silent. See Fairman, p. 101. Bill of Rights, § 10, similar. Bill of Rights, § 5, similar. Maine.
1867.r
1819.c
33
Art. I, § 7, similar. Art. I, § 6, similar. Art. I, § 20, similar. Nevada.
1867.r
1864.c
34
Art. I, § 8, similar. Art. I, § 3, similar. Art. I, § 3, provides for a three-fourths vote of the jury in civil cases. Missouri.
1867.r
1865.c
35
Art. I, § 24, similar. In the Constitution of 1875 it is provided that nine of the twelve men on the grand jury may indict. Art. II, § 28.
36
Art. I, § 18, similar. The Constitution of 1875 permits juries of less than twelve in courts not of record. Art. II, § 28, and does not specify the limits of the jurisdiction of such courts. Art. I, § 17, similar.The Consitution of 1875 permits juries of less than twelve in courts not of record, Art. II, § 28, and does not specify the limits of the jurisdiction of such courts Indiana.
1867.r
1851.c
37
Art. VII, § 17: "The General Assembly may modify or abolish the Grand Jury system." See Fairman, p. 106. Art. I, § 13, similar. Art. I, § 20, similar.
38
Minnesota.
1867.r
39
1857.c Silent. Art. I, § 6, similar. Art. I, § 4, similar. But in 1890 the constitution was amended to permit the legislature to provide for a five-sixths verdict after not less than six hours debate. Rhode Island.
1867.r
1842.c
40
Art. I, § 7, similar. Art. I, § 10, similar. Art. I, § 15, similar. Wisconsin.
1867.r
41
1848.c Art. I, § 8, similar. In 1870 the constitution was amended to permit prosecutions without a grand jury indictment. Amendments, Art. I. See Fairman, pp. 110-111.
42
Art. I, § 7, similar. Art. I, § 5, similar. Pennsylvania.
1867.r
1838.c
43
Art. IX, § 10, similar. Art. IX, § 9, similar. Art. IX, § 6, similar. Michigan.
1867.r
1850.c
44
Silent. See Fairman. pp. 115-116. Art. VI, § 28, permits juries of less than twelve in courts not of record. The constitution does not specify the limits of the jurisdiction of such courts. Art. VI, 27, similar. Massachusetts.
1867.r
1780.c
45
Silent. First Part, Art. XII, restricts jury right to trial of cases involving "capital or infamous punishment." First Part, Art. XV, similar.
Fifth Amendment
46
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."] Sixth Amendment
47
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
48
trial, by an impartial jury * * *." Seventh Amendment
49
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *."
50
States Listed in Proclamation of Ratification Nebraska
1867.r
51
1866-67.c Art. I, § 8, similar. The Constitution of 1875 provided that the legislature could abolish the grand jury system. Art. I, § 10. See Fairman, pp. 123-124. Art. I, § 7, similar. Art. I, § 5, permits legislature to authorize juries of less than twelve in "inferior courts." In the Constitution of 1875 the provision was altered to read in "courts inferior to the district court." Art. I, § 6. County courts, which are such inferior tribunals, were given jurisdiction up to one thousand dollars by the Constitution of 1875. Art. VI, § 16. See Fairman, pp. 122-123. Iowa.
1868.r
52
1857.c Art. I, § 11, similar. An amendment in 1884 permitted prosecutions without indictment.
53
Art. I, § 10, similar. Art. I, § 9, authorizes juries of less than twelve "in inferior courts." Arkansas.
1868.r
54
1868.c Art. I, § 9, similar. Art. I, § 8, similar. Art. I, § 6, similar. Florida.
1868.r
55
1868.c Art. I, § 9, similar. Art. I, § 4, similar. Art. I, § 4, similar.
56
North Carolina.
1868.r
57
1868.c Art. I, § 12, similar. Art. I, § 13, similar. Art. I, § 19, may limit the guarantee to "controversies at law respecting property". South Carolina.
1868.r
58
1868.c Art. I, § 19, similar. Art. I, §§ 13, 14, similar. Art. I, § 11, similar. Lousiana
1868.r
59
1868.c Title I, Art. 6, permits prosecutions to be begun be indictment or information. See Fairman, p. 127. Title I, Art. 6, similar. In Constitution of 1879 it is provided that where "penalty is not necessarily imprisonment at hard labor or death" the legislature may provide for a jury of less than twelve. Art. 7. No provision in Bill of Rights. Title IV, Art. 87,indicates that at least up to one hundred dollars no jury trial need be provided.In Constitution of 1879 the legislature is empowered to provide for less than unanimous verdicts. Art. 116. Alabama.
1868.r
60
1867.c Art. I, § 10, similar. Art. I, § 8, similar. Art. I, § 13, similar. Georgia.
1868.r
61
1868.c Silent. Art. I, § 7, appears to be similar. But Art. V, § 4, cl. 5, states that offenses before a District Judge shall be tried to a jury of seven. Art. V, § 4, cl. 2, defines the jurisdiction of District Courts; they try all crimes not punishable with death or imprisonment in the penitentiary. Art. V, § 13, appears to be similar. But Art. V, § 3, cl. 3, states that the Superior Court can render judgment without jury "in all civil cases founded on contract, where an issuable defence is not filed on oath."
Fifth Amendment
62
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."] Sixth Amendment
63
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
64
trial, by an impartial jury * * *." Seventh Amendment
65
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *."
66
States Listed in Proclamation of Ratification Virginia
1869.r
67
1864.c Silent. Art. I, § 8, similar. Art. I, § II, similar. Mississippi.
1870.r
68
1868.c Art. I, § 31, similar. Art. I, § 7, similar. Art. I, § 12, similar. Texas.
1870.r
69
1868.c Art. I, § 8, permits institution of criminal proceedings on indictment or information.
70
Art. I, §§ 8, 12, similar. Art. V, § 16, similar. States Admitted to the Union After the Ratification of the Fourteenth Amendment Colorado.
1876.ad
71
1876.c Art. II, § 23, provides grand jury shall have only twelve, nine of whom can indict. It also provides that: "The general assembly may change, regulate, or abolish the grand-jury system." Art. II, §§ 16, 23, similar. Art. II, § 23, permits legislature to set the size of the jury at less than twelve.
72
North Dakota.
1889.ad
1889.c Art. I, § 8, guarantees
73
indictment for felonies, but also states that the legislature may may abolish the grand-jury system. Art. I, § 7, similar. Art. I, § 7, limits its guarantee to courts of record, but the delineation of jurisdiction is not clear. Montana.
1889.ad
1889.c Art. III, § 8, permits
74
prosecution by information and provides that if a grand jury be established it shall have seven persons, five of whom can indict. Art. III, § 16, 23. The latter section provides that in criminal actions not amounting to a felony a two- thirds vote is sufficient to convict. Art. III, § 23, provides for a two-thirds verdict. Furthermore the jury in a Justice's court is composed of not more than six persons. Such courts have jurisdiction up to three hundred dollars. Art. VIII, § 20. South Dakota.
1889.ad
1889.c Art. VI, § 10, provides
75
for institution of criminal actions by information or indictment and permits the legislature to abolish the grand jury entirely. Art. VI, §§ 6, 7, similar. Art. VI, § 6, permits legislatre to provide for three-fourths vote. In courts not of record juries of less than twelve are permitted. Washington
1889.ad
76
1889.c Art. I, § 25,
77
sanctions the
78
use of information
79
to initiate criminal
80
proceedings. Art. I, § 21, similar. Art. I, § 21, provides for a three-fourths verdict in courts of record and for juries of less than twelve in courts not of record. Idaho
1890.ad
81
1889.c Art. I, § 8, provides for institution of criminal actions by information or indictment. Art. I, § 7, provides that
82
for misdemeanors a five-sixths verdict can convict. Art. I, § 7, provides for a three-fourths verdict.
Fifth Amendment
83
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."] Sixth Amendment
84
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
85
trial, by an impartial jury * * *." Seventh Amendment
86
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *."
87
States Admitted to the Union After the Ratification of the Fourteenth Amendment Wyoming.
1890.ad
88
1889.c Art. I, § 13, continues grand jury until otherwise provided. Art I, § 9, provides that the grand jury will be composed of twelve, nine of whom can indict. The legislature is empowered to change or abolish the grand-jury system.
89
Art. I, § 9, similar. Art. I, § 9, permits the legislature to establish juries of less than twelve. Utah.
1896.ad
90
1895.c Art. I, § 13, offers alternatives: the charge may be brought before a committing magistrate and if the accused is held by such magistrate he may be tried on information; the alternative is indictment, but by a grand jury of seven, five to indict. Art. I, § 10, preserves traditional jury only in capital cases. In other prosecutions, if in courts of general jurisdicition, there shall be a jury of eight; if in courts of inferior jurisdiction, there shall be a jury of four. Art. I, § provides that in courts of general jurisdiction trial shall be to a jury of eight, verdict by three-fourths vote. In courts of inferior jurisdiction trial is to a jury of four, verdict by three-fourths vote. Oklahoma.
1907.ad
91
1907.c Art. II, § 17, permits prosecution by indictment or information. Art. II § 18, provides that a grand jury, if any, is to be composed of twelve urors, nine needed to indict.
92
Art. II, § 19, requires unanimous verdict in felony cases, but only three-fourths in trial of other crimes. Inferior courts are established with juries of six. Art. II, § 19, provides for a three-fourths verdict.
93
Arizona. 1912.ad 1910.c Art. II, § 30, permits initiation of criminal proceedings by either information or indictment. Art. II, § 23, permits juries of less than twelve in courts not of record. Art. VI, §§ 6, 10, may indicate legislature can vest such courts with jurisdiction over all misdemeanors. Art. II, § 23, provides that the legislature may establish a three-fourths verdict in courts of record and juries of less than twelve in courts not of record. New Mexico. 1912.ad 1911.c Art, II, § 14, permits initiation of criminal proceedings by either information or indictment. If by indictment, grand jury must have at least twelve jurors; if there are twelve jurors, eight can indict, if more than twelve, a majority can indict. Art. II, § 14, similar. Art. II, § 12, permits the legislature to provide for a less-than-unanimous vote. In cases triable by courts lower than the District Courts (Justices of the Peace can be given jurisdiction up to two hundred dollars, Art. VI, § 26), the legislature can establish juries of six. Alaska.
1959.ad
94
1958.c Art. I, § 8, guarantees grand jury, but the grand jury is of twelve, a majority of whom can indict.
95
Art. I, § 11, permits legislature to provide for juries of between six and twelve in courts not of record, and does not specify jurisdictional limits of such courts. Art. I, § 16, provides for a jury only if more than two hundred and fifty dollars is involved. Furthermore, the verdict in such cases is to be by three-fourths vote if the legislature so desires. Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
96
Petitioner, Bartkus, was indicted in a United States District Court for bank robbery. He was tried by a jury and acquitted. So far as appears the trial was conducted fairly by an able and conscientious judge. Later, Bartkus was indicted in an Illinois state court for the same bank robbery. This time he was convicted and sentenced to life imprisonment. His acquittal in the federal court would have barred a second trial in any court of the United States because of the provision in the Fifth Amendment that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' The Court today rejects Bartkus' contention that his state conviction after a federal acquittal violates the Fourteenth Amendment to our Constitution. I cannot agree.
97
The Court's holding further limits our already weakened constitutional guarantees against double prosecutions. United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, decided in 1922, allowed federal conviction and punishment of a man who had been previously convicted and punished for the identical acts by one of our States. Today, for the first time in its history, the Court upholds the statecon viction of a defendant who had been acquitted of the same offense in the federal courts. I would hold that a federal trial following either state acquittal or conviction is barred by the Double Jeopardy Clause of the Fifth Amendment. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666 (dissenting opinion). And, quite apart from whether that clause is as fully binding on the States as it is on the Federal Government, see Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion), I would hold that Bartkus' conviction cannot stand. For I think double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment, expressed in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.1
98
The Fourteenth Amendment, this Court said in Palko, does not make all of the specific guarantees of the Bill of Rights applicable to the States. But, the Court noted, some of 'the privileges and immunities' of the Bill of Rights, 'have been taken over * * * and brought within the Fourteenth Amendment by a process of absorption.' 302 U.S. at page 326, 58 S.Ct. at page 152. The Court indicated that incorporated in due process were those 'principle(s) of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' 302 U.S. at page 325, 58 S.Ct. at page 152.2 It then held that a statute allowing a State to appeal in a criminal case did not violate such fundamental principles. But it expressly left open the question of whether 'the state (could be) permitted after a trial free from error to try the accused over again.' 302 U.S. at page 328, 58 S.Ct. at page 153. That question is substantially before us today.
99
Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times.3 Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers.4 By the thirteenth century it seems to have been firmly established in England,5 where it came to be considered as a 'universal maxim of the common law.'6 It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom,7 and that it has been recognized here as fundamental again and again.8 Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as wel as most foreign nations.9 It has, in fact, been described as a part of all advanced systems of law10 and as one of those universal principles 'of reason, justice, and conscience, of which Cicero said: 'Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same."11 While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same Act,12 and others have stressed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials,13 the basic and recurring theme has always simply been that it is wrong for a man to 'be brought into Danger for the same Offence more than once.'14 Few principles have been more deeply 'rooted in the traditions and conscience of our people.'
100
The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp. If double punishment is what is feared, it hurts no less for two 'Sovereigns' to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, then when one of these 'Sovereigns' proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct.
101
The Court, without denying the almost universal abhorrence of such double prosecutions, nevertheless justifies the practice here in the name of 'federalism.' This, it seems to me, is a misuse and desecration of the concept. Our Federal Union was conceived and created 'to establish Justice' and to 'secure the Blessings of Liberty,' not to destroy any of the bulwarks on which both freedom and justice depend. We should, therefore, be suspicious of any supposed 'requirements' of 'federalism' which reult in obliterating ancient safeguards. I have been shown nothing in the history of our Union, in the writings of its Founders, or elsewhere, to indicate that individual rights deemed essential by both State and Nation were to be lost through the combined operations of the two governments. Nor has the Court given any sound reason for thinking that the successful operation of our dual system of government depends in the slightest on the power to try people twice for the same act.
102
Implicit in the Court's reliance on 'federalism' is the premise that failure to allow double prosecutions would seriously impair law enforcement in both State and Nation. For one jurisdiction might provide minor penalties for acts severely punished by the other and by accepting pleas of guilty shield wrongdoers from justice. I believe this argument fails on several grounds. In the first place it relies on the unwarranted assumption that State and Nation will seek to subvert each other's laws. It has elsewhere been persuasively argued that most civilized nations do not and have not needed the power to try people a second time to protect themselves even when dealing with foreign lands.15 It is inconceivable to me, as it was to the Constitutional Court of South Carolina in 1816, that 'If this prevails among nations who are strangers to each other, (it could) fail to (prevail) with us who are so intimately bound by political ties.' State v. Antonio, 2 Tread.Const., S.C., 776, 781. Cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967.
103
The Court's argument also ignores the fact that our Constitution allocates power between local and federal governments in such a way that the basic rights of each can be protected without double trials. The Federal Government is given power to act in limited areas only, but in matters properly within its scope it is supreme. It can retain exclusive control of such matters, or grant the States concurrent power on its own terms. If the States were to subvert federal laws in these areas by imposing inadequate penalties, Congress would have full power to protect the national interest, either by defining the crime to be punished and establishing minimum penalties applicable in both state and federal courts, or by excluding the States altogether. Conversely, in purely local matters the power of the States is supreme and exclusive. State courts can and should, therefore, protect all essentially local interests in one trial without federal interference. Cf. Rutkin v. United States, 343 U.S. 130, 139, 72 S.Ct. 571, 576, 96 L.Ed. 833 (dissenting opinion). In areas, however, where the Constitution has vested power in the Federal Government the States necessarily act only to the extent Congress permits, and it is no infringement on their basic rights if Congress chooses to fix penalties smaller than some of them might wish. In fact, this will rarly occur, for Congress is not likely to use indirect means to limit state power when it could accomplish the same result directly by pre-empting the field.16
104
Ultimately the Court's reliance on federalism amounts to no more than the notion that, somehow, one act becomes two because two jurisdictions are involved. Hawkins, in his Pleas of the Crown, long ago disposed of a similar contention made to justify two trials for the same offense by different counties as 'a mere Fiction or Construction of Law, which shall hardly take Place against a Maxim made in Favour of Life.'17 It was discarded as a dangerous fiction then, it should be discarded as a dangerous fiction now.
105
To bolster its argument that successive state and federal prosecutions do not violate basic principles of justice, the Court cites many cases. It begins with eight early state decisions which, it says, 'clarified the issue by stating opposing arguments.' Four of these cases held that prosecution by one government must bar subsequent prosecutions elsewhere.18 Two of the remaining four refused to hold that concurrent jurisdiction could exist since they feared that such a holding might bring about two trials for the same offense, a result they considered too shocking to tolerate. 'This is against natural justice,' said the North Carolina Superior Court in 1794, 'and therefore I cannot believe it to be law.'19 The seventh case cited is an inconclusive discussion coming from a State whose highest court had previously stated unequivocally that a bar against double prosecutions would exist.20 Thus only one of these early state cases actually approves the doctrine the Court today advances, and that approval is in dicta.21 Significantly, the highest court of the same State later expressed the view that such double trials would virtually never occur in our country.22
106
The Court relies mainly, however, on a later line of decisions starting with Fox v. State of Ohio, 5 How. 410, 12 L.Ed. 213. Most of these, like Fox itself, involved only the question of whether both State and Federal Governments could make the same conduct a crime. Although some, in dicta, admitted the possibility that double prosecutions might result from such concurrent power, others did not discuss the question.23 Many, especially among the earlier cases, pointed out that double punishment violates the genius of our free country and therefore would never occur. As Chief Justice Taney, on circuit, said in one of them 'Yet in all civilized countries it is recognized as a fundamental principle of justice that a man ought not to be punished twice for the same offence; and, if this pary h ad been punished * * * in the state tribunal, the court would have left it to be its duty to suspend sentence, and to represent the facts to the president, to give him an opportunity of * * * granting a pardon.'24 While a limited number of cases after Fox are cited in which a double conviction was upheld, in several of these the second court was so troubled by the result that only nominal sentences were imposed.25 In fact, before United States v. Lanza, 1922, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, where this Court upheld and encouraged the practice, the cases of actual double punishment found are so few, in relation to the great mass of criminal cases decided, that one can readily discern an instinctive unwillingness to impose such hardships on defendants.26
107
Despite its exhaustive research, the Court has cited only three cases before Lanza where a new trial after an acquittal was upheld. In one of these, United States v. Barnhart, C.C., 22 F. 285, the state court in which the defendant had been acquitted did not have jurisdiction of the action. The Federal Circuit Court relied on this lack of jurisdiction in allowing a retrial, but made an alternate holding based on the same general arguments used by the Court today.27 The Barnhart opinion also intimated that the first trial may have been a sham.28 Sham trials, as well as those by courts without jurisdiction, have been considered by courts and commentators not to be jeopardy, and might therefore not bar subsequent convictions.29 In the second case cited by the Court, the state conviction followed acquittal by a federal court-martial at a time when, as the state court seemed to recognize, a military tria was thought by many not to be a trial for the purpose of double jeopardy even when both trials were conducted by the same 'Sovereign.'30 The third case relied on, a 1915 decision from the State of Washington, is the only one of the three where it can fairly be said that a defendant acquitted in a proper jury trial was subsequently tried again by a jury and convicted.31
108
On may, I think infer from the fewness of the cases that retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.32 I doubt, in fact, if many practices which have been found to violate due process can boast of so little actual support. Yet it is on this meager basis that the Court must ultimately rest its finding that Bartkus' retrial does not violate fundamental principles 'rooted in the traditions and conscience of our peoples.' Nor are these scattered and dubious cases unchallenged, for, balanced against them, we have a firm holding by this Court sustaining an extremely narrow construction of a federal statute in order to make a state acquittal conclusive in the federal courts and thereby avoid the evil approved today. United States v. Mason, 213 U.S. 115, 29 S.Ct. 480, 53 L.Ed. 725. That case, as well as the 'sacred duty * * * to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman,' Ex parte Lange, 18 Wall. 163, 178, 21 L.Ed. 872, should make us doubly hesitant to encourage so blatant a violation of constitutional policies against double trials by giving an 'illiberal construction * * * to the words of the fundamental law in which they are embodied.' Ibid.
109
Since Lanza people have apparently become more accustomed to double trials, once deemed so shocking, just as they might, in time, adjust themselves to all other violations of the Bill of Rights should they be sanctioned by this our t. The Court is therefore able to find a 1943 state case, as well as four federal cases in the last five years, in which a conviction following acquittal was sustained.33 Thus this practice, which for some 150 years was considered so undesirable that the Court must strain to find examples, is now likely to become a commonplace. For, after today, who will be able to blame a conscientious prosecutor for failing to accept a jury verdict of acquittal when he believes a defendant guilty and knowns that a second try is available in another jurisdiction and that such a second try is approved by the Highest Court in the Land? Inevitably, the victims of such double prosecutions will most often be the poor and the weak in our society, individuals without friends in high places who can influence prosecutors not to try them again. The power to try a second time will be used, as have all similar procedures, to make scapegoats of helpless, political, religious, or racial minorities and those who differ, who do not conform and who resist tyranny. See Chambers v. State of Florida, 309 U.S. 227, 236, 60 S.Ct. 472, 476, 84 L.Ed. 716.
110
There are some countries that allow the dangerous practice of trying people twice. I am inserting below a recent news item about a man who was tried, convicted, sentenced to prison and then was tried again, convicted and sentenced to death.34 Similar examples are not hard to find in lands torn by revolution or crushed by dictatorship. I had thought that our constitutional protections embodied in the Double Jeopardy and Due Process Clauses would have barred any such things happening here. Unfortunately, last year's holdings by this Court in Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983, and Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, and today's affirmance of the convictions of Bartkus and Abbate cause me to fear that in an important number of cases it can happen here.
111
I would reverse.
112
Mr. Justice BRENNAN, whom the CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
113
Bartkus was tried and acquitted in a Federal District Court of robbing a federally insured savings and loan association in Cicero, Illinois. He was indicted for the same robbery by the State of Illinois less than three weeks later, and subsequently convicted and sentenced to life imprisonment. The single issue in dispute at both trials was whether Bartkus was the third participant in the robbery along with two self-confessed perpetrators of the crime.
114
The Government's case against Bartkus on the federal trial rested primarily upon the testimony of two of the robbers, Joseph Cosentino and James Brindis, who confessed their part in the crime and tetif ied that Bartkus was their confederate. The defense was that Bartkus was getting a hair cut in a barber shop several miles away at the time the robbery was committed. The owner of the barber shop, his son and other witnesses placed Bartkus in the shop at the time. The federal jury in acquitting Barkus apparently believed the alibi witnesses and not Cosentino and Brindis.
115
The federal authorities were highly displeased with the jury's resolution of the conflicting testimony, and the trial judge sharply upbraided the jury for its verdict. See some of his remarks printed in United States v. Vasen, 7 Cir., 222 F.2d 3, 9 10 (dissenting opinion). The federal authorities obviously decided immediately after the trial to make a second try at convicting Bartkus, and since the federal courthouse was barred to them by the Fifth Amendment, they turned to a state prosecution for that purpose. It is clear that federal officers solicited the state indictment, arranged to assure the attendance of key witnesses, unearthed additional evidence to discredit Bartkus and one of his alibi witnesses, and in general prepared and guided the state prosecution. Thus the State's Attorney stated at the state trial: 'I am particularly glad to see a case where the federal authorities came to see the state's attorney.' And Illinois conceded with commendable candor on the oral argument in this Court 'that the federal officers did instigate and guide this state prosecution' and 'actually prepared this case.' Indeed, the State argued the case on the basis that the record showed as a matter of 'fair inference' that the case was one in which 'federal officers bring to the attention of the state prosecuting authority the commission of an act and furnish and provide him with evidence of defendant's guilt.'
116
I think that the record before us shows that the extent of participation of the federal authorities here constituted this state prosecution actually a second federal prosecution of Bartkus. The federal jury acquitted Bartkus late in December 1953. Early in January 1954 the Assistant United States Attorney who prosecuted the federal case summoned Cosentino to his office. Present also were the FBI agent who had investigated the robbery and the Assistant State's Attorney for Cook County who later prosecuted the state case. The Assistant State's Attorney said to Cosentino, 'Look, we are going to get an indictment in the state court against Bartkus, will you testify against him?' Cosentino agreed that he would. Later Brindis also agreed to testify. Although they pleaded guilty to the federal robbery charge in August 1953, the Federal District Court postponed their sentencing until after they testified against Bartkus at the state trial, which was not held until April 1954. The record does not disclose what sentences were imposed after they testified at the state trial or whether sentences have yet been imposed. Both Cosentino and Brindis were also released on bail pending the state trial, Brindis on his own recognizance.
117
In January, also, an FBI agent who had been active in the federal prosecution purposefully set about strengthening the proofs which had not sufficed to convict Bartkus on the federal trial. And he frankly admitted that he 'was securing it (information) for the federal government,' although what he gathered had 'gone to the state authorities.' These January efforts of the agent were singularly successful and may well have tipped the scales in favor of conviction. He uncovered a new witness against Bartkus, one Grant Pursel, who had been enlarged on bail pending his sentencing on his plea of guilty to an indictment for violation of the Mann Act, 18 U.S.C.A. § 2421 et seq. Pursel testified that 'about two weeks after the federal trial, in the first part of January,' the FBI agent sought him out to discuss an alleged conversation between Pursel and Bartkus during September 1953 when both were in jail awaiting their respective federal trials. Pursel's testimony at the stae t rial, that Bartkus had told him he participated in the robbery, was obviously very damaging. Yet, indicative of the attitude of the federal officials that this was actually a federal prosecution, the FBI agent arranged no interview between Pursel and any state authority. The first time that Pursel had any contact whatsoever with a state official connected with the case was the morning that he testified. And as in the case of Cosentino and Brindis, Pursel's sentencing was postponed until after he testified against Bartkus at the state trial. Here too the record does not disclose what sentence was imposed or whether any has yet been imposed.
118
Also within a month after the federal acquittal the FBI agent sought out the operator of the barber shop who had placed Bartkus in his shop at the time of the robbery. The barber testified at both federal and state trials that Bartkus entered his shop before 4 o'clock, about which time the robbery was committed. The agent testified as a rebuttal witness for the State that the barber had told him in January that it might have been after 4:30 o'clock when Bartkus entered the shop. And the significance of the federal participation in this prosecution is further evidenced by the Assistant State's Attorney's motion at the beginning of the trial, which was granted over defense objection, to permit the FBI agent to remain in the courtroom throughout the trial although other witnesses were excluded.
119
The Court, although not finding such to be the case here apparently acknowledges that under certain circumstances it would be necessary to set aside a state conviction brought about by federal authorities to avoid the prohibition of the Fifth Amendment against a second federal prosecution. Our task is to determine how much the federal authorities must participate in a state prosecution before it so infects the conviction that we must set it aside. The test, I submit, must be fashioned to secure the fundamental protection of the Fifth Amendment 'that the (Federal Government) with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity * * *.' Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. Under any test based upon these principles, this conviction cannot stand. In allowing the use of federal resources to bring about this second try at Bartkus, the Court denies Bartkus the protection which the Fifth Amendment assures him. Given the fact that there must always be state officials involved in a state prosecution, I cannot see how there can be more complete federal participation in a state prosecution than there was in this case. I see no escape from the conclusion that this particular state trial was in actuality a second federal prosecution—a second federal try at Bartkus in the guise of a state prosecution. If this state conviction is not overturned, then, as a practical matter, there will be no restraints on the use of state machinery by federal officers to bring what is in effect a second federal prosecution.
120
To set aside this state conviction because infected with constitutional violations by federal officers implies no condemnation of the state processes as such. The conviction is set aside not because of any infirmities resulting from fault of the State but because it is the product of unconstitutional federal action. I cannot grasp the merit of an argument that protection against federal oppression in the circumstances shown by this record would do violence to the principles of federalism. Of course, cooperation between federal and state authorities in criminal law enforcement is to be desired and encouraged, for cooperative federalism in this field can indeed profit the Nation and the States in improving methods for carrying out the endless fight against crime. But the normal and heathy situation consists of state and federal officers cooperating to apprehend lawbreakers and present the strongest case against them at a single trial, be it state or federal. Cooperation in order to permit the Federal Government to harass the accused so as to deny him his protection under the Fifth Amendment is not to be tolerated as a legitimate requirement of federalism. The lesson of the history which wrought the Fifth Amendment's protection has taught us little if that shield may be shattered by reliance upon the requirements of federalism and state sovereignty to sustain this transparent attempt of the Federal Government to have two tries at convicting Bartkus for the same alleged crime. What happened here was simply that the federal effort which failed in the federal courthouse was renewed a second time in the state courthouse across the street. Not content with the federal jury's resolution of conflicting testimony in Bartkus' favor, the federal officers engineered this second prosecution and on the second try obtained the desired conviction. It is exactly this kind of successive prosecution by federal officers that the Fifth Amendment was intended to prohibit. This Court has declared principles in clearly analogous situations which I think should control here. In Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, the Court held that an injunction should issue against a federal agent's transference of illegally obtained evidence to state authorities for use as the basis of a state charge. If the federal courts have power to defeat a state prosecution by force of their supervision of federal officers, surely the federal courts have power to defeat a state prosecution transparently employed by federal authorities in violation of the Fifth Amendment. In Knapp v. Schweitzer, 357 U.S. 371, 380, 78 S.Ct. 1302, 2 L.Ed.2d 1393, we declared: 'Of course the Federal Government may not take advantage of * * * the States' autonomy in order to evade the Bill of Rights.' See also Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408; cf. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. These principles require, I think, that we set aside the state conviction.
1
See Proceedings of the Attorney General's Conference on Crime (1934). At the conclusion of the state trial of Bartkus, State's Attorney Gutknecht thus reviewed the cooperation between federal and state officials:
'We have had a number of cases where the state's attorney's office have been cooperating very well with the federal authorities, particularly in the narcotics cases, because in that connection the federal government should have the first authority in handling them because narcotics is a nation-wide criminal organization, and so when I see people going through this town and criticising the County of Cook and the City of Chicago, because of the police, the state's attorney and the judges cooperating with the federal authorities, and giving that as proof of the fact that since we don't take the lead we must be negligent in our duties, I am particularly glad to see a case where the federal authorities came to the state's attorney.
'We are cooperating with the federal authorities and they are cooperating with us, and these statements in this city to the effect that the fact that the federal authorities are in the county is a sign of breakdown in law enforcement in Cook County is utter nonsense.
'The federal authorities have duties and we have duties. We are doing our duty and this is an illustration of it, and we are glad to continue to cooperate with the federal authorities. Give them the first play where it is their duty, as in narcotics, and we take over where our duty calls for us to carry the burden. * * *'
2
Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903.
3
Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5.
4
See Appendix, 79 S.Ct. p. 687, in which are detailed the provisions in the constitutions of the ratifying States and of the States later admitted to the Union which correspond to these federal guarantees in the Fifth, Sixth, and Seventh Amendments.
5
Cf. Fox v. State of Ohio, 5 How. 410, 435, 12 L.Ed. 213, in which, in ruling that the Fifth Amendment was not to be read as applying to the States, Mr. Justice Daniel wrote: 'it is neither probable nor credible that the States should have anxiously insisted to ingraft upon the Federal Constitution restrictions upon their own authority * * *.'
6
See, e.g., 36 Stat. 569.
7
See, e.g., 37 Stat. 1728.
8
See, e.g., Leland v. State of Oregon, 343 U.S. 790, 801, 72 S.Ct. 1002, 1008, 96 L.Ed. 1302; Rochin v. People of California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183; Bute v. People of State of Illinois, 333 U.S. 640, 659, 68 S.Ct. 763, 773, 92 L.ed. 986.
9
It has not been deemed relevant to discussion of our problem to consider dubious English precedents concerning the effect of foreign criminal judgments on the ability of English courts to try charges arising out of the same conduct—dubious in part because of the confused and inadequate reporting of the case on which much is based, see the varying versions of Rex v. Hutchinson found in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng.Rep. 124 (reported as Beake v. Tyrrell in 1 Show. 6, 89 Eng.Rep. 411, and as Beake v. Tirrell in Comberbach 120, 90 Eng.Rep. 379), Burrows v. Jemino, 2 Strange 733, 93 Eng.Rep. 815 (reported as Burroughs v. Jamineau in Mos. 1, 25 Eng.Rep. 235, as Burrows v. Jemineau in Sel.Cas. 70, 25 Eng.Rep. 228, as Burrows v. Jemineau in 2 Eq.Ca.Abr. 476, and as Burrows v. Jemino in 22 Eng.Rep. 443), and explained in Gage v. Bulkeley, Ridg.Cas. 263, 27 Eng.Rep. 824. Such precedents are dubious also because they reflect a power of discretion vested in English judges not relevant to the constitutional law of our federalism.
10
Mattison v. State, 3 Mo. *421.
11
State v. Brown, 2 N.C. *100.
12
Hendrick v. Commonwealth, 5 Leigh 707, 32 Va. 707.
13
State v. Antonio, 2 Tread.Const., S.C., 776.
14
State v. Tutt, 2 Bailey, S.C., 44.
15
State v. Randall, 2 Aikens, Vt., 89.
16
Commonwealth v. Fuller, 8 Metc. 313, 49 Mass. 313.
17
Harlan v. People, 1 Doug., Mich., 207.
18
Mr. Justice Story's dissenting opinion in Houston v. Moore, 5 Wheat. 1, 47, displays dislike of the possibility of multiple prosecutions, id., at page 72, but also suggests the possibility that under some circumstances a state acquittal might not bar a federal prosecution, id., at pages 74, 75.
19
United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; United States v. Arjona, 120 U.S. 479, 7 S.Ct. 628, 30 L.Ed. 728; Cross v. State of North Carolina, 132 U.S. 131, 10 S.Ct. 47, 33 L.Ed. 287; In re Loney, 134 U.S. 372, 10 S.Ct. 584, 33 L.Ed. 949; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Crossley v. People of State of California, 168 U.S. 640, 18 S.Ct. 242, 42 L.Ed. 610; Sexton v. People of State of California, 189 U.S. 319, 23 S.Ct. 543, 47 L.Ed. 833; Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084; Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607.
20
Hebert v. State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270; Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036; People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235; Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.
21
Westfall v. United States, 274 U.S. 256, 258, 47 S.Ct. 629, 71 L.Ed. 1036.
22
In a chapter in Handbook on Interstate Crime Control, a book prepared in 1938 by the Interstate Commission on Crime, Gordon Dean, then Special Executive Assistant to the Attorney General of the United States, wrote:
'Mention should also be made of the National Bank Robbery statute. This statute punishes robberies of national banks, banks which are members of the Federal Reserve System, and banks the funds of which are insured by the Federal Deposit Insurance Corporation. And here again there has been no usurpation by the federal government. The states still may prosecute any robbery of any bank within their jurisdiction, and they frequently do. There have been several cases in the last few years where men have been convicted both under the state and federal law for robbing the same bank. In fact, there have been cases where men have been tried under the law of one jurisdiction, acquitted, and on the same facts tried under the law of the other sovereignty and convicted. Bank robbers know today that 'flight,' their most valuable weapon, has, under the operation of the National Bank Robbery statute, proved quite impotent. The bank robbery rate has been cut in half, and there has been a fine relation between state and federal agencies in the apprehension and trial of bank robbers.' Id., at 114.
23
McKinney v. Landon, 8 Cir., 209 F. 300; Morris v. United States, 8 Cir., 229 F. 516; Vandell v. United States, 2 Cir., 6 F.2d 188; United States v. Levine, 2 Cir., 129 F.2d 745; Serio v. United States, 5 Cir., 203 F.2d 576; Jolley v. United States, 5 Cir., 232 F.2d 83; Smith v. United States, 6 Cir., 243 F.2d 877; Rios v. United States, 9 Cir., 256 F.2d 173; United States v. Amy, C.C.Va., 24 Fed.Cas. page 792, No. 14,445; United States v. Given, C.C.Del., 25 Fed.Cas. page 1328, No. 15,211; United States v. Barnhart, C.C.Or., 22 F. 285; United States v. Palan, C.C.S.D.N.Y., 167 F. 991; United States v. Wells, D.C.Minn., 28 Fed.Cas. page 522, No. 16,665; United States v. Casey, D.C.S.D.Ohio, 247 F. 362; United States v. Holt, D.C.N.Dak., 270 F. 639; In re Morgan, D.C.N.D.Iowa, 80 F.Supp. 810; United States v. Mandile, D.C.E.D.N.Y., 119 F.Supp. 266. Of the many prohibition cases in the lower federal courts only United States v. Holt has been included; its inclusion is meant to represent that body of cases and is particularly justified by its careful reasoning concerning the entire question of dual sovereignties and double jeopardy. It is believed that the list contains most of the nonprohibition cases in the lower federal courts discussing and favoring the rule that trial in one jurisdiction does not bar prosecution in another for a different offense arising from the same act. Three lower federal court cases have been found questioning the validity of the rule: Ex parte Houghton, D.C.Vt., 7 F. 657; Id., D.C.Vt., 8 F. 897; In re Stubbs, C.C.W.D.Wash., 133 F. 1012; United States v. Candelaria, D.C.S.D.Cal., 131 F.Supp. 797.
24
States Denying the Bar.
Arizona. Henderson v. State, 30 Ariz. 113, 244 P. 1020 (despite a limited statutory bar, holding successive federal and state prosecutions permitted where one is for possession and the other for transportation).
Arkansas. State v. Duncan, 221 Ark. 681, 255 S.W.2d 430.
California. People v. McDonnell, 80 Cal. 285, 22 P. 190; People v. Candelaria, 139 Cal.App.2d 432, 294 P.2d 120; People v. Candelaria, 153 Cal.App.2d 879, 315 P.2d 386 (these two Candelaria cases indicate that the California statutory bar, a statute of the kind discussed below, prevents a state robbery prosecution after a federal robbery prosecution, but not a state burglary prosecution in the same circumstances).
Georgia. Scheinfain v. Aldredge, 191 Ga. 479, 12 S.E.2d 868; Bryson v. State, 27 Ga.App. 230, 108 S.E. 63.
Illinois. Hoke v. People, 122 Ill. 511, 13 N.E. 823.
Indiana. Heier v. State, 191 Ind. 410, 133 N.E. 200; Dashing v. State, 78 Ind. 357.
Iowa. State v. Moore, 143 Iowa 240, 121 N.W. 1052.
Kentucky. Hall v. Commonwealth, 197 Ky. 179, 246 S.W. 441.
Louisiana. State v. Breaux, 161 La. 368, 108 So. 773, affirmed per curiam 273 U.S. 645, 47 S.Ct. 241, 71 L.Ed. 820.
Maine. See State v. Gauthier, 121 Me. 522, 529—531, 118 A. 380, 383—385, 26 A.L.R. 652.
Massachusetts. Commonwealth v. Nickerson, 236 Mass. 281, 128 N.W. 273, 10 A.L.R. 1568.
Michigan. In re Illova, 351 Mich. 204, 88 N.W.2d 589.
Minnesota. State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A.1918C, 304.
Missouri. In the Matter of January, 295 Mo. 653, 246 S.W. 241.
New Hampshire. State v. Whittemore, 50 N.H. 245.
New Jersey. State v. Cioffe, 130 N.J.L. 160, 32 A.2d 79.
New York. People v. Welch, 141 N.Y. 266, 36 N.E. 328, 24 L.R.A. 117.
North Carolina. See State v. Brown, 2 N.C. *100, 101.
Oregon. State v. Franch, 162 Or. 602, 94 P.2d 143.
Pennsylvania. See Commonwealth ex rel. O'Brien v. Burke, 171 Pa.Super. 273, 90 A.2d 246.
South Carolina. State v. Tutt, 2 Bailey 44.
Tennessee. State v. Rhodes, 146 Tenn. 398, 242 S.W. 642, 22 A.L.R. 1544; State v. Rankin, 44 Tenn. 145.
Vermont. State v. O'Brien, 106 Vt. 97, 170 A. 98.
Virginia. Jett v. Commonwealth, 18 Grat. 933, 59 Va. 933.
Washington. State v. Kenney, 83 Wash. 441, 145 P. 450.
West Virginia. State v. Holesapple, 92 W.Va. 645, 115 S.E. 794. See Moundsville v. Fountain, 27 W.Va. 182, 197—198.
Wyoming. See In re Murphy, 5 Wyo. 297, 304—309, 40 P. 398, 399—401.
State Raising the Bar.
Florida. Burrows v. Moran, 81 Fla. 662, 89 So. 111 (this case may be limited to the interpretation given by the Florida court to the Eighteenth Amendment. See Strobhar v. State, 55 Fla. 167, 180 181, 47 So. 4, 9).
25
Illinois had an additional and unique interest in Bartkus beyond the commission of this particular crime. If Bartkus was guilty of the crime charged he would be an habitual offender in Illinois and subject to life imprisonment. The Illinois court sentenced Bartkus to life imprisonment on this ground.
26
Myers v. United States, 272 U.S. 52, 240, 293, 47 S.Ct. 21, 66, 85, 71 L.Ed. 160 (dissenting opinion).
27
Some fifteen such statutes are listed in Tentative Draft No. 5 of the American Law Institute's Model Penal Code (1956), p. 61.
28
N.Y. Penal Law, Consol. Laws, c. 40, § 33 and N.Y. Code Crim. Proc. § 139.
29
People ex rel. Liss v. Superintendent of Women's Prison, 282 N.Y. 115, 25 N.E.2d 869; People v. Mangano, 269 App.Div. 954, 57 N.Y.S.2d 891 (2d Dept.) affirmed sub nom. People v. Mignogna, 296 N.Y. 1011, 73 N.E.2d 583; People v. Spitzer, 148 Misc. 97, 266 N.Y.S. 522 (Sup.Ct.); People v. Parker, 175 Misc. 776, 25 N.Y.S.2d 247 (Kings County Ct.); People v. Eklof, 179 Misc. 536, 41 N.Y.S.2d 557 (Richmond County Ct.); People v. Adamchesky, 184 Misc. 769, 55 N.Y.S.2d 90 (N.Y.County Ct.).
*
Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding. 2 Stan. I Rev. 5 (hereinafter cited as Fairman.
1
While I participated in the Court's holding and opinion in Palko I have since expressed my disagreement with both, as has Mr. JUSTICE DOUGLAS. Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion). See also Rochin v. People of California, 342 U.S. 165, 174, 177, 72 S.Ct. 205, 210, 212, 96 L.Ed. 183 (concurring opinions); Hoag v. State of New Jersey, 356 U.S. 464, 477, 480, note 5, 78 S.Ct. 829, 837, 839, 2 L.Ed.2d 913 (dissenting opinion).
2
The Court expressed the same thought in various other ways. The crucial principles were termed those 'implicit in the concept of ordered liberty,' 302 U.S. at page 325, 58 S.Ct. at page 152; those without which it would be impossible 'to maintain * * * a fair and enlightened system of justice,' ibid; or without which 'neither liberty nor justice would exist,' id., 302 U.S. at page 326, 58 S.Ct. at page 152; those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' and those whose absence creates 'a hardship so acute and shocking that our polity will not endure it.' Id., 302 U.S. at page 328, 58 S.Ct. at page 153.
3
See Bonner, Lawyers and Litigants in Ancient Athens, 195; 1 Potter, Grecian Antiquities (1808), 194; Radin, Roman Law, 475, n. 28; 2 Sherman, Roman Law in the Modern World (3d ed. 1937), 488 489; Berner, Non bis in idem, 3 Archiv fur Preussisches Strafrecht (1855), 472; Digest of Justinian: Digest 48.2.7.2, translated in 11 Scott, The Civil Law, 17, as 'The governor should not permit the same person to be again accused of crime of which he has been acquitted.'
4
The canon law opposition to double trials stemmed from a reading given by St. Jerome in 391 A.D. to I Nahum 9 (Douay version), 'there shall not rise a double affliction.' (In the King James version, I Nahum 9, is given as 'affliction shall not rise up the second time.') Jerome drew from this the rule that God does not punish twice for the same act. See 25 Migne, Patrologia Latina (1845), 1238. This maxim found its way into church canons as early as 847 A.D. and was subsequently given as, 'Not even God judges twice for the same act.' See Brooke, The English Church and the Papacy, 205; 2 Maitland, Collected Papers (Fisher ed. 1911), Essay, Henry II and the Criminous Clerks, 239; 1 Pollock and Maitland, History of English Law (2d ed. 1899), 448—449; Poole, Domesday Book to Magna Carta, 206. See also Berner, op. cit., supra, note 3, emphasizing the Roman antecedents of the canon law rule.
5
See 2 Bracton, De Legibus et Consuetudinibus Angliae (Woodbine ed. 1922), 391, 397, applying the concept even to acquittals in trial by battle. Cf. 2 Hawkins, Pleas of the Crown (4th ed. 1762), 368—379; 2 Staundeforde, Les Plees Del Corone (Rev.Ed. 1583), 105—108.
In the twelfth century avoidance of double punishment was a major element in the celebrated controversy between St. Thomas Becket and King Henry II. Henry wanted clerics who had been convicted of crimes in church courts turned over to lay tribunals for their punishment. Whether Becket was in fact correct in his assertions that Henry's proposals would result in double punishment for the clerics has been such debated by historians. In all events, Henry's plan was abandoned after Becket's murder. See Brooke, op. cit., supra, note 4, at 190—214; 2 Maitland, op. cit., supra, note 4; 1 Pollock and Maitland, op. cit., supra, note 4, at 447—456; Poole, op. cit., supra, note 4, at 203—218.
6
2 Cooley's Blackstone (4th ed. 1899), *335, 336. See also 2 Staundeforde, op. cit, supra, note 5, at 105—108; Lambert, Crompton and Dalton, Manuall or Analecta (rev.ed. 1642), 69—70; 3 Coke, Institutes (6th ed. 1680), 213—214; 2 Hawkins, op. cit., supra, note 5, at 368—379. One commentator has stated that the concept was borrowed by English law from the canon law doctrine of criminal procedure. Radin, Anglo-American Legal History, 228.
In 1487 an exception was made in the rule by a statute dealing with the 'Authority of the Court of Star Chamber,' 3 Hen. 7, c. 1. At the time criminal proceedings could be brought in two ways, by government indictment and by the parties who suffered injury from the crime. 3 Hen. 7, c. 1, provided that in 'Death or Murder' cases a defendant acquitted or attainted under government prosecution coul be tried again on charges brought by 'the Wife, or next Heir to him so slain.' The Act was apparently never broadened and was given an extremely narrow construction. See Hawkins, op. cit., supra, note 5, at 373—374, 377—379. See also Staundeforde, op. cit., supra, note 5, at 106—108. It soon feel into disuse, and the legal profession was greatly shocked when, in 1818, the statute was relied on to justify the retrial of a defendant who had previously been acquitted. After many maneuvers, which included upholding the defendant's right to trial by battle, a second acquittal was obtained, and the loophole in the 'universal rule' against double trials was formally plugged by Parliament. See Radin, Anglo-American Legal History, 226—227, n. 24; Kirk, 'Jeopardy' During the Period of the Year Books, 8 U.Pa.L.Rev. 602, 608—609.
7
The Body of Liberties of Massachusetts (1641), clause 42, reads, 'No man shall be twise sentenced by Civil Justice for one and the same Crime, offence, or Trespasse.' See also The Laws and Liberties of Massachusetts (1648) (Farrand ed. 1929) 47, 'everie Action * * * in criminal Causes shall be * * * entred in the rolls of everie Court * * * that such Actions be not afterwards brought again to the vexation of any man.' Similarly the pleas of former conviction and acquittal were recognized in colonial Virginia. Scott, Criminal Law in Colonial Virginia, 81—82, 102.
8
See, e.g., Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 198, 78 S.Ct. 221, 229, 2 L.Ed.2d 199 (majority and dissenting opinions); Commonwealth v. Olds, 1824, 5 Litt., Ky., 137; State v. Cooper, 1833, 13 N.J.L. 361, 370.
9
All but five States recognize the principle in their constitutions. Each of these five prohibits double jeopardy as part of its common law. See Brock v. State of North Carolina, 344 U.S. 424, 429, 435, 73 S.Ct. 349, 351, 354, 97 L.Ed. 456 (dissenting opinion); American Law Institute, Double Jeopardy (1935), 61—72.
The maxim 'non bis in idem' is found throughout the civil law. See Batchelder, Former Jeopardy, 17 Am.L.Rev. 735. See also Berner, Non bis in idem, 3 Archiv fur Preussisches Strafrecht (1855), 472; Ku ssner, Non bis in idem, id., at 198; Donnedieu de Vabres, Droit Criminel (3d ed. 1947), 886—887; It. Codice di Procedura Penale, Art. 90, 579 (Ludus ed. 1955). But cf. Radin, Anglo-American Legal History, 228.
10
American Law Institute, Double Jeopardy (1935), Introductory note, p. 7.
11
Batchelder, Former Jeopardy, 17 Am.L.Rev. 735.
12
See, e.g., Ex parte Lange, 18 Wall. 163, 168—169, 21 L.Ed. 872.
13
See, e.g., Commonwealth v. Olds, 1824, 5 Litt., Ky., 137, 139; State v. Cooper, 1833, 13 N.J.L. 361, 370—371; 2 Tucker, Constitution of the United States, 675.
14
2 Hawkins, op. cit., supra, note 5, at 372. See also id., at 377.
15
Grant, The Lanza Rule of Successive Prosecutions, 32 Col.L.Rev. 1309; Grant, Successive Prosecutions by State and Nation, 4 U.C.L.A.L.Rev. 1; Developments in the Law—Conspiracy, 72 Harv.L.Rev. 920, 968, n. 347. Cf. Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting opinion); Knapp v. Schweitzer, 357 U.S. 371, 382, 78 S.Ct. 1302, 1309, 2 L.Ed.2d 1393 (dissenting opinion). In England the doctrine that a foreign acquittal is a good plea in bar seems to antedate the American Revolution. See Rex v. Hutchinson, as reported in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng.Rep. 124 (1689), and Burrows v. Jemino, 2 Str. 733, 93 Eng.Rep. 815 (1726), but compare the report of the same case in Gage v. Bulkeley, Ridg.T.H. 263, 27 Eng.Rep. 824 (1744); Rex v. Roche, 1 Leach 134, 135n, 168 Eng.Rep. 169, 169n (1775). Cf. Rex v. Thomas, 1 Sid. 179, 82 Eng.Rep. 1043; 1 Lev. 118, 83 Eng.Rep. 326; 1 Keb. 663, 83 Eng.Rep. 1172 (1664); 2 Hawkins, op. cit., supra, note 5, at 372. See also Rex v. Aughet, 26 Cox C.C. 232, 238 (C.C.A.1918); 10 Halsbury, The Laws of England (3d ed. 1955), 405.
16
See, e.g., Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Cf. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. Significantly, United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314, involved the only situation where the Court's argument may have had some slight validity. For that case was concerned with a prohibition violation, and the Eighteenth (Prohibition) Amendment could be taken to have established an area of concurrent state and national power where the Federal Government was not supreme. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 500, 76 S.Ct. 477, 479, 100 L.Ed. 640.
17
2 Hawkins, op. cit., supra, note 5, at 370. See also 2 Staundeforde, op. cit., supra, note 5, at 105—106.
18
State v. Antonio, 1816, 2 Tread.Const., S.C., 776; State v. Randall, 1827, 2 Aikens, Vt., 89; Harlan v. People, 1843, 1 Doug., Mich., 207; Commonwealth v. Fuller, 1844, 8 Metc. 313, 49 Mass. 313.
19
State v. Brown, 1794, 2 N.C. *100, 101. See also Mattison v. State, 1834, 3 Mo. *421.
20
State v. Tutt, 1830, 2 Bailey, S.C., 44. Compare State v. Antonio, 1816, 2 Tread.Const., S.C., 776.
21
Hendrick v. Commonwealth, 1834, 5 Leigh 707, 32 Va. 707.
22
Jett v. Commonwealth, 1867, 18 Grat. 933, 947, 959, 59 Va. 933, 947, 959.
23
See, e.g., State v. Duncan, 221 Ark. 681, 255 S.W.2d 430; Dashing v. State, 78 Ind. 357; State v. Gauthier, 121 Me. 522, 118 A. 380, 26 A.L.R. 652; Commonwealth v. Nickerson, 236 Mass. 281, 128 N.E. 273, 10 A.L.R. 1568; State v. Holm, 139 Minn. 267, 166 N.W. 181, L.R.A.1918C, 304; State v. Whittemore, 50 N.H. 245; State v. Frach, 162 Or. 602, 94 P.2d 143; Commonwealth ex rel. O'Brien v. Burke, 171 Pa.Super. 273, 90 A.2d 246; Jett v. Commonwealth, 18 Grat. 933, 59 Va. 933. See also State v. Tutt, 2 Bailey, S.C. 44; State v. Brown, 2 N.C. *100. Dicta can, of course, be found which runs against the Court's holding. See, e.g., Nielsen v. State of Oregon, 212 U.S. 315, 320, 29 S.Ct. 383, 384, 53 L.Ed. 528, where this Court said: 'Where an act is * * * prohibited and punishable by the laws of both states, the one first acquiring jurisdiction of the person may prosecute the offense, and its judgment is a finality in both states, so that one convicted or acquitted in the courts of the one state cannot be prosecuted for the same offense in the courts of the other.' And United States v. Furlong, 5 Wheat. 184, 197, 5 L.Ed. 64, 'Robbery on the seas is * * * within the criminal jurisdiction of all nations * * * and there can be no doubt that the plea of autre fois acquit would be good in any civilized State, though resting on a prosecution instituted in the Courts of any other civilized State.'
24
United States v. Amy, 24 Fed.Cas. pages 792, 811, No. 14,445. See also Fox v. State of Ohio, 5 How. 410, 435, 12 L.Ed. 213; United States v. Wells, 28 Fed.Cas. page 522, No. 16,665; Jett v. Commonwealth, 18 Grat. 933, 947, 59 Va. 933, 947.
25
See, e.g., United States v. Palan, C.C., 167 F. 991, 992 993, 'to punish a man twice for the same offence shocks the sense of justice.' See also United States v. Holt, D.C., 270 F. 639, 642 643.
26
The Court also relies on cases arising since Lanza where fear of that holding caused tight construction of federal laws to avoid double prosecutions. See Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. Cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 509, 76 S.Ct. 477, 483, 100 L.Ed. 640. These cases can hardly be thought to approve the result they sought to avoid.
27
The case involved the killing of an Indian by white men on an Indian reservation. The court said: 'The defendants have never been tried for the offense charged in this indictment. For either, the state court before which they were tried had no jurisdiction in the premises, and then the proceeding set forth in the pleas was a nullity; or if it had, it was of an offense against the law of the state and not the United States.' 22 F. at page 291. The court was correct in its belief that the state court had no jurisdiction. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251. The decision was on a demurrer to a plea of former acquittal and it does not appear whether the federal jury convicted.
28
The court noted, 'No white man was ever hung for killing an Indian, and no Indian tried for killing a white man ever escaped the gallows.' 22 F. at page 289.
29
See, e.g., United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300; Edwards v. Commonwealth, 233 Ky. 356, 25 S.W.2d 746. Cf. United States v. Mason, 213 U.S. 115, 120, 125, 29 S.Ct. 480, 481, 483, 53 L.Ed. 725. See also 2 Hawkins, op. cit., supra, note 5, at 370.
30
State v. Rankin, 1867, 44 Tenn. 145, 157, 4 Cold. 145, 157. The Rankin court cited an account of a federal court-martial following acquittal by Florida territorial courts. Similarly, United States v. Cashiel, 1863, 25 Fed.Cas. page 318, No. 14,744, upheld a federal prosecution following prosecution by the United States military authorities.
31
State v. Kenney, 83 Wash. 441, 145 P. 450.
32
See, e.g., Commonwealth v. Olds, 5 Litt., Ky., 137, 139; State v. Cooper, 13 N.J.L. 361, 370—371. See also Iowa Const., I.C.A., art. I, § 12; Mich.Const., art. II, § 14; Mo.Const., V.A.M.S., art. I, § 19; N.H.Const., Pt.First art. 16; N.J.Const., art. I, 11; R.I.Const., art. I, § 7; Tex.Const., Vernon's Ann.St., art. I, § 14. The Federal Bill of Rights did not, of course, differentiate between retrials after acquittal and retrials after conviction; it banned both.
33
State of New Jersey v. Cioffe, 1943, 130 N.J.L. 160, 32 A.2d 79; Serio v. United States, 5 Cir., 1953, 203 F.2d 576; Jolley v. United States, 5 Cir., 1956, 232 F.2d 83; Smith v. United States, 6 Cir., 1957, 243 F.2d 877; Rios v. United States, 9 Cir., 1958, 256 F.2d 173.
34
The New York Times for October 22, 1958, p. 4, col. 6, carried the following item under the Moscow date line:
'A 19-year-old 'stilyag' (zoot-suiter) was re-tried and sentenced to death following public protests that the original ten to twenty-five-year term imposed for killing a militiaman during a robbery was too lenient, the newspaper Komsomolskaya Pravda said today.
'The condemned youth was Victor Shanshkin, leader of a gang of four youths who tried to break into a Moscow store last May, according to the newspaper of the Young Communist Organization.
'He pumped seven bullets into the militiaman, who tried to prevent the robbery.
'The four escaped, but were later arrested and sentenced to prison terms ranging from ten to twenty-five years. The sentences aroused widespread public protests.
'At the second trial, held recently, Shanshkin was sentenced to die. The other three, all under 20 years of age, were ordered to serve prison terms ranging from ten to twenty years.'
| 01
|
359 U.S. 180
79 S.Ct. 710
3 L.Ed.2d 723
THE MONROSA, Her Engines, Tackle, etc., and Navigazione Alta Italia, Petitioners,v.CARBON BLACK EXPORT, INC.
No. 178.
Argued March 3, 4, 1959.
Decided March 30, 1959.
Rehearing Denied May 18, 1959.
See 359 U.S. 999, 79 S.Ct. 1115.
Mr. E. D. Vickery, Houston, Tex., for the petitioners.
Mr. Joseph T. McGowan, New York City, for the respondent.
Mr. Justice BRENNAN delivered the opiion of the Court.
1
The respondent, Carbon Black Export, Inc., a Delaware corporation, brought a libel in admiralty in the District Court for the Southern District of Texas for damage sustained to a shipment of carbon black during an ocean voyage from Houston and New Orleans to various Italian ports. The libel was one in rem against the vessel in question, the S. S. Monrosa, then in the port of Houston on another voyage, and in personam against the Monrosa's owner, Navigazione Alta Italia, an Italian corporation. The latter filed an appearance in response to the libel in personam, and, as owner of the vessel, filed a claim to it, and prayed to defend the libel in rem. In respect to the libel in rem, a stipulation to abide the decree, in the penal sum of $100,000, was filed by the claimant and the National Surety Company, its surety, and approved by the present respondent. Navigazione Alta Italia then moved that the District Court decline jurisdiction over the cause, on the grounds that the parties had agreed, by a provision in the bills of lading covering the shipment, that controversies in regard to cargo damage should be settled only in the courts of Genoa, Italy. The District Court granted the motion, subject to the filing of a bond by Navigazione Alta Italia in the sum of $100,000 to respond to whatever judgment might finally be rendered on the cause of action in question. The Court of Appeals for the Fifth Circuit reversed. It found the provision in the bill of lading in terms inapplicable to suits in rem, and it declined to enforce its terms to require a dismissal of the libel in personam. 254 F.2d 297. We granted certiorari, 358 U.S. 809, 79 S.Ct. 43, 3 L.Ed.2d 54, because of an indicated conflict in principle between the Fifth Circuit's views as to enforceability of such provisions and those taken by the Second Circuit, primarily in William H. Muller & Co. v. Swedish American Line Ltd., 2 Cir., 224 F.2d 806.
2
We do not believe that this case affords us an appropriate instance to pass upon the extent to which effect can be given to such stipulations in ocean bills of lading not to resort to the courts of this country. The provision in this case was one of many printed provisions in a form bill of lading prepared by the carrier and presented by it for use in shipments on its vessel. It reads:
3
'27.—ALSO, that no legal proceedings may be brought against the Captain or Shipowners or their Agents in respect to any loss of or damage to any goods herein specified except in Genoa, it being understood and agreed that every other Tribunal in the place or places where the goods were shipped or landed is incompetent, not withstanding that the ship may be legally represented there.'
4
We find ourselves in agreement with the views of the Court of Appeals below that this clause should not be read as limiting the maintenance of an action in rem, cf. The Maggie Hammond, 9 Wall. 435, 449—450, 19 L.Ed. 772, against the vessel to enforce a maritime lien for proper carriage. The initial words are particularly appropriate to a restriction of the clause to in personam actions, and the rest of the language is intelligible on this premise.* In accordance with the familiar rule in such circumstances, we will not stretch the language when the party drafting such a form contract has not included a provision it easily might have. The Caledonia, 157 U.S. 124, 137, 15 S.Ct. 537, 542, 39 L.Ed. 644; The Majestic, 166 U.S. 375, 386, 17 S.Ct. 597, 602, 41 L.Ed. 1039; Compania de Navigacion La Flecha v. Brauer, 168 U.S. 104, 118, 18 S.Ct. 12, 15, 42 L.Ed. 398. Considerations involved in construing exemptions from carriers' liability provided by Acts of Congress are, we think, quite different. See Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U.S. 249, 64 S.Ct. 15, 88 L.Ed. 30. It is a form contract, not a statute, that we construe here.
5
Accordingly, after oral argument, we have concluded that the Court of Appeals was correct in holding that the libel in rem was properly maintainable. Both parties approved a secured stipulation to release the vessel from seizure under the libel, in an amount substantially the same as the recovery damanded by the libellant. This same amount the District Court denominated as proper security against a recovery elsewhere. We need not conjure up doubts in this regard that the parties never expressed. While the parties were entitled to have the judgments of the courts below as to whether the libel in personam was also maintainable, we do not believe it a proper exercise of our discretionary jurisdiction to pass on that aspect of the case, which alone presents the question which led us to grant certiorari. It appears that in any event the respondent will be able to try its claim in the District Court.
6
In the light of these circumstances, which 'were not * * * fully apprehended at the time certiorari was granted,' Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 559, 77 S.Ct. 459, 478, 1 L.Ed.2d 515 (separate opinion), the writ of certiorari will be dismissed as improvidently granted. Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70, 75, 75 S.Ct. 614, 617, 99 L.Ed. 897; Goins v. United States, 306 U.S. 622, 59 S.Ct. 783, 83 L.Ed. 1027; Moore v. Texas & New Orleans R. Co., 297 U.S. 101, 56 S.Ct. 372, 80 L.Ed. 509; Southern Power Co. v. North Carolina Public Service Co., 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413. Cf. Hammerstein v. Superior Court of California, 341 U.S. 491, 492, 71 S.Ct. 820, 821, 95 L.Ed. 1135; McCarthy v. Bruner, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547; Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 392—393, 43 S.Ct. 422, 423, 67 L.Ed. 712; Tyrrell v. District of Columbia, 243 U.S. 1, 37 S.Ct. 361, 61 L.Ed. 557. Examination of a case on the merits, on oral argument, may bring into 'proper focus' a consideration which, though present in the record at the time of granting the writ, only later indicates that the grant was improvident. See Rice v. Sioux City Memorial Park Cemetery, Inc., supra, 349 U.S. at page 73, 75 S.Ct. at page 616. While this Court decides questions of public importance, it decides them in the context of meaningful litigation. Its function in resolving conflicts among the Courts of Appeals is judicial, not simply administrative or managerial. Resolution here of the extent to which these bill of lading provisions may be given effect by our courts can await a day when the issue is posed less abstractly.
7
Writ of certiorari dismissed.
8
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER, Mr. Justice WHITTAKER, and Mr. Justice STEWART join, dissenting.
9
I cannot agree with the Court's view that Clause 27 of the bill of lading, fixing Genoa, Italy, as the forum for legal proceedings in respect of loss or damage to the goods shipped, applies only to actions in personam, and not to actions in rem. The Court's reading of the clause imputes to the parties the drawing of a distinction the purpose of which is impossible to grasp. As this Court said in Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U.S. 249, 253, 64 S.Ct. 15, 17, in referring to an earlier case, 'The Court said that 'To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles.' The riddle after more than half a century repeated to us in different context does not appear to us to have improved with age.'
10
Apart from this, however, I see no justification for our not reaching the question of the validity of Clause 27 with respect to in personam actions, an issue which still remains in the case even on the Court's view that the clause does not embrace in rem proceedings. That question, of course, presents no constitutional issue which we should strive to avoid, but is only one of ordinary commercial admiralty law. It is the only question which led us to take this case for review. And the issue has been fully briefed and argued by the parties. To be sure, it is possible that this question is not of great importance to the litigants if the in rem action can in any case go forward in Texas. But the very fact that respondent chose to institute and continue actions both in personam and in rem shows that it was not content to rely solely on the vessel's surety, and cautions against our now gratuitously treating the in personam action as purely academic. Moreover, review by certiorari, as Chief Justice Hughes once put it, is 'in the interest of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants.'*
11
Furthermore, I do not think this can be called a case where the circumstances presently contronting us 'were not manifest or fully apprehended at the time certiorari was granted.' See Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 559, 77 S.Ct. 457, 478, 1 L.Ed.2d 511 (separate opinion). The question of the construction of the clause, and that of its validity, were both fully discussed by the parties in their certiorari papers. Indeed, it was apparent on the surface of things that we might find ourselves in the very position we now are, since the Court of Appeals had itself found Clause 27 inapplicable to in rem proceedings and had then gone on to consider the validity of the clause as related to in personam actions.
12
Avoidance of decision now on a question which is obviously bound to recur seems to me to be both unsatisfactory and unsound judicial administration. The course which the Court has taken serves only to leave the lower federal courts in confusion and uncertainty and to make it necessary for us to mortgage our future and constantly mounting calendars with a question which we could and should decide today. As the Court has not spoken on that question it would be inappropriate for me to express my own view upon it.
*
We note that in another place the bill of lading makes specific recognition of suits boh i n rem and in personam. Clause 35 provides:
'35.—In any event the Carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered. Suit shall not be deemed brought until jurisdiction shall have been obtained over the Carrier and/or the ship by service of process or by an agreement to appear.'
While the first sentence is verbatim from § 3(6) of the Carriage of Goods by Sea Act, 49 Stat. 1209, 46 U.S.C. § 1303(6), 46 U.S.C.A. § 1303(6), the language nevertheless reinforces the fact that if both categories of suit were to be included under Clause 27, apt words to accomplish this were readily available, and were in fact used in another clause of the bill.
*
S.Rep. No. 711, 75th Cong., 1st Sess., p. 39.
| 78
|
359 U.S. 207
79 S.Ct. 705
3 L.Ed.2d 741
KLOR'S, INC., Petitioner,v.BROADWAY-HALE STORES, INC., Admiral Corporation, Admiral Distributors, Inc., et al.
No. 76.
Argued Feb. 25, 26, 1959.
Decided April 6, 1959.
Mr. Maxwell Keith, San Francisco, Cal., for petitioner.
Mr. Philip Elman, Washington, D.C., for the United States, as amicus curiae.
Mr. Moses Lasky, San Francisco, Cal., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Klor's, Inc., operates a retail store on Mission Street, San Francisco, California; Broadway-Hale Stores, Inc., a chain of department stores, operates one of its stores next door. The two stores compete in the sale of radios, television sets, refrigerators and other household appliances. Claiming that Broadway-Hale and 10 national manufacturers and their distributors have conspired to restrain and monopolize commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2, Klor's brought this action for treble damages and injunction in the United States District Court.1
2
In support of its claim Klor's made the following allegations: George Klor started an appliance store some years before 1952 and has operated it ever since either individually or as Klor's, Inc. Klor's is as well equipped as Broadway-Hale to handle all brands of appliances. Nevertheless, manufacturers and distributors of such well-known brands as General Electric, RCA, Admiral, Zenith, Emerson and others2 have conspired among themselves and with Broadway-Hale either not to sell to Klor's or to sell to it only at discriminatory prices and highly unfavorable terms. Broadway-Hale has used its 'monopolistic' buying power to bring about this situation. The business of manufacturing, distributing and selling household appliances is in interstate commerce. The concerted refusal to deal with Klor's has seriously handicapped its ability to compete and has already caused it a great loss of profits, goodwill, reputation and prestige.
3
The defendants did not dispute these allegations, but sought summary judgment and dismissal of the complaint for failure to state a cause of action. They submitted unchallenged affidavits which showed that there were hundreds of other household appliance retailers, some within a few blocks of Klor's who sold many competing brands of appliances, including those the defendants refused to sell to Klor's. From the allegations of the complaint, and from the affidavits supporting the motion for summary judgment, the District Court concluded that the controversy was a 'purely private quarrel' between Klor's and Broadway-Hale, which did not amount to a 'public wrong proscribed by the (Sherman) Act.' On this ground the complaint was dismissed and summary judgment was entered for the defendants. The Court of Appeals for the Ninth Circuit affirmed the summary judgment. 255 F.2d 214. It stated that 'a violation of the Sherman Act requires conduct of defendants by which the public is or conceivably may be ultimately injured.' 255 F.2d at page 233. It held that here the required public injury was missing since 'there was no charge or proof that by any act of defendants the price, quantity, or quality offered the public was affected, nor that there was any intent or purpose to effect a change in, or an influence on, prices, quantity, or quality * * *.' Id., at page 230. The holding, if correct, means that unless the opportunities for customers to buy in a competitive market are reduced, a group of powerful businessmen may act in concert to deprive a single merchant, like Klor, of the goods he needs to compete effectively. We granted certiorari to consider this important question in the administration of the Sherman Act. 358 U.S. 809, 79 S.Ct. 23, 3 L.Ed.2d 54.
4
We think Klor's allegations clearly show one type of trade restraint and public harm the Sherman Act forbids, and that defendants' affidavits provide no defense to the charges. Section 1 of the Sherman Act makes illegal any contract, combination or conspiracy in restraint of trade, and § 2 forbids any person or combination from monopolizing or attempting to monopolize any part of interstate commerce. In the landmark case of Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, this Court read § 1 to prohibit those classes of contracts or acts which the common law had deemed to be undue restraints of trade and those which new times and economic conditions would make unreasonable. Id., at pages 59—60, 31 S.Ct. at pages 515—516. The Court cnst rued § 2 as making 'the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the 1st section, that is, restraints of trade, by any attempt to monpolize, or monopolization thereof * * *.' Id., at page 61, 31 S.Ct. at page 516. The effect of both sections, the Court said, was to adopt the common-law proscription of all 'contracts or acts which it was considered had a monopolistic tendency * * *' and which interfered with the 'natural flow' of an appreciable amount of interstate commerce. Id., at pages 57, 61, 31 S.Ct. at page 514; Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 609, 34 S.Ct. 951, 953, 58 L.Ed. 1490. The Court recognized that there were some agreements whose validity depended on the surrounding circumstances. It emphasized, however, that there were classes of restraints which from their 'nature or character' were unduly restrictive, and hence forbidden by both the common law and the statute. 221 U.S. at pages 58, 65, 31 S.Ct. at page 515.3 As to these classes of restraints, the Court noted, Congress had determined its own criteria of public harm and it was not for the courts to decide whether in an individual case injury had actually occurred. Id., at pages 63—68, 31 S.Ct. at pages 517—518—519.4
5
Group boycotts, or concerted refusals by traders to deal with other traders, have long been held to be in the forbidden category.5 They have not been saved by allegations that they were reasonable in the specific circumstances, nor by a failure to show that they 'fixed or regulated prices, parcelled out or limited production, or brought about a deterioration in quality.' Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457, 466, 467—468, 61 S.Ct. 703, 707, 85 L.Ed. 949. Cf. United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700. Even when they operated to lower prices or temporarily to stimulate competition they were banned. For, as this Court said in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 213, 71 S.Ct. 259, 260, 95 L.Ed. 219, 'such agreements, no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.' Cf. United States v. Patten, 226 U.S. 525, 542, 33 S.Ct. 141, 145, 57 L.Ed. 333.
6
Plainly the allegations of this complaint disclose such a boycott. This is not a case of a single trader refusing to deal with another,6 nor even of a manufacturer and a dealer agreeing to an exclusive distributorship. Alleged in this complaint is a wide combination consisting or manufacturers, distributors and a retailer. This combination takes from Klor's its freedom to buy appliances in an open competitive market and drives it out of business as a dealer in the defendants' products. It deprives the manufacturers and distributors of their freedom to sell to Klor's at the same prices and conditions made available to Broadway-Hale and in some instances forbids them from selling to it on any terms whatsoever. It interferes with the natural flow of interstate commerce. It clearly has, by its 'nature' and 'character,' a 'monopolistic tendency.' As such it is not to be tolerated merely because the victim is just one merchant whose business is so small that his destruction makes little difference to the economy.7 Monopoly can as surely thrive by the elimination of such small businessmen, one at a time, as it can by driving them out in large groups. In recognition of this fact the Sherman Act has consistently been read to forbid all contracts and combinations 'which 'tend to create a monopoly," whether 'the tendency is a creeping one' or 'one that proceeds at full gallop.' International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20.
7
The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for trial.
8
Reversed.
9
Mr. Justice HARLAN, believing that the allegations of the complaint are sufficient to entitle the petitioner to go to trial, and that the matters set forth in respondents' affidavits are not necessarily sufficient to constitute a defense irrespective of what the petitioner may be able to prove at the trial, concurs in the result.
1
Section 1 of the Sherman Act provides: 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * *.' Section 2 of the Act reads, 'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * * *.' Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, 15 U.S.C.A. § 15, states, Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * * and shall recover threefold the damages by him sustained * * *.'
2
The appliance manufacturers named in the complaint are: Admiral Corp., Emerson Radio and Phonograph Corp., General Electric Co., Olympic Radio and Television, Inc., Philco Corp., Rheem Manufacturing Co., Radio Corp. of America, Tappan Stove Co., Whirlpool Corp., Zenith Radio Corp.
3
See also United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S.Ct. 632, 648, 55 L.Ed. 663, where the Court noted that the statute forbade all 'acts or contracts or agreements or combinations * * * which, either because of their inherent nature or effect or because of the evident purpose of the acts, etc., injuriously retrained trade * * *.'
4
See also United States v. Trenton Potteries Co., 273 U.S. 392, 395—401, 47 S.Ct. 377, 378—379—380—381, 71 L.Ed. 700; Radovich v. National Football League, 352 U.S. 445, 453—454, 77 S.Ct. 390, 394—395, 1 L.Ed.2d 456. In this regard the Sherman Act should be contrasted with § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45(b), 15 U.S.C.A. § 45(b), which requires that the Commission find 'that a proceeding by it * * * would be to the interest of the public' before it issues a complaint for unfair competition. See Federal Trade Commission v. Klesner, 280 U.S. 19, 27, 50 S.Ct. 1, 374 L.Ed. 138. But cf. Fashion Originators' Guild of America v. Federal Trade Commission, 312 U.S. 457, 466—467, 61 S.Ct. 703, 707—708, 85 L.Ed. 949.
5
See, e.g., Eastern State Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490; Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 214, 71 S.Ct. 259, 261, 95 L.Ed. 219; Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 625, 73 S.Ct. 872, 889, 97 L.Ed. 1277; Northern Pacific Ry. Co. v. Uite d States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545.
6
Compare United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, with United States v. Schrader's Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 719—723, 64 S.Ct. 805, 811—812—813, 88 L.Ed. 1024; Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162.
7
The court below relied heavily on Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, in reaching its conclusion. While some language in that case can be read as supporting the position that no restraint on trade is prohibited by § 1 of the Sherman Act unless it has or is intended to have an effect on market prices, such statements must be considered in the light of the fact that the defendant in that case was a labor union. The Court in Apex recognized that the Act is aimed primarily at combinations having commercial objectives and is applied only to a very limited extent to organizations, like labor unions, which normally have other objectives. See United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; Allen Bradley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939. Moreover, cases subsequent to Apex have made clear that an effect on prices is not essential to a Sherman Act violation. See, e.g., Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457, 466, 61 S.Ct. 703, 707, 85 L.Ed. 949.
| 78
|
359 U.S. 215
79 S.Ct. 656
3 L.Ed.2d 747
Emory W. PARSONS, Erma M. Parsons, Howard H. Parsons, et al., Petitioners,v.Francis R. SMITH, Former Collector of Internal Revenue for the First District of Pennsylvania. George HUSS, Russell Huss and Wesley Huss, Petitioners, v. Francis R. SMITH, Former Collector of Internal Revenue for the First District of Pennsylvania.
Nos. 218, 305.
Argued March 4, 1959.
Decided April 6, 1959.
Mr. Sherwin T. McDowell, Philadelphia, Pa., for petitioners Parsons et al.
Mr. David Berger, Philadelphia, Pa., for petitioners Huss et al.
Mr. Howard A. Heffron, New York City, for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
These tax refund cases present the question whether petitioners, Parsons in No. 218 and Huss in No. 305, are entitled to an allowance for depetion on amounts received by them under contracts with the owners of coal-bearing lands for the strip mining of coal from those lands and the delivery of it to the landowners. The cases were heard by the same courts below. The District Court ruled that petitioners had no depletable interest in the coal in place and rendered judgment for the respondent collector in each case. The Court of Appeals affirmed both judgments. 3 Cir., 255 F.2d 595, 599. Because of an asserted conflict with the principles applicable under the decisions of this Court, we granted certiorari in both cases. 358 U.S. 814, 79 S.Ct. 50, 3 L.Ed.2d 56.
2
The pertinent facts in each case were found by the District Court and are not challenged here. In substance, they are as follows:
3
PARSONS, No. 218. Petitioners were members of a partnership ('Parsons') which, until the transactions involved here, was primarily engaged in road building. Rockhill Coal Co. ('Rockhill') owned bituminous coal-bearing lands in Pennsylvania. Much of the coal was located relatively near the surface and was therefore removable by the strip mining process.1 In 1942 Parsons expressed a desire to strip mine coal from Rockhill's lands, but it refused to sign the written contract offered because the firm did not wish to be bound by a contract 'which would take a long time, since, if an opportunity opened up, (it) wanted to go back to road building.' It was then agreed that Parsons would, and it did, proceed under an oral agreement. Under that agreement Parsons was to strip mine coal from such sites and seams, within a generally described area of Rockhill's lands, as were designated by Rockhill. Parsons was to furnish at its own expense all of the equipment, facilities and labor which it thought necessary to strip mine and deliver the coal to Rockhill's cars at a fixed point. For each ton of coal so mined and delivered Rockhill was to pay Parsons a stated amount of money.2 Parsons was not authorized to keep or sell any of the coal but was required to deliver all that was mined to Rickhill. The agreement was not for a definite term, nor did it obligate Parsons to mine the tract to exhaustion, but, to the contrary, it was agreed that 'if Parsons or Rockhill wanted to quit, all that was necessary to terminate the arrangement was the giving of a ten-day notice.' However, if Rockhill thus canceled the agreement and if 'Parsons had previously gone to the expense of removing the overburden (thereby performing the heavy part of the work, as well as meeting wages and expenses in so doing), then Parsons would have the privilege of taking out the coal (so uncovered) and of being paid for it (even though) this took more than ten days.' Operations continued under the agreement without notice of termination until August 1, 1950, when Parsons gave Rockhill notice that it would 'quit' the work on September 1, 1950, and it ceased these operations on or near that date. Large amounts of stripable coal still remained on the tract and strip mining thereon was continued by another contractor. Parsons' investment in equipment used in the work ran from a low in 1943 of $60,000 to a high in 1947 of $250,000. The equipment was movable and there is no evidence that it was not usable elsewhere or for other purposes.
4
HUSS, No. 305. Petitioners were members of a partnership ('Huss') engaged in the business of strip mining coal. Philadelphia and Reading Coal & Iron Co. ('Reading') owned anthracite coal-bearing lands in Schuylkill County, Pennsylvania. Much of the coal was so located that it could be removed by strip mining. In 1944 Reading and Huss entered into a written contract3 under which Huss undertook to strip mine the coal from such areas, within a generally described tract of Reading's land, as might be designated by Reading and that was not lying deeper than a prescribed distance from the surface. Huss was to furnish at its own expense all of the equipment, facilities and labor necessary to mine and deliver the coal to Reading's colliery. For each ton of coal so mined and delivered Reading was to pay Huss a stated sum.4 That sum was agreed to be in 'full compensation for the full performance of all work and for the furnishing of all material, labor, power, tools, machinery, implements and equipment required for the work.' Huss was not authorized to keep or sell any of the coal. The contract was expressly terminable by Reading at any time upon 30 days' written notice 'without specifying any reason therefor' and without liability for 'any loss of anticipated profits or any other damages whatever.' This right of termination was not exercised. Operations continued under the contract until July 1947, by which time Huss had mined most of the strippable coal on the lands covered by the contract that lay within the stipulated distance from the surface, and the contract was then canceled by mutual agreement. Huss' investment in equipment used in the work ran from a low in 1944 of $100,000 to a high in 1947 of $500,000. All of the equipment was movable and usable elsewhere in strip mining and some of it was usable for other purposes.
5
Whether a deduction from gross income shall be permitted for depletion of mineral deposits, or any interest therein, is entirely a matter of grace.5 We therefore must look, first to the provisions and purposes of the statutes and to the decisions construing them to see what interests are permitted a deduction for depletion, and, next, to the contracts involved to see whether they gave to petitioners such an interest.
6
The applicable statutes are §§ 23(m) and 114(b)(4)(A) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 23(m) and 26 U.S.C. (1946 ed.) § 114(b)(4) (A), 26 U.S.C.A. §§ 23(m), 114(b)(4)(A). Section 23(m) directs that a reasonable allowance for depletion shall be made 'in the case of mines, * * * according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary,' and that '(i)n the case of leases the deductions shall be equitably apportioned between the lessor and lessee.' And § 114(b)(4)(A) provides that the allowance shall be, 'in the case of coal mines, 5 percentum * * * of the gross income from (mining)6 the property during the taxable year, excluding * * * any rents or royalties paid or incurred by the taxpayer in respect of the property.'
7
The purpose of the deduction for depletion is plain and has been many times declared by this Court. '(It) is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.' Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 618, 82 L.Ed. 897. And see United States v. Ludey, 274 U.S. 295, 302, 47 S.Ct. 608, 610, 71 L.Ed. 1054; Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, 375, 58 S.Ct. 621, 622, 82 L.Ed. 904; Anderson v. Helvering, 310 U.S. 404, 408, 60 S.Ct. 952, 954; Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603, 66 S.Ct. 409, 411, 90 L.Ed. 343. '(The depletion) exclusion is designed to permit a recoupment of the owner's capital investment in the minerals so that when the minerals are exhausted, the owner's capital is unimpaired.' Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347. Save for its application only to gross income from mineral deposits and standing timber, the purpose of 'the deduction for depletion does not differ from the deduction for depreciation.' United States v. Ludey, 274 U.S. at page 303, 47 S.Ct. at page 611. In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to make a tax-free recovery of that depleting capital asset.
8
Although the sentence in § 23(m) that 'In the case of leases the deductions shall be equitably apportioned between the lessor and lessee' presupposes 'that the deductions may be allowed in other cases' (Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226, 77 L.Ed. 489), the statute 'must be read in the light of the requirement of apportionment of a single depletion allowance' (Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 321, 55 S.Ct. 174, 178, 79 L.Ed. 383), for two or more persons 'cannot be entitled to depletion on the same income' (Commissioner v. Southwest Exploration Co., 350 U.S. 308, 309, 76 S.Ct. 395, 396). It follows that if petitioners are entitled to a depletion allowance on the amounts earned under their contracts, the amounts allowable to the landowners for the depletion of their coal deposits would be correspondingly reduced.
9
Dealing specifically with the problem of what interests in mineral deposits were permitted a deduction for depletion under the practically identical predecessors of §§ 23(m) and 114, this Court said in Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226: 'The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.' The Ourt further said that the deduction is not 'dependent upon the particular legal form of the taxpayer's interest in the property to be depleted, (and that) (i)t is enough if * * * he has retained a right to share in the oil produced. If so, he has an economic interest in the oil, in place, which is depleted by production.'7 Ibid. (Emphasis added.) The Court went on to hold that lessee of oil producing properties, by reserving from an assignment a royalty of 'one-eighth of all the oil produced and saved,' retained an economic interest in the oil in place and were therefore entitled to an allowance for depletion against their gross income from that interest.
10
Five years later, in 1938, the Court in Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, reaffirmed the test laid down in Palmer and added: 'But the phrase 'economic interest' is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.' 303 U.S. at page 367, 58 S.Ct. at page 618. Applying that principle, the Court held that a processor who, by contracts with the owners of gas and oil wells, had acquired the right to take wet gas from the well heads and to extract and sell the gasoline therefrom, paying the well owners a percentage of the proceeds of such sales, had not acquired an economic interest in the depleting gas in place but only an economic advantage to be derived from the processing operations, and that therefore the income from those operations was not subject to the depletion deduction.
11
In his first regulations prescribed under the Internal Revenue Act of 1939, the Commissioner adopted almost literally the language we have quoted from Palmer and Bankline as the tests to be administratively applied in determining what interests in mineral deposits are entitled to the depletion allowance. See Treas.Reg. 103, § 19.23(m)—1, August 23, 1939. That language, with immaterial changes, has remained in the regulations ever since. During the years here involved, 1942 through 1950, the regulation in force was Treas.Reg. 111, § 29.23(m)—1, which, in pertinent part, provides:
12
'Under (the provisions of §§ 23(m) and 114) the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner he possesses a mere economic advantage derived from production * * *.'
13
Such are the interests that are permitted a deduction for depletion by the statutes as consistently interpreted by this Court and by the Commissioner.
14
Petitioners do not dispute that these are the controlling principles, but rather they contend that they come within those that allow the deduction. They argue that by their contracts to mine the coal, and particularly by contributing their equipment, organizations and skills to the mining project as required by those contracts, they, in legal effect, made a capital investment in, and thereby acquired an economic interest in, the coal in place, which was depletable by production, and that they are therefore entitled to take the deduction against their gross income derived from those mining operations.
15
We take a different view. It stands admitted that before and apart from their contracts, petitioners had no investment or interest in the coal in place. Their asserted right to the deduction rests entirely upon their contracts. Is there anything in those contracts to indicate that petitioners made a capital investment in, or acquired an economic interest in, the coal in place, as distinguished from the acquisition of a mere economic advantage to be derived from their mining operations? We think it is quite plain that there is not.
16
By their contracts, which were completely terminable without cause on short notice, petitioners simply agreed to provide the equipment and do the work required to strip mine coal from designated lands of the landowners and to deliver the coal to the latter at stated points, and in full consideration for performance of that undertaking the landowners were to pay to petitioners a fixed sum per ton. Surely those agreements do not show or suggest that petitioners actually made any capial investment in the coal in place, or that the landowners were to or actually did in any way surrender to petitioners any part of their capital interest in the coal in place. Petitioners do not factually assert otherwise. Their claim to the contrary is based wholly upon an asserted legal fiction. As stated, they claim that their contractual right to mine coal from the designated lands and the use of their equipment, organizations and skills in doing so, should be regarded as the making of a capital investment in, and the acquisition of an economic interest in, the coal in place. But that fiction cannot be indulged here, for it is negated by the facts.
17
To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners' investments were in their equipment, all of which was movable—not in the coal in place; (2) that their investments in equipment were recoverable through depreciation—not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss (255 F.2d 600), agreed to be in 'full compensation for the full performance of all work and for the furnishing of all (labor) and equipment required for the work'; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal 'was a personal covernant and did not purport to grant (petitioners) an interest in the (coal in place).' Helvering v. O'Donnell, 303 U.S. 370, 372, 58 S.Ct. 619, 620, 82 L.Ed. 903. Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so.
18
'Undoubtedly, (petitioners) through (their) contracts obtained an economic advantage from (their) production of the (coal), but that is not sufficient. The controlling fact is that (petitioners) had no interest in the (coal) in place.' Helvering v. Bankline Oil Co., 303 U.S. at page 368, 58 S.Ct. at page 619. Of course, the parties might have provided in their contracts that petitioners would have some capital interest in the coal in place, but they did not do so—apparently by design. Instead, petitioners simply entered into contracts, terminable without cause on short notice, with the owners of coal-bearing lands to provide the equipment and do the work required to strip mine and deliver coal from those lands, as independent contractors, for fixed unit prices. '(Petitioners thus) bargaining for and obtained an economic advantage from the (mining) operations but that advantage or profit did not constitute a depletable interest in the (coal) in place' (Helvering v. O'Donnell, 303 U.S. at page 372, 58 S.Ct. at page 620), and having 'no capital investment in the mineral deposit which suffered depletion, (petitioners are) not entitled to the statutory allowance' (Helvering v. Bankline Oil Co., 303 U.S. at page 368, 58 S.Ct. at page 618). The judgments must therefore be affirmed.
19
Affirmed.
1
Strip mining is done from the surface of the earth. In general, it is performed by stripping off the earth, known as overburden, which lies over the coal and then removing the coal so uncovered.
2
It was contemplated by the parties that in the event of an increase in the union labor wage scale the amount per ton to be paid to Parsons would be increased and on several occasions it was increased to cover higher costs for both labor and material used in the work.
3
During the tax years involved, which were 1944 to 1947, other like contracts were entered into by the parties, but they were all identical, except for areas covered and prices per ton to be paid to Huss, and it will therefore be unnecessary to treat with them individually.
4
The contract provided however that in the event of an increase in the union labor wage scale the amount per ton to be paid to Huss would be, and on several occasions during the operation it was, increased sufficiently to cover increased labor costs.
5
Helvering v. Bankline Oil Co., 303 U.S. 362, 366, 58 S.Ct. 616, 617, 82 L.Ed. 897; Anderson v. Helvering, 310 U.S. 404, 408, 60 S.Ct. 952, 954, 84 L.Ed. 1277; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 397, 100 L.Ed. 347.
6
Section 114(b)(4)(B) provided that 'the term 'gross income from the property' means the gross income from mining.' 26 U.S.C. (1946 ed.) § 114(b)(4) (B), 26 U.S.C.A. § 114(b)(4)(B).
7
The principles declared in the Palmer case have been recognized and applied by every subsequent decision of this Court that has treated with the subject.
Helvering v. Bankline Oil Co., 303 U.S. 362, 367, 58 S.Ct. 616, 618, literally adopted the language of the Palmer case upon the point.
In Helvering v. O'Donnell, 303 U.S. 370, 371, 58 S.Ct. 619, 620, 82 L.Ed. 903, it was said: 'The question is whether respondent had an interest, that is, a capital investment, in the oil and gas in place. * * * Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226; Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 321, 55 S.Ct. 174, 178; Thomas v. Perkins, 301 U.S. 655, 661, 57 S.Ct. 911, 913, 81 L.Ed. 1324; Helvering v. Bankline Oil Co., supra.'
Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, 375 376, 58 S.Ct. 621, 622, declared that 'The words 'gross income from the property,' as used in the statute governing the allowance for depletion, mean gross income received from the operation of the oil and gas wells by one who has a capital investment therein, not income from the sale of the oil and gas properties themselves.'
Anderson v. Helvering, 310 U.S. 404, 408—409, 60 S.Ct. 952, 954, repeated the statement last quoted.
In Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603, 66 S.Ct. 409, 411, 90 L.Ed. 343, the Court said: 'The test of the right to depletion is whether the taxpayer has a capital investment in the oil in place which is necessarily reduced as the oil is extracted.'
In Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 32, 66 S.Ct. 861, 866, 90 L.Ed. 1062, the Court said: 'It seems generally accepted that it is the owner of a capital investment or economic interest in the oil in place who is entitled to the depletion.'
Commissioner v. Southwest Exploration Co., 350 U.S. 308, 314, 76 S.Ct. 395, 398, reannounced substantially the rule declared in the Palmer case. It said 'that a taxpayer is entitled to depletion where he has: (1) 'acquired, by investment, any interest in the oil in place,' and (2) secured by legal relationship 'income derived from the extration of the oil, to which he must look for a return of his capital.' * * * These two factors, usually considered together, constitute the requirement of 'an economic interest."
| 1112
|
359 U.S. 227
79 S.Ct. 664
3 L.Ed.2d 756
Dovie Ray BAKER et al., Petitioners,v.TEXAS AND PACIFIC RAILWAY CO.
No. 363.
Argued March 25, 1959.
Decided April 6, 1959.
Mr. Harvey L. Davis, Dallas, Tex., for the petitioners.
Mr. D. L. Case, Dallas, Tex., for the respondent.
PER CURIAM.
1
This action was commenced by the petitioners against the respondent railroad in a Texas State District Court, under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C..A §§ 51—60, to recover damages for the death of petitioners' decedent, Claude Baker, allegedly caused by the negligence of the respondent. Baker had been hired as a workman by W. H. Nichols & Co., Inc., which was engaged in work along the main line right of way of the respondent under a contract with it. The work consisted of 'grouting,' or pumping sand and cement into the roadbed to strengthen and stabilize it. Baker was struck and killed by a train while engaged at this job. It was petitioners' contention in the trial court that Baker was killed while he was 'employed' by respondent, within the meaning of § 1 of the Act. Evidence on the question was introduced by the parties, and a special issue for the jury's determination was framed, but the judge declined to submit the issue to the jury, holding as a matter of law that Baker was not in such a relationship to the railroad at the time of his death as to entitle him to the protection of the Act. The Court of Civil Appeals affirmed the trial court's judgment for the respondent, 309 S.W.2d 92, and the Texas Supreme Court refused an application for a writ of error. We granted certiorari, 358 U.S. 878, 79 S.Ct. 118, 3 L.Ed.2d 108, to investigate whether such an issue is properly one for determination by the jury.
2
The Federal Employers' Liability Act does not use the terms 'employee' and 'employed' in any special sense, Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 94, 35 S.Ct. 491, 494, 59 L.Ed. 849, so that the familiar general legal problems as to whose 'employee' or 'servant' a worker is at a given time present themselves as matters of federal law under the Act. See Linstead v. Chesapeake & Ohio R. Co., 276 U.S. 28, 33—34, 48 S.Ct. 241, 243, 72 L.Ed. 453. It has been well said of the question that '(e)ach case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative.' Cimorelli v. New York Central R. Co., 6 Cir., 148 F.2d 575, 577. Although we find no decision of this Court that has discussed the matter, we think it perfectly plain that the question, like that of fault or of causation under the Act, contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, § 220, comment c; § 227, comment a. Only if reasonable men could not reach differing conclusions on the issue may the question be taken from the jury. See Chicago, R.I. & P.R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735. Here the petitioners introduced evidence tending to prove that the grouting work was part of the maintenance task of the railroad; that the road furnished the material to be pumped into the roadbed; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job performed by the individual workmen, including the precise point where the mixture should be pumped, when they should move to the next point, and the consistency of the mixture. The railroad introduced evidence tending to controvert this and further evidence tending to show that an employment relationship did not exist between it and Baker at the time of the accident. An issue for determination by the jury was presented. 'The very essence of (the jury's) function is to select from among conflicting inferences and conclusions that which it considers most reasonable.' Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520.
3
Reversed.
4
Mr. Justice FRANKFURTER would dismiss this writ of certiorari as improvidently granted. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493. As the Court itself notes, "(e)ach case must be decided on its peculiar facts * * *." Such cases are unique and of no precedential value and are, therefore, outside of the criteria justifying a grant of certiorari. See Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S.Ct. 140, 62 L.Ed. 385.
| 78
|
359 U.S. 236
79 S.Ct. 773
3 L.Ed.2d 775
SAN DIEGO BUILDING TRADES COUNCIL, MILLMEN'S UNION, LOCAL 2020, Building Material and Dump Drivers, Local 36, Petitioners,v.J. S. GARMON, J. M. Garmon, and W. A. Garmon.
No. 66.
Argued Jan. 20, 1959.
Decided April 20, 1959.
Mr. Charles P. Scully, San Francisco, Cal., for petitioners.
Mr. Marion B. Plant, San Francisco, Cal., for respondents.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case is before us for the second time. The present litigation began with a dispute between the petitioning unions and respondents, co-partners in the business of selling lumber and other materials in California. Respondents began an action in the Superior Court for the County of San Diego, asking for an injunction and damages. Upon hearing, the trial court found the following facts. In March of 1953 the unions sought from respondents an agreement to retain in their employ only those workers who were already members of the unions, or who applied for membership within thirty days. Respondents refused, claiming that none of their employees had shown a desire to join a union, and that, in any event, they could not accept such an arrangement until one of the unions had been designated by the employees as a collective bargaining agent. The unions began at once peacefully to picket the respondents' place of business, and to exert pressure on customers and suppliers in order to persuade them to stop dealing with respondents. The sole purpose of these pressures was to compel execution of the proposed contract. The unions contested this finding, claiming that the only purpose of their activities was to educate the workers and persuade them to become members. On the basis of its findings, the court enjoined the unions from picketing and from the use of other pressures to force an agreement, until one of them had been properly designated as a collective bargaining agent. The court also awarded $1,000 damages for losses found to have been sustained.
2
At the time the suit in the state court was started, respondents had begun a representation proceeding before the National Labor Relations Board. The Regional Director declined jurisdiction, presumably because the amount of interstate commerce involved did not meet the Board's monetary standards in taking jurisdiction.
3
On appeal, the California Supreme Court sustained the judgmen of the Superior Court, 45 Cal.2d 657, 291 P.2d 1, holding that, since the National Labor Relations Board had declined to exercise its jurisdiction, the California courts had power over the dispute. They further decided that the conduct of the union constituted an unfair labor practice under § 8(b)(2) of the National Labor Relations Act, 29 U.S.C.A. § 158(b)(2), and hence was not privileged under California law. As the California court itself later pointed out this decision did not specify what law, state or federal, was the basis of the relief granted. Both state and federal law played a part but, '(a)ny distinction as between those laws was not thoroughly explored.' Garmon v. San Diego Bldg. Trades Council, 49 Cal.2d 595, 602, 320 P.2d 473, 477.
4
We granted certiorari, 351 U.S. 923, 76 S.Ct. 782, 100 L.Ed. 1453, and decided the case together with Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601, and Amalgamated Meat Cutters, etc. v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613. In those cases, we held that the refusal of the National Labor Relations Board to assert jurisdiction did not leave with the States power over activities they otherwise would be pre-empted from regulating. Both Guss and Fairlawn involved relief of an equitable nature. In vacating and remanding the judgment of the California court in this case, we pointed out that those cases controlled this one, 'in its major aspects.' 353 U.S. 26, at page 28, 77 S.Ct. 607, at page 608, 1 L.Ed.2d 618. However, since it was not clear whether the judgment for damages would be sustained under California law, we remanded to the state court for consideration of that local law issue. The federal question, namely, whether the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., precluded California from granting an award for damages arising out of the conduct in question, could not be appropriately decided until the antecedent state law question was decided by the state court.
5
On remand, the California court, in accordance with our decision in Guss, set aside the injunction, but sustained the award of damages. Garmon v. San Diego Bldg. Trades Council, 49 Cal.2d 595, 320 P.2d 473 (three judges dissenting). After deciding that California had jurisdiction to award damages for injuries caused by the union's activities, the California court held that those activities constituted a tort based on an unfair labor practice under state law. In so holding the court relied on general tort provisions of the West's Ann. California Civil Code, §§ 1667, 1708, as well as state enactments dealing specifically with labor relations, West's Ann.Calif. Labor Code, § 923 (1937); ibid., §§ 1115—1118 (1947).
6
We again granted certiorari, 357 U.S. 925, 78 S.Ct. 1371, 2 L.Ed.2d 1369, to determine whether the California court had jurisdiction to award damages arising out of peaceful union activity which it could not enjoin.
7
The issue is a variant of a familiar theme. It began with Allen-Bradley Local No. 1111, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154, was greatly intensified by litigation flowing from the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., and has recurred here in almost a score of cases during the last decade. The comprehensive regulation of industrial relations by Congress, novel federal legislation twenty-five years ago but now an integral part of our economic life, inevitably gave rise to difficult problems of federal-state relations. To be sure, in the abstract these problems came to us as ordinary questions of statutory construction. But they involved a more complicated and perceptive process than is conveyed by the delusive phrase, 'ascertaining the intent of the legislature.' Many of these problems probably could not have been, at all events were not, foreseen by the Congress. Others were only dimly perceived and their precise scope only vaguely defined. This Court was called upon to apply a new an co mplicated legislative scheme, the aims and social policy of which were drawn with broad strokes while the details had to be filled in, to no small extent, by the judicial process. Recently we indicated the task that was thus cast upon this Court in carrying out with fidelity the purposes of Congress, but doing so by giving application to congressional incompletion. What we said in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546, deserves repetition, because the considerations there outlined guide this day's decision:
8
'By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra (346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228). But as the opinion in that case recalled, the Labor Management Relations Act 'leaves much to the states, though Congress has refrained from telling us how much.' 346 U.S. at page 488, 74 S.Ct. at page 164. This penumbral area can be rendered progressively clear only by the course of litigation.' 348 U.S. at pages 480—481, 75 S.Ct. at page 488.
9
The case before us concerns one of the most teasing and frequently litigated areas of industrial relations, the multitude of activities regulated by §§ 7 and 8 of the National Labor Relations Act. 61 Stat. 140, 29 U.S.C. §§ 157, 158, 29 U.S.C.A §§ 157, 158. These broad provisions govern both protected 'concerted activities' and unfair labor practices. They regulate the vital, economic instruments of the strike and the picket line, and impinge on the clash of the still unsettled claims between employers and labor unions. The extent to which the variegated laws of the several States are displaced by a single, uniform, national rule has been a matter of frequent and recurring concern. As we pointed out the other day, '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.' International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 619, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018.
10
In the area of regulation with which we are here concerned, the process thus described has contracted initial ambiguity and doubt and established guides for judgment by interested parties and certainly guides for decision. We state these principles in full realization that, in the course of a process of tentative, fragmentary illumination carried on over more than a decade during which the writers of opinions almost inevitably, because unconsciously, focus their primary attention on the facts of particular situations, language may have been used or views implied which do not completely harmonize with the clear pattern which the decisions have evolved. But it may safely be claimed that the basis and purport of a long series of adjudications have 'translated into concreteness' the consistently applied principles which decide this case.
11
In determining the extent to which state regulation must yield to subordinating federal authority, we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration. The nature of the judicial process precludes an ad hoc inquiry into the special problems of labor-management relations involved in a particular set of occurrences in order to ascertain the precise nature and degree of federal-state conflict there involved, and more particularly what exact mischief such a conflict would cause. Nor is it our usi ness to attempt this. Such determinations inevitably depend upon judgments on the impact of these particular conflicts on the entire scheme of federal labor policy and administration. Our task is confined to dealing with classes of situations. To the National Labor Relations Board and to Congress must be left those precise and closely limited demarcations that can be adequately fashioned only by legislation and administration. We have necessarily been concerned with the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes. But the unifying consideration of our decisions has been regard to the fact that Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience:
12
'Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. 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 towards labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. * * *' Garner v. Teamsters, etc. Union, 346 U.S. 485, 490—491, 74 S.Ct. 161, 165, 98 L.Ed. 228.
13
Administration is more than a means of regulation; administration is regulation. We have been concerned with conflict in its broadest sense; conflict with a complex and interrelated federal scheme of law, remedy, and administration. Thus, judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted. When the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the States from acting.1 However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. See International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.2
14
When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations.3 Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes.
15
At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court's authority cannot remain within a State's power and state jurisdiction too must yield to the exclusive primary competence of the Board. See, e.g., Garner v. Teamsters, etc. Union, 346 U.S. 485, especially at pages 489—491, 74 S.Ct. 161, at pages 165—166, 98 L.Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.
16
The case before us is such a case. The adjudication in California has throughout been based on the assumption that the behavior of the petitioning unions constituted an unfair labor practice. This conclusion was derived by the California courts from the facts as well as from their view of the Act. It is not for us to decide whether the National Labor Relations Board would have, or should have, decided these questions in the same manner. When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.
17
To require the States to yield to the primary jurisdiction of the National Board does not ensure Board adjudication of the status of a disputed activity. If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decid th at an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States.4 However, the Board may also fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601. In that case we held that the failure of the National Labor Relations Board to assume jurisdiction did not leave the States free to regulate activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. The withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss. The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy.5
18
In the light of these principles the case before us is clear. Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State's jurisdiction is displaced.
19
Nor is it significant that California asserted its power to give damages rather than to enjoin what the Board may restrain though it could not compensate. Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered. Such regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. Even the States' salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme. See Garner v. Teamsters, etc. Union, 346 U.S. 485, 492—497, 74 S.Ct. 161, 166—169, 98 L.Ed. 228. It may be that an award of damages in a particular situation will not, in fact, conflict with the active assertion of federal authority. The same may be true of the incidence of a particular state injunction. To sanction either involves a conflict with federal policy in that it involves allowing two law-making sources to govern. In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict.
20
It is true that we have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminet t hreats to the public order. International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030; United Construction Workers, etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025. We have also allowed the States to enjoin such conduct. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162. State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction. We recognize that the opinion in United Construction Workers, etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 835, 98 L.Ed. 1025, found support in the fact that the state remedy had no federal counterpart. But that decision was determined, as is demonstrated by the question to which review was restricted, by the 'type of conduct' involved, i.e., 'intimidation and threats of violence.'6 In the present case there is no such compelling state interest.
21
The judgment below is reversed.
22
Reversed.
23
Mr. Justice HARLAN, whom Mr. Justice CLARK, Mr. Justice WHITTAKER and Mr. Justice STEWART join, concurring.
24
I concur in the result upon the narrow ground that the Unions' activities for which the State has awarded damages may fairly be considered protected under the Taft-Hartley Act, and that therefore state action is precluded until the National Labor Relations Board has made a contrary determination respecting such activities. As the Court points out, it makes no difference that the Board has declined to exercise its jurisdiction. See Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601; Amalgamated Meat Cutters, etc. v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613; and our earlier opinion in the present case when it was first before us, 353 U.S. 26, 77 S.Ct. 607, 1 L.Ed.2d 618.
25
Were nothing more than this particular case involved, I would be content to rest my concurrence at this point without more. But as today's decision will stand as a landmark in future 'pre-emption' cases in the labor field, I feel justified in particularizing why I cannot join the Court's opinion.
26
If it were clear that the Unions' conduct here was unprotected activity under Taft-Hartley, I think that United Construction Workers, etc. v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025, and International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 would require that the California judgment be sustained, even though such conduct might be deemed to be federally prohibited. In both these cases state tort damage judgments against unions were upheld in respect of conduct which this Court assumed was prohibited activity under the Federal Labor Act. The Court now says, however, that those decisions are not applicable here because they were premised on violence, which the States could also have enjoined, United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162, whereas in this case the Unions' acts were peaceful. In this I think the Court mistaken.
27
The threshold question in every labor pre-emption case is whether the conduct with respect to which a State has sought to act is, or may fairly be regarded as, federally protected activity. Because conflict is the touchstone of pre-emption, such activity is obviously beyond the reach of all state power. Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; International Union of United Automobile, Aircraft and Agricultural Implement Workers, etc. v.O'B rien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978; Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees, etc. v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364. That threshold question was squarely faced in the Russell case, where the Court, 356 U.S. at page 640, 78 S.Ct. at page 936, said: 'At the outset, we note that the union's activity in this case clearly was not protected by federal law.' The same question was, in my view, necessarily faced in Laburnum.
28
In both cases it was possible to decide that question without prior reference to the National Labor Relations Board because the union conduct involved was violent, and as such was of course not protected by the federal Act. Thus in Laburnum, the pre-emption issue was limited to the 'type of conduct' before the Court. 347 U.S. at page 658, 74 S.Ct. at page 834. Similarly in Russell, which was decided on Laburnum principles, the Court stated that the union's activity 'clearly was not protected,' and immediately went on to say (citing prior 'violence' cases1) that 'the strike was conducted in such a manner that it could have been enjoined' by the State. 356 U.S. at page 640, 78 S.Ct. at page 936. In both instances the Court, in reliance on former 'violence' cases involving injunctions,2 might have gone on to hold, as the Court now in effect says it did, that the state police power was not displaced by the federal Act, and thus disposed of the cases on the ground that state damage awards, like state injunctions, based on violent conduct did not conflict with the federal statute. The Court did not do this, however.
29
Instead the relevance of violence was manifestly deemed confined to rendering the Laburnum and Russell activities federally unprotected. So rendered, they could then only have been classified as prohibited or 'neither protected nor prohibited.' If the latter, state jurisdiction was beyond challenge. International Union, United Automobile Workers, etc. v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651.3 Conversely, if the activities could have been considered prohibited, primary decision by the Board would have been necessary, if state damage awards were inconsistent with federal prohibitions. Garner v. Teamsters, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. To determine the need for initial reference to the Board, the Court assumed that the activities were unfair labor practices prohibited by the federal Act. Laburnum, supra, 347 U.S. at pages 660—663, 74 S.Ct. at pages 835—837; Russell, supra, 356 U.S. at page 641, 78 S.Ct. at page 936. It then considered the possibility of conflict and held that the state damage remedies were not pre-empted because the federal Act afforded no remedy at all for the past conduct involved in Laburnum, and less than full redress for that involved in Russell. The essence of the Court's holding, which made resort to primary jurisdiction unnecessary, is contained in the following passage from the opinion in Laburnum, supra, 347 U.S. at page 665, 74 S.Ct. at page 838 (also quoted in Russell, supra, 356 U.S. at page 644, 78 S.Ct. at page 938):
30
'To the extent that Congress prescribed preventive procedure against unfair labor practices, that case (Garner v. Teamsters Union, supra,) 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 exitin g 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.'
31
Until today this holding of Laburnum has been recognized by subsequent cases. See Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 477, 75 S.Ct. 480, 486, 99 L.Ed. 546; International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc., v. Russell, supra, 356 U.S. at pages 640, 641, 644, 78 S.Ct. at pages 936, 937, 938; International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 621, 78 S.Ct. 923, 925, 2 L.Ed.2d 1018, similarly characterizing Russell; see also the dissenting opinion in Gonzales, especially at pages 624—626 of 356 U.S., at pages 927 928 of 78 S.Ct.4
32
The Court's opinion in this case cuts deeply into the ability of States to furnish an effective remedy under their own laws for the redress of past nonviolent tortious conduct which is not federally protected, but which may be deemed to be, or is, federally prohibited. Henceforth the States must withhold access to their courts until the National Labor Relations Board has determined that such unprotected conduct is not an unfair labor practice, a course which, because of unavoidable Board delays, may render state redress ineffective. And in instances in which the Board declines to exercise its jurisdiction, the States are entirely deprived of power to afford any relief. Moreover, since the reparation powers of the Board, as we observed in Russell, are narrowly circumscribed, those injured by nonviolent conduct will often go remediless even when the Board does accept jurisdiction.
33
I am, further, at loss to understand, and can find no basis on principle or in past decisions for, the Court's intimation that the States may even be powerless to act when the underlying activities are clearly 'neither protected nor prohibited' by the federal Act. Surely that suggestion is foreclosed by International Union, United Automobile Workers, etc. v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, supra,5 as well as by the approach taken to federal pre-emption in such cases as Allen-Bradley Local, etc. v. Wisconsin Employment Relations Board, supra; Bethelehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 773, 67 S.Ct. 1026, 1030, 91 L.Ed. 1234, and Algoma Plywood and Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691, not to mention Laburnum and Russell and the primary jurisdiction doctrine itself.6 Should what the Court now intimates ever come to pass, then indeed state power to redress wrongful acts in the labor field will be reduced to the vanishing point.
34
In determining pre-emption in any given labor case, I would adhere to the Laburnum and Russell distinction between damages and injunctions and to the principle that state power is not precluded where the challenged conduct is neither protected nor prohibited under the federal Act. Solely because it is fairly debatable whether the conduct here involved is federally protected, I concur in the result of today's decision.
1
E.g., Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601; Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; Local Union No. 25 of International Brotherhood of Teamsters, etc. v. New York, N.H. & H.R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Garner v. Teamsters, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; International Union of United Automobile, Aircraft and Agricultural Implement Workers, etc. v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978; Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees, etc. v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364; Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. See Local 24 of International Brotherhood of Teamsters, etc. Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312. The cases up to that time are summarized in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.
2
International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030; Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162; United Construction Workers, etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025.
3
See Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546, in which it was pointed out that the state court had relied on a general restraint of trade statute. Cf. United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162. The case before us involves both tort law of general application and specialized labor relations statutes. See 79 S.Ct. at page 776, supra.
4
See International Union, United Auto Workers, etc. v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651. The approach taken in that case, in which the Court undertook for itself to determine the status of the disputed activity, has not been followed in later decisions, and is no longer of general application.
5
'When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition * * *.' Charleston and Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 717, 59 L.Ed. 1137.
6
The conduct involved in Laburnum was so characterized in International Union, United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Ressell, 356 U.S. 634, 640, 78 S.Ct. 932, 936, 2 L.Ed.2d 1030, in an opinion by Mr. Justice Burton, who also wrote the opinion of the Court in Laburnum. When this very case was before us for the first time we noted that 'Laburnum sustained an award of damages under state tort law for violent conduct. We cannot know that the California court would have interpreted its own state law to allow an award of damages in this situation.' 353 U.S. at 29, 77 S.Ct. 608.
In Laburnum this Court itself expressly phrased its grant of certiorari to include only the limited question of the State's jurisdiction to award damages '(i)n view of the type of conduct found by the Supreme Court of Appeals of Virginia to have been carried our by Petitioners * * *,' 346 U.S. 936, 74 S.Ct. 374, 98 L.Ed. 425, despite the fact that petitioners had urged upon us a question not limited to the particular conduct involved. Petition for certiorari, p. 6.
Throughout, the opinion of the Court makes it clear that the holding in favor of state jurisdiction was limited to a situation involving violence and threats of violence. Thus the findings of the Virginia court as to the flagrant and violent activities of petitioners were set out at length. 347 U.S. at pages 660—662, note 4, 74 S.Ct. at pages 835—836. The Court relies on statements by Senator Taft, the Act's sponsor, and from a Senate Report which point out that 'mass picketing,' 'violence,' 'threat(s) of violence,' may be a violation of state law, as well as unfair labor practices under the Act. 347 U.S. at page 668, 74 S.Ct. at page 840.
The Court in Laburnum points out that it would be inconsistent with the provisions of the Act which allow recovery for damages caused by secondary boycotts, not to allow an injured party 'to recover damages caused more directly and flagrantly through such conduct as is before us.' 347 U.S. 666, 74 S.Ct. 839. The Court also placed reliance on a quotation from International Union, etc. v. Wisconsin Employment Relations Board, 336 U.S. 245, 253, 69 S.Ct. 516, 521, 93 L.Ed. 651, which points out that the '(p)olicing of * * * conduct * * *,' which consists of 'actual or threatened violence to persons or destruction of property,' is left to the States. In its concluding
paragraph the Court again stresses that Virginia has jurisdiction over 'coercion of the type found here * * *.' (347 U.S. 668, 74 S.Ct. 840.)
The damages awarded were extensive, consisting primarily of loss of profits caused by the disruption of respondent's business resulting from the violence. These damages were restricted to the 'damages directly andpro ximately caused by wrongful conduct chargeable to the defendants * * *' as defined by the traditional law of torts. United Construction Workers v. Laburnum Const. Corp., 194 Va. 872, 887, 75 S.E.2d 694, 704. Thus there is nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct.
All these factors make it plain that our decision in Laburnum rested on the nature of the activities there involved, and the interest of the State in regulating them. The case has been so interpreted in later decisions of this Court. See Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 477, 75 S.Ct. 480, 486, 99 L.Ed. 546; and the phrases quoted from Russell, supra. In Russell we again allowed the State to award damages for injuries caused by 'mass picketing and threats of violence * * *,' 356 U.S. at page 638, 78 S.Ct. at page 935. That opinion also continually stresses the violent nature of the conduct and limits its decision to the 'kind of tortious conduct' there involved. 356 U.S. at page 646, 78 S.Ct. at page 939. See also 356 U.S. at page 642, 78 S.Ct. at page 937; and 356 U.S. at page 640, 78 S.Ct. at page 936, where the Court points out that Alabama could have enjoined the activities of the union.
1
Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; United Automobile, Aircraft and Agricultural Implement Workers, etc. v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162.
2
See Allen-Bradley Local, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; cases cited at Note 1, supra.
3
See text 79 S.Ct. at page 784, infra.
4
The same view is taken of Laburnum and Russell in the amici briefs filed in the present case by the Government and the American Federation of Labor and Congress of Industrial Organizations, the latter stating that '(w)e hope to argue in an appropriate case that the Russell decision should be overruled.'
5
The Court may be correct in stating that 'the approach taken in that case, in which the Court undertook for itself to determine the status of the disputed activity, has not been followed in later decisions, and is no longer of general application.' That, however, has nothing to do with the vitality of the holding that there is no pre-emption when the conduct charged is in fact neither protected nor prohibited. To the contrary, that holding has remained fully intact, and, as already noted, underlay the decisions in Laburnum and Russell.
6
If the 'neither protected nor prohibited' category were one of pre-emption, there would be no point in referring any injunction case initially to the Board since the pre-emption issue would be plain however the challenged activities might be classified federaly. The same is true of damage cases under the Court's premise of conflict. State power would thus be confined to activities which were violent or of merely peripheral federal concern, see International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018.
| 910
|
359 U.S. 309
79 S.Ct. 755
3 L.Ed.2d 828
Raymond Jerean KOLLER and Martin Silverbrook, Petitioners,v.UNITED STATES of America.
No. 362.
Supreme Court of the United States
Argued March 26 and 30, 1959.
April 20, 1959
Mr. Robert H. Malis, Philadelphia, Pa., for petitioners.
Mr. Lionel Kestenbaum, Washington, D.C., for respondent.
PER CURIAM.
1
The judgment, 255 F.2d 865, is affirmed. Rex Trailer Co. v. United States, 1956, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149.
2
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS and Mr. Justice WHITTAKER join, dissenting.
3
I do not agree that disposition of this case is controlled by the decision in Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149. Believing that § 26(b)(1) of the Surplus Property Act of 1944, 40 U.S.C. § 489(b)(1), 40 U.S.C.A. § 489(b)(1), imposes a civil penalty, and that an action thereunder is therefore subject to the five-year limitation provided in 28 U.S.C. § 2462, 28 U.S.C.A. § 2462, I would reverse. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443; Erie Basin Metal Products, Inc., v. United States, 150 F.Supp. 561, 138 Ct.Cl. 67. See Priebe & Sons v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32.
| 01
|
359 U.S. 271
79 S.Ct. 763
3 L.Ed.2d 800
MELROSE DISTILLERS, INC., CVA Corporation and Dant Distillery and Distributing Corporation, Petitioners,v.UNITED STATES of America.
No. 404.
Argued March 30, 1959.
Decided April 20, 1959.
Mr. Robert S. Marx, Cincinnati, Ohio, for petitioners.
Mr. Richard A. Solomon, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioners are corporations—two organized under Maryland law and one under Delaware law—and wholly owned subsidiaries of Schenley Industries, Inc. They were indicted with others for restraining trade, conspiring to monopolize and attempting to monopolize commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2. Shortly after the indictment was returned, petitioners were dissolved under their respective state statutes and became separate divisions of a new corporation under the same ultimate ownership. They then moved to dismiss the indictment on the ground that their dissolution abated the proceeding. The District Court denied the motions, holding that under the applicable Maryland and Delaware statutes the existence of the dissolved corporations continued so far as prosecution of this criminal proceeding was concerned. United States v. Maryland Shate Licensed Beverage Ass'n, D.C., 138 F.Supp. 685. Petitioners then pleaded nolo contendere and the District Court levied fines against them. The Court of Appeals affirmed, 258 F.2d 726. The case is here on a petition for a writ of certiorari which we granted because of a conflict among the Circuits.1 358 U.S. 878, 79 S.Ct. 125, 3 L.Ed.2d 109.
2
We start from the premise that in the federal domain prosecutions abate both on the death of an individual defendant (List v. State of Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222; Schreiber v. Sharpless, 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65) and on the dissolution of a corporate defendant (Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 634, 69 S.Ct. 762, 763, 93 L.Ed. 931), unless the action is saved by statute. We need not decide whether federal law alone would be sufficient to save a federal cause of action against a corporation dissolved under state law. We have here a situation where the interplay of federal and state law makes it clear that petitioners did not escape criminal responsibility under the Sherman Act by the kind of dissolution decreed under Maryland and Delaware law.
3
The Sherman Law in § 8 defines 'person' to include corporations 'existing' under the laws of any State. The question whether a corporation 'exists' for any purpose is thus determined by reference to state law. We conclude that under both Maryland and Delaware law the lives of these corporations were not cut short, as is sometimes done on dissolution, cf. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg.Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147, but were sufficiently continued so that this proceeding did not abate.
4
In Maryland, during the period relevant here, though the dissolution of the corporation was effective when the articles of dissolution had been accepted, the corporation continued 'in existence for the purpose of paying, satisfying ad d ischarging any existing debts and obligations * * *.' (Flack's Md.Ann.Code 1951, Art. 23, § 72(b). It was also provided in § 78(a) that 'such dissolution' shall not 'abate any pending suit or proceeding by or against the corporation * * *.' We have found no Maryland decisions interpreting these sections; but we are satisfied that the term 'proceeding,' no matter how the state court may construe it,2 implies enough vitality to make the corporation an 'existing' enterprise for the purposes of § 8 of the Sherman Act.
5
The Delaware statute seems equally clear, though again there is no authoritative interpretation of it. It provides that any 'proceeding' begun by or against a corporation before or within three years after dissolution shall continue 'until any judgments, orders, or decrees therein shall be fully executed.' Del.Code Ann.1953, Tit. 8, § 278; Addy v. Short, 8 Terry 157, 47 Del. 157, 89 A.2d 136, 139. The term 'proceeding' is elsewhere used in the Delaware Code as including criminal prosecutions;3 and that seems to us to be consistent with its normal construction.4 We conclude that irrespective of how the Delaware statute may be construed by the Delaware courts, it sufficiently continued the existence of this corporation for the purpose of § 8 of the Sherman Act.
6
Policy reasons look to the same result. Petitioners were wholly owned subsidiaries of Schenley Industries, Inc. After dissolution they simply became divisions of a new corporation under the same ultimate ownership. In this situation there is no more reason for allowing them to escape criminal penalties than damages in civil suits. As the Court of Appeals noted, a corporation cannot be sent to jail. The discharge of its liabilities whether criminal or civil can be effected only by the payment of money.
7
Affirmed.
1
See United States v. Line Material Co., 6 Cir., 202 F.2d 929; United States v. United States Vanadium Corp., 10 Cir., 230 F.2d 646. Cf. United States v. P. F. Collier & Son, 7 Cir., 208 F.2d 936, 40 A.L.R.2d 1389.
2
A memorandum filed by the Attorney General's office states that while there are no rulings on the point by the Maryland Court of Appeals or by the Attorney General, 'the issue has been fully covered in opinions of the District Court and the Fourth Circuit Court of Appeals.' And it adds, 'We wish to express, however, our concurrence with the rulings of the lower courts in the pending litigation.'
3
'Whenever a corporation is informed against in a criminal proceeding * * *.' Tit. 11, § 1702.
4
An argument to the contrary is premised on Del.Code Ann., 1953, Tit. 8, § 281, which provides that the trustees of a dissolved corporation shall, after payment of allowances, expenses, and costs, pay 'the other debts due from the corporation.' It is urged that 'debts' in this setting means existing debts. But that seems to us too narrow a reading in light of the provision in § 279 which contemplates the entry of judgments against the corporation.
| 78
|
359 U.S. 231
79 S.Ct. 760
3 L.Ed.2d 770
Michael GLUS, Petitioner,v.BROOKLYN EASTERN DISTRICT TERMINAL.
No. 446.
Argued March 2, 1959.
Decided April 20, 1959.
Mr. Seymour Schwartz, New York City, for petitioner.
Mr. William C. Mattison, Brooklyn, N.Y., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1957 petitioner brought this action under the Federal Employers' Liability Act to recover damages for an industrial disease he allegedly contracted in 1952 while working for respondent.1 Although § 6 of the Act provides that 'No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued,' petitioner claimed that respondent was estopped from raising this limitation because it had induced the delay by representing to petitioner that he had seven years in which to sue.2 Respondent contended tha while estoppel often prevents defendants from relying on statutes of limitations it can have no such effect in FELA cases for there the time limitation is an integral part of a new cause of action and that cause is irretrievably lost at the end of the statutory period. The District Court, after discussing two lines of cases 'in sharp conflict,' one supporting respondent3 and one supporting petitioner,4 concluded with apparent reluctance that it was required by prior decisions of the Court of Appeals for the Second Circuit to dismiss petitioner's suit.5 The Court of Appeals affirmed, saying 'For the reasons well stated by (the District Court) we should not attempt to retrace our footsteps now, but may well await resolution of the conflict by the Supreme Court.' 2 Cir., 253 F.2d 957, 958. Since the question is important and recurring we granted certiorari. 358 U.S. 814, 79 S.Ct. 76, 3 L.Ed.2d 57.
2
To decide the case we need look no further than the maxim that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of cases by both law and equity courts6 and has frequently been employed to bar inequitable reliance on statutes of limitations.7 In Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721, this Court allowed a debtor to redeem property sold to satisfy a judgment, after the statutory time for redemption had expired although the statute granting the right to redeem also limited that right as to time.8 The Court held that the purchasers could not rely on the limitation because one of them had told the debtor 'that he would not be pushed, that the statutory time to redeem would not be insisted upon; and (the debtor) believed and relied upon such assurance.' The Court pointed out that in 'such circumstances the courts have held with great unanimity that the purchaser is estopped to insist upon the statutory period, notwithstanding the assurances were not in writing, and were made without consideration, upon the ground that the debtor was lulled into a false security.' 161 U.S. at page 344, 16 S.Ct. at page 516.9 As Mr. Justice Miller expressed it in Insurance Co. v. Wilkinson, 13 Wall. 222, 233, 20 L.Ed. 617, 'The principle is that where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage. And although the cases to which this principle is to be applied are not as well defined as could be wished, the general doctrine is well understood and is applied by courts of law as well as equity where the technical advantage thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim.'
3
We have been shown nothing in the language or history of the Federal Employers' Liability Act to indicate that this principle of law, older than the country itself, was not to apply in suits arising under that statute.10 Nor has counsel made any convincing arguments which might lead us to make an exception to the doctrine of estoppel in this case. To be sure language in some decisions of this Court can be taken as supporting such an exception.11 But that language is in dicta and is neither binding nor persuasive. Accordingly, we hold that it was error to dismiss this case. Despite the delay in filing his suit petitioner is entitled to have his cause tried on the merits if he can prove that respondent's responsible agents, agents with some authority in the particular matter, conducted themselves in such a way that petitioner was justifiably misled into a good-faith belief that he could begin his action at any time within seven years after it had accrued.
4
It is no answer to say, as respondent does, that the representations alleged were of law and not of fact and therefore could not justifiably be relied on by petitioner. Whether they could or could not depends on who made them and the circumstances in which they were made. See Scarborough v. Atlantic Coast Line R. Co., 4 Cir., 190 F.2d 935.Suc h questions cannot be decided at this stage of the proceedings.
5
It may well be that petitioner's complaint as now drawn is too vague, but that is no ground for dismissing his action. Cf. Conley v. Gibson, 355 U.S. 41, 47—48, 78 S.Ct. 99, 102—103, 2 L.Ed.2d 80. His allegations are sufficient for the present. Whether petitioner can in fact make out a case calling for application of the doctrine of estoppel must await trial.
6
Reversed.
1
35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60.
2
Paragraph 9 of petitioner's complaint states, 'Subsequent thereto defendant's agents, servants and employees fraudulently or unintentionally misstated to plaintiff that he had seven years within which to bring an action against said defendant as a result of his industrial disease and in reliance thereon plaintiff withheld suit until the present time.'
3
American R. Co. of Porto Rico v. Coronas, 1 Cir., 230 F. 545; Bell v. Wabash R. Co., 8 Cir., 58 F.2d 569; Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Ahern v. South Buffalo R. Co., 303 N.Y. 545, 563, 104 N.E.2d 898, 908, affirmed on other grounds, 344 U.S. 367, 73 S.Ct. 340, 97 L.Ed. 395.
4
Scarborough v. Atlantic Coast Line R. Co., 4 Cir., 178 F.2d 253, 4 Cir., 190 F.2d 935, 4 Cir., 202 F.2d 84; Fravel v. Pennsylvania R. Co., D.C., 104 F.Supp. 84; Toran v. New York, N.H. & H.R. Co., D.C., 108 F.Supp. 564.
5
The District Court noted, 'The reasoning of (petitioner's) cases is not unpersuasive. But I feel that I am bound by the decisions of the Court of Appeals of this Circuit * * *.' D.C., 154 F.Supp. 863, 866.
6
See, e.g., The Arrogante Barcelones, 7 Wheat. 496, 519, 5 L.Ed. 507; Sprigg v. Bank of Mount Pleasant, 10 Pet. 257, 264—265, 9 L.Ed. 416; Van Rensselaer v. Kearney, 11 How. 297, 322—329, 13 L.Ed. 703; Gregg v. Von Phul, 1 Wall. 274, 280—281, 17 L.Ed. 536; Morgan v. Railroad Co., 96 U.S. 716, 720—722, 24 L.Ed. 743; Reynolds v. United States, 98 U.S. 145, 158—160, 25 L.Ed. 244; Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618; Kirk v. Hamilton, 102 U.S. 68, 76—79, 26 L.Ed. 79; Daniels v. Tearney, 102 U.S. 415, 420—422, 26 L.Ed. 187.
7
See, e.g., Howard v. West Jersey & S.S.R. Co., 102 N.J.Eq. 517, 141 A. 755, aff'd on opinion below, 104 N.J.Eq. 201, 144 A. 919. See also Dawson, Estoppel and Statutes of Limitation, 34 Mich.L.Rev. 1; cases collected in 77 A.L.R. 1044; 130 A.L.R. 8; 15 A.L.R.2d 500; 24 A.L.R.2d 1413.
8
Compare 2 Utah Comp.Laws (1888), Tit. IX, §§ 3442—3445 (derived from Act of Feb. 1870, Utah Laws 1870, p. 17, §§ 229—232) with 2 Utah Comp.Laws (1888), Tit. II, §§ 3129—3168. See also Act of Jan. 18, 1867, Utah Laws 1867, p. 32.
9
See also Graffam v. Burgess, 117 U.S. 180, 6 S.Ct. 686, 29 L.Ed. 839, where a judgment debtor who had been deceived by his creditors was allowed to redeem land sold on execution even though the time limitation on redemptions had expired and despite a dissent which argued that it was 'of the utmost importance * * * that the right thus granted should be strictly exercised according to the statute. For * * * the favor of allowing the debtor one year more to save his land * * * only adds to his obligation to exercise the right thus granted in strict accordance with its terms.' Id., 117 U.S. at page 196, 6 S.Ct. at page 694.
10
See Dickerson v. Colgrove, 100 U.S. 578, 582, 25 L.Ed. 618 (citing discussions of the doctrine by Coke and Littleton). See also Sprigg v. Bank of Mount Pleasant, 10 Pet. 257, 265, 9 L.Ed. 416; Van Rensselaer v. Kearney, 11 How. 297, 322—325, 13 L.Ed. 703.
11
See, e.g., A. J. Phillips Company v. Grand Trunk Western Railway Co., 236 U.S. 662, 666—668, 35 S.Ct. 444, 445—446, 59 L.Ed. 774; Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226; Danzer & Co. v. Gulf & S.I.R. Co., 268 U.S. 633, 637, 45 S.Ct. 612, 613, 69 L.Ed. 1126. But cf. The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358, 'The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right. No question arises in this case as to the power of a court of admiralty to allow an equitable excuse for delay in suing, because no excuse of any kind has been shown.'
| 78
|
359 U.S. 275
79 S.Ct. 785
3 L.Ed.2d 804
Naomi PETTY, Administratrix of the Estate of Faye R. Petty, Deceased, Petitioner,v.TENNESSEE-MISSOURI BRIDGE COMMISSION, a Corporation,
No. 233.
Argued March 4, 1959.
Decided April 20, 1959.
Mr. Douglas MacLeod, St. Louis, Mo., for petitioner.
Mr. James M. Reeves, Caruthersville, Mo., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
When the Court in 1793 held that a State could be sued in the federal courts by a citizen of another State1 (Chisholm v. State of Georgia, 2 Dall. 419, 1 L.Ed. 440), the Eleventh Amendment2 was passed precluding it. But this is an immunity which a State may waive at its pleasure (State of Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 20, 78 L.Ed. 145) as by a general appearance in litigation in a federal court (Clark v. Barnard, 108 U.S. 436, 447 448, 2 S.Ct. 878, 882—883, 27 L.Ed. 780) or by statute. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 468—470, 65 S.Ct. 347, 352—353, 89 L.Ed. 389. The conclusion that there has been a waiver of immunity will not be lightly inferred. Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742. Nor will a waiver of immunity from suit in state courts do service for a waiver of immunity where the litigation is brought in the federal court. Chandler v. Dix, 194 U.S. 590, 591—592, 24 S.Ct. 766, 767, 48 L.Ed. 1129. And where a public instrumentality is created with the right 'to sue and be sued' that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal, courts. Cf. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287. Suits against agencies of a State based on maritime torts are no exception to these rules. Ex parte State of New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057.
2
The question here is whether Tennessee and Missouri have waived their immunity under the facts of this case.
3
Congress, under conditions specified in 33 U.S.C. § 525, et seq., 33 U.S.C.A. § 525 et seq., gave its consent to the construction of bridges over the navigable waters in the United States. Respondent is a 'body corporate and politic' created by Missouri (13 Vernon's Ann.Stat., Tit. 14, § 234.360) and Tennessee (P.L.1949, cc. 167, 168) acting urs uant to the Compact Clause of the Constitution. Art. I § 10, cl. 3.3 The compact prepared by the two States and submitted to the Congress provided in Art. I, §§ 1 and 2 that respondent should have the power to build a bridge and operate ferries across the Mississippi at specified points and in Art. I, § 3, that it should have the power 'to contract, to sue and be sued in its own name.' Congress granted its consent to the compact, 63 Stat. 930, stating in a proviso:
4
'That nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters, or any commerce between the States or with foreign countries, or any bridge, railroad, highway, pier, wharf, or other facility or improvement, or any other person, matter, or thing, forming the subject matter of the aforesaid compact or agreement or otherwise affected by the terms thereof.' (Italics added.)
5
The facts are that petitioner's husband was employed on a ferryboat operated by respondent as a common carrier across the Mississippi between a point in Missouri and one in Tennessee. He met his death when he was trapped in the pilothouse of the ferryboat as it sank, following a collision with another boat. Suit was brought under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, charging respondent with negligence.
6
The District Court granted the motion to dismiss, holding that respondent is an agency of the States of Tennessee and Missouri and immune from suit in tort. 153 F.Supp. 512. The Court of Appeals, agreeing with that view, affirmed. 254 F.2d 857. The case is here on certiorari. 358 U.S. 811, 79 S.Ct. 53, 3 L.Ed.2d 55.
7
The construction of a compact sanctioned by Congress under Art. I, § 10, cl. 3, of the Constitution presents a federal question. Delaware River Joint Toll Bridge Commission, Pennsylvania-New New Jersey v. Colburn, supra, 310 U.S. at page 427, 60 S.Ct. at page 1041. Moreover, the meaning of a compact is a question on which this Court has the final say.4 State ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713. The rule is no different when the contention is that a State has, by compact, waived its immunity from suit. Of course, when the alleged basis of waiver of the Eleventh Amendment's immunity is a state statute, the question to be answered is whether the State has intended to waive its immunity. Chandler v. Dix, supra. But where the waiver is, as here, claimed to arise from a compact between several States, the Court is called on to interpret not unilateral state action but the terms of a consensual agreement, the meaning of which, because made by different States acting under the Constitution and with congressional approval, is a question of federal law. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, supra. In making that interpretation we must treat the compact as a living interstate agreement which performs high functions in our federalism,5 including the operation of vast interstate enterprises.6
8
The Court of Appeals laid emphasis on the law of Missouri, which, it said, construes a sue-and-be-sued provision as not authorizing a suit for negligence against a public corporation. It likewise cited Tennessee decisions strictly construing statutes permitting suits against the State. We assume arguendo that this suit must be considered as one against the States since this bi-state corporation is a joint or common agency of Tennessee and Missouri. But we disagree with the construction given by the Court of Appeals to the sue-and-be-sued clause. For the resolution of that question we turn to federal not state law. Congress might of course adopt as federal law the law of either or both of the States. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, supra. Cf. Commissioner of Internal Revenue v. Stern, 357 U.S. 39, 78 S.Ct. 1047, 2 L.Ed.2d 1126; Helvering v. Stuart, 317 U.S. 154, 63 S.Ct. 140, 87 L.Ed. 154; Myers v. Matley, 318 U.S. 622, 63 S.Ct. 780, 87 L.Ed. 1043. But Congress took no such step here. It approved a sue-and-be-sued clause in a compact under conditions clause in a compact under conditions that make it clear that the States accepting it waived any immunity from suit which they otherwise might have.
9
This compact, approved by Congress in 1949, was made in an era when the immunity of corporations performing governmental functions was not in favor in the federal field. In Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784, decided nearly 10 years before the present compact was made, the authority to sue and be sued contained in a federal charter granted a government corporation was held to be broad enough to include suits in torts, at least where the duties relied upon 'have their source in contract even though the guilty agents may be merely tort-feasors.' Id., 306 U.S. at page 395, 59 S.Ct. at page 521. There the underlying contract was a bailment; here it is employment. To draw a distinction in either the Keifer case or in this case between tort and contract would be to 'make application of a steadily growing policy of governmental liability contingent upon irrelevant procedural factors. These, in our law, are still deeply rooted in historical accidents to which the expanding conceptions of public morality regarding governmental responsibility should not be subordinated.' Id., 306 U.S. at page 396, 59 S.Ct. at page 521.
10
This case, like the Keifer case, involves the launching of a governmental corporation into an industrial or business field. In view of the federal climate of opinion which by that time had grown up around the sue-and-be-sued clause, we cannot believe that Congress intended to confine it more narrowly here than in the Keifer case. But we need not rest on that alone. Congress, when it approved this compact, attached a condition that 'nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of * * * any court * * * of the United States over or in regard to any navigable waters or any commerce between the States * * *.' We need not stop to catalogue all the ends that may be served by this proviso. See S.Rep. No. 1198, 81st Cong., 1st Sess.; H.R.Rep.No.1429, 81st Cong., 1st Sess. It is argued that the proviso was included to make plain that the bonds issued by the agency were taxable by the United States. We must go further however, to find a rational purpose since another proviso of the Act of Congress specifically stated: 'That any obligations issued and outstanding, including the income derived therefrom, under the terms of the compact or agreement, and any amendments thereto, shall be subject to the tax laws of the United States.' Whatever may be the several effects of the other proviso with which we are presently concerned, one result seems to us clear. This proviso, read in light of the sue-and-be-sued clause in the compact, reserves the jurisdiction of the federal courts to act in any matter arising under the compact over which they would have jurisdiction by virtue of the fact that the Mississippi is a navigable stream and that interstate commerce is involved. There is no more apt illustration of the involvement of the commerce power and the power over maritime matters than the Jones Act. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 39—43, 63 S.Ct. 488, 490—492, 87 L.Ed. 596. This is not enlarging the jurisdiction of the federal courts but only recognizing as one of its appropriate applications the business activities of an agency active in commerce and maritime matters.
11
The States who are parties to the compact by accepting it and acting under it assume the conditions that Congress under the Constitution attached.7 So if there be doubt as to the meaning of the sue-and-be-sued clause in the setting of the compact prior to approval by Congress, the doubt dissipates when the condition attached by Congress is accepted and acted upon by the two States.
12
Finally we can find no more reason for excepting state or bi-state corporations from 'employer' as used in the Jones Act than we could for excepting them either from the Safety Appliance Act, 45 U.S.C.A. § 1 et seq. (United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567) or the Railway Labor Act, 45 U.S.C.A. § 151 et seq. (State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034). In the latter case we reviewed at length federal legislation governing employer-employee employee relationships and said, 'When Congress wished to exclude state employees, it expressly so provided.' 353 U.S. at page 564, 77 S.Ct. at page 1044. The Jones Act (46 U.S.C. § 688, 46 U.S.C.A. § 688) has no exceptions from the broad sweep of the words 'Any seaman who shall suffer personal injury in the course of his employment may' etc. The rationale of United States v. State of California, supra, and State of California v. Taylor, supra, makes it impossible for us to mark a distinction here and hold that this bi-state agency is not an employer under the Jones Act
13
Reversed.
14
Mr. Justice BLACK, Mr. Justice CLARK and Mr. Justice STEWART concur in the judgment and opinion of the Court with the understanding that we do not reach the constitutional question as to whether the Eleventh Amendment immunizes from suit agencies created by two or more States under state compacts which the Constitution requires to be approved by the Congress.
15
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
16
The Court, acknowledging the applicability of the provisions of the Eleventh Amendment to the Tennessee-Missouri Bridge Commission, states: 'The question here is whether Tennessee and Missouri have waived their immunity under the facts of this case.' 359 U.S. 277, 79 S.Ct. 787. The Court finds such a waiver in the words 'sue and be sued' included in Art. I, § 3, of the Compact creating respondent Commission. The Supreme Court of Missouri has said: 'A statutory provision that such a public corporation 'may sue and be sued' does not authorize a suit against it for negligence.' Todd v. Curators of the University of Missouri, 347 Mo. 460, 465, 147 S.W.2d 1063, 1064. The Tennessee courts have not ruled on the significance of this clause, but the Supreme Court of Tennessee has been emphatic in its holding that waivers of sovereign immunity from suit are to be narrowly construed. Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868. The Court of Appeals below held that in neither Missouri nor Tennessee would the language 'sue and be sued' render a public corporation liable for suit in tort. 254 F.2d 857. Three times during this Term the Court followed its settled practice in dealing with a doubtful state statute by deferring to interpretations of local law rendered by the lower federal courts.1 We should not now disregard this settled practice but should accept the interpretation of missouri and Tennessee law as found by the Court of Appeals for the Eighth Circuit.
17
Despite the fact that it has been authoritatively held that neither State waives sovereign immunity by the 'sue and be sued' provision, this Court finds that those words constitute a waiver by the States of the immunity from suit, in the federal courts, afforded them by the Eleventh Amendment.
18
The legal consequences of the terms of a Compact are not, as a generalized proposition, for the originating construction of this Court. What was held in State ex rel. Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713, does not support such a claim. That case arose under a Compact among eight States to control pollution in the Ohio River System. Seven of the States asserted that under the Compact West Virginia was obligated to appropriate funds for administrative expenses of the Joint Commission formed under the Compact. By a self-serving construction of its duty under the Compact, West Virginia resisted the claims of the other States to the Compact. Here was a typical controversy among States, a controversy as to the undertaking of a Compact among States, for the peaceful solution of which the Constitution designed Art. III, § 2. The very nature of the controversy made it necessary for this Court to construe the terms of the Compact, that is, the contractual obligations assumed by West Virginia via-a-vis the other parties to the Compact. The problem presented by this case has no kinship with that presented by State ex rel. Dyer v. Sims. This is a suit by an individual against the States over which the federal courts have jurisdiction only if the States have authorized such suits. Bot St ates deny having given such authorization and the Court of Appeals, has justified their denial in its finding of their law. Since a Compact comes into being through an Act of Congress, its construction gives rise to a federal question. Delaware River Joint Toll Bridge Commission, Pennsylvania-New Jersey v. Colburn, 310 U.S. 419, 427, 60 S.Ct. 1039, 1041, 84 L.Ed. 1287. But a federal question does not require a federal answer by way of a blanket, nationwide substantive doctrine where essentially local interests are at stake. See, e.g., Board of Com'rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313. A Compact, is after all, a contract. Ordinarily, in the interpretation of a contract, the meaning the parties attribute to the words governs the obligations assumed in the agreement. Similarly, since these States had the freedom to waive or to refuse to waive immunity granted by the Eleventh Amendment, the language they employed in the Compact, not modified by Congress, should be limited to the legal significance that these States have placed upon such language, not to avoid the obligations they undertook, but to enforce the meaning of conventional language used in their law.
19
This Court, however, finds that Congress, in granting the necessary consent to the Compact, imposed suability in the federal courts upon the States as a condition to its consent. No doubt Congress could have insisted upon a provision waiving immunity from suit in the federal courts as the price of obtaining its consent to the Compact. The fact that this Court in Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389—391, 59 S.Ct. 516, 517—519, 83 L.Ed. 784, indicated that governmental immunity from suit had fallen into disfavor may well have been a good reason why Congress should have done just this in passing upon the Tennessee-Missouri Compact. It is a bad reason for this Court to write in such a waiver when Congress has not done so. Surely the doctrine of sovereign immunity was not so obsolete that a waiver of immunity did not require a clear indication that Congress had exacted a waiver by the States as the price of consent. The disfavor which was referred to by this Court in Keifer has not attained such acceptance as to lead this Court to disregard the strictness with which States continue to enforce it. See Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121. Moreover, the Court's conclusion that Congress must have understood the 'sue and be sued' clause to be a waiver of the Eleventh Amendment and that therefore their consent must have been predicated on that understanding finds no support in the legislative history.2
20
As the evidence from which the Court finds an implied imposed withdrawal of the States' immunity from suit is tenuous, the basis for its finding of an explicit imposition of waiver is non-existent. Such an explicit imposition is deemed to lie in the language in the Act which states that nothing in the Compact 'shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, * * * over or in regard to any navigable waters, or any commerce etw een the States * * *.' Read as this should be read on the natural understanding of the phrasing, there is nothing to indicate that the subject of immunity from suit was in contemplation. In addition, this clause has a history of more than one hundred years which confirms and emphasizes the plain intendment of the language.
21
The use of clauses preserving 'jurisdiction * * * of any court' dates back to a Compact between New York and New Jersey approved by Congress in 1834: 'Provided, That nothing therein contained shall be construed to impair or in any manner affect, any right of jurisdiction of the United States in and over the islands or waters which form the subject of the said agreement.'3 Substantially this same language may be found in other early congressional Acts consenting to interstate Compacts.4 An alternate but similar provision regarding federal jurisdiction is found in some other congressional consents: 'Nothing herein contained shall be construed to affect the right of the United States to regulate commerce, or the jurisdiction of the United States over navigable waters.'5 A third variation has been: 'Provided, That nothing therein contained shall be construed as impairing or in any manner affecting any right or jurisdiction of the United States in and over the region which forms the subject of said agreement.'6 In not one of the ten cited Compacts thus approved was there any language which could be construed as a waiver of the constitutional immunity granted to States from suits in the federal courts. And yet the language before us, in essence conveying the same meaning, is said to have that effect.7 Indeed, the identical clause upon which the Court today rests its finding of an imposed waiver of the Eleventh Amendment has appeared in at least two prior consents to Compacts. One of these Compacts contained a 'sue and be sued' provision,8 but the other did not.9 The history of these federal jurisdiction provisions demonstrates beyond peradventure that the clause was unrelated to the question of waiver of Eleventh Amendment immunity.
22
The conclusion that what the language in the Act alone would not do it accomplishes when read 'in light of the sue-and-be-sued clause,' 359 U.S. 281, 79 S.Ct. 790, violates the very congressional language on which it relies. Had there been no 'sue and be sued' clause in the Compact, this Bridge Commission could not have been sued in the federal courts despite the fact that it was operating a vessel on navigable water and in interstate commerce. The Eleventh Amendment would not have permitted it. By finding that language in the Compact permits this suit, the Court is construing the Compact to 'affect,' by enlarging, the jurisdiction of the United States courts over activities conducted in nte rstate commerce.
23
The constitutional requirement of consent by Congress to a Compact between the States was designed for the protection of national interests by the power to withhold consent or to grant it on condition of appropriate safeguards of those interests. The Compact may impair the course of interstate commerce in a way found undesirable by Congress. Or the national interest may derive from the necessity of maintaining a properly balanced federal system by vetoing a Compact which would adversely affect States not parties to the Compact. To imply from a congressional consent changes in the law of the Compact States of merely local concern, such as dislodging a State's policy on suability for torts attributable to the administration of the bridge (while necessarily leaving unaffected the State's suability for torts not attributable to its administration), would constitute a complete disregard of the purpose of the Constitution in requiring congressional consent to Compacts. Such disregard would introduce a wholly irrational disharmony in the application of local policy.
24
In view of the authorities cited by the Court for the proposition that the Jones Act applies to the Commission,10 I assume that the Court is referring solely to the substantive applicability of that Act. Believing as I do that the federal courts have no jurisdiction over this suit, I do not reach that substantive question.
25
I would affirm the judgment of the Court of Appeals for the Eighth Circuit.
1
'When Chisholm dared to sue the 'sovereign state' of Georgia, all the states were so indignant that Congress moved with vehement speed to prevent subsequent affronts to the dignity of states. More than the dignity of a sovereign state was probably at issue, however. When the Eleventh Amendment was proposed many states were in financial difficulties and had defaulted on their debts. The states could therefore use the new amendment not only in defense of theoretical sovereignty but also in a more practical way to forestall suits by individual creditors!' Irish and Prothro, The Politics of American Democracy (1959), p. 123.
2
'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'
3
'No State shall, without the Consent of Congress, * * * enter into any Agreement or Compact with another State * * *.'
4
That is true even though the matter in dispute concerns a question of state law on which the courts or other agencies of the State have spoken. State ex rel. Dyer v. Sims, 341 U.S. 22, 30—32, 71 S.Ct. 557, 561—563, 95 L.Ed. 713. While we show deference to state law in construing a compact, state law as pronounced in prior adjudications and rulings is not binding. Ibid.
5
The Court in Hinderlider v. La Plata Co., 304 U.S. 92, 104, 58 S.Ct. 803, 808, 82 L.Ed. 1202, spoke of two methods under our Constitution of settling controversies between States. One is our original jurisdiction defined in Art. III, § 2. The other is the compact: 'The compact—the legislative means—adapts to our Union o so vereign States the ageold treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 723—725, 9 L.Ed. 1233.'
6
See Port of New York Authority, 42 Stat. 174; New York and New Jersey Tunnel Agreement, 41 Stat. 158; Kansas city Water Works Agreement, 42 Stat. 1058; New York-Vermont Bridge Agreement, 45 Stat. 120; Delaware River Toll Bridge Compact, 61 Stat. 752; Menominee River Bridge Compact, 45 Stat. 300.
7
'Historically the consent of Congress, as a prerequisite to the validity of agreements by States, appears as the republican transformation of the needed approval by the Crown. But the Constitution plainly had two very practical objectives in view in conditioning agreement by States upon consent of Congress. For only Congress is the appropriate organ for determining what arrangements between States might fall within the prohibited class of 'Treaty, Alliance, or Confederation', and what arrangements come within the permissive class of 'Agreement or Compact.' But even the permissive agreements may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. Therefore, Congress must exercise national supervision through its power to grant or withhold consent, or to grant it under appropriate conditions. The Framers thus astutely created a mechanism of legal control over affairs that are projected beyond State lines and yet may not call for, nor be capable of, national treatment. They allowed interstate adjustments but duly safeguarded the national interest.' Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685, 694—695.
1
Sims v. United States, 359 U.S. 108, 79 S.Ct. 641, 3 L.Ed.2d 667; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 523, 3 L.Ed.2d 524; United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 523, 3 L.Ed.2d 541.
2
See S.Rep. No. 1198, 81st Cong., 1st Sess; H.R.Rep. No. 1429, 81st Cong., 1st Sess.; 95 Cong.Rec. 14589—14590, 14982 14983. In letters to the House and Senate Committees considering the bill consenting to this Tennessee-Missouri Compact, Acting Secretary of Commerce Thomas C. Blaisdell, Jr., expressed his belief that 'this provision is intended to avoid the application to the Federal Government of the specific provision found in the compact that 'such bonds shall be the negotiable bonds of the Commission, the income from which shall be tax free.' * * *' S.Rep. No. 1198, supra, at 3; H.R.Rep. No. 1429, supra, at 3. To avoid the possibility that the provision was not sufficiently clear, Congress added specific language stating that the bonds issued by the Commission were taxable by the United States. 63 Stat. 930.
3
4 Stat. 711.
4
20 Stat. 483; 21 Stat. 352 (added 'jurisdiction of its courts'); 25 Stat. 553 (added 'jurisdiction of its courts'); 34 Stat. 861.
5
40 Stat. 515. Similar language is found in 41 Stat. 158.
6
42 Stat. 180. See similar language in 45 Stat. 301; 45 Stat. 121.
7
In some Compacts there have been similar though not identical federal jurisdiction clauses in the Compacts themselves, although those Compacts did not contain suability provisions. 66 Stat. 74, 77—78; 68 Stat. 690, 697. In the recently approved Compact between California and Oregon involving the Klamath River Basin, 71 Stat. 497, the Compact itself contains clauses rendering suits possible against state agencies and also a clause reserving federal jurisdiction, in its terms similar to the provisions in prior congressional consents to Compacts. Yet another provision states that nothing in the Compact shall be construed as 'Enlarging, diminishing or otherwise affecting the jurisdiction of the courts of the United States.' 71 Stat. 508. It was, clearly enough, not believed that these provisions were inconsistent with each other.
8
49 Stat. 1058, 1060.
9
64 Stat. 568, 571.
10
Suit in United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567, was instituted by the United States, and jurisdiction over such an action is not within the proscription of the Eleventh Amendment. In State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034, the State intervened in an action brought against the National Railroad Adjustment Board, hence voluntarily submitted itself to the jurisdiction of the federal courts.
| 78
|
359 U.S. 290
79 S.Ct. 756
3 L.Ed.2d 815
James P. MITCHELL, Secretary of Labor, United States Department of Labor, Petitioner,v.KENTUCKY FINANCE COMPANY, Inc., and Kentucky Discount, Inc.
No. 161.
Argued March 3, 1959.
Decided April 20, 1959.
Miss Bessie Margolin, Washington, D.C., for petitioner.
Mr. Harold H. Levin, New York City, for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner, the Secretary of Labor, brought suit to enjoin respondents from violating the overtime and record-keeping provisions of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq. Respondents, two closely affiliated subsidiaries of a common corporate parent, share an office in Louisville, Kentucky. They are engaged in the business of making personal loans, in amounts up to $300, to individuals, and in purchasing conditional sales contracts from dealers in furniture and appliances. Respondents share the services of a common manager and nine full-time and two part-time employees.
2
By pretrial stipulation ad c oncessions at trial, respondents in effect conceded that an injunction should issue unless their employees are exempted from the overtime and record-keeping provisions of the statute by § 13(a)(2) thereof, which provides that such requirements shall not apply to
3
'* * * any employee employed by any retail or service establishment, more than 50 per centum of which establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A 'retail or service establishment' shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * *'
4
As concededly more than 50 percent of respondents' loan and discount business is with Kentucky residents and none of it involves 'resale' transactions, the sole question involved in this litigation is whether respondents should be considered as 'retail or service establishment(s),' engaged in the making of 'sales of goods or services,' within the meaning of § 13(a)(2). The burden is, of course, upon respondents to establish that they are entitled to the benefit of the § 13 exemption, since coverage apart from the exemption is admitted.
5
After trial the District Court found that respondents had not proved that they are a 'retail or service establishment' within the meaning of § 13(a)(2), and issued an injunction restraining respondents from further violating the Act. D.C., 150 F.Supp. 368. The Court of Appeals reversed. 6 Cir., 254 F.2d 8. We granted certiorari, 358 U.S. 811, 79 S.Ct. 39, 3 L.Ed.2d 55, to resolve the conflict between the decision of the court below and that of the Court of Appeals for the First Circuit in Aetna Finance Co. v. Mitchell, 1 Cir., 247 F.2d 190.
6
Until 1949, § 13(a)(2) exempted from the overtime and record-keeping provisions of the Fair Labor Standards Act 'Any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.' The Administrator early ruled that personal loan companies and other business entities in what may broadly be called the 'financial industry' were not within the scope of that exemption.1 When Congress amended the Act in 1949 it provided that pre-1949 rulings and interpretations by the Administrator should remain in effect unless inconsistent with the statute as amended. 63 Stat. 920, § 16(c), 29 U.S.C.A. § 208 note. The narrow issue before us, then, is whether Congress in the 1949 amendment of § 13(a)(2) broadened the scope of that section so as to embrace personal loan companies.
7
The present § 13(a)(2) differs from its predecessor primarily in the addition of a definition of the term 'retail or service establishment,' such an establishment being one '75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * *' Respondents argue that they plainly come within this definition because (1) more than 75 percent of their loan and discount business is 'not for resale,' and (2) their activities are recognized in the financial industry as being the 'retail end' of that industry. They claim that the intent of Congress in the 1949 amendment was to provide that 'local' business was exempt from the overtime requirements of the statute, and that their activities are precisely the kind the § 13 exemption was designed to embrace.
8
We do not think the issue before us can be disposed of so simply. The Government points out that the concept of 'sale' is inherently inapposite to the lending of money at interest, and urges that because respondents cannot properly be said to be engaged in the 'saes of goods or services' the exemption cannot as to them come into play even if their activities are recognized as 'retail' in the financial industry. Respondents concede that they are not engaged in the sale of 'goods,' but insist that their activities do constitute a 'sale' of a 'service' within the intendment of § 13(a)(2), characterizing that 'service' as credit or the use of money.2
9
This is not a case where perforce we must attempt to resolve a controversy as to the true meaning of equivocal statutory language unaided by any reliable extrinsic guide to legislative intention. On the contrary, the debates and reports in Congress with reference to this section of the statute are detailed and explicit. To those legislative materials we now turn.
10
The legislative history of the 1949 amendment to § 13(a)(2) demonstrates beyond doubt that Congress was acting in implementation of a specific and particularized purpose. Before 1949 the Administrator, in interpreting the term 'retail or service establishment,' then nowhere defined in the statute, had, in addition to excluding from the coverage of the exemption personal loan companies and other financial institutions, ruled that a business enterprise generally would not qualify as such an establishment unless 75 percent of its receipts were derived from the sale of goods or services 'to private persons to satisfy their personal wants,' on the theory that sales for business use were 'nonretail.'3 This administratively announced 'business use' test was generally approved by this Court in Roland Electrical Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383.
11
Congress was dissatisfied with this construction of the statute, and over the objection of the Administrator, who sought to have his 'business use' test legislatively confirmed,4 passed the 1949 amendment to § 13(a)(2) to do away with the rule that sales to other than individual consumers could not qualify as retail in deciding whether a particular business enterprise was a 'retail or service establishment,' and to substitute a more flexible test, under which selling transactions would qualify as retail if they (1) did not involve 'resale,' and (2) were recognized in the particular industry as retail. We find nothing in the debates or reports which suggests that Congress intended by the amendment to broaden the fields of business enterprise to which the exemption would apply. Rather, it was time and again made plain that the amendment was intended to change the prior law only by making it possible for business enterprises otherwise eligible under existing concepts to achieve exemption even though more than 25 percent of their sales were to other than private individuals for personal consumption, provided those sales were not for resale and were recognized in the field or industry involved as retail.5 Thus enterprises in the financial field, none of which had previously been considered to qualify for the exemption regardless of the class of persons with which they dealt, and regardless of whether they were thought of in the financial industry as engaged in 'retail financing,' remained unaffected by the amendment of § 13(a)(2).
12
Any residual doubt on this score is dispelled by the explicit and repeated statements of the sponsors of the amendatory legislation and in the House and Senate Reports to the effect that 'The amendment does not exempt banks, insurance companies, building and loan associations, credit companies, newspapers, telephone companies, gas and electric utility companies, telegraph companies, etc., because there is no concept of retail selling or servicing in these industries. Where it was intended that such businesses have an exemption one was specifically provided by the law * * *.'6 (Emphasis added.) It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed. A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095; see also Powell v. United States Cartridge Co., 339 U.S. 497, 517, 70 S.Ct. 755, 766, 94 L.Ed. 1017. In the light of the abundant pointed evidence that Congress did not intend that businesses like those of respondents be exempted from the overtime and record-keeping provisions of the statute by § 13(a)(2), we would not be justified in straining to bring respondents' activities within the literal words of the exemption.
13
Reversed.
14
Mr. Justice STEWART took no part in the consideration or decision of this case.
1
Interpretative Bull. No. 6, 1942 WH Manual 326, 29—31. That ruling has been carried over under the amended version of § 13(a)(2). 29 CFR, 1958 Supp., § 779.10.
2
The term 'service' is nowhere defined in the Fair Labor Standards Act.
3
See Interpretative Bull. No. 6, 1942 WH Manual 326, 14, 18.
4
The Administrator supported the so-called Lesinski bill, which would have adopted the Administrator's 'business use' test in the definition of 'retail or service establishment.'
5
See H.R.Conf.Rep., 95 Cong.Rec. 14931, U.S.Code Cong.Service 1949, p. 2263: '(§ 13(a)(2)) * * * clarifies the existing exemption by defining the term 'retail or service establishment' and stating the conditions under which the exemption shall apply. This clarification is needed in order to obviate the sweeping ruling of the Administrator and the courts that no sale of goods or services for business use is retail. See Roland Electrical Co. v. Walling (326 U.S. 657, 66 S.Ct. 413, 0 L .Ed. 383); * * *'; Report of Majority of Senate Conferees, 95 Cong.Rec. 14877: 'The conference agreement exempts establishments which are traditionally regarded as retail. * * *' See also the statement of Senator Holland, sponsor of the legislation in the Senate: 'The only substantial difference between the Administrator and his recommendation (which would have written the 'business use' test into the statute) and the amendment which we propose is that we propose to do way with this artificial distinction between a retail sale on the one hand and a business sale on the other * * *.' 95 Cong.Rec. 12498. For other authoritative expressions of the legislative intent in this regard, see 95 Cong.Rec. 11115—11116, 12492—12493, 12496, 12502, 12506, 12508.
6
H.R.Conf.Rep., 95 Cong.Rec. 14932, U.S.Code Cong.Service 1949, p. 2265. See also Report of Majority of Senate Conferees, 95 Cong.Rec. 14877; statement of Senator Holland, 95 Cong.Rec. 12505 12506.
Respondents urge that statements of this kind have no application to them because they are not 'credit companies,' in that such term properly is to be restricted to comercial credit companies. We agree with the observation of the Court of Appeals in Aetna Finance Co. v. Mitchell, supra, 247 F.2d at page 193, that this contention is 'quite unconvincing.' There is nothing which indicates that Congress was using the term 'credit companies' in any specialized sense, and indeed one of respondents' own expert witnesses testified that personal loan companies are 'credit institutions.' We think it clear that the House and Senate Conferees used 'credit companies' to mean nothing more nor less than companies which deal in credit, as respondents concededly do.
| 67
|
359 U.S. 255
79 S.Ct. 746
3 L.Ed.2d 789
UNITED STATES of America, Appellant,v.George Donald SHIREY.
No. 72.
Argued Jan. 19, 1959.
Decided April 20, 1959.
Mr. Malcolm Anderson, Washington, D.C., for appellant.
Mr. Donn I. Cohen, York, Pa., for appellee.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
On July 23, 1954, an information was filed in the District Court for the Middle District of Pennsylvania charging appellee with a violation of 18 U.S.C. § 214, 18 U.S.C.A. § 214 (originally § 1 of the Act of December 11, 1926, 44 Stat. 918). That statute provides:
2
'Whoever pays or offers or promises any money or thing of value, to any person, firm, or corporation in consideration of the use or promise to use any influence to procure any appointive office or place under the United States for any person, shall be fined not more than $1,000 or imprisoned not more than one year, or both.'
3
The information alleged that appellee had offered S. Walter Stauffer, a member of Congress from Pennsylvania to contribute $1,000 a year to the Republican Party in consideration of Stauffer's use of influence to procure for appellee the postmastership of York, Pennsylvania. The District Court granted a motion to dismiss for failure to state facts sufficient to constitute an offense against the United States. 168 F.Supp. 382. The Government appealed directly to this Court, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, and we noted probable jurisdiction, 358 U.S. 806, 79 S.Ct. 22, 3 L.Ed.2d 53, to determine whether the allegations of the information constituted a violation of 18 U.S.C. § 214, 18 U.S.C.A. § 214.1
4
We turn first to the language of the statute. There are alternative constructions of its language. One sensible reading is to say that even though the Republican Party was to be the ultimate recipient of the money, this was a promise to Stauffer of money (which it plainly was) in consideration of his use of influence. Since Stauffer is a 'person,' the statute covers the alleged offense. It may be urged that although a promise was made to Stauffer it was not a promise of money to him. Since the word 'to' immediately follows the words 'money or thing of value' and not the word 'promises,' it is possible to read the statute as requiring that the recipient of the money or thing of value be the 'person, firm, or corporation' which the statute describes. But either construction of the statute covers the classic three-party case: e.g., A tells X he will give $1,000 to Y if X will use influence to get him a job. Under the first construction this is a promise of $1,000 to X in consideration of the use of influence. Under the second construction this is a promise to give money to Y in consideration of a promise to use influence; a standard third-party beneficiary situation. The only difficulty with this second construction in the context of this case is the necessity of finding that the Republican Party is a 'person fi rm, or corporation,' as those words are used in the statute. The Republican Party is not a legal entity. It is an amorphous group of individuals that acts and only can act through persons. Its funds are received and managed by persons. Certainly the word 'person' in the statute is broad enough to include the Republican Party, and since the content and manifest purpose of the statute confirm, as we shall see, such a construction, it would unjustifiably contract the law to withdraw gifts to the Republican Party from its scope.2 Thus, no matter how the statute is read, one thing is clear—its terms cover this case. Shirey's endeavor to purchase himself a postmastership as alleged has been interdicted by the Congress. Awkwardness is not ambiguity, nor do defined multiple meanings, each of which is satisfied by the allegations of the information, constitute a want of definiteness.
5
Not only does the compulsion of language within the statutory framework seem clear, but the purpose and history of the enactment powerfully reaffirm the meaning yielded by its language. The bill was first introduced in Congress with a Committee Report which stated:
6
'This bill seeks to punish the purchase and sale of public offices. Certain Members of Congress have brought to the attention of the House both by speeches on theflo or and statements before the Judiciary Committee a grave situation, disclosing corruption in connection with postal appointments in Mississippi and South Carolina. It is believed that this bill will prevent corrupt practices in connection with patronage appointments in the future.' H.R.Rep. No. 1366, 69th Cong., 1st Sess.
7
The information in this case deals with the very kind of situation that gave rise to the provision under scrutiny. In the years preceding the enactment of this legislation members of Congress referred to contributions to party treasuries and to campaign funds, as well as direct payments to those in charge of patronage, as among the corrupt methods of obtaining postmasterships.3 See, e.g., 65 Cong.Rec. 1408—1413. These revelations on the floor of the Congress, as disclosed by the authoritative history of enactment, indicate the aim of Congress to proscribe payments to political parties in return for influence. Indeed this form of payment was a major concern of Congress. Certainly we cannot infer that Congress expressed this concern in self-defeating terms.4
8
Statutes, including penal enactments, are not inert exercises in literary composition. Thy a re instruments of government, and in construing them 'the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down.' United States v. Whitridge, 197 U.S. 135, 143, 25 S.Ct. 406, 408, 49 L.Ed. 696. This is so because the purpose of an enactment is embedded in its words even though it is not always pedantically expressed in words. See United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Statutory meaning, it is to be remembered, is more to be felt than demonstrated, see United States v. Johnson, 221 U.S. 488, 496, 31 S.Ct. 627, 55 L.Ed. 823, or, as Judge Learned Hand has put it, the art of interpretation is 'the art of proliferation a purpose.' Brooklyn Nat. Corp. v. Commissioner of Internal Revenue, 2 Cir., 157 F.2d 450, 451. In ascertaining this purpose it is important to remember that no matter how elastic is the use to which the term scientific may be put, it cannot be used to describe the legislative process. That is a crude but practical process of the adaptation by the ordinary citizen of means to an end, except when it concerns technical problems beyond the ken of the average man.
9
Applying these generalities to the immediate occasion, it is clear that the terms, the history, and the manifest purpose of 18 U.S.C. § 214, 18 U.S.C.A. § 214, coalesce in a construction of that statute which validates the information against Shirely.5 The evil which Congress sought to check and the mischief wrought by what it proscribed are the same when the transaction is triangular as when only two parties are involved.6 It is incredible to suppose that Congress meant to prohibit Shirey from giving $1,000 to Stauffer, to be passed on by the latter to the Party fund, but that Shirey was outside the congressional prohibition for securing the same influence by a promise to deposit $1,000 directly in the Party's fund. That is not the kind of finessing by which this Court has heretofore allowed penal legislation to be construed. See, e.g., United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355, and United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341.
10
he judgment is reversed.
11
Reversed.
12
Mr. Justice DOUGLAS, concurring.
13
The argument that § 214 requires the payment of money or other thing of value be made to the person who is to use his influence 'to procure' an 'appointive office' is not frivolous. The legislative history shows that that was one of the evils against which Congress acted. But I am also convinced that Congress moved against the other evil as well—payment to a political party for the use of 'influence to procure any appointive office.' The abuse in appointing postmasters during the Coolidge administration was the occasion for the law; and then as now (if the allegations in the information are to be believed) payments for those offices sometimes went to the party, sometimes to a politician. As Congressman Stevenson, who later introduced the measure in the House, said in answering a question as to who gets the money paid for 'the appointive office':
14
'Either it goes into his pocket and the pockets of his machine or it goes into the coffers of the Republican Party. If it does, it is the most blatant defiance of the civil service law that any party has ever had the hardihood to put over, and it is as disgraceful as the Teapot Dome proposition any day.' 65 Cong.Rec. 1410.
15
The words used in § 214 are broad enough to include both evils.
16
I have sometimes felt, as my dissents show (see United States v. Classic, 313 U.S. 299, 331, 61 S.Ct. 1031, 1045, 85 L.Ed. 1368; Rosenberg v. United States, 346 U.S. 273, 310, 73 S.Ct. 1152, 1170, 97 L.Ed. 1607; United States v. A & P Trucking Co., 358 U.S. 121, 127, 79 S.Ct. 203, 207, 3 L.Ed.2d 165, that the Court has not always construed a criminal statute so as to resolve doubts in favor of the citizen. But that principle—as highly preferred as any in a government of laws—does no service here. To hold the conduct charged in this information outside the Act is to find ambiguities and doubts not obvious on the face of the legislation, nor justifiably imputed from the legislative history. The inclusion in the original version of § 215 of limiting words can indicate no more than that Congress intended a narrower scope for that section than for § 214. It does not show that § 214 was to be similarly narrowed.
17
Accordingly I join the opinion of the Court.
18
Mr. Justice HARLAN, whom Mr. Justice BLACK, Mr. Justice WHITTAKER, and Mr. Justice STEWART join, dissenting.
19
The Government's primary contention in this case is that an offer to a Congressman to make contributions of money to his political party is an offer of a 'thing of value' to that Congressman within the meaning of 18 U.S.C. § 214, 18 U.S.C.A. § 214. The Court, in ignoring this contention, appears to believe that it is not supportable. The Court holds, however, that the information here involved nevertheless states an offense under § 214 on either of two theories, (1) that the offer alleged is an offer of money to Congressman Stauffer (a theory not even advanced by the Government), or (2) that the Republican Party is a 'person' within the meaning of § 214, and that the offer alleged is an offer of money to that 'person.' In light of the history of § 214, and with proper regard for the principle that an essentially ambiguous criminal statute is to be strictly construed, I cannot agree that this information states an offense under § 214.
20
Dealing with the Government's principal contention, which the Court bypasses, the information does not charge that Congressman Stauffer would have received any direct, tangible benefit from the payment of money to the Republican Party. The initial problem, therefore, is to decide whether the term 'thing of value' is sufficiently broad to embrace any act which might constitute an inducement to the person to whom the offer to do the act is made. The history of the statute of which § 214 was passed as a part sheds clarifying light on this problem.
21
Title 18 U.S.C. § 214, 18 U.S.C.A. § 214 was originally enacted as § 1 of a statute (44 Stat. 918) desiged to 'punish the purchase and sale of public offices.' See H.R.Rep. No. 1366, 69th Cong., 1st Sess. Section 2 of that statute read on the 'seller' of influence as opposed to the 'purchaser,' and in the 1948 codification became what is now the first paragraph of 18 U.S.C. § 215, 18 U.S.C.A. § 215.1 As originally enacted § 2 provided:
22
'It shall be unlawful to solicit or receive from anyone whatsoever, either as a political contribution, or for personal emolument, any sum of money or thing of value, whatsoever, in consideration of the promise of support, or use of influence, or for the support or influence of the payee, in behalf of the person paying the money, or any other person, in obtaining any appointive office under the Government of the United States.' (Emphasis added.)
23
I think it plain that this language would not have reached one who solicited, in consideration of the promise of his influence, a general political contribution of money to be paid directly to his party. Under such circumstances the political party would be the 'payee' of the money, but it would be the influence of the solicitor, as opposed to that of the party, which was promised. And although the payment of money to the solicitor's party might well be 'valuable' to him in the sense that it would induce him to exert influence, the use of the word 'payee,' an extremely unconventional term to describe the recipient of indefinite and intangible benefits which might flow from the payment of money to another, shows that it was not contemplated that such an indirect inducement should be considered a 'thing of value' in the statutory sense.
24
Confirmation for this view is found in a letter of Attorney General Clark written to the Senate on February 19, 1946, in connection with an amendment to 44 Stat. 918 proposed to deal with the solicitation of fees by private employment agencies for referring persons to federal employment openings. In contrasting the language of the proposed amendment with that of § 2 of 44 Stat. 918 the Attorney General was of the opinion that the solicitation provisions of the existing statute reached only the solicitation of political contributions or emoluments 'on behalf of the solicitor himself.'2
25
This proposed amendment was enacted into law in 1951, 65 Stat. 320. Its effect was merely to add to present § 215 what is now the second paragraph of that section.3 The amendment did not disturb the first paragraph of § 215, which alone is relevant in the 'use of influence' context, and which, as it had formerly stood in 44 Stat. 918, had been construed by the Attorney General as already indicated.
26
In the 1948 codification the Revisers, in carrying over into § 215 of the preent Code § 2 of 44 Stat. 918, omitted the language which had expressly restricted its scope to a situation where the influence of the 'payee' is promised.4 But it is apparent that this omission was not intended to work a substantive change in the statute.5 Under these circumstances the solicitation provisions of present § 215 must be read in the light of their history, and so read they require the conclusion that their impact is restricted to 'the solicitation or receipt of compensation * * * on behalf of the solicitor himself.'6
27
Given this conclusion, I turn once more to § 214, the provision directly involved in this case. The Government has strongly urged, in an effort to avoid the District Court's holding that the specific mention of 'political contribution' in § 215 implied its exclusion from the term 'thing of value' in § 214, that the two sections are plainly reciprocal and must be construed in pari materia. I agree. There is not the slightest indication in the sparse legislative history that Congress intended that the 'purchase' and 'sale' provisions of the statute should have different scope, nor has any reason which would reasonably support a difference in scope been suggested to us.7 I cannot believe that Congress intended that although a Congressman soliciting the kind of party contribution charged in this information in return for his influence would not be covered under § 215 (as the Court appears to concede is so), nevertheless the individual from whom the contribution was solicited would, by promising to make it, become guilty of a crime against the United States under § 214 (as the Court now holds). For surely Congress could not have been less eager to reach corruption on the part of government officials than attempts by individuals to take advantage of that corruption. It follows that just as the solicitation of political contributions to be paid directly to a party treasury in return for the promise of the solicitor's influence is not interdicted by § 215, the converse of that situation, the offering to a Congressman of a contribution payable directly to his party's treasury, in return for the promise of his influence, is not reached by § 214.8
28
Given these considerations, even if the Court were right in holding that the Conduct here alleged is an offer of money to Congressman Stauffer I would think it wrong in going on to decide that the information states an offense under § 214. Entirely apart from the statutory history, however, I think it a remarkable construction of the language of § 214 to find that an offer to X to pay money to Y, with whom X is not claimed to have any financial relationship, is an offer of money to X. Under these circumstances there is an offer to X, but it is plainly an offer to perform an act (pay money to Y) rather than an offer of money to X. The statute does not say that any offer to a person involving money is rendered criminal if the other statutory criteria are met, but only that an offer of money to a person may be.
29
My reading of the statute makes it unnecessary to decide whether, as the Government further contends and the Court holds, the Republican Party is a 'person' within the meaning of § 214, although I would have considerable difficulty in holding that what is characterized by the Court as an 'amorphous group of individuals' fits within this term, particularly when Congress saw fit explicitly to add references to 'firm' and 'corporation' to secure the inclusion of these entities.9 I think that the use of the words 'of the payee' in what is now § 215 merely made explicit what was intended to be implicit in § 214—that the 'influence' sought must be that of the 'person, firm, or corporation' to whom any money or thing of value is promised or paid.10 And although the information does not charge in terms that it was the influence of Congressman Stauffer, as opposed to that of the Republican Party, which was sought by appellee, it is clear from the brief and argument of the Government in this Court that it stands on the former construction of the information.
30
It is of course true, as the Government argues, that relatively indirect and subtle inducements may contain the seeds of the same mischief as the crudest bribery. But 'it would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.' United States v. Wiltberger, 5 Wheat. 76, 96, 5 L.Ed. 37. In light of the considerations discussed above it cannot be said that Congress in 18 U.S.C. § 214, 18 U.S.C.A. § 214 has unequivocally seen fit to outlaw conduct of the kind charged in this information.11 The most that can be said in favor of the Government's position is that the statute is highly ambiguous in the respect involved here, and this in any event should require rejection of the Government's position under principles discussed in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. I would affirm.
1
The information charges as follows:
'On or about the 5th day of December 1953, in the City of York, Middle District of Pennsylvania, and within the jurisdiction of this Court, George Donald Shirey, in violation of the Act of Congress, June 25, 1948, c. 645, Sec. 1, 62 Stat. 694, 18 U.S.C. Sec. 214 (18 U.S.C.A. § 214), did Knowingly, Wilfully and Unlawfully offer or promise to S. Walter Stauffer, a Member of Congress of the 19th Congressional District of Pennsylvania, to donate $1,000 a year to the Republican Party to be used as they see fit, in consideration of the use or the promise to use any influence to procure for him the appointive office, under the United States, of Postmaster of York, Pennsylvania.'
2
Whether the word 'person' in a particular statute includes a particular body, a corporation, or association is essentially a matter of construction of that statute, aided, where possible, by general statutory definitions. If the purpose of a statute is such as to dictate the inclusion of a particular body within its scope then the statute is generally so interpreted. Since 18 U.S.C. § 214, 18 U.S.C.A. § 214, was aimed at prohibiting the purchase of influence, it is difficult to conclude that Congress would prohibit payments to firms and corporations and not proscribe payments to political organizations, since the influence of political parties in securing jobs and their involvement in the patronage process is greater than that of private companies. We must be blind not to know that among the abuses which led to the legislation
were gifts to political parties and campaign treasuries, etc. Although these mostly took the form of payments to local chairmen, etc., there is no reason to assume that Congress meant to proscribe the payment to the officer of the Party but if a check were made out to the Party itself, a check which could be cashed and used by the officers of the Party, it was not outlawed.
In State of Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346, the Court decided that § 7 of the Sherman Act, 15 U.S.C.A. § 15, allowing 'any person' to bring a treble damage action, allowed the State of Georgia to bring such an action. This was in the face of an earlier case holding that the same act did not allow the United States to sue. In reconciling the cases the Court pointed out that the scope of the word 'person' depended on its 'legislative environment,' and pointed to the differences in considerations which led to the exclusion of the United States and the inclusion of Georgia.
In State of Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 727, 78 L.Ed. 1307, a statute taxed 'persons' selling liquor. Person was defined to include 'partnership, association, company, or corporation, as well as a natural person.' The Court decided this allowed a State to be taxed, saying that the meaning of the word person 'depends upon the connection in which the word is found.'
In Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 422, 37 L.Ed. 259, the Court said that the word 'person' in a Texas statute of limitations included the United States, and thus the United States could claim the benefit of the statute. The Court said that 'the word 'person' in the statute would include them as a body politic and corporate.'
Under these principles the statutory context here clearly calls for including the Republican Party within the term 'person.'
3
The bill was introduced by Congressman Stevenson. 67 Cong.Rec. 6419. Two years before, in describing the 'corruption in connection with postal appointments in * * * South Carolina' to which the Committee Report refers, Congressman Stevenson said, in response to the question 'where did this money finally find its home?':
'I do not know. As I said here once before, I doubt if much of it gets to the Republican executive committee, but I do not care where it goes. Either it goes into his pocket and the pockets of his machine or it goes into the coffers of the Republican Party. If it does, it is the most blatant defiance of the civil service law that any party has ever had the hardihood to put over, and it is as disgraceful as the Teapot Dome proposition any day.' 65 Cong.Rec. 1410.
4
When the bill which became § 1 of the Act of December 11, 1926 (now 18 U.S.C. § 214, 18 U.S.C.A. § 214), was introduced in the House, it was coupled with a bill requiring the filing of an affidavit by certain officers of the United States. (This bill, with changes from its original wording, is now 5 U.S.C. § 21a, 5 U.S.C.A. § 21a.) Mr. Graham, introducing both bills, said: 'They are correlative. I promised the committee and the gentlemen who are proponents of the bill that I would try to get unanimous consent to consider both bills together.' 67 Cong.Rec. 10840.
The text of this 'correlative' bill was as follows:
'Be it enacted, etc., That each individual hereafter appointed as an officer of the United States by the President, by and with the advice and consent of the Senate, or by the President alone, or by a court of law, or by the head of a department, shall, within 30 days after the effective date of his appointment, file with the Comptroller General of the United States an affidavit under oath stating that neither he nor anyone acting in his behalf has given, transferred, or paid any consideration for or in the expectation or hope of receiving assistance in securing such appointment.
'Sec. 3. When used in this Act the term 'consideration' includes a payment, distribution, gift, subscription, loan, advance, or deposit of money, or anything of value, or a contract, promise, or agreement, whether or not legally enforceable, to make such a payment, distribution, gift, subscription, loan, advance, or deposit.' Ibid.
This Act has been since amended, but the portions here relevant—the last phrases of § 1—remain unchanged. This is the affidavit Shirey would have to file were he appointed Postmaster of York. It is clear that he could not truthfully file such an affidavit if the allegations of the information are true. The fact that the sponsor of both bills expressly declared them to be correlative is persuasive evidence that an act which would make the oath impossible to take is a violation of § 214.
5
This Court reviews judgments, not arguments assailing them or seeking to sustain them. See Williams v. United States, 168 U.S. 382, 389, 18 S.Ct. 92, 94, 42 L.Ed. 509. The judgment which the Government brought here for review under the Criminal Appeals Act of 1907 is that 'The information does not state facts sufficient to constitute an offense against the United States.' The correctness of this judgment depends on the construction of 18 U.S.C. § 214, 18 U.S.C.A. § 214, and more particularly whether that section supports the allegations of the information. Arguments invoked by the Government do not determine the meaning of a statute nor do they define the scope of our inquiry into its meaning. If § 214 brings the allegations of this information within its scope, an offense is charged and the course of the Government's reasoning is beside the point.
6
It is claimed that because § 2 of the Act of December 11, 1926, 44 Stat. 918, which deals with the user of influence, is restricted in scope to the 'payee' of the money or thing of value, a similar restriction must be read into § 1. There is not one shred of evidence in the legislative history or in the statutes themselves to indicate that the two sections are in any way to be read 'in pari materia.' In fact, normal principles of statutory construction tell us that the use of the word 'payee' in § 2, and its absence in § 1, is convincing evidence that the provisions are different in scope and not congruent. A look at the other statutes in the bribery and graft section of 18 U.S.C., 18 U.S.C.A. shows that the wording of other Acts directed to the receipt and offer of bribes, etc., is not identical in the statute directed to offer and that directed to receipt. Whether this would mean a difference in ultimate construction is not now our concern.
1
See Note 4, infra.
2
The Attorney General wrote: 'Further, under the proposed language, the solicitation or receipt of compensation, either on behalf of the solicitor or another, would be prohibited, whereas the existing law merely prohibits the solicitation or receipt of compensation, either as a political contribution or personal emolument on behalf of the solicitor himself.' (Emphasis added.)
The Attorney General's letter first appears in S.Rep. No. 1036, 79th Cong., 2d Sess., and was carried over into a series of Senate Reports on bills embodying the proposed amendment. S.Rep. No. 2, 80th Cong., 1st Sess.; S.Rep. No. 7, 81st Cong., 1st Sess.; S.Rep. No. 3, 82d Cong., 1st Sess.
3
That paragraph provides:
'Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under the United States either by referring his name to an executive department or agency or the United States or by requiring the payment of a fee because such person has secured such employment shall be fined not more than $1,000, or imprisoned not more than one year, or both. This section shall not apply to such services rendered by an employment agency pursuant to the written request of an executive department or agency of the United States.'
4
The relevant portion of 18 U.S.C. § 215, 18 U.S.C.A. § 215, reads:
'Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined not more than $1,000 or imprisoned not more than one year, or both.'
5
The Reviser's Note refers expressly to other substantive changes made in the section at the time of codification, and appears to class the omission of the 'payee' language under 'changes of style.'
It is also noteworthy that the Senate Report on the bill which became the 'employment agency' amendment to § 215 in the 82d Congress, three years after the codification of Title 18, contained the letter of the Attorney General construing the precodification language with no suggestion that the meaning of that language had been altered by the changes made at the time of codification. See S.Rep. No. 3, 82d Cong., 1st Sess.
6
See Note 2, supra.
7
That the two provisions are reciprocal is further shown by the fact that the same substantive and stylistic changes were made in both of them in 1948, the Reviser's Note under § 215 merely incorporating that under § 214 by reference.
It is argued that this conclusion is controverted by the circumstance that on the same day as 44 Stat. 918 was introduced, another bill, also 44 Stat. 918 (now 5 U.S.C. § 21a, 5 U.S.C.A. § 21a), was also introduced requiring those appointed to public office under the United States to file affidavits that they had not paid any consideration to anyone in the expectation of receiving appointment, and that the two bills were described as 'correlative.' There is no reasonto take the word 'correlative' to imply an identity of scope between the two bills, since the word equally well bears the interpretation that 5 U.S.C. § 21a, 5 U.S.C.A. § 21a, was intended to be merely supplementary to the criminal provisions of §§ 214 and 215. Indeed, it is on its face broader than § 214 in its reference to mere 'assistance' as opposed to 'influence.'
8
This is not, of course, to suggest that an offer of a 'political contribution' to a Congressman's personal campaign fund in return for his promise of influence would be without the scope of § 214, or that the solicitation of such a contribution would not fall within § 215.
9
All of the cases cited by the Court in this connection involve clearly defined entities—not 'amorphous' groups.
10
It is apparent that the Revisers believed that the omission of the words 'of the payee' in the recodification of 44 Stat. 918 added nothing to the meaning of § 215. See 79 S.Ct. 752, supra.
11
The Court derives support for its holding from various statements concerning official corruption n o ffice selling made on the floor of the House of Representatives some two years before the passage of the bill which is now §§ 214 and 215. Since these statements were directed exclusively to revelations of corruption on the part of sellers of influence and the Court appears to concede that the seller of influence is not covered by § 215 unless he is a 'payee,' it is difficult to see how these statements can be utilized to support a broader reading of § 214.
| 78
|
359 U.S. 297
79 S.Ct. 766
3 L.Ed.2d 820
ROBERT C. HERD & COMPANY, Inc., Petitioner,v.KRAWILL MACHINERY CORPORATION, Kraus Manufacturing Corporation, and Engineering Industries International, S.A.
No. 276.
Argued Feb. 26, 1959.
Decided April 20, 1959.
Mr. George W. P. Whip, Baltimore, Md., for petitioner.
Mr. William A. Grimes, Baltimore, Md., for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The question presented by this case is whether the provisions of § 4(5) of the Carriage of Goods by Sea Act (46 U.S.C. § 1304(5), 46 U.S.C.A. § 1304(5)) or the parallel provisions of an ocean bill of lading, limiting the liability of an ocean 'carrier' to a shipper to $500 per package of cargo, also apply to and likewise limit the liability of a negligent stevedore.
2
Respondents, having sold and agreed to deliver certain goods to a Spanish company, arranged for their ocean carriage on the S.S. Castillo Ampudia from Baltimore, Maryland, to Valencia, Spain. The goods, consisting of 62 cases, were transported from Detroit by flatcar to a point on the Baltimore pier alongside the S.S. Castillo Ampudia and were there taken incha rge by her agent for loading and shipment. A bill of lading was prepared by respondents, on forms of the carrier, and was submitted to and signed by an agent of the carrier. The value of the goods was not declared by respondents or inserted in the bill of lading.
3
Petitioner, an independent stevedoring company, was orally engaged by the carrier to load the cargo aboard the ship, and while endeavoring to load one of the cases, containing a press weighing 19 tons, petitioner's employees caused it to fall into the harbor and to be extensively damaged. Respondents then brought this tort action in the United States District Court against petitioner to recover their damages which they alleged had been caused by petitioner's negligence. Petitioner's answer denied the allegations of negligence, and asserted, alternatively, that if the damage was caused by its negligence its liability was limited to $500 by the limitation-of-liability provisions of the Carriage of Goods by Sea Act1 and by the parallel provisions of the bill of lading.2
4
After trial, the District Court held that the damage to the press was caused by petitioner's negligence; that the limitation-of-liability provisions of the bill of lading were, in express terms, applicable only to the carrier, and did not apply to nor limit the liability of the stevedore;3 and that respondents were entitled to recover the full amount of their damages from petitioner (D.C., 145 F.Supp. 554). It accordingly rendered judgment for respondents in the amount of $47,992.04 (D.C., 155 F.Supp. 296). On appeal, the Court of Appeals unanimously affirmed on the question here presented. 4 Cir., 256 F.2d 946. It held that neither the limitation-of-liability provisions of the Carriage of Goods by Sea Act4 (Note 1) nor of the bill of lading (Note 2) were applicable to, or limited the liability of, the stevedoring company, and that it was therefore liable for the full damage caused by its negligence. The court expressly disagreed with and declined to follow the majority opinion of the Fifth Circuit in A. M. Collins & Co. v. Panama R. Co., 197 F.2d 893, saying that it thought the dissenting opinion in that case presented the correct view. The question being of importanceto the shipping industry, we granted certiorari to resolve this conflict. 358 U.S. 812, 79 S.Ct. 61, 3 L.Ed.2d 56.
5
Petitioner's contentions are twofold. First, it contends that the liability-limiting provisions of the Carriage of Goods by Sea Act and of the bill of lading should be construed to limit its liability as well as that of the carrier. Second, it contends that even if it be held that those provisions limit only the liability of the 'carrier,' it is nevertheless protected by the carrier's limitation under the theory and holding of the majority opinion in the Collins case.
6
With regard to petitioner's first contention, we look first to the provisions, legislative history and environment of the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300—1315, 46 U.S.C.A. §§ 1300—1315, and next to the limiting provisions of the bill of lading, to determine whether Congress by the Act, or the shippers and the carrier by the bill of lading, evidenced any intention to limit the liability of negligent agents of a carrier.
7
The Act is clearly phrased. It defines the term 'carrier' to include 'the owner or the charterer who enters into a contract of carriage with the shipper.' § 1301(a). It imposes particularized duties and obligations upon, and grants stated immunities to, the 'carrier.' §§ 1302, 1303, 1304. Respecting limitation of the amount of liability for loss of or damage to goods, it says that 'neither the carrier nor the ship' shall be liable for more than $500 per package. § 1304(5). It makes no reference whatever to stevedores or agents. The legislative history of the Act shows that it was lifted almost bodily from the Hague Rules of 1921, as amended by the Brussels Convention of 1924, 51 Stat. 233.5 The effort of those Rules was to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade. Ibid. Those Rules do not advert to stevedores or agents of a carrier. The debates and Committee Reports in the Senate and the House upon the bill that became the Carriage of Goods by Sea Act likewise do not mention stevedores or agents.6 There is, thus, nothing in the language, the legislative history or environment of the Act that expressly or impliedly indicates any intention of Congress to regulate stevedores or other agents of a carrier, or to limit the amount of their liability for damages caused by their negligence. It must be assumed that Congress knew that generally agents are liable for all damages caused by their negligence. Yet Congress, while limiting the amount of liability of 'the carrier (and) the ship,' did not even refer to stevedores or agents of a carrier. 'We can only conclude that if Congress had intended to make such an inroad on the rights of claimants (against negligent agents) it would have said so in unambiguous terms' and 'in the absence of a clear Congressional policy to that end, we cannot go so far.' Brady v. Roosevelt S.S. Co., 317 U.S. 575, 581, 584, 63 S.Ct. 425, 428, 429, 430, 87 L.Ed. 471.
8
We therefore conclude that there is nothing in the provisions, legislative history and environment of the Act, or in the limitation-of-liability provisions of the bill of lading, to indicate any intention, of Congress by the Act, or of the contracting parties by the bill of lading, to limit the liability of negligent agents of the carrier.
9
We now turn to petitioner's second contention that even if, as we hold, the Act and the bill of lading granted limitation of liability only to the 'carrier,' petitioner is nevertheless protected by the carrier's limitation under the theory and holding of the majority opinion in the Collins case. The premise of the majority opinion in that case is that all agents of the carrier who perform any part of the work undertaken by the carrier in the contract of carriage, evidenced by the bill of lading, are, by reason of that fact alone, protected by the provisions of the contract limiting the liability of the carrier, though such agents are not parties to nor express beneficiaries of the contract. Applying that theory in accordingly limiting the liability of a negligent stevedore, the majority said:
10
'A stevedore so unloading, in every practical sense, does so by virtue of the bill of lading and, though not strictly speaking a party thereto, is, while liable as an agent for its own negligence, at the same time entitled to claim the limitation of liability provided by the bill of lading to the furtherance of the terms of which its operations are directed.' 197 F.2d at page 896.
11
We are unable to agree with that conclusion, for we think it runs counter to a long-settled line of decisions of this Court. From its early history this Court has consistently held that an agent is liable for all damages caused by his negligence, unless exonerated therefrom, in whole or in part, by a statute or a valid contract binding on the person damaged. In Osborn v. Bank of United States, 9 Wheat. 738, 843, 6 L.Ed. 204, it was said that an agent 'is responsible for his own act, to the full extent of the injury (caused thereby).' In Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156, this Court held, on facts very similar to those here, that, though the carrier's liability was limited by the bill of lading to $100, the negligent agent, a stevedoring company, was liable to the shipper for the full amount of damage caused by its negligence.7 In Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation, 258 U.S., at page 567, 42 S.Ct. at page 388, it was said that an 'agent, because he is agent, does not cease to be answerable for his acts.' In Brady v. Roosevelt S.S. Co., 317 U.S., at page 580—581, 63 S.Ct. at page 428, this Court said that 'The liability of an agent for his own negligence has long been imbedded in the law,' that 'withdrawal of the right to sue the agent for his torts would result at times in a substantial dilution of the rights of claimants,' and that withdrawal of that right would be 'such ba sic change in one of the fundamentals of the law of agency (as) should hardly be left to conjecture.' This Court has several times held that an agent's only shield from liability 'for conduct harmful to the plaintiff * * * is a constitutional rule of law that exonerates him.' Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation, 258 U.S., at page 567, 42 S.Ct. at page 388; Brady v. Roosevelt S.S. Co., 317 U.S., at page 584, 63 S.Ct. at page 430. Any such rule of law, being in derogation of the common law, must be strictly construed, for '(n)o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.' Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892; see Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 354, 51 L.Ed. 553. Similarly, contracts purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended beneficiaries, for they 'are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties.' Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 123—124, 75 S.Ct. 649, 650, 99 L.Ed. 933 (concurring opinion).
12
The holding of the majority in Collins that the liability of a negligent agent of a carrier, though not limited by any statute or contract, is nevertheless limited by and to the extent of the limitation granted by the shipper to the carrier in the bill of lading, simply because the agent is performing some part of the work thereby undertaken by the carrier, is clearly contrary to the above-cited decisions of this Court.8
13
Petitioner claims that its position is supported by the decision of the House of Lords in Elder, Dempster & Co., Ltd., v. Paterson, Zochonis & Co., Ltd., (1924) A.C. 522, 18 Li.L.Rep. 319. There, Elder, Dempster & Co. had chartered a ship, on time charter, from the shipowners. The plaintiff company shipped a number of casks of palm oil by that ship from West African ports to England. The casks were crushed by other cargo negligently laid over them, and a large part of the oil was lost. The bill of lading contained a clause which, so far as here pertinent, provided that 'The shipowners * * * shall not be liable * * * for * * * any damage arising from * * * stowage. * * *' The plaintiff company sued both the charterer and the shipowners. The principal question was whether the damage was caused by unseaworthiness (which was not within the exemption clause) or by bad stowage (which was within that clause). The House of Lords decided that the loss was due to bad stowage and held, but for differing reasons, that the exemption clause applied to and protected both the charterer and the shipowners.
14
A careful reading of the several lengthy opinions of their lordships in that case discloses that the question whether a provision in the bill of lading limiting the liability of the carrier likewise limits the liability of its negligent agent, though the agent is neither a party to nor an express beneficiary of the bill of lading, was not involved in or decided by that case. Nor has any English case ever held that a bill of lading that expressly limites the liability of only the carrier nevertheless applies to and limits the liability of its negligent agent. See Scrutton, Charterparties (16th ed. 1955), 286—287, note (g). It is true that in Gilbert Stokes & Kerr, Prop., Ltd., v. Dalgety & Co., Ltd., 81 Ll.L.Rep. 337 (1948), and Waters Trading Co., Ltd., v. Dalgety & Co., Ltd., (1951) 2 Ll.L.Rep. 385, the Supreme Court of New South Wales held that stevedores, who negligently performed a part of the work undertaken by the carrier in the bill of lading, were entitled to the limitation of liability given to the carrier by the limiting provisions of the bill of lading, though the stevedores were neither parties to nor express beneficiaries of the bill of lading. However, in Wilson v. Darling Island Stevedoring & Lighterage Co. Ltd., (1956) 1 Ll.L.Rep. 346, (1956) Argus Law Rep. 311, 29 Austral. L.J. 740—an appeal involving facts indistinguishable from those involved in the two New South Wales cases, which was prosecuted for the avowed purpose of challenging the correctness of those decisions—the High Court of Australia, after extensively reviewing the Elder, Dempster case and many other English decisions, found that there was no English case that supported the two New South Wales decisions mentioned, and it held tht t hey were wrongly decided and overruled them, saying:
15
'The stevedore is a complete stranger to the contract of carriage, and it is no concern of his whether there is a bill of lading or not, or, if there is, what are its terms. He is engaged by the shipowner and by nobody else, and the terms on which he handles the goods are to be found in his contract with the shipowner and nowhere else. The shipowner has no authority whatever to bind the shipper or consignee of cargo by contract with the stevedore, and there is, in my opinion, no principle of law—deducible from the Elder Dempster Case or from any other case—which compels the inference of any contract between the shipper or consignee and the stevedore. If the stevedore negligently soaks cargo with water and ruins it, I can find neither rule of law nor contract to save him from the normal consequences of his tort.' Opinion of Fullager, J., 29 Austral.L.J., at 751.
16
Under the common law as declared by this Court, petitioner was liable for all damages caused by its negligence unless exonerated therefrom, in whole or in part, by a constitutional rule of law. No statute has limited its liability, and it was not a party to nor a beneficiary of the contract of carriage between the shipper and the carrier, and hence its liability was not limited by that contract. It follows that petitioner's common-law liability for damages caused by its negligence was in no way limited, and the judgment below so holding was correct and must be affirmed.
17
Affirmed.
1
The limitation-of-liability provisions of the Carriage of Goods by Sea Act appear in 46 U.S.C. § 1304(5), 46 U.S.C.A. § 1304(5), which, so far as pertinent, provides:
(5) 'Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States * * * unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.'
2
The parallel limitation-of-liability provisions contained in the bill of lading are found in §§ 30 and 37 thereof which, so far as pertinent, provide:
'30. In consideration of a choice of freight rates having been offered to the shipper by the Carrier, it is agreed that in case of loss of, or damage to * * * goods of an actual value exceeding $500 * * * per package * * * the value of such goods, shall be deemed to be $500 per package * * * and the Carrier's liability, if any, shall be determined on the basis of a value of $500 per package * * * unless the nature of such goods and a value higher than $500 per package * * * shall have been declared in writing by the shipper upon delivery to the Carrier and noted on the face hereof and unless payment of the extra freight charge incident thereto shall have been made or promised * * *, in which case such declared value, or the actual value if less, shall be the basis for computing damages and any partial loss or damage shall be adjusted pro rata. * * *'
'37. This bill of lading shall have effect subject to the Carriage of Goods by Sea Act of the U.S.A. and the Carrier the ship shall be entitled to all of the rights and immunities set forth in said Act.'
3
46 U.S.C. § 1301(e), 46 U.S.C.A. § 1301(e) provides: 'The term 'carriage of goods' covers the period from the time when the goods are loaded on to the time when they are discharged from the ship.' The district judge was of the view that the casualty occurred before the press had been 'loaded on' the ship, and that therefore the Carriage of Goods by Sea Act was not applicable because its effective period had not begun.
4
The court held that inasmuch as nothing in the Act purports to limit the liability of a stevedore, there was no need to review the holding of the District Court that its effective period had not begun. See Note 3.
5
The Hague Rules as amended by the Brussels Convention were, in turn, based in part upon the pioneering Harter Act of 1893, 27 Stat. 445, 46 U.S.C. §§ 190—196, 46 U.S.C.A. §§ 190—196. See H.R.Rep. No. 2218, 74th Cong., 2d Sess. 7.
6
S.Rep. No. 742, 74th Cong., 1st Sess.; H.R.Rep. No. 2218, 74th Cong., 2d Sess.
Looking to the limitation-of-liability provisions of the bill of lading, we see that they, like § 1304(5) of the Act and its legislative history, do not advert to stevedores or agents. Instead they deal only with the 'Carrier's liability' to the shippers. They say that 'the Carrier's liability, if any, shall be determined on the basis of $500 per package.' There is, thus, nothing in those provisions to indicate that the contracting parties intended to limit the liability of stevedores or other agents of the carrier for damages caused by their negligence. If such had been a purpose of the contracting parties it must be presumed that they would in some way have expressed it in the contract. Since they did not do so, it follows that the provisions of the bill of lading did 'not cut off (respondent's) remedy against the agent that did the wrongful act.' Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation, 258 U.S. 549, 568, 42 S.Ct. 386, 388, 66 L.Ed. 762.
7
Though the Reid case involved very similar facts, we do not considered that it alone is dispositive of this case because it does not clearly enough appear that the negligent stevedore specifically raised, or that this Court actually decided, the question whether the negligent stevedore was entitled to invoke the limitation of liability given by the shipper to the carrier in the hill of lading. However, it would seen that there is some basis for respondents' argument that the members of the Bar understood that case to hold that the stevedore was not so entitled, for that principle does not appear to have been challenged in any reported American opinion during the 36 years between the decision of the Reid case in 1916 and the decision of the Collins case in 1952.
8
Apart from the disapproving opinions of the District Court (145 F.Supp. 554) and of the Court of Appeals (4 Cir., 256 F.2d 946) in this case, the Collins case has been cited three times in the present context, twice approvingly and once disapprovingly and seven times in somewhat different contexts.
It was first cited approvingly in Ford Motor Co. v. Jarka Corp., Mun.Ct.N.Y., 134 N.Y.S.2d 52, where the court, relying on Collins and two New South Wales cases, Waters Trading Co., Ltd., v. Dalgety & Co., Ltd., (1951) 2 Ll.L.Rep. 385, and Gilbert Stokes & Kerr, Prop., Ltd., v. Dalgety & Co., Ltd., 81 Ll.L.Rep. 337, held that a covenant in a bill of lading limiting the liability of the carrier to $500 per package likewise limited the liability of a negligent stevedoring company, which was not a party to nor an express beneficiary of the bill of lading. However the two New South Wales cases relied on by the court have recently been overruled by the High Court of Australia in Wilson v. Darling Island Stevedoring
& Lighterage Co., Ltd., (1956) 1 Ll.L.Rep. 346, (1956) Argus Law Rep. 311, 29 Austral.L.J. 740.
It was next cited approvingly in Autobuses Modernos, S.A. v. The Federal Mariner, D.C.E.D.Pa., 125 F.Supp. 780. The court held, citing Collins, that a stevedoring company whose negligence in loading cargo joined with that of the carrier to cause damage to the caro w as entitled to the benefits of the $500 limitation given to the carrier in the bill of lading.
It was cited disapprovingly in International Milling Co. v. S.S. Perseus, D.C.E.D.Mich., (1958) A.M.C. 526. The court held that the negligent master of a ship was not entitled to invoke the limitation of liability given by the shipper to the carrier in the contract of carriage, saying that it was 'unable to agree with the reasoning of the majority of the court in the Collins case.' (1958) A.M.C. at page 529.
The opinions in which the Collins case has been cited in different contexts are United States v. The South Star, 2 Cir., 210 F.2d 44; J. B. Effenson Co. v. Three Bays Corp., 5 Cir., 238 F.2d 611; Twentieth Century Delivery Service, Inc., v. St. Paul Fire & Marine Ins. Co., 9 Cir., 242 F.2d 292; Van Camp Sea Food Co. v. Pacific-Atlantic S.S. Co., D.C.E.D.Pa., 122 F.Supp. 163; Chutter v. KLM Royal Dutch Airlines, D.C.S.D.N.Y., 132 F.Supp. 611; National Federation of Coffee Growers of Columbia v. Isbrandtsen Co., (1957) A.M.C. 1571 (Sup.Ct.N.Y.); Berger v. 34th Street Garage, Inc., 3 N.Y.2d 701, 171 N.Y.S.2d 824, 148 N.E.2d 883.
| 78
|
359 U.S. 314
79 S.Ct. 857
3 L.Ed.2d 845
UNITED STATES of America, Petitioner,v.ISTHMIAN STEAMSHIP CO.
No. 285.
Argued Feb. 25, 1959.
Decided April 27, 1959.
Mr. Ralph S. Spritzer, Washington, D.C., for petitioner.
Mr. Clement C. Rinehart, New York City, for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The principal question presented in this case is whether in an action under the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U.S.C. § 741 et seq., 46 U.S.C.A. § 741 et seq., the United States may defend by pleading against the libelant a claim arising out of an unrelated transaction.
2
In 1953, the S.S. Steelworker, a ship belonging to the respondent, Isthmian Steamship Company ('Isthmian'), carried certain cargo for the United States. Isthmian submitted a bill of $116,511.44 for this service. The United States paid $1,307.68 but withheld the remaining $115,203.76. This sum was said to have been applied to an alleged indebtedness of Isthmian to the United States which was claimed to have arisen in 1946, when the United States, acting through the War Shipping Administration, chartered out to Isthmian eight vessels on a bare boat basis. Some disagreement arose over the amount of charter hire due and the United States asserted that Isthmian owed $115,203.76 for additional charter hire for the period from May 1, 1946, to July 31, 1948. The S.S. Steelworker was not one of the boats involved in the 1946 transaction.
3
Isthmian filed a libel in the United States District Court for the Southern District of New York alleging that the United States owed Isthmian $116,511.44 for cargo transported on the S.S. Steelworker; that Isthmian had presented a bill for that amount; and that the United States had failed and refused to pay $115,203.76 which was due and payable.1 Isthmian made no reference whatsoever to the parties' dispute over additional charter hire for the 1946—1948 period.
4
The United States filed an answer admitting that Isthmian had submitted a claim for $116,511.44; denying that the United States had not paid $115,203.76; and further alleging that this sum had been 'paid' by application against an indebtedness of Isthmian to the United States for additional charter hire. Shortly before this answer was filed, the United States filed a cross-libel against Isthmian seeking recovery of the additional charter hire of $115,203.76. After filing the answer, the United States moved to consolidate its cross-libel with the original libel on the ground that the additional charter-hire claim was dispositive of both libels.
5
Isthmian excepted to the answer of the United States on the ground that the defensive matter pleaded therein did not arise 'out of the same contract, cause of action or transaction for which the libel was filed.' Isthmian moved that the excepted matter be stricken and asked 'judgment on the pleadings.' The District Court held that the answer setting forth the withholdin an d application of the $115,203.76 did not set forth a defense of payment but rather was a claim of setoff arising from a separate transaction.2 The District Court then held that setoffs arising from distinct transactions could not be asserted in admiralty and sustained Isthmian's exceptions. Since there was no longer any common issue, consolidation of the libel and cross-libel was denied and Isthmian was awarded a decree pro confesso. D.C., 134 F.Supp. 854. The Government's cross-libel is still pending.
6
The District Court's final decree awarded interest at 4% per annum on $115,203.76 from the date of the filing of the libel to the day of decree. The District Court further ordered that interest at 4% should run from the date of the decree until it was paid. This second 4% was to be computed on a sum which included the basic recovery, the costs awarded and the interest which had run from the date of the libel to the date of the decree.
7
On appeal, the Court of Appeals for the Second Circuit affirmed. 255 F.2d 816. The Court of Appeals relied on the authority of a case decided at the same time as the instant case, Grace Line, Inc. v. United States, 2 Cir., 255 F.2d 810, wherein it was held that withholding and applying did not constitute 'payment,' but, rather, setoff. Since the withholding and applying in the instant case did not arise out of the same transaction on which the libel was based, the Court of Appeals held it was not cognizable in admiralty. The award of interest was also upheld. We granted certiorari principally to consider the question posed at the outset of this opinion. 358 U.S. 813, 79 S.Ct. 63, 3 L.Ed.2d 56.
8
The Government presses a threshold argument which, if accepted, would obviate the need to reach the question posed at the outset of this opinion. While admitting the correctness of Isthmian's bill, the Government claims that the bill has been 'paid' and argues that the true nature of the dispute between the parties concerns charter hire despite the fact that Isthmian's libel does not mention the charter-hire dispute. We agree with the courts below that the Government's defense is not properly one of payment.
9
The Government relies upon the Act of March 3, 1817, 3 Stat. 366, which now appears in similar form as Section 305 of the Budget and Accounting Act of 1921, 42 Stat. 24, 31 U.S.C. § 71, 31 U.S.C.A. § 71. This section provides that the General Accounting Office shall settle and adjust all claims and demands by or against the Government. This is said to mean that when the General Accounting Office administratively sets one claim off against another that is the same as payment. But recognizing the Government's long-standing power to set off is far different from finding that the Government's setoff is 'payment' which enables the Government to plead in admiralty foreign and unrelated transactions. See United States v. Munsey Trust Co. of Washington, D.C., 332 U.S. 234, 239, 67 S.Ct. 1599, 1601, 91 L.Ed. 2022; McKnight v. United States, 13 Ct.Cl. 292, 306, affirmed 98 U.S. 179. 25 L.Ed. 115; Climatic Rainwear Co. v. United States, 88 F.Supp. 415, 418, 115 Ct.Cl. 520. In other situations, the claim of withholding and applying has traditionally been treated as setoff. Virginia-Carolina Chemical Co. v. Kirven, 215 U.S. 252, 257—258, 30 S.Ct. 78, 79—80, 54 L.Ed. 179; Merchants Heat & Light Co. v. James B. Clow & Sons, 204 U.S. 286, 289—290, 27 S.Ct. 285, 286, 51 L.Ed. 488 (a recoupment case); Scammon v. Kimball, 92 U.S. 362, 367, 23 L.Ed. 483; United States v. Eckford, 6 Wall. 484, 18 L.Ed. 920. See also 3 Williston, Contracts (rev. ed. 1936), § 887E. In this context, 'payment' connotes tender by the debtor with the intention to satisfy the debt coupled with its acceptance as satisfaction by the creditor. See Luckenbach v. W. J. McCahan Sugar Co., 248 U.S. 139, 149, 39 S.Ct. 53, 55, 63 L.Ed. 170; Bronson v. Rodes, 7 Wall. 229, 250, 19 L.Ed. 141; Sheehy v. Mandeville, 6 Cranch 253, 264, 3 L.Ed. 215; United States to Use of Par-Lock Appliers of New Jersey, Inc. v. J.A.J. Const. Co., 3 Cir., 137 F.2d 584, 586.
10
To consider withholding and applying the equivalent of 'payment' would have strange consequences. In Grace Line, Inc., v. United States, supra, for example, the Government had a claim against the carrier which had become time-barred. The carrier performed some unrelated services for the United States and then brought suit to collect. The Government claimed that it had 'paid' by withholding the money and applying it to the time-barred claim. Thus, the Government attempted to use its unique concept of 'payment' to revive a totally unrelated time-barred claim.
11
We can understand the Government's desire to litigate all of its disputes with Isthmian in one lawsuit, but that is no warrant for abandoning the traditional meaning of the defense of payment.3
12
We therefore reach the question posed at the outset. Section 3 of the Suits in Admiralty Act, 46 U.S.C. § 743, 46 U.S.C.A. § 743, provides that suits against the United States under the Act shall 'poroceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.' With this express command before us, we must ascertain whether admiralty practice permits private parties to defend by setting up claims arising out of separate and unrelated transactions between the parties.
13
Traditionally, admiralty has narrowly circumscribed the filing of unrelated cross-libels and defenses. The first American case considering this problem appears to be Willard v. Dorr, 1823, 29 Fed.Cas. page 1277, No. 17,680, in which Justice Story sitting as Circuit Justice refused to permit the attempted setoff. Since that early holding various reasons have been offered for refusal to entertain unrelated defenses: protection of the seaman's wage claims;4 preservation of relatively simple proceedings not affecting third-party rights;5 and the recognition that allowing cross-libels might deprive litigants of jury trials to which they would otherwise be entitled if the cross-libel were pressed in an independent proceeding.6 But for whatever reason, the doctrine gained general acceptance.7
14
This consistent pattern of the cases in admiralty on this point was reflected in the promulgation of Rule 54 of the Admiralty Rules by this Court at December Term, 1868, 7 Wall. v:
15
'Whenever a cross-libel is filed upon any counter claim, arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages as claimed in said cross-libel, unless the court on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given.'
16
That rule has remained in the Admiralty Rules8 ever since with only slight change and now appears as Rule 50 in the following form which still reflects the underlying settled state of the law:
17
'Whenever a cross-libel is filed upon any counterclaim arising out of the same contract or cause of action for which the original libel was filed, and the respondent or claimant in the original suit shall have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims set forth in said cross-libel, unless the court for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given unless the court otherwise directs.'9
18
But the Government urges the Court in this particular case to apply the more flexible procedure utilized in civil cases in federal courts.10 The Government contends that none of the reasons for limited cross-libels suggested above has any application to the particular facts of this case and that, moreover, the rule has become an anachronism and is out of line with the practice in specific courts11 and with the general rules of practice for federal courts.12 But it should be observed that where the procedure has been changed in this regard it has been the result of legislation or rulemaking and not the decisional process.13
19
The law on this point in admiralty has been settled beyond doubt in the lower courts for many years and an Admiralty Rule of this Court recognizes this case law. We think that if the law is to change it should be by rulemaking or legislation and not by decision.
20
Whether the setoff and cross-libel procedure now operative in admiralty is anachronistic, is not a matter best considered by this Court in a litigation without the benefits which normally accompany intelligent rulemaking—including hearings and opportunities to submit data. In addition to this Court's responsibility for rulemaking, the Judicial Conference of the United States14 has been given certain responsibilities in this area by the Act of July 11, 1958, 72 Stat. 356:
21
'The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in poocedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law.'
22
The result in this case does not cause irreparable loss to the United States nor indeed require any expenditure of government funds prior to the complete disposition of all claims. The Government is authorized to withhold payment of Isthmian's judgment in this case to the extent the Government has claims outstanding against Isthmian.15 The only requirement is that the Government press the libel now pending in the District Court. In other situations where no suit is pending, the United States may have to commence a separate suit rather than set up an unrelated defense in the original suit. This may be an inconvenience to the United States but it must be remembered that Congress has expressly declared that when sued under the Suits in Admiralty Act the United States is to have its procedural rights determined and governed in the same manner as private parties.
23
The Government also complains that the District Court improperly awarded compound interest. This resulted from the decree's disrection that interest be computed at 4% from the filing of the libel until the entry of the decree, and that interest run at 4% from decree until satisfaction with this latter interest to be computed upon the entire decree including the interest up to decree.
24
Section 3 of the Suits in Admiralty Act, 46 U.S.C. § 743, 46 U.S.C.A. § 743, provides:
25
'A decree against the United States * * * may include costs of suit, and when the decree is for a money judgment, interest at the rate of 4 per centum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based. Interest shall run as ordered by the court. * * *'
26
Congress' demonstrated concern with the problem of interest under the Suits in Admiralty Act indicates that it intended to cover these awards affirmatively and not have them controlled by the general command that the suit 'shall proceed and shall be heard and determined according to the principles of law' applicable to private parties. Section 3 provides for but one award of interest in the decree and that award is limited to 4% until satisfaction. We find nothing in the rather ambiguous statute authorizing the accumulation of interest up to the decree and then a second independent award of interest which operates upon the first interest. Compound interest is not presumed to run against the United States. See Cherokee Nation v. United States, 270 U.S. 476, 490, 46 S.Ct. 428, 433, 70 L.Ed. 694.
27
The judgment is affirmed as to entry of the decree pro confesso. The award of compound interest was improper and the judgment is reversed and remanded for proceedings not inconsistent with this opinion.
28
It is so ordered.
29
Judgment affirmed in part and judgment reversed in part and case remanded with directions.
1
Isthmian first attempted to recover the unpaid portion of the freight bill by a suit in the Court of Claims. The United States moved to dismiss that suit because Isthmian's claim was said to have been maritime in nature, thus giving the District Courts exclusive jurisdiction under the Suits in Admiralty Act. 46 U.S.C. § 741 et seq., 46 U.S.C.A. § 741 et seq. The Court of Claims dismissed Isthmian's suit. Isthmian Steamship Co. v. United States, 130 F.Supp. 336, 131 Ct.Cl. 472. Before that dismissal, Isthmian filed the instant proceeding.
2
See generally, as to the nature of setoff, Loyd, The Development of Set-Off, 64 U. of Pa.L.Rev. 541 (1916). As to the distinctions between setoff and recoupment see Shipman, Common Law Pleading (3d ed. 1923), §§ 209, 210; Waterman on Set-Off Recoupment, and Counter Claim (2d ed. 1872), § 464.
3
The Government cites several cases, e.g., United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247; Alcoa Steamship Co. v. United States, 338 U.S. 421, 70 S.Ct. 190, 94 L.Ed. 225, and Wabash R. Co. v. United States, 59 Ct.Cl. 322, affirmed sub nom. United States v. St. Louis S.F. & T.R. Co., 270 U.S. 1, 46 S.Ct. 182, 70 L.Ed. 435, in which the courts adjudicated disputes which were not the bases of the original complaints. None of the cases cited was brought under the Suits in Admiralty Act. The first two suits invoked the Tucker Act, now 28 U.S.C. § 1346, 28 U.S.C.A. § 1346, while Wabash was brought in the Court of Claims. The controlling statutes contain express authority for entertaining unrelated setoffs. See n. 11, infra. On this point, these cases indicate no more than that when the pladings properly in the case, taken together, indicate there are disputes as to issues not raised in the complaint, those issues will be determined.
4
See, e.g., The Hudson, 12 Fed.Cas. page 805, No. 6,831; Willard v. Dorr, 29 Fed.Cas. page 1277, No. 17,680; Shilman v. United States, 2 Cir., 164 F.2d 649. See also Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294.
5
See, e.g., Howard v. 9,889 Bags of Malt, D.C., 255 F. 917; The Ping-On v. Blethen, 9 Cir., 11 F. 607, 611—612. In British Transport Commission v. United States, 354 U.S. 129, 77 S.Ct. 1103, 1 L.Ed.2d 1234, the rights of the various parties arose from the same collisio. C f. Powell v. United States, 300 U.S. 276, 290, 57 S.Ct. 470, 477, 81 L.Ed. 643.
6
See, e.g., The Yankee, D.C., 37 F.Supp. 512; Bains v. The James and Catherine, 2 Fed.Cas. page 410, No. 756.
7
The following cases arose in the Second Circuit: The Hudson, 12 Fed.Cas. page 805, No. 6,831; Emery Co. v. Tweedie Trading Co., 2 Cir., 143 F. 144, 146; The Oceano, 2 Cir., 148 F. 131, 132; United Transportation & Lighterage Co. v. New York & B. T. Line, 2 Cir., 185 F. 386; The Jane Palmer, 2 Cir., 270 F. 609; The Yankee, D.C., 37 F.Supp. 512; Cioffi v. New Zealand Shipping Co., D.C., 73 F.Supp. 1015, 1016; Ozanic v. United States, 2 Cir., 188 F.2d 228, 231.
Cases arising in other Circuits include: Willard v. Dorr, 29 Fed.Cas. page 1277, No. 17,680; Bains v. The James and Catherine, 2 Fed.Cas. page 410, No. 756; The Two Brothers, D.C., 4 F. 158; The Zouave, D.C., 29 F. 296; Anderson v. Pacific Coast Co., D.C., 99 F. 109; Howard v. 9,889 Bags of Malt, D.C., 255 F. 917; Monongahela & Ohio Dredging Co. v. Rodgers Sand Co., 3 Cir., 296 F. 916; Susquehanna S.S. Co. v. A. O. Anderson & Co., 4 Cir., 6 F.2d 858, 859; Hildebrand v. Geneva Mill Co., D.C., 32 F.2d 343, 347.
8
Present authority for this Court's promulgation of Admiralty Rules is found in 28 U.S.C. § 2073, 28 U.S.C.A. § 2073. Original authority is found in the Act of August 23, 1842, 5 Stat. 516, 518.
9
It is interesting to note that the local rules of several of the District Courts have recognized the same principle. See, e.g., Rule 16 of the Admiralty Rules of the United States District Courts for the Southern and Eastern Districts of New York.
10
See Fed.Rules Civ.Proc. rule 13(b), 28 U.S.C.A.:
'A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.'
Rule 13(c):
'A counterclaim may or may not diminish or defet t he recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.' See generally, 3 Moore, Federal Practice (2d ed.), § 13.01 et seq.
11
The jurisdictional statute of the Court of Claims, 28 U.S.C. § 1503, 28 U.S.C.A. § 1503, provides:
'The Court of Claims shall have jurisdiction to render judgment upon any setoff or demand by the United States against any plaintiff in such court.'
Rule 17(b) of the Court of Claims, 28 U.S.C.A. provides:
'The answer may state as a counterclaim any claim against a plaintiff not arising out of the transaction or occurrence that is the subject matter of the petition.'
See also 28 U.S.C. § 1346(c), 28 U.S.C.A. § 1346(c) relating to jurisdiction of the District Courts over certain claims against the United States:
'The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.'
12
See n. 10, supra. But see § 3 of the Public Vessels Act, 43 Stat. 1112, 46 U.S.C. § 783, 46 U.S.C.A. § 783, providing that when the United States files a libel against a private party, the private party may only set off or counterclaim for damages 'arising out of the same subject matter or cause of action. * * *'
13
See Clark, Code Pleading (2d ed.), §§ 100, 101.
14
For the composition and function of the Judicial Conference of the United States see 28 U.S.C. § 331, as amended by the Act of July 11, 1958, 72 Stat. 356, 28 U.S.C.A. § 331, quoted in the text.
15
Act of March 3, 1875, 18 Stat. 481, as amended, 31 U.S.C. § 227, 31 U.S.C.A. § 227
The interest provisions of this section indicate that Isthmian may well be prejudiced if the prior law is disregarded in this case because the other reasons for the rule may not exist. If the Government were permitted to raise its cross-libel in this case and should lose on the merits, then at best Isthmian might be awarded 4% interest on $115,203.76 to run from the date of the libel until satisfaction.
But if the Government's cross-libel is not permitted in this case, Isthmian is entitled to a decree pro confesso. The Comptroller General then will withhold payment of the judgment until the Government's action is terminated and if the Government should lose on the merits of its claim, § 227 requires the Government pay the withheld amount with interest at 6% 'for the time it has been withheld from' Isthmian. The difference in rates is of no mean significance when the amount in dispute is as large as it is here.
| 78
|
359 U.S. 326
79 S.Ct. 847
3 L.Ed.2d 854
Marion S. FELTE, o n Behalf of Himself and Others Similarly Situated, Petitioner,v.SOUTHERN PACIFIC CO. et al.
No. 269.
Argued March 24, 1959.
Decided April 27, 1959.
Mr. Harry E. Wilmarth, Cedar Rapids, Iowa, for petitioner.
Mr. Clifton Hildebrand, Oakland, Cal., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Railway Labor Act1 was amended in 1951 to authorize labor organizations representing employees of carriers to make 'checkoff' agreements with the carriers for the deduction from employees' wages of periodic dues, initiation fees and assessments. Section 2 Eleventh (b), as added by 64 Stat. 1238, 45 U.S.C. § 152 Eleventh (b), 45 U.S.C.A. § 152, subd. 11(b).2 The amendment contains a proviso '(t)hat no such agreement shall be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization * * * which shall be revocable in writing after the expiration of one year * * *.' (Emphasis supplied.) In this case the Dues Deduction Agreement between respondents Brotherhood of Railroad Trainmen and Southern Pacific Company required that there be used, as a necessary form for revoking an assignment, nothing other than a writing executed on a form furnished by the Brotherhood of Railroad Trainmen and forwarded by that organization to the employer.3 The petitioner challenges this contractual regulation as violative of the employee's statutory right to revoke the assignment. The District Court for the Northern District of California held that the requirement was valid, reasoning that although it 'may seem a bit arbitrary' to allow revocation only by means of the form provided by the Trainmen, it was 'no burden' and was 'easily complied with.' 155 F.Supp. 315, 317. The Court of Appeals for the Ninth Circuit adopted the District Court's reasoning and affirmed. 256 F.2d 429. We granted certiorari to consider the important question of the scope of the proviso of § 2 Eleventh (b). 358 U.S. 812, 79 S.Ct. 60, 3 L.Ed.2d 56.
2
The petitioner is employed by respondent, Sothe rn Pacific Company, and through March 1957 was a member of respondent Brotherhood of Railroad Trainmen. He had executed an individual assignment authorizing the checkoff in his case. In March 1957, more than a year after his assignment had been in effect, petitioner decided to join the Order of Railway Conductors and Brakemen. He notified the Trainmen of his resignation by letter dated March 30, 1957, advising them that he was revoking the authorization to check off his dues and that he had sent a revocation form to the company. The same day a representative of the Conductors sent petitioner's executed revocation form to the company and handed an executed duplicate revocation form to the Secretary-Treasurer of petitioner's Lodge of the Trainmen.
3
The company and the Trainmen, relying on the provisions of the Dues Deduction Agreement, declined to honor the revocation forms executed by the petitioner, though they were identical with the form which the Dues Deduction Agreement provided should be obtained from the Trainmen. The company advised that '(t) his matter is being directed to the attention of the appropriate officer of the Brotherhood of Railroad Trainmen for handling in accordance with the Agreement.' The Trainmen's local Secretary-Treasurer in turn wrote the petitioner that the forms he had executed and submitted were not acceptable. He said that 'the only way that you can be released from Wage Assignment Authorization is by signing a regulation A—2 card furnished by me and forwarded by me to the Company.' He enclosed such a card for the petitioner's signature and noted 'We would be sorry to lose you as a member of the BRT and hope that you may reconsider.' As a result of the refusal of the company and the Trainmen to treat the petitioner's forms as valid, it was too late to stop the checkoff of petitioner's April 1957 wages.
4
The petitioner declined to execute any further forms and commenced this suit in the District Court against the company and the Trainmen. His complaint alleged that the action was brought under the Railway Labor Act, an 'Act of Congress regulating commerce'; in this posture the jurisdiction of the District Court was properly invoked under 28 U.S.C. § 1337, 28 U.S.C.A. § 1337.4 The complaint alleged that the action was brought on behalf of petitioner and others similarly situated; the parties are in dispute as to how many other employees were in fact similarly situated with petitioner, but, with the courts below, we do not find it necessary to resolve the dispute,5 and with them, we decide this case on the merits. The complaint prayed for a declaration that the petitioner, under the proviso, had complied with the requirements for effecting revocation and had terminated all authority of the company to check off his wages in favor of the Trainmen. Injunctive relief was also sought. The company and the Trainmen admitted that they were continuing to treat the petitioner's assignment as unrevoked, contending that the collective bargaining authority under the 1951 amendment to make checkoff agreements included authority to agree upon the challenged provisions of the Dues Deduction Agreement. We disagree with the District Court and the Court of Appeals and hold that the restrictive provisions of the Dues Deduction Agreement are violative of the 1951 amendment.
5
First. The 1951 amendment relaxed provisions of the Railway Labor Act dating from 1934 which had forbidden carriers and labor organizations from making either 'union-shop' arrangements,6 or arrangements whereby carriers would check off from employee wages amounts owed to a labor organization for dues, initiation fees and assessments.7 It thus became lawful to bargain collectively for 'union-shop' and 'checkoff' arrangements; but this power was made subject to limitations. The limitation here pertinent is that, by force of the proviso, the authority to make checkoff arrangements does not include authority to bind individual employees to submit to the checkoff. Any agreement was to be ineffective as to an employee who did not furnish the employer with a written assignment in favor of the labor organization, and any assignment made was to be 'revocable in writing after the expiration of one year * * *.' This failure to authorize agreements binding empolyees to submit to the checkoff was deliberate on the part of Congress. Proposals to that end were expressly rejected. The bills originally introduced in the House and Senate, and favorably reported by the respective House and Senate Committees, would simply have authorized carriers and labor organizations 'to make agreements providing for the deduction by such carrier or carriers from the wages of its or their employees in a craft or class and payment to the labor organization representing the craft or class of such employees, of any dues, initiation fees or assessments which may be payable to such labor organization.' H.R.Rep. No. 2811, p. 1, and S.Rep. No. 2262, pp. 1—2, 81st Cong., 2d Sess. Indeed the House Report reveals that the choice finally made of making implementation of the checkoff a matter of individual employee assignment was at first considered and rejected; 'the committee thought that the making of such assignments * * * should remain a subject for collective bargaining.'8 But the matter had been a recurrent subject of concern particularly at the Senate Hearings, and between the time of the Committee Reports and the consideration of the bill on the Senate floor, the Senate Committee reversed its view and developed the proviso9 allowing the individual employee to decide for himself whether to submit to the checkoff, and whether to revoke an authorization after the expiration of one year. See 96 Cong.Rec. 15735, 16268.10 In this form the bill was passed by both Houses and approved.
6
The structure of § 2 Eleventh (b) then is simple: carriers and labor organizations are authorized to bargain for arrangements for a checkoff by the employer on behalf of the organization. Latitude is allowed in the terms of such arrangements, but not past the point such terms impinge upon the freedom expressly reserved to the individual employee to decide whether he will authorize the checkoff in his case. Similarly Congress consciously and deliberately chose to deny carriers and labor organizations authority to reach terms which would restrict the employee's complete freedom to revoke an assignment by a writing directed to the employer after one year. Congress was specifically concerned with keeping these areas of individual choice off the bargaining table. It is plainly our duty to effectuate this obvious intention of Congress, and we must therefore be careful not to allow the employee's freedom of decision to be eroded in the name of procedure, or otherwise. We see no authority given by the Act to carriers and labor organizations to restrict the employee's individual freedom of decision by such regulations as were agreed upon in he Dues Deduction Agreement. The question is not whether these restrictions might abstractly be called 'reasonable' or not.
7
Second. It is argued that the requirement that the revocation notice be on a form provided by the Trainmen is necessary in the interests of orderly procedure, and that the collective agreement provision was an appropriate place to specify this procedure. We might note that the original Committee rejection of the concept of individual authorization and revocation was supported for much the same reasons—that it was inconsistent with orderly procedure—but this view did not prevail finally in the Act.11 Of course, the parties may act to minimize the procedural problems caused by Congress' choice. Carriers and labor organizations may set up procedures through the collective agreement for processing, between themselves, individual assignments and revocations received, and carriers may make reasonable designations, in or out of collective bargaining contracts, or agents to whom revocations may be sent. Revocations, after all, must be sent somewhere. And doubtless forms may be established, by way of suggestion, and means for making them available set up. But here a specific procedure was established and made mandatory, imposing requirements over and above what we can perceive to be fairly those of the statute—which are simply that there be a writing, attributable to the employee and fairly expressing a revocation of his assignment, furnished the carrier.
8
The respondents urge that the requirement is necessary in the interests of preventing fraud and foregery, and of obviating disputes as to the authenticity of revocation instruments. Such problems are hardly peculiar to this setting. If the company suspects fraud or forgery in a revocation, it is within its power informally to check the matter with the employee. But we think it has no power, whether pursuant to action taken jointly with the labor organization in the collective bargaining agreement or to unilateral declaration, to treat as nullities revocation notices which are clearly intended as such and about whose authenticity there is no dispute.
9
The Trainmen next justify the procedure as a necessary protection to the employee from himself—that is, from his desire to revoke the checkoff—and from outside undue influence to do so, presumably that of a rival organization or of management. But Congress apparently foresaw and discounted any necessity for this protection when it took the matter out of the hands of the carriers and labor organizations and left it to the employee's individual choice. It did not make any provision for preliminary correspondence or dealings between the employee and the organization when the employee wanted to stop the checkoff, whether incident to terminating his affiliation or not. The complete freedom of individual choice in this area, undampened by the necessity of such preliminary dealings with the labor organization to make it effective, may seem nfo rtunate to labor organizations, but it is a problem with which we think Congress intended them to live.
10
Third. There is some suggestion that, possibly apart from the provisions of the Act, because petitioner was a member of the Trainmen and represented by them in the negotiation of the bargaining agreement, he is bound here by the action of his agent, as it were, in establishing this provision. But the short answer is that the proviso makes it clear that the organization was not to function as its members' agent in waiving their statutory revocation rights; we doubt whether the right to revoke could be waived at all in advance of the time for its exercise, but in any event, a waiver through the collective agreement would, under the statute, be the last conceivably permissible. And equally lacking in merit is the suggestion that the requirement of a Trainment-furnished form is so trivial as to make the whole controversy de minimis and perhaps deny petitioner and those in his position judicial redress. Additional paper work or correspondence, after he once has indicated his desire to revoke in writing, might well be some deterrent, so Congress might think, to the exercise of free choice by an individual worker. When one considers the problem in its industrial setting and recalls the fact that individual workmen are not as equipped for and inclined to correspondence as are business offices, any complication of the procedure necessary to withdraw or the addition of any extra steps to it may be burdensome. That involved here may deter employees from taking an action they might have taken if no preliminary contact with their lodge was necessary. And within the area that the Act leaves open for solicitation by rival organizations—as where no union shop has been established,12 or within the area where even a worker under a unionshop arrangement can change affiliations, see Pennsylvania R. Co. v. Rychlik, 352 U.S. 480, 492—494, 77 S.Ct. 421, 427, 428, 1 L.Ed.2d 480—the matter may be far from trivial, as the facts in this case suggest. Organizational efforts are attended by persuading the recruit to drop his membership in his present union and terminate any checkoff of his wages in its favor.13 There may well be a difference in the weight of persuasion necessary to enlist the worker if he cannot at once effectuate his intentions through papers furnished him on the spot by the recruiting organization. We do not say whether the 'cooling off' period which the procedure insisted upon here creates would be wise or unwise as a matter of policy. It is enough to say that we believe the Act has not left any place for it. We think the added requirement involved here is meaningfully burdensome when considered in context; but in any event, we do not think the Act empowered carriers and labor organizations to bargain for any restrictions on the individual's right to revoke his assignment, even if later, while insisting on them, they choose to describe them as petty.
11
Reversed.
12
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting.
13
I would affirm the action of the District Court and the Court of Appeals in dismissing this petition for declaratory judgment and injunction. I agree, of course, that the provisions of the Railway Labor Act authorizing railroad workers to revoke their previously executed 'check-off' agreements 'after the expiration of one year' grant workers a right which neither Union, nor Railroad, nor both together, can take away in whole or in part. I am of the opinion, however, that the collective bargaining agreement between the Brotherhood of Railroad Trainmen (B.R.T.) and the Southern Pacific Company provides a pocedure which substantially aids in the preservation of the employees' statutory right to revoke their assignments at will. Since the checkoff provisions of the Act were not designed primarily to aid the Rail road, it is natual that the governing contract between Railroad and Union should relieve the Railroad, as much as possible, of burdens and expenses Necessarily, Congress in authorizing checkoff arrangements contemplated that they could be administered in a business-like manner, without imposition of undue burden on the railroads. It seems plain to me that the provision of the contract requiring that revocation be made through the B.R.T. to the Railroad, on forms supplied by the B.R.T. is, on the whole, just and practical as applied to the Railroad, the Union and its members.
14
But in any event, the circumstances existing here call for no exercise of a court's discretionary power either to enter a declaratory judgment or to grant an injunction. This suit was filed April 12, 1957—10 days after B.R.T. in response to petitioner's letter terminating his membership and revoking his Wage Assignment Authorization mailed to petitioner for his signature the revocation form provided for in the collective bargaining contract. At the time of filing suit petitioner had no more than a highly questionable claim for one month's dues—several dollars. He also had in his possession the B.R.T. form which would have been recognized both by the B.R.T. and the Railroad. Petitioner therefore could have avoided any future deductions, and any possible damage to himself, merely by signing and mailing that form. And he could have recovered the one month's dues, if illegally deducted, by suit against the Railroad.
15
Equity's extraordinary power to grant injunctive relief to prevent irreparable damage can hardly be sustained by the proof in this case; plainly enough petitioner could not show irreparable damage, and, in fact, did not even allege it. Similarly, he could not claim he lacked an adequate remedy at law. Nor would declaratory relief be appropriate, for as we have said:
16
'The declaratory judgment procedure may be resorted to only in the sound discretion of the Court and where the interests of justice will be advanced and an adequate and effective judgment may be rendered.' Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 1390, 89 L.Ed. 1725.
17
The question we finally have here, therefore, is whether the District Court and the Court of Appeals should be reversed because they refused to use the court's process in a controversy which, in reality, is between two unions over which one's printed form shall be used to revoke an assignment. Perhaps judicial history can produce no other case in which the extraordinary relief the Court now orders granted has been accorded under comara ble circumstances. For any possible injury to petitioner would have been avoided except for his stubborn refusal to sign a simple, 11-line form identical to one he had already signed. The federal courts have too much work to do in adjudicating real, genuine, meaningful cases or controversies to have their time consumed in consideration of trivial disputes like this one. I would affirm the decisions below.
1
The Act is c. 347, 44 Stat. 577; c. 691, 48 Stat. 1185, as amended, 45 U.S.C. §§ 151—163, 45 U.S.C.A. §§ 151—163. The Act was originally enacted in 1926 and considerably rewritten in 1934.
2
The amendment added a new paragraph to § 2 of the Act, § 2 Eleventh.
3
The contract provision is as follows: 'Both the authorization forms and the revocation of authorization forms shall be reproduced and furnished as necessary by the Organization without cost to the Company. The Organization shall assume full responsibility for the procurement and execution of the forms by employes and for the delivery of such forms to the Company.'
The Trainmen's position, concurred in by the company, is that this provision means that no revocation cards are to be recognized 'except those reproduced by our organization.' While this construction of the agreement is hardly an obvious one, it is the construction put on the agreement by the parties to it, the Southern Pacific and the Trainmen, and since petitioner in this suit does not question it as a matter of construction, we of course accept it here.
Since there was no question of interpretation or application of the collective agreement, but rather only one of its validity under the statute, the case is not one in which resort to the grievance and Adjustment Board machinery provided by the Railway Labor Act was required. 'This dispute involves the validity of the contract, not its meaning.' Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 1025, 96 L.Ed. 1283. Cf. Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 242—244, 70 S.Ct. 577, 578—580, 94 L.Ed. 795. The case presents an employee dispute as much, if not more, with the labor organization as with the employer. Cf. Steele v. Louisville & N.R. Co., 323 U.S. 192, 205, 65 S.Ct. 226, 233, 89 L.Ed. 173.
4
'The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.' This jurisdictional provision, unlike the general arising under' statute, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, requires no monetary jurisdictional amount. See Mulford v. Smith, 307 U.S. 38, 46, 59 S.Ct. 648, 651, 83 L.Ed. 1092; Turner, Dennis & Lowry Lumber Co. v. Chicago, M. & St. P.R. Co., 271 U.S. 259, 261, 46 S.Ct. 530, 531, 70 L.Ed. 934.
5
Petitioner originally listed 24 others as being similarly situated with him. The respondents statd t hat 11 of these were in fact not so situated. After this, petitioner listed others. If it appears in fact necessary on remand, the District Court may conduct such further investigation of the matter as will allow it to enter an appropriate judgment.
6
Section 2 Fifth, as added by § 2, c. 691, 48 Stat. 1188, 45 U.S.C. § 152 Fifth, 45 U.S.C.A. § 152, subd. 5, provided that 'No carrier, its officers, or agents shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization * * *'; § 2 Fourth, as added by § 2, 48 Stat. 1187, 45 U.S.C. § 152 Fourth, 45 U.S.C.A. § 152, subd. 4, provided that 'it shall be unlawful for any carrier * * * to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization * * *.'
The 1951 amendment permitted carriers and labor organizations 'to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class * * *.' Section 2 Eleventh (a), as added by 64 Stat. 1238.
7
Section 2 Fourth, as added by § 2, c. 691, 48 Stat. 1187, 45 U.S.C. § 152 Fourth, 45 U.S.C.A. § 152, subd. 4, provided that 'it shall be unlawful for any carrier * * * to deduct from the wages of employees ny dues, fees, assessments, or other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions * * *.'
The 1951 amendment permitted carriers and labor organizations, subject to the proviso in the text, 'to make agreements providing for the deduction by such carrier or carriers from the wages of its or their employees in a craft or class and payment to the labor organization representing the craft or class of such employees, of any periodic dues, initiation fees, and assessments 'not including fines and penalties) uniformly required as a condition of acquiring or retaining membership * * *.' Section 2 Eleventh (b), as added by 64 Stat. 1238.
The 1951 amendment provided that 'Any provisions in paragraphs Fourth and Fifth of section 2 of this Act in conflict herewith are to the extent of such conflict amended.' Section 2 Eleventh (d), as added by 64 Stat. 1239.
8
H.R.Rep. No. 2811, 81st Cong., 2d Sess., p. 6.
9
The proviso was inserted by way of an amendment which was submitted by Senator Hill on behalf of himself and Senator Taft, with the agreement of the Committee. See 96 Cong.Rec. 15735. For the reservations of the Committee members which doubtless led to this, see note 10, infra.
10
At the time of the rendition of the Senate Committee Report, S.Rep. No. 2262, 81st Cong., 2d Sess., Senators Taft, H. Alexander Smith, and Donnell attached a statement of supplementary views by which they reserved the right to introduce and support on the
floor amendments, inter alia, which would 'cause the * * * check-off conditions of employees of industry covered by the Railway Labor Act to be in general accord with the * * * check-off conditions of employees of other industry.' Id., at 5. These three Senators had been among those responsible for pressing an amendment to the Senate Committee version of the Taft-Hartley Act which restored to the Senate version of that Act the provision for individual option on the checkoff which they had desired during Committee deliberation, and now found in § 302(c)(4) of that Act, 61 Stat. 157, 29 U.S.C. § 186(c)(4), 29 U.S.C.A. § 186(c)(4). See S.Rep. No. 105, 80th Cong., 1st Sess., p. 53. The provision finally enacted in the Railway Labor amendment was quite similar to that of the Taft-Hartley Act.
For the concern with the matter at the Senate hearings, see Hearings before a Subcommittee of the Committee on Labor and Public Welfare, United States Senate, on S. 3295, 81st Cong., 2d Sess., pp. 74, 86, 94, 173, 188, 208. Senator Donnell was primarily concerned with the point. Id., at 74, 86, 94, 188.
There were a few references to the matter at the House hearings. See Hearings before the Committee on Interstate and Foreign Commerce, House of Representatives, on H.R. 7789, 81st Cong., 2d Sess., pp. 33, 91, 261.
11
The House Report, note 8, supra, at 6, had argued: '(T)here is a stability of employment relationships in the railroad industry not found in industry generally. The committee felt that if an employee is required to become and remain a member of a labor organization as a condition of employment with a resulting obligation to pay dues, initiation fees, and assessments, and with the slight prospect of changing employment or his union affiliation within the industry, no statutory requirement for individual assignments seemed necessary. Furthermore, the physical nature of railroad and airline operations would make a mandatory requirement of individual assignments an exceedingly cumbersome procedure. Employees of a single carrier are scattered over thousands of miles of territory and many are located in isolated spots where few other persons are employed. It would seem that a mandatory requirement for assignments from individual employees would result in confusion and lack of stability * * *.'
12
The Act makes no formal relationship between a union-shop arrangement and a checkoff arrangement; under it the parties can negotiate either one without the other, if they are so disposed. And of course, a labor organization member who is subject to a union-shop arrangement need not subscribe to the checkoff; he can maintain his standing by paying his dues personally.
13
The respondents make some suggestion that petitioner was not harmed because in any event the carrier could not continue a checkoff in favor of the Trainmen after it learned that he was no longer a member. Section 2 Eleventh (c) provides that 'no (checkoff) agreement made pursuant to subparagraph (b) shall provide for deductions from his (an employee within specified categories) wages for periodic dues, initiation fees, or assessments payable to any labor organization other than that in which he holds membership.' 64 Stat. 1238. But there is no showing when the carrier received notice of petitioner's change of membership th e papers used by him to revoke the checkoff and furnished the carrier did not refer to such a change. And of course a worker could revoke his checkoff authorization and remain a member of the same labor organization. It is clear that Congress meant to make the checkoff machinery stand on its own feet and be independent of any machinery for changing labor organizations notice of which would ordinarily be sent only to the organizations involved.
| 67
|
359 U.S. 360
79 S.Ct. 804
3 L.Ed.2d 877
Aaron D. FRANK, Appellant,v.STATE OF MARYLAND.
No. 278.
Argued March 5, 1959.
Decided May 4, 1959.
Rehearing Denied June 15, 1959.
See 360 U.S. 914, 79 S.Ct. 1292.
Mr. Benjamin Lipsitz, Baltimore, Md., for appellant.
Mr. James, H. Norris, Jr., Baltimore, Md., and C Ferdinand Sybert, Ellicott City, Mr., for appellee.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Acting on a complaint from a resident of the 4300 block of Reisterstown Road, Baltimore, Maryland, that there were rats in her basement, Gentry, an inspector of the Baltimore City Health Department, began an inspection of the houses in the vicinity looking for the source of the rats. In the middle of the afternoon of February 27, 1958, Gentry knocked on the door or appellant's detached frame home at 4335 Reisterstown Road. After receiving no response he proceeded to inspect the area outside the house. This inspection revealed that the house was in an 'extreme state of decay,' and that in the rear of the house there was a pile later identified as 'rodent feces mixed with straw and trash and debris to approximately half a ton.' During this inspection appellant came around the side of the house and asked Gentry to explain his presence. Gentry responded that he had evidence of rodent infestation and asked appellant for permission to inspect the basement area. Appellant refused. At no time did Gentry have a warrant authorizing him to enter. The next forenoon Gentry, in the company of two police officers, returned to appellant's house. After receiving no response to his knock, he reinspected the exterior of the premises. He then swore out a warrant for appellant's arrest alleging a violtio n of § 120 of Art. 12 of the Baltimore City Code. That section provides:
2
'Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars.' Appellant was arrested on March 5, and the next day was found guilty of the offense alleged in the warrant by a Police Justice for the Northern District of Baltimore and fined twenty dollars. On appeal, the Criminal Court of Baltimore, in a de novo proceeding, also found appellant guilty. The Maryland Court of Appeals denied certiorari. The case came here under a challenge, 28 U.S.C. § 1257(2), to the validity of § 120, to determine whether appellant's conviction for resisting an inspection of his house without a warrant was obtained in violation of the Fourteenth Amendment.
3
The Health Code of the City of Baltimore, of which § 120 is an important part, deals with many of the multiform aspects of hygiene in modern urban areas. A vital portion concerns the hygiene of housing. Typical of the content and method of enforcing its provisions is the section requiring that '(e)very dwelling and every part thereof shall be kept clean and free from any accumulation of dirt, filth, rubbish, garbage or similar matter, and shall be kept free from vermin or rodent infestation.' Baltimore City Code, Art. 12, § 112. If the occupant of a building fails to meet this standard, he is notified by the Commissioner of Health to abate the substandard conditions.1 Failure to remove these hazards to community health gives rise to criminal prosecution. Ibid. The attempted inspection of appellant's home was merely to ascertain the existence of evils to be corrected upon due notification or, in default of such correction, to be made the basis of punishment.
4
We have said that (t)he security of one's privacy against arbitrary intrusion by the police' is fundamental to a free society and as such protected by the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782. Application of the broad restraints of due process compels inquiry into the nature of the demand being made upon individual freedom in a particular context and the justification of social need on which the demand rests.
5
The history of the constitutional protection against official invasion of the citizen's home makes explicit the human concerns which it was meant to respect. In years prior to the Revolution leading voiced in England and the Colonies protested against the ransacking by Crown officers of the homes of citizens in search of evidence of crime or of illegally imported goods. The vivid memory by the newly independent Americans of these abuses produced the Fourth Amendment as a safeguard against such arbitrary official action by officers of the new Union, as like provisions had already found their way into State Constitutions.
6
In 1765, in England, what is properly called the great case of Entick v. Carrington, 19 Howell's State Trials, col. 1029, announced the principle of English law which became part of the Bill of Rights and whose basic protection has become imbedded in the concept of due process of law. It was there decided that English law did not allow officers of the Crown to break into a citizen's home, under cover of a general executive warrant, to search for evidence of the utterance of libel. Among the reasons given for that decision were these:
7
'It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same pinc iple. There too the innocent would be confounded with the guilty.' Id., at col. 1073.
8
There were not novel pronouncements to the colonists. A few years earlier, in Boston, revenue officers had been authorized to sue Writs of Assistance, empowering them to search suspected places, including private houses, for smuggled goods. In 1761 the validity of the use of the Writs was contested in the historic proceedings in Boston. James Otis attacked the Writ of Assistance because its use placed' the liberty of every man in the hands of every petty officer.'2 His powerful argument so impressed itself first on his audience and later on the people of all the Colonies that President Adams was in retrospect moved to say that 'American Independence was then and there born.'3 Many years later this Court, in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, carefully reviewed this history and pointed out, as did Lord Camden in Entick v. Carrington, that
9
'* * * the 'unreasonable searches and seizures' condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the fourth amendment.' 116 U.S. at page 633, 6 S.Ct. at page 534.
10
Against this background two protections emerge from the broad constitutional proscription of official invasion. The first of these is the right to be secure from intrusion into personal privacy, the right to shut the door on officials of the state unless their entry is under proper authority of law. The second, and intimately related protection, is self-protection: the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual, information which may be used to effect a further deprivation of life or liberty or property. Thus, evidence of criminal action may not, save in very limited and closely confined situations, be seized without a judicially issued search warrant. It is this aspect of the constitutional protection to which the quoted passages from Entick v. Carrington and Boyd v. United States Refer. Certainly it is not necessary to accept any particular theory of the interrelationship of the Fourth and Fifth Amendments4 to realize what history makes plain, that it was on the issue of the right to be secure from searches for evidence to be used in criminal prosecutions or for forfeitures that the great battle for fundamental liberty was fought. While these concerns for individual rights were the historic impulses behind the Forth Amendment and its analogues in state constitutions, the application of the Fourth Amendment and the extent to which the essential right of privacy is protected by the Due Process Clause of the Fourteenth Amendment are of course not restricted within these historic bounds.
11
But giving the fullest scope to this constitutional right to privacy, its protection cannot be here invoked. The attempted inspection of appellant's home is merely to determine whether conditions exist which the Baltimore Health Code proscribes. If they do appellant is notified to remedy the infringing conditions. No evidence for criminal prosecution is sought to be seized. Appellant is simply directed to do what he could have been ordered to do without any inspection, and what he cannot properly resist, namely, act in a manner consistent with the maintenance of minimum community standards of health and well-being, including his own. Appellant's resistance can only be based, not on admissible self-protection, but on a rarely voiced denial of any official justification for seeking to enter his home. The constitutional 'liberty' that is asserted is the absolute right to refuse consent for an inspection designed and pursued solely for the protection of the community's health, even when the inspection is conducted with due regard for every convenience of time and place.
12
The power of inspection granted by the Baltimore City Code is strictly limited, more exacting than the analogous provisions of many other municipal codes. Valid grounds for suspicion of the existence of a nuisance must exist. Certainly the presence of a pile of filth in the back yard combined with the rundown condition of the house gave adequate grounds for such suspicion. The inspection must be made in the day time. Here was no midnight knock on the door, but an orderly visit in the middle of the afternoon with no suggestion that the hour was inconvenient. Moreover, the inspector has no power to force entry and did not attempt it. A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.
13
Thus, not only does the inspection touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion, but it is hedged about with safeguards designed to make the least possible demand on the individual occupant, and to cause only the slightest restriction on his claims of privacy. Such a demand must be assessed in the light of the needs which have produced it.
14
Inspection without a warrant, as an adjunct to a regulatory scheme for the general welfare of the community and not as a means of enforcing the criminal law, has antecedents deep in our history. For more than 200 years Maryland has empowered its officers to enter upon ships, carriages, shops, and homes in the service of the common welfare. In pre-revolutionary days trade, on which the viability of the struggling Colonies depended, was of primary concern. Thus, at a time when the tobacco trade was a vital part of Maryland's economy, inspections of ships and carriages without a warrant could be made to enforce uniform standards for packing and shipping tobacco.5 Similarly, suspected evasion of import duties on liquor and other goods could be found out by inspection of stores and homes.6 Generally the power of entry was carefully limited, requiring that ground for suspicion must exist and that the inspection be conducted between 'the rising and the setting of the sun.'7
15
In 1776 the newly independent State of Maryland incorporated, as part of its basic Declaration of Rights, the principle
16
'That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievious and oppressive; and all general warrants—to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special—are illegal, and ought not to be granted.' See 3 Thorpe, Federal and State Constitutions (1909), 1688.
17
This provision was a product of the same history of abuse and protest that gave birth to the Fourth Amendment.8 It remains today as an essential part of Maryland's Constitution. Yet, the years following its proclamation saw not a decline but a marked increase in statutory authorization for inspection of the citizen's home. Not only were the old regulations continued, but the power of inspection was extended to new community concerns. In 1782, Commissioners were empowered to 'enter upon the lots, grounds, and possessions, of any person or persons * * *' in order to regulate and keep in repair the common sewerage systems.9 Five years later similar entries on private property were allowed for the purpose of keeping the public roads in repair.10 Typical of the regulatory statutes enacted in this period was an act permitting the clerk of the market 'to examine and weigh all such bread, and to seize, for the use of the poor of the county, all such as they shall find deficient in weight or fineness, and not baked or marked as aforesaid * * *.'11 The penalty for resisting the entry of the clerk was 'five pounds current money.' And so, when, in 1801, the power of inspection without a warrant became an instrument of the enforcement of the Baltimore health laws, no novel or untried procedures were being invoked. The ordinance now challenged derives from this 1801 ordinance. It provided:
18
'And be it enacted and ordained, That when, and as often as the said commissioners of health, or any of them, shall have cause to suspect a nuisance dangerous to the health of the city exists in any house, cellar or inclosure shut up from public view, they, or any one of them, may demand entry therein in the day time for the purpose of examining the same, and if the owner or occupier thereof shall refuse or delay to open the same and to admit a free examinatio, h e shall forfeit and pay for every such refusal the sum of twenty dollars, for the use of the corporation.'12
19
From the passage of this ordinance to the present the prevention and abatement of 'nuisances' on private property has been one of the chief concerns of the Baltimore City Health Department.13 In the latter half of the nineteenth century, in the years following the ratification of the Fourteenth Amendment, thousands upon thousands of inspections were made under authority of this ordinance.14 Thus the system of inspection here under attack, having its beginning in Maryland's colonial history, has been an integral part of the enforcement of Baltimore's health laws for more than a century and a half. The legal significance of such a long and consistent history of state practice has been illuminated for us by Mr. Justice Holmes:
20
'The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it, * * *.' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107. (As to the constitutional significance of a 'time-honored procedure' see Den ex dem Murray v. Hoboken Land and Improvement Co., 18 how. 272, 15 L.Ed. 372, and Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837.) Of course, this wise reminder, that what free people have found consistent with their enjoyment of freedom for centuries is hardly to be deemed to violate due process, does not freeze due process within the confines of historical facts or discredited attitudes.15 'It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.' Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361.
21
The power here challenged rests not only on a long history of its exercise. It is a power which was continually strengthened and applied to wider concerns through those very years when the right of individuals to be free from peremptory official invasion received increasing legislative and judicial protection. Nor is this a situation where a new body of knowledge displaces previous premises of action. There is a total want of important modification in the circumstances or the structure of society which calls for a disregard of so much history. On the contrary, the problems which gave rise to these ordinances have multiplied manifold, as have the difficulties of enforcement. The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the enforcement of minimum standards of far greater magnitude than the writers of these acie nt inspection laws ever dreamed. Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few.16 Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned.
22
That there is 'a total unlikeness' between 'official acts and proceedings,' Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 529, for which the legal protection of privacy requires a search warrant under the Fourteenth Amendment, and the situation now under consideration is laid bare by the suggestion that the kind of an inspection by a health official with which we are concerned may be satisfied by what is, in effect, a synthetic search warrant, an authorization 'for periodic inspections.' If a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue. A loose basis for granting a search warrant for the situation before us is to enter by way of the back door to a recognition of the fact that by reason of their intrinsic elements, their historic sanctions, and their safeguards, the Maryland proceedings requesting permission to make a search without intruding when permission is denied, do not offend the protection of the Fourteenth Amendment.
23
In light of the long history of this kind of inspection and of modern needs, we cannot say that the carefully circumscribed demand which Maryland here makes on appellant's freedom has deprived him of due process of law.
24
Affirmed.
25
Mr. Justice WHITTAKER, concurring.
26
The core of the Fourth Amendment prohibiting unreasonable searches applies to the States through the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. I understand the Court's opinion to adhere fully to that principle. And being convinced that the health inspector's request for permission to enter petitioner's premises in midday for the sole purpose of attempting to locate the habitat of disease-carrying rodents known to be somewhere in the immediate area was not a request for permission to make, and that the Code procedures followed did not amount to enforcement of, an unreasonable search within the meaning of the Fourth and Fourteenth Amendments, I join the opinion of the Court.
27
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
28
The decsio n today greatly dilutes the right of privacy which every homeowner had the right to believe was part of our American heritage. We witness indeed an inquest over a substantial part of the Fourth Amendment.
29
The question in this case is whether a search warrant is needed to enter a citizen's home to investigate sanitary conditions. The Court holds that no search warrant is needed, that a knock on the door is all that is required, that for failure of the citizen to open the door he can be punished. From these conclusions I am forced to dissent.
30
The Due Process Clause of the Fourteenth Amendment enjoins upon the States the guarantee of privacy embodied in the Fourth Amendment (Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359)—whatever may be the means established under the Fourth Amendment to enforce that guarantee. The Court now casts a shadow over that guarantee as respects searches and seizures in civil cases. Any such conclusion would require considerable editing and revision of the Fourth Amendment. For by its terms it protects the citizen against unreasonable searches and seizures by government, whatever may be the complaint. The words are broad and inclusive:
31
'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 seized.' The Court said in Wolf v. Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at page 1361, that 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.' Now that resounding phrase is watered down to embrace only certain invasions of one's privacy. If officials come to inspect sanitary conditions, they may come without a warrant and demand entry as of right. This is a strange deletion to make from the Fourth Amendment. In some States the health inspectors are none other than the police themselves. In some States the presence of unsanitary conditions gives rise to criminal prosecutions. Baltimore City Code, Art. 12, §§ 112 and 119—the one involved in the present case—makes the failure to abate a nuisance a misdemeanor. The knock on the door in any health inspection case may thus lay the groundwork for a criminal prosecution. The resistance of the citizen in the present case led to the imposition of a fine. If a fine may be imposed, why not a prison term?
32
It is said, however, that this fine is so small as to amount only to an assessment to cover the costs of the inspection. Yet if this fine can be imposed, the premises can be revisited without a warrant and repeated fines imposed. The truth is that the amount of the fine is not the measure of the right. The right is the guarantee against invasion of the home by officers without a warrant. No officer of government is authorized to penalize the citizen because he invokes his constitutional protection.
33
Moreover, the protection of the Fourth Amendment has heretofore been thought to protect privacy when civil litigation, as well as criminal prosecutions, was in the offing. Why otherwise the great care exercised by the Court in restricting agencies like the Federal Trade Commission in making investigations in support of their power to issue cease and desist orders? Fear of trespassing on Fourth Amendment rights was expressly made the ground for a narrow reading of statutory powers in Federal Trade Comm. v. American Tobacco Co., 264 U.S. 298, 307, 44 S.Ct. 336, 337, 68 L.Ed. 696. The 'fishing expeditions' there condemned, Id., 264 U.S. at page 306, 44 S.Ct. at page 337, led no more directly to possible criminal prosecutions than the knock on the door in the present case.
34
The Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions. That certainly is not the teaching o En tick v. Carrington, 19 Howell's St. Tr. col. 1029. At that time 1765—it was the search for the nonconformist that led British officials to ransack private homes. The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but 'conscience and human dignity and freedom of expression as well.' See Ullmann v. United States, 350 U.S. 422, 445 et seq., 76 S.Ct. 497, 510, 100 L.Ed. 511 (dissent); Feldman v. United States, 322 U.S. 487, 499, 64 S.Ct. 1082, 1087, 88 L.Ed. 1408. It is only in that setting that Entick v. Carrington, supra, can be understood, as evidenced by Lord Camden's long review of the oppressive practices directed at the press by the Star Chamber, the Long Parliament, and the Licensing Acts. 19 Howell's St. Tr. cols. 1069—1072. It was in the setting of freedom of expression that Lord Camden denounced the general warrants. Taylor, The American Constitution (1911), p. 234, gives the correct interpretation of that historical episode:
35
'In the effort to destroy the freedom of the press, by a strained exercise of the prerogative a general warrant was issued in 1763 for the discovery and apprehension of the authors and printers (not named) of the obnoxious No. 45 of the North Briton, which commented in severe and offensive terms on the King's Speech at the prorogation of Parliament and upon the unpopular Peace of Paris recently (February 10, 1763) concluded. Forty-nine persons, including Wilkes, were arrested under the general warrant; and when it was ascertained that Wilkes was the author, an information for libel was filed against him on which a verdict was obtained. In suits afterward brought against the Under- Secretary of State who had issued the general warrant, Wilkes, and Dryden Leach, one of the printers arrested on suspicion, obtained verdicts for damages. When the matter came before the King's Bench in 1765, Lord Mansfield and the other three judges pronounced the general warrant illegal, declaring that 'no degree of antiquity could give sanction to a usage bad in itself." And see 2 Paterson, Liberty of the Subject (1877), pp. 129—132.
36
This history, also recounted in Boyd v. United States, 116 U.S. 616, 625—626, 6 S.Ct. 524, 529, was, in the words of Mr. Justice Bradley 'fresh in the memories of those who achieved our independence and established our form of government.' The Fourth Amendment thus has a much wider frame of reference than mere criminal prosecutions.
37
The fallacy in maintaining that the Fourth Amendment was designed to protect criminals only was emphasized by Judge Prettyman in District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, 16—17, 13 A.L.R.2d 954, affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599:
38
'The argument is wholly without merit, preposterous in fact. The basic premise of the prohibition against searches was not protection against self-incrimination; it was the common-law right of a man to privacy in his home, a right which is one of the indispensable ultimate essentials of our concept of civilization. It was firmly established in the common law as one of the bright features of the Anglo-Saxon contributions to human progress. It was not related to crime or to suspicion of crime. It belonged to all men, not merely to criminals, real or suspected. So much is clear from any examination of history, whether slight or exhaustive. The argument made to us has not the slightest basis in history. It has no greater justification in reason. To say that a man suspected of crime has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity.'
39
Judge Prettyman added that the Fourth Amendment applied alike to health inspectors as well as to police officers-indeed to every and any official of government seeking amis sion to any home in the country:
40
'We emphasize that no matter who the officer is or what his mission, a government official cannot invade a private home, unless (1) a magistrate has authorized him to do so or (2) an immediate major crisis in the performance of duty affords neither time nor opportunity to apply to a magistrate. This right of privacy is not conditioned upon the objective, the prerogative or the stature of the intruding officer. His uniform, badge, rank, and the bureau from which he operates are immaterial. It is immaterial whether he is motivated by the highest public purpose or by the lowest personal spite.' Id., 178 F.2d at 17. And see 44 Ill.L.Rev. 845.
41
The well-known protest of the elder Pitt against invasion of the home by the police, had nothing to do with criminal proceedings.
42
'The poorest man may in his cottage bid defiance to all the force 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!'
43
While this statement did not specifically refer to the general warrant, it was said in reference to the danger of excise officers entering private homes to levy the 'Cyder Tax.' 15 Hansard, Parliamentary History of England (1753—1765) p. 1307.
44
Some of the statutes which James Otis denounced did not involve criminal proceedings. They in the main regulated customs and allowed forfeitures of goods shipped into the Colonies in violation of English shipping regulations.1 The twenty-dollar forfeiture involved here is no different in substance from the ones that Otis and the colonists found so objectionable. For their objection went not to the amount or size of the forfeiture but to the lawless manner in which it was collected. 'Every man prompted by revenge, ill humour, or wantonness to inspect the inside of his neighbor's house, may get a writ of assistance.' Tudor, Life of James Otis (1823), p. 68. It was not the search that was vicious. It was the absence of a warrant issued on a showing of probable cause that Otis denounced—the precise situation we have here:
45
'Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Customhouse officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way: and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient.' Id., at 66—67.
46
The philosophy of the Fourth Amendment was well expressed by Mr. Justice Butler speaking for the Court in Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145. 'The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.' We have emphasized over and again that a search without a warrant can be made only in exceptional circumstances. If a house is on fire or if the police see a fugitive enter a building, entry without a search warrant can of course be made. Yet absent such extraordinary situations, the right of privacy must yield only when a judicial officer issues a warrant for a search on a showing of probable cause. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436; Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663; McDonald v. United States, 335 U.S. 451, 454—455, 69 S.Ct. 191, 192—193, 93 L.Ed. 153. As we said in McDonald v. United States, supra, 335 U.S. 455—456, 69 S.Ct. at page 193:
47
'The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has intrpo sed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.'
48
In the present case, the homeowner agreed to let the inspector in, if he got a search warrant. But none was ever sought. No excuse exists here for not getting a search warrant. A whole day elapsed between the first inspection and the arrest. The only reason given for not getting a warrant was the officer's convenience:
49
'Q. Could you not just as well have made your inspection one hour or two hours later than at the time you demanded entry? A. I could not. I had two students I had to release at three o'clock. I have to be in the office at three-thirty every day to take care of my reports.'
50
That is indeed flimsy ground for denying this homeowner the constitutional protection afforded by a search warrant.
51
We have as little reason for excluding this search from the Fourth Amendment as we would for limiting that Amendment to the kinds of warrants James Otis inveighed against—the writs of assistance and the general warrants. Cf. On Lee v. United States, 343 U.S. 747, 762, 72 S.Ct. 967, 976, 96 L.Ed. 1270; Schwartz v. Texas, 344 U.S. 199, 205, 73 S.Ct. 232, 236, 97 L.Ed. 231. For as Chief Justice Vinson wrote in Nueslein v. District of Columbia, 73 App.D.C. 85, 87, 115 F.2d 690, 692, while the Fourth Amendment 'was written against the background of the general warrants in England and the writs of assistance in the American colonies,' it 'gives a protection wider than these abuses.' See 2 Ala.L.Rev. 314; 3 Vand.L.Rev. 820; 63 Harv.L.Rev. 349. It was designed to protect the citizen against uncontrolled invasion of his privacy. It does not make the home a place of refuge from the law. It only requires the sanction of the judiciary rather than the executive before that privacy may be invaded. History shows that all officers tend to be officious; and health inspectors, making out a case for criminal prosecution of the citizen, are no exception.
52
We live in an era 'when politically controlled officials have grown powerful through an ever increasing series of minor infractions of civil liberties.' 17 U. of Chi.L.Rev. 733, 740. One invasion of privacy by an official of government can be as oppressive as another. Health inspections are important. But they are hardly more important than the search for narcotic peddlers, rapists, kidnappers, murderers, and other criminal elements. As we have seen, searches were once in their heyday when the government was out to suppress the nonconformists. That is the true explanation of Entick v. Carrington, supra. Many today would think that the search for subversives was even more important than the search for unsanitary conditions. It would seem that the public interest It would seem that the public interest great in one case as in another. The fear that health inspections will suffer it constitutional safeguards are applied is strongly held by some. Like notions obtain by some law enforcement officials who take shortcuts in pursuit of criminals. The same pattern appears over and again whenever government seeks to use its compulsive force against the citizen. Legislative Committees (Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Sweezy v. New Hampshire, 354 U.S. 234 77 S.Ct. 1203, 1 L.Ed.2d 1311), one-man grand juries (In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682), fire marshals (In re Groban, 352 U.S. 330, 337, 77 S.Ct. 510, 515, 1 L.Ed.2d 376), police (Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; On Lee v. United States, supra, 343 U.S. 762, 72 S.Ct. 976; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948), sometimes seek to place their requirements above the Constitution. The official's measure of his own need often does not square with the Bill of Rights.
53
Certainly this is a poor case for dispensing with the need for a search warrant. Evidence to obtain one was abundant. The house was in a state of extreme decay; and in the rear of the house was a pile of 'rodent feces mixed with straw and debris to approximately half a ton.' This is not to suggest that a health official need show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits or instrumentalities of crime. Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of a warrant. The test of 'probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought. This is not to sanction synthetic search warrants but to recognize that the showing of probable cause in a health case may have quite different requirements than the one required in graver situations. It can hardly be denied, unless history is ignored, that the policeman's or the inspector's knock on the door is one of these 'official acts and proceedings' which Boyd v. United States, supra, 116 U.S. 624, 6 S.Ct. 529, brought squarely within the Fourth Amendment. That being true, it seems to us plain that there is nothing in the Fourth Amendment that relieves the health inspector altogether from making an appropriate showing to a magistrate if he would enter a private dwelling without the owner's consent.
54
That problem, while important overall, is not important to the situation with which we deal. Figures submitted by the Baltimore Health Department show that citizens are mostly cooperative in granting entrance to inspectors.2 There were 28,081 inspections in 1954; 25,021 in 1955; 35,120 in 1956; 33,573 in 1957; and 36,119 in 1958. And in all these instances the number of prosecutions was estimated to average one a year. Submission by the overwhelming majority of the populace indicates there is no peril to the health program. One rebel a year (cf. Whyte, The Organization Man) is not too great a price to pay for maintaining our guarantee of civil rights in full vigor.
55
England—a nation no less mindful of public health than we and keenly conscious of civil liberties—has long proceeded on the basis that where the citizen denies entrance to a health inspector, a search warrant is needed. Public Health Act of 1936, 26 Geo. 5 & 1 Edw. 8, c. 49, §§ 285—287; Vines v. Governors, 63 J.P. 244 (Q.B.1899); Robinson v. Corporatio of Sutherland, (1899) 1 Q.B. 751; Wimbledon Urban District Counsel v. Hastings, 87 L.T.Rep. (5 N.S.) 118 (K.B.1902); Consett Urban District Council v. Crawford, (1903) 2 K.B. 183; 24 Halsbury's Laws (2d ed. 1937), p. 102, note m.
56
We cannot do less and still be true to the command of the Fourth Amendment which protects even the lowliest home in the land from intrusion on the mere say-so of an official.
1
If the nuisance constitutes an actual menace to health the Commissioner may abate it forthwith. Baltimore City Code, Art. 12, § 112.
2
Tudor, Life of James Otis (1823), 66. No complete text of the Otis speech is extant, but see notes of Horace Gray, Jr., in Quincy's Massachusetts Reports for 1761—1762, App. I, p. 469 et seq. Tudor's life contains an account of it as well as of the events leading to the speech and the reaction to it.
3
Id., at 61. Adams said:
'Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him. American Independence was then and there born. The seeds of patriots and heroes, to defend the Non sine Diis animosus infans; to defend the vigorous youth, were then and there sown. Every man of an immense crouded audience appeared to me to go away as I did, ready to take arms against Writs of Assistance. Then and there, was the first scene of the first act of opposition, to the arbitrary claims of Great Britain. Then and there, the child Independence was born. In fifteen years, i.e. in 1776, he grew up to manhood and declared himself free.' Id., at 60—61.
4
The Court in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, relied heavily on the interrelationship between the Fourth and Fifth Amendments, a view challenged by Professor Wigmore. See 8 Wigmore, Evidence (3rd ed. 1940), § 2264.
5
Nearly all the early Maryland statutes are contained in Records of the States of the United States of America, a collection compiled by the Library of Congress in association with the University of North Carolina in 1949. This collection is on microfim. Many volumes of the early Maryland Session Laws are available in various library collections throughout the country. No complete collection is known to exist. A typical tobacco inspection statute is Maryland Laws, November 1773, c. 1, §§ LXXIV, LXXX. At times a warrant was required for inspections of homes. Id., § LXXIII. See also Maryland Laws, 1717, c. VII. Other Colonies also had statutes allowing inspection to enforce standards for the manufacture or shipping of various items of trade. See, e.g., Virginia Laws, 15 Geo. II (1742), c. IV (pork and beef); Virginia Laws, 12 Geo. III (1772), c. II (flour and bread); Pennsylvania Laws, 1722, c. CCLII (flour and bread); Pennsylvania Laws, 1727, c. CCXCV (beef and pork); Pennsylvania Laws, 1729—1730, c. CCCXVI (hemp).
6
See, e.g., Maryland Laws, 1715, c. XLVI (tobacco); Maryland Laws, May 1756, p. 5, § XLVI; Maryland Laws. March 1758, p. 3, § X.
7
Ibid.
8
See Givner v. State, 210 Md. 484, 492—494, 124 A.2d 764, 768—769. The Maryland Court of Appeals has said that this provision of its Declaration of Rights (originally Article 23, now Article 26) is 'in pari materia' with the Fourth Amendment to the United States Constitution. Id., 210 Md. at page 492, 124 A.2d 764, 768.
9
Maryland Laws, Nov. 1782, c. XVII, § VII. A similar law had been in force in Pennsylvania since 1761. Pennsylvania Laws, 1761—1762, c. CCCCLXXX.
10
Maryland Laws, April 1787, c. XXIII. See also Pennsylvania Laws, 1782, c. MXXXI.
11
Maryland Laws, Nov. 1789, c. VIII, § 5. See also Maryland Laws, Nov. 1792, c. LXV, § VII; Maryland Laws, 1793, c. LVI; Maryland Laws, 1784, c. VII.
12
Baltimore Ordinances, 1801—1802, No. 23, § 6. The Baltimore City Health Department may be the oldest in the country. See 35 Am.J. of Public Health (Jan. 1945), 49.
13
See Howard, Public Health Administration and the Natural History of Disease in Baltimore, Maryland, 1797—1920 (1924), 140.
14
See, id., at 145—146. For example, in 1880 there were 4,292 nuisances inspected by sanitary inspectors. In 1890 there were 34,138 such inspections. Ibid.
15
Compare Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093, and Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837, with Brown v. Board of Education, 347, U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.
16
The Baltimore Health Department keeps a record of the number of inspections made annually. All but a few of these are inspections of dwellings. The figures for the last five years are as follows: 1954, 28,081 inspections; 1955, 25,021 inspections; 1956, 35,120 inspections; 1957, 33,573 inspections; 1958, 36,119 inspections. Memorandum of Appellee at Request of Court 2. The Health Commissioner of Baltimore estimates that the number of prosecutions under § 120 average one per year.
Of 57 cities whose health codes were studied by the Urban Renewal Administration, 36 empowered their officers to enter and inspect for violations. See Provisions of Housing Codes in Various American Cities, Urban Renewal Bulletin No. 3 (published by Urban Renewal Administration of the Housing and Home Finance Agency of 1956).
For a discussion of some of the problems of Urban Renewal, see Note, 72 Harv.L.Rev. 504.
1
6 Geo. 2, c. 13 (1733); 13 & 14 Car. 2, c. 11 (1662); 15 Car. 2, c. 7 (1663); 7 & 8 Will. 3, c. 22 (1696).
2
We are pointed to no body of judicial opinion which purports to authorize entries into private dwellings without warrants in search of unsanitary conditions. What is developed in the Court's opinion concerning Maryland's long-standing health measures may be only a history of acquiescence or a policy of enforcement which never tested the procedure in a definitive and authoritative way. Plainly we are not faced with a situation of constitutional adjudications of long duration, where change is resisted because community patterns have been built around them.
| 01
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359 U.S. 344
79 S.Ct. 838
3 L.Ed.2d 865
David H. SCULL, Petitioner,v.COMMONWEALTH OF VIRGINIA ex rel. COMMITTEE ON LAW REFORM AND RACIAL ACTIVITIES.
No. 51.
Argued Nov. 18, 1958.
Decided May 4, 1959.
Mr. Joseph L. Rauh, Jr., Washington, D.C., for the petitioner.
Mr. Leslie Hall, Alexandria, Va., for the respondent.
Opinion of the Court by Mr. Justice BLACK, announced by Mr. Justice HARLAN.
1
David H. Scull was convicted of contempt in the Circuit Court of Arlington County, Virginia, for refusing to obey a decision of that court ordering him to answer a number of questions put to him by a Legislative Investigative Committee of the Virginia General Assembly. On appeal the Virginia Supreme Court of Appeals affirmed without opinion Scull contended at the Committee hearings, in the courts below, and in this Court that the Virginia statute authorizing the investigation, both on its face and as applied, violated the Fourteenth Amendment to the United States Constitution. He claimed, among other things, that: (1) the Committee was 'established and given investigative authority, as part of a legislative program of 'massive resistance' to the United States Constitution and the Supreme Court's desegregation decisions, in order to harass, vilify, and publicly embarrass members of the NAACP and others who are attempting to secure integrated public schooling in Virginia.' (2) The questions asked him violated his rights of free speech, assembly and peiti on by constituting an unjustified restraint upon his associations with others in 'legal and laudable political and humanitarian causes.' (3) 'The information sought from (him) was neither intended to, nor could reasonably be expected to, assist the Legislature in any proper legislative function.' (4) Despite his requests, repeated at every stage of the proceedings, the Committee failed to inform him 'in what respect its questions were pertinent to the subject under inquiry * * *.' We granted certiorari to consider these constitutional challenges to the validity of petitioner's contempt conviction. 357 U.S. 903, 78 S.Ct. 1148, 2 L.Ed.2d 1154. After careful consideration, we find it unnecessary to pass on any of these constitutional questions except the last one because we think the record discloses an unmistakable cloudiness in the testimony of the Committee Chairman as to what was sought of Scull, as well as why it was sought. Scull was therefore not given a fair opportunity, at the peril of contempt, to determine whether he was within his rights in refusing to answer and consequently his conviction must fall under the procedural requirements of the Fourteenth Amendment.
2
Scull is a printer and calendar publisher in Annandale, Virginia, where he has been a long-time resident active in religious, civic and welfare groups. Soon after this Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, holding segregation in the public schools to be unconstitutional, Scull began to advocate compliance with the requirements of the Brown case. In December of 1954, Scull and a group of other citizens met at a church in Alexandria to consider and discuss 'the part which concerned and conscientious citizens can best play in helping to achieve the community adjustments necessary to protect the educational and constitutional rights of all citizens as recently defined and interpreted by the Supreme Court of the United States.' The group decided to prepare and publish through a 'Citizens Clearing House On Public Education' information about the Virginia educational program and to report on the progress made by various Parent-Teacher Associations in Northern Virginia in developing programs for 'orderly integration.'
3
One of the newsletters published by the Clearing House was obtained by the Fairfax Citizens' Council, a group which vigorously opposed any desegregation of Virginia schools. The Council republished a large part of the letter in a pamphlet entitled 'The Shocking Truth!' It called attention to the fact that the newsletter was being 'disseminated through Box 218, Annandale, Va. (David Scull),' and stated that 'communications with the N.A.A.C.P., Southern Regional Council, Clearing House, B'nai B'rith, Council on Human Relations, American Friends and many other pro-integration groups are funneled through Box 218, Annandale, Va., and membership is encouraged if not actually suggested by the P.T.A. Federation.'
4
The pamphlet came to the attention of Delegate James M. Thomson, Chairman of the Virginia Committee on Law Reform and Racial Activities, who promptly subpoenaed Scull to appear and testify. This group, commonly called the 'Thomson Committee,' was established a few months after the Virginia General Assembly adopted a resolution attacking the Brown decision and pledging that the Legislature would take all constitutionally available measures to resist desegregation in the public schools.1 The bill setting up the 'Thomson Committee' was one of a series relating to segregation passed on the same day. Among these were bills establishing a pupil-assignment plan, providing for the withdrawal of state funds from integrated schools and forbidding barratry, champerty and maintenance.2 While they did not mention the NAACP by name, Chairman Thomson testified below that in the course of the 'legislative battle' over them he had stated that with 'this set of bills * * * 'we can bust that organization * * * wide open."
5
Scull appeared before the Thomson Committee, as ordered. He answered several questions about his publishing business, and then was asked whether he belonged 'to an organization known as The Fairfax County Council on Human Relations.' He replied that 'on advice of counsel I wish to state that the language of the subpoena delivered to me was so broad and vague * * * that before going further I wish to ask you to tell me the specific subject of your inquiry today, so that I may judge which of your questions are pertinent.' Chairman Thomson told him that the general subjects under inquiry were 'threefold': (1) the tax status of racial organizations and of contributions to them; (2) the effect of integration or its threat on the public schools of Virginia and on the State's general welfare; and (3) the violation of certain statutes against 'champerty, barratry, and maintenance, or the unauthorized practice of the law.'3 He told Scull, however, that several of these subjects 'primarily do not deal with you.' Scull then filed a statement of his objections to the questioning and emphasized that he had not been 'properly informed of the subject of inquiry.' Without clarifying Chairman Thomson's ambiguous statement or specifying which of the 'several' subjects did not apply to Scull, the Committee proceeded to ask the 31 questions listed in the footnote below.4
6
It is difficult to see how some of these questions have any relationship to the subjects the Committee was authorized to investigate, or how Scull could possibly discover any such relationship from the Chairman's statement.5 It does seem that several of the questions asked were aimed at connecting Scull with barratry or champerty, but it was never made wholly clear to Scull, either before or after the questioning, that this was one of the subjects under inquiry as far as he was concerned. Nevertheless, Scull was cited to appear before the Circuit Court to show cause why he should not be compelled to answer.
7
In the Circuit Court the Chairman sought to explain his ambiguous statements about the scope of the investigation. Far from clarifying the matter, however, his testimony added to the confusion, since he successively ruled out as inapplicable to Scull each of the subjects which the Legislature had authorized the Committee to investigate. On first being asked which of the three subjects applied to Scull, he testified:
8
'For my personal standpoint, I would say that the one dealing with the taxable status does not affect him here, and likewise the one—I have forgotten whether I stated it or not, but I would think that the integration or the threat of integration on public school systems, on the general welfare, would apply.
9
'Looking at it in retrospect, the other on champerty, barratry, and maintenance would not apply. I don't recll whether I did say or did not say. We did specifically with the third one: Champerty, barratry, and maintenance.'
Later the following colloquy took place:
10
Counsel for Scull: 'Q. Now, is it also correct that you said several which primarily do not deal with you?'
11
Chairman Thomson: 'A. If the transcript says it there, I said it.
12
'Q. Which of those three were you referring to when you said, 'Several which primarily do not deal with you'?
13
'A. I think it is the last mentioned there. (The last mentioned was barratry.)
14
'Q. Would you just state for the record so that it is clear on the record which ones you were referring to that did not deal with Mr. Scull?
15
'A. The violation of those statutes dealing with champerty, barratry, and maintenance, and general unauthorized practice of the law.
16
'Q. Those did not deal with Mr. Scull? 'A. No, no; I think in the connection that we are dealing with here, that the ones spoken of first did not apply; only the latter one did apply that I was making.
17
'Q. Now I am confused.'
18
Subsequently, Chairman Thomson stated that barratry applied to a certain 'section of the testimony' but did not identify which section. Still later he undertook to specify the section but instead of doing so he made what may have been a general retraction and said, 'The whole statement would be applicable to the entire transcript and the fact that he was advised of each one of them would be applicable to the entire transcript.'
19
The judge who ordered Scull to answer the questions made no clearer statement of their pertinence to the investigation or to basic state interests than had the Committee Chairman. His holding was merely that 'the questions are of a preliminary nature and in developing the inquiry to secure the information which the Committee is after appears to the Court to be perfectly proper line of inquiry.' He at no time analyzed the individual questions asked, nor explained to Scull what it was that the Committee wanted from him and how the questions put to him related to these desires.
20
The events leading to Scull's subpoena, as well as the questions asked him, make it unmistakably clear that the Committee's investigation touched an area of speech, press, and association of vital public importance.6 In N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460—466, 78 S.Ct. 1163, 1170—1173, 2 L.Ed.2d 1488, this Court held that such areas of individual liberty cannot be invaded unless a compelling state interest is clearly shown.7 But we do not reach that question because the record shows that the purposes of the inquiry, as announced by the Chairman, were so unclear, in fact conflicting, that Scull did not have an opportunity of understanding the basis for the questions or any justification on the part of the Committee for seeking the information he refused to give. See Watkins v. United States, 354 U.S. 178, 208—209, 214 215, 77 S.Ct. 1173, 1189—1190, 1193, 1 L.Ed.2d 1273. To sustain his conviction for contempt under these circumstances would be to send him to jail for a crime he could not with reasonable certainty know he was committing. This Court has often held that fundamental fairness requires that such reasonable certainty exist. See Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888; Jordan v. De George, 341 U.S. 223, 230, 71 S.Ct. 703, 707, 95 L.Ed. 886; Watkins v. United States, 354 U.S. 178, 208—209, 214—215, 217, 77 S.Ct. 1173, 1189—1190, 1193, 1194; Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183. Certainty is all the more essential when vagueness might induce individuals to forego their rights of speech, press, and association for fear of violating an unclear law. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Such is plainly the case here. The information given to Scull was far too wavering, confused and cloudy to sustain his conviction.
21
The case is reversed and remanded to the Virginia Supreme Court of Appeals for further proceedings not inconsistent with this opinion.
22
Reversed.
1
See Va.Acts 1956, S.J.Res. 3.
2
See generally, Va.Acts, Ex.Sess., 1956, cc. 31—37, 56—71.
3
The Committee was authorized to: 'make a thorough investigation of the activities of corporations, organizations, associations and other like groups which seek to influence, encourage or promote litigation relating to racial activities in this State. The Committee shall conduct its investigation so as to collect evidence and information which shall be necessary or useful in
'(1) determining the need, or lack of need, for legislation which would assist in the investigation of such organizations, corporations and associations relative to the State income tax laws;
'(2) determining the need, or lack of need, for legislation redefining the taxable status of such corporations, associations, organizations and other groups, as above referred to, and further defining the status of donations to such organizations or corporations from a taxation standpoint; and
'(3) determining the effect which integration or the threat of integration could have on the operation of the public schools in the State or the general welfare of the State and whether the laws of barratry, champerty and maintenance are being violated in connection therewith.' Va.Acts, E.S.1956, c. 37.
4
'(1) Are you a member of The Fairfax County Council on Human Relations?'
'(2) Are you a member of the National Association for the Advancement of Colored People?'
'(3) Have you contributed to any of the suits, contributed financially to any of the suits designed to bring about racial integration in the public schools?'
'(4) Have you paid court costs in any of the suits designed to bring about racial integration in the State of Virginia?'
'(5) Have you paid attorneys' fees to any attorneys in regard to
racial litigation involved in the integration of the public schools in Virginia?'
'(6) Have you attended any meetings at which the formulation of suits against the State of Virginia in racial integration suits in the public schools have been discussed?'
'(7) I notice in your statement that you say that you think you have a moral duty to counsel with a fellow citizen as to his legal rights if he is ignorant of them. Do you feel qualified to counsel with him as to his legal rights?'
'(8) Who else uses that box number (No. 218 in Annandale, Va.) besides yourself?'
'(9) Does the Fairfax County Council on Human Relations use that box?'
'(10) Has the NAACP used that number from time to time?'
'(11) Has the organization known as the Citizens Clearing House used that box number?'
'(12) Has the Fairfax County Federation of PTA's use th at number?'
'(13) Has the Fairfax County Federation of P-TA Workshops on Supreme Court Decisions on the Public Schools used that box number?'
'(14) Has Miss Caroline H. Planck or Mrs. Barbara Marx used that box number?'
'(15) Do you know Mrs. Planck or Mrs. Marx?'
'(16) Has Dr. E. B. Henderson used that box number?'
'(17) Has the National Conference of Christians and Jews used that box number?'
'(18) Has the Save Our Schools Committee of Fairfax County used that box number?'
'(19) Has Mr. Warren D. quenstedt used that box?'
'(20) Has Mr. E. A. Prichard used that number?'
'(21) Has the American Civil Liberties Union used that same box number?'
'(22) Has the Americans For Democratic Action, known as ADA, used that box number?'
'(23) Has the Japanese-American Citizens League used that box number?'
'(24) Has the Washington Inter-Racial Workshop used that same number?'
'(25) Has the American Friends Service Committee used that box number?'
'(26) Does the Community Council for Social Progress use the same box number?'
'(27) Does B'nai Brith use that same box number?'
'(28) Does the Communist Party use that box number?'
'(29) Do you belong to any racial organization, and by 'racial' I mean organizations whose membership is interracial in character or organizations that are instituting or fostering racial litigation?'
'(30) Have you ever been called as a witness before any Congressional Committee?'
'(31) Has your name ever been cited by any Congressional Committee as being on any list of members of any organizations that are cited as subversive?'
5
Question 28 asked if the Communist Party used Box 218; Question 30 asked if Scull had ever been called as a witness before a Congressional Committee; Question 31 asked if his name had ever been cited by any Congressional Committee as being on any list of members of any organizations that are cited as subversive. Nothing in the language of the Act authorizing the Committee or in the statement of Chairman Thomson about the subjects under inquiry could lead Scull to think that it was the Committee's duty to investigate Communist or subversive activities.
6
See N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460—466, 78 S.Ct. 1163, 1170—1173; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. Among the questions asked were several dealing directly with political activity. Question 19, for example asked if Mr. Warren D. Quenstedt, a candidate for Congress had used Scull's post-office box.
7
Four members of this Court adhere to th vi ew they expressed in Sweezy v. State of New Hampshire, 354 U.S. 234, 251, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311, and 'do not now conceive of any circumstances wherein a state interest would justify infringement of rights in these fields.'
| 23
|
359 U.S. 394
79 S.Ct. 825
3 L.Ed.2d 900
Leslie IRVIN, Petitioner,v.Alfred F. DOWD, Warden of the Indiana State Prison.
No. 63.
Argued Jan. 15, 1959.
Decided May 4, 1959.
Messrs. Theodore Lockyear and James D. Lopp, Evansville, Ind., and James D. Nafe, South Bend, Ind., for petitioner.
Mr. Richard M. Givan, Indianapolis, Ind., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner brought this habeas corpus proceeding in the District Court for the Northern District of Indiana under 28 U.S.C. § 2241, 28 U.S.C.A. § 2241,1 claiming that his conviction for murder in the Circuit Court of Gibson County, Indiana, was obtained in violation of the Fourteenth Amendment. The District Court dismissed the writ, D.C., 153 F.Supp. 531, under the provision of 28 U.S.C. § 2254, 28 U.S.C.A. § 2254, that habeas corpus 'shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State * * *.'2 The Court of Appeals for the Seventh Circuit affirmed. 7 Cir., 251 F.2d 548. We granted certiorari, 356 U.S. 948, 78 S.Ct. 921, 2 L.Ed.2d 842.3
2
The constitutional claim arises in this way. Six murders were committed in the vicinity of Evansville, Indiana, two in December 1954, and four in March 1955. The crimes, extensively covered by news media in the locality, aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County, a rural county of approxiate ly 30,000 inhabitants. The petitioner was arrested on April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases, which were intensively publicized, stating that the petitioner had confessed to the six murders. The Vanderburgh County Grand Jury soon indicted the petitioner for the murder which resulted in his conviction. This was the murder of Whitney Wesley Kerr allegedly committed in Vanderburgh County on December 23, 1954. Counsel appointed to defend petitioner immediately sought a change of venue from Vanderburgh County, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against the petitioner, counsel, on October 29, 1955, sought another change of venue, from Gibson County to a county sufficiently removed from the Evansville locality that a fair trial would not be prejudiced. The motion was denied, apparently because the pertinent Indiana statute allows only a single change of venue.4
3
The voir dire examinations of prospective jurors began in Gibson County on November 14, 1955. The averments as to the prejudice by which the trial was allegedly environed find corroboration in the fact that from the first day of the voir dire considerable difficulty was experienced in selecting jurors who did not have fixed opinions that the petitioner was guilty. The petitioner's counsel therefore renewed his motion for a change of venue, which motion was denied. He renewed the motion a second time, on December 7, 1955, reciting in his moving papers: 'in the voir dire examination of 355 jurors called in this case to qualify as jurors 233 have expressed and formed their opinion as stated in said voir dire, that the defendant is guilty * * *.' Again the motion was denied. Alternatively, on each of eight days over the four weeks required to select a jury, counsel sought a continuance of the trial on the ground that a fair trial at that time was not possible in the prevailing atmosphere of hostility toward the petitioner. All of the motions for a continuance were denied. The State Prosecutor, in a radio broadcast during the second week of the voir dire examination, stated that 'the unusual coverage given to the case by the newspapers and radio' caused 'trouble in getting a jury of people who are not (sic) unbiased and unprejudiced in the case.'
4
The petitioner's counsel exhausted all 20 of his peremptory challenges, and when 12 jurors were ultimately accepted by the court also unsuccessfully challenged all of them for alleged bias and prejudice against the petitioner, complaining particularly that four of the jurors, in their voir dire examinations, stated that they had an opinion that petitioner was guilty of the murder charged.5
5
Also, at the trial, the State's Prosecuting Attorney took the stand as part of his presentation of the State's case, and over petitioner's objection was allowed to testify that the petitioner, five days after his arrest, on April 13, 1955, had orally confessed the murder of Kerr to him. The Prosecuting Attorney was also permitted in summation, again over petitioner's objection, to vouch his own testimony by commenting to the jury, 'I testified myself what was told me.'
6
The opinions of the Indiana Supreme Court and the District Court held the constitutional claim to be without merit. Irvin v. State, 236 Ind. 384, 392—394, 139 N.E.2d 898, 901—902; Irvin v. Dowd, D.C., 153 F.Supp. 531, 535—539. On the other hand, Chief Judge Duffy of the Court of Appeals, concurring in the affirmance of the dismissal by the District Court, reached a contrary conclusion: 'Irvin was not accorded due process of law in the trial which resulted in his conviction and death sentence. In my judgment, he did not receive a fair trial because some of the jury had preconceived opinions as to defendant's guilt, and also because of the conduct of the prosecuting attorney.' 7 Cir., 251 F.2d 548, 554.
7
The Gibson County jury returned its verdict on December 20, 1955, and assessed the death penalty. Indiana law allows 30 days from the date of the verdict within which to file a motion for a new trial in the trial court. Burns' Ind.Stat.Ann., 1956 Replacement Vol., s 9—1903. The petitioner's counsel, on January 19, 1956, the 30th day, filed such a motion specifying 415 grounds of error constituting the alleged denial of constitutional rights. However, the petitioner had escaped from custody the night before, January 18, 1956, and on January 23, 1956, the trial court overruled the motion, noting that the petitioner had been an escapee when the motion was filed and was still at large. The petitioner was captured in California about three weeks later and, on February 17, 1956, was confined in the Indiana State Prison.
8
Under Indiana law the denial of the new trial was not appealable, but was reviewable by the Indiana Supreme Court only if assigned as error in the event of an appeal from the judgment of conviction. The State Supreme Court has held:
9
'The statute (providing for appeal) does not authorize an appeal from every ruling which a court may make against a defendant in a criminal action, but only authorizes an appeal 'from any judgment * * * against him,' and provides for review, upon such appeal, of decisions and rulings of the court made in the progress of the case. This court has construed the statute as authorizing an appeal only from a final judgment in a criminal action. The action of a trial court in overruling a motion for a new trial may be reviewed upon an appeal from a judgment of conviction rendered against a defendant, but the overruling of a motion for a new trial must be assigned as error. In such case the appeal is from the judgment of conviction and not from the ruling upon the motion for a new trial. The overruling of a motion for a new trial does not constitute a judgment, and an appeal does not lie from the court's action in overruling such motion.' Selke v. State, 211 Ind. 232, 234, 6 N.E.2d 50, 571.
10
The judgment of conviction imposing the death sentence was entered January 9, 1956. The petitioner was entitled to appeal, as a matter of right, from that judgment, provided, in compliance with a State Supreme Court rule,6 the appeal was perfected by filing with the Clerk of the Supreme Court a transcript of the trial record and an assignment of errors within 90 days of the judgment. The Supreme Court may, in its discretion, extend the time on proper motion made within the 90-day period. The questions before the Supreme Court are those raised by the appellant in his assignment of errors.
11
On March 22, 1956, the petitioner applied for an extension of time within which to file the trial transcript and his assignment of errors. This was after he was returned to the custody of the State and well within 90 days from January 9, 1956, the date of the judgment of conviction. We were advised on oral argument that the State objected to this motion 'because he (petitioner) had escaped,' and a hearing was held on the objection by the State Supreme Court. Petitioner's motion was granted and the time was extended to June 1, 1956. The assignment of errors, timely filed with the trial transcript of some 5,000 pages, assigned only one ground of error—that 'the (trial) Court erred in overruling appellant's motion for new trial.' The petitioner's brief of over 700 pages opened by advising the State Supreme Court that 'Under this single assignment of error, the appellant has combined all errors alleged to have been committed prior to the filing of the motion for a new trial.' In short, the form of the assignment was a short hand way of specifying the 415 grounds stated in the motion for new trial as constituting the claimed denial of constitutional rights. Indeed the only arguments made in the lengthy brief related to the constitutional claim. The State's brief devoted some 70 pages to answering these contentions, and in 7 additional pages argued that in any event the Circuit Court had not erred in denying the motion for a new trial because the petitioner was an escapee at the time it was filed and decided.
12
The case before the Indiana Supreme Court was thus an appeal perfected in ull compliance with Indiana procedure; therefore, the court was required under Indiana law to pass on the merits of the petitioner's assignment of error. That the assignment of error was sufficient to present the contitutional claim is evident from the court's acceptance of it as the basis for considering the 415 grounds of alleged error constituting that claim. However, under the single assignment of error, the judgment of conviction could be affirmed by the State Supreme Court if, for any reason finding support in the record, the motion for a new trial was properly overruled. The State argued that the overruling should be upheld on either of two grounds: one, because the petitioner was an escapee at the time the motion was made and decided, and, two, because the trial itself was fair and without error. Petitioner's appeal clearly raised both of these issues and the Indiana Supreme Court discussed both in its opinion.
13
We think that the District Court and Court of Appeals erred in concluding that the State Supreme Court decision rested on the ground that the petitioner was an escapee when his motion for a new trial was made and decided. On the contrary, the opinion to us is more reasonably to be read as resting the judgment on the holding that the petitioner's constitutional claim is without merit. As we have shown, under the state procedure, the State Supreme Court could have rested its decision solely on the federal constitutional claim.7 This, we think, is what the Indiana high court did. The opinion discusses both issues. The discussion of the escape issue concludes with the statement, 'No error could have been committed in overruling the motion for a new trial under the circumstances.' 236 Ind., at page 392, 139 N.E.2d at page 902. But the opinion proceeds: 'Our decision on the point under examination makes it unnecessary for us to consider the other contentions of the appellant; however, because of the finality of the sentence in the case we have reviewed the evidence to satisfy ourselves that there is no miscarriage of justice in this case.' 236 Ind. at pages 392—393, 139 N.E.2d at page 902. The conclusion reached after discussion of the merits is: 'It does not appear from the record and argument had, that the appellant was denied due process of law under the Fourteenth Amendment * * *.' 236 Ind., at page 394, 139 N.E.2d at page 902. The court's statement that its conclusion on the escape point made it 'unnecessary' to consider the constitutional claim was not a holding that the judgment was rested on that ground. Rather the court proceeded to determine the merits 'because of the finality of the sentence' and 'to satisfy ourselves that there is no miscarriage of justice.' In this way, in our view, the State Supreme Court discharged the obligation which rests upon 'the state courts, equally with the courts of the Union, * * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *.' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542. We thus believe that the opinion is to be read as rested upon the State Supreme Court's considered conclusion that the conviction resulting in the death sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States.
14
In this posture, 28 U.S.C. § 2254, 28 U.S.C.A. § 2254 does not bar the petitioner's resort to federal habeas corpus. The doctrine of exhaustion of state remedies in federal habeas corpus was judicially fashioned after the Congress, by the Act of February 5, 1867, greatly expanded the habeas corpus jurisdiction of the federal courts to embrace 'all cases where any person may be restrained of his * * * liberty in violation of the constitution, or of any treaty or law of the United States * * *.' 14 Stat. 385. Although the statute has been re-enactd w ith minor changes at various times the sweep of the jurisdiction granted by this broad phrasing has remained unchanged.8
15
Since there inhered in this expanded grant of power, beside the added burden on the federal courts, the potentiality of conflict between federal and state courts, this Court, starting with the decision in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868, developed the doctrine of exhaustion of state remedies, a 'rule * * * that the * * * courts of the United States, while they have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in custody under the authority of a State in violation of the Constitution, * * * yet, except in cases of peculiar urgency, ought not to exercise that jurisdiction by a discharge of the person in advance of a final determination of his case in the courts of the State, * * *' Tinsley v. Anderson, 171 U.S. 101, 104 105, 18 S.Ct. 805, 807, 43 L.Ed. 91. The principles are now reasonably clear. 'Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted.' Ex parte Hawk, 321 U.S. 114, 116—117, 64 S.Ct. 448, 450, 88 L.Ed. 572. The principles of the doctrine have been embodied in 28 U.S.C. § 2254, 28 U.S.C.A. § 2254 which was enacted by Congress to codify the existing habeas corpus practice. See Darr v. Burford, 339 U.S. 200, 210—214, 70 S.Ct. 587, 593, 594 595, 94 L.Ed. 761; Young v. Ragen, 337 U.S. 235, 238, note 1, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333; Brown v. Allen, 344 U.S. 443, 447 450, 73 S.Ct. 397, 403, 97 L.Ed. 469. As is stated in the Reviser's Note: 'This new section is declaratory of existing law as affirmed by the Supreme Court.'9
16
The petitioner in this case plainly invoked 'all state remedies available' and obtained 'a final determination' of his constitutional claim from the Indiana Supreme Court. Certainly Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, relied upon by the Court of Appeals, does not bear on his situation. In that case the two petitioners in Daniels v. Allen had 60 days in which to make and serve a statement of the case on appeal from a conviction in the state trial court. Counsel failed to serve this statement until 61 days had expired, and the trial judge struck the appeal as out of time. The pertinent North Carolina rule provided that the time limitation was 'mandatory,' and precluded an appeal to the State Supreme Court. The State Supreme Court dismissed petitioners' attempted appeal on the ground that no appeal had been filed. This Court held that under the doctrine of exhaustion of state remedies habeas corpus ought not be granted since petitioners had sought too late to invoke North Carolina's 'adequate and easily complied-with method of appeal.' 344 U.S., at page 485, 73 S.Ct. at page 421. In contrast, the petitioner's appeal from his judgment of conviction to the Indiana Supreme Court raising the constitutional claim was timely and was accepted by that court as fully complying with all pertinent procedural requirements. Furthermore, the State Supreme Court did reach and decide petitioner's federal constitutional claim.
17
We therefore hold that the case is governed by the principle that the doctrine of exhaustion of state remedies embodied in 28 U.S.C. § 2254, 28 U.S.C.A. § 2254 does not bar resort to federal habeas corpus if the petitioner has obtained a decision on his constituion al claims from the highest court of the State, even though, as here, that court could have based its decision on another ground. Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647. In this view, we do not reach the question whether federal habeas corpus would have been available to the petitioner had the Indiana Supreme Court rested its decision on the escape ground.
18
The judgment of the Court of Appeals is reversed and the case is remanded to that court. The Court of Appeals may decide the merits of petitioner's constitutional claim, or remand to the District Court for further consideration of that claim, as the Court of Appeals may determine. It is so ordered.
19
The judgment of Court of Appeals reversed and case remanded to that court with directions.
20
Mr. Justice STEWART concurs in the judgment and the opinion of the Court, with the understanding that the Court does not here depart from the principles announced in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.
21
Mr. Justice FRANKFURTER, dissenting.
22
The problem represented by this case is as old as the Union and will persist as long as our society remains a constitutional federalism. It concerns the relation of the United States and the courts of the United States to the States and the courts of the States. The federal judiciary has no power to sit in judgment upon a determination of a state court unless it is found that it must rest on disposition of a claim under federal law.* This is so whether a state adjudication comes directly under review in this Court or reaches us by way of the limited scope of habeas corpus jurisdiction originating in a District Court. (Judicial power is not so restrictively distributed in other federalisms comparable to ours. Neither the Canadian Supreme Court nor the Australian High Court is restricted to reviewing Dominion and Commonwealth issues respectively. The former reviews decisions of provincial courts turning exclusively on provincial law and the latter may review state decisions resting exclusively on state law.) To such an extent is it beyond our power to review state adjudications turning on state law that even in the high tide of nationalism following the Civil War, this Court felt compelled to restrict itself to review of federal questions, in cases coming from state courts, by limiting broadly phrased legislation that seemingly gave this Court power to review all questions, state and federal, in cases jurisdictionally before it. It refused to impute to Congress such a 'radical and hazardous change of a policy vital in its essential nature to the independence of the State courts * * *.' Murdock v. City of Memphis, 20 Wall. 590, 630, 22 L.Ed. 429. This decision has not unjustifiably been called one of 'the twin pillars' (the other is Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97) on which have been built 'the main lines of demarcation between the authority of the state legal systems and that of the federal system.' Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 503—504.
23
Something that thus goes to the very structure of our federal system in its distribution of power between the United States and the States is not a mere bit of red tape to be cut, on the assumption that this Court has general discretion to see justice done. Nor is it one of those 'technical' matters that laymen, with more confidence than understanding of our constitutional system, so often disdain.
24
In view of so vital a limitation on our jurisdiction, this Court has, until relatively recently, been very strict on insisting on an affirmative showing on the record, when review is here sought, that it clearly appear that the judgment complained of rested on the construction of federal law and was not supportable on a rule of local law beyond our power to question. Particularly in cases where life or liberty is at stake, the Court has relaxed this insistence to the extent of giving state courts an opportunity to clarify a decision that could fairly be said to be obscure or ambiguous in establishing that it rested or could rest on an interpretation of state law. No doubt this procedure makes for delay in ultimate decision. But it ensures that there is no denial of the right to resort to this Court for the vindication of a federal right when a state court's adjudication leaves fair ground for doubt whether a federal right controlled the issue. Experience shows that this procedure for clarification at times establishes that it was, in fact, federal law on which the state decision rested, while in other instances the state court removed all doubt that state law supported its decision, and there was an end of the matter. Compare Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, and Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483, with State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950, and Van Cott v. State Tax Commission, 98 Utah 264, 96 P.2d 740; Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920, and National Tea Co. v. State, 208 Minn. 607, 294 N.W. 230; Williams v. State of Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, and Williams v. State, 211 Ga. 763, 88 S.E.2d 376.
25
Even the most benign or latitudinarian attitude in reading state court opinions precludes today's decision. It is not questioned that the Indiana Supreme Court discussed two issues, one indisputably a rule of local law and the other a claim under the Fourteenth Amendment. That court discussed the claim under the Fourteenth Amendment rather summarily, after it had dealt extensively with the problem of local law. If the Indiana court's opinion had stopped with its lengthy discussion of the local law and had not gone on to consider the federal issue, prefacing its consideration with the introductory sentence that '(o)ur decision on the point under examination makes it unnecessary for us to consider the other contentions of the appellant; however, because of the finality of the sentence in the case we have reviewed the evidence to satisfy ourselves that there is no miscarriage of justice in this case. * * *' (Irvin v. State, 236 Ind. 384, 392 393, 139 N.E.2d 898, 902), it is inconceivable that, on the proceeding before us, we would entertain jurisdiction. What this Court is therefore saying, in effect, is that it interprets the discussion of the Fourteenth Amendment problem which follows the elaborate and potentially conclusive discussion of the state issue not as resting the case on two grounds, state and federal, but as a total abandonment of the state ground, a legal erasing of the seven-page discussion of state law. Concededly, if a state court rests a decision on both an adequate state ground and a federal ground, this Court is without jurisdiction to review the superfluous federal ground. For while state courts are subject to the Supremacy Clause of the United States Consitu tion (Art. VI, cl. 2), they are so subject only if that Clause becomes operative, and they need not pass on a federal issue if a relevant rule of state law can dispose of the litigation.
26
It may be that it is the unwritten practice of the Indiana Supreme Court to have an 'unnecessary' consideration of a federal issue wipe out or displace a prior full discussion of a controlling state ground. Maybe so. But it is surely not a self-evident proposition that discussion of a federal claim constitutes abandonment of a prior disposition of a case on a relevant and conclusive state ground. The frequency with which state court opinions indulge in the superfluity of dealing with a federal issue after resting a case on a state ground, affords abundant proof that we cannot take judicial notice of an inference that a federal question discussion following a state-ground disposition spells abandonment of the latter. Perhaps if counsel had documented such an Indiana practice, had supplied us with a basis for drawing that conclusion regarding the appropriate way of reading Indiana opinions, this Court itself would be entitled to find that such is the way in which Indiana decisions must be read. But we cannot extemporize the existence of such an Indiana practice as a basis for our jurisdiction. Restricted, as we are restricted, to the text of what the Supreme Court of Indiana wrote in 236 Ind. 384, 139 N.E.2d 898, in ascertaining what it is that the Indiana Supreme Court meant to do when it first enlarged upon a controlling state ground and then, ex gratia, dealt with an 'unnecessary' federal ground, we are not free to pluck from the air an undocumented state practice on the strength of which we are to ignore the bulk of the state court's opinion and treat it as though it had not been written or its significance had been discredited by the Indiana Supreme Court.
27
In the most compassionate mood, all we are entitled to do in a case like this, where life is at stake, is to afford an opportunity for the Indiana Supreme Court to tell us whether, in fact, it abandoned its state ground and rested its decision solely on the 'unnecessary' federal ground. Thus only could this Court acquire jurisdiction over the federal question. Such a remission to the Indiana Supreme Court, by an appropriate procedure, for a clarification of its intention in writing this double-barreled opinion would be in full accord with the series of cases in which the state court was given opportunity to clarify its purpose. To assume, as the Court does, that the Indiana Supreme Court threw into the discard an elaborately considered local law rule is, I most respectfully submit, to assume a jurisdiction that we do not have. This assumption of jurisdiction cannot help but call to mind the admonition of Benjamin R. Curtis, one of the notable members in the Court's history, that 'questions of jurisdiction were questions of power as between the United States and the several States.' 2 Cliff. 614 (1st Cir.).
28
With due regard to the limits of our jurisdiction there is only one other mode of reading the opinion of the Indiana Supreme Court, one other mode, that is, by which the meaning of its opinion is to be decided by that court and not this. That is the mode which my brother HARLAN has explicated, and it is entirely consistent with the governing considerations which I have tried to set forth for me also to join, as I do join, his dissenting opinion.
29
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER, Mr. Justice CLARK, and Mr. Justice WHITTAKER join, dissenting.
30
Although I agree that federal consideration of petitioner's constitutional claims is not foreclosed by the decision of the Supreme Court of Indiana, I think that the Court's disposition of the matter, which contemplates the overturning of petitioner's conviction without the necessity of further proceedings in the state courts if his constitutional contentions are ultimately federally sustained, rests upon an impermissible interpretation of the opinion of the State Supreme Court (236 Ind. 384, 139 N.E.2d 898), and that a different procedural course is required if state and federal concerns in this situation are to be kept in proper balance.
31
It is clear that the federal courts would be without jurisdiction to consider petitioner's constitutional claims on habeas corpus if the Supreme Court of Indiana rejected those claims because, irrespective of their possible merit, they were not presented to it in compliance with the State's 'adequate and easily-complied-with method of appeal.' Brown v. Allen, 344 U.S. 443, 485, 73 S.Ct. 397, 421, 97 L.Ed. 469. The first question that concerns us, therefore, is whether the state court's judgment affirming the conviction rests independently on such a state ground.
32
At the outset we must keep in mind several aspects of Indiana criminal procedure, and the manner in which petitioner's attorneys presented his appeal to the Indiana Supreme Court, all as noted in this Court's opinion. The procedural aspects are (1) that no appeal lies from an order denying a new trial as such, that kind of an order being reviewable only in connection with an appeal from the final judgment in the case; (2) an escapee, such as this petitioner was, has no standing to make a motion for a new trial, at least if he is at large throughout the period available for the making of such a motion, 236 Id., at pages 386—392, 139 N.E.2d at pages 898—901; and (3) an appellant must perfect his appeal by filing assignments of error and a transcript of the record. In the taking of petitioner's appeal from the judgment of conviction the only assignment of error filed related to the trial court's denial of the motion for a new trial. While that assignment was supported by a detailed specification of petitioner's constitutional claims, none of such claims was independently filed as an assignment of error.
33
Had the State Supreme Court declined without more to reach petitioner's constitutional contentions because (1) his motion for a new trial had been forfeited by reason of escape, and (2) such claims had not independently been assigned as error, the federal courts would not, as has been said, be entitled to consider them. The difficulty here is that the state court did not stop at this juncture, but, after pointing out that petitioner had assigned as error only the denial of his motion for a new trial and holding that such denial was not error because of petitioner's escape, went on to consider and find without merit petitioner's constitutional claims.
34
This Court infers from the fact that the Indiana court considered petitioner's constitutional contentions that its affirmance of his conviction rested entirely on the denial of those claims. It reads the state court's opinion as saying that although that court could under state law properly rest its affirmance of the conviction on petitioner's failure to assign as error anything but the denial of his motion for a new trial, which, as we have seen, was held to have been properly denied under the State's 'escapee' rule, it would not do so but would treat petitioner's constitutional claims as if they had themselves been presented as assignments of error, rather than only as grounds supporting the error assigned to the trial court's order denying a new trial. In think this reading of the state court's opinion defies its plain language.
35
The state court devotes no less than seven pages of its nine-page opinion to an exhaustive discussion of the rule of state law which requires denial of a new trial motion made by an escapee still at large. At the close of this discussion it says:
36
'The action upon which the appellant predicates error in this appeal is based solely upon the overruling of a motion for a new trial. There is no other error claimed. Since appellant had no standing in court at the time he filed a motion for a new trial the situation is the same as if no motion for a new trial had been filed, or he had voluntarily permitted the timeto expire for such filing. His letter reveals he was aware of this right, and had talked with his attorneys about a new trial and an appeal.
37
'No error could have been committed in overruling the motion for a new trial under the circumstances.
38
'Our decision on the point under examination makes it unnecessary for us to consider the other contentions of the appellant; however, because of the finality of the sentence in the case we have reviewed the evidence to satisfy ourselves that there is no miscarriage of justice in this case. * * *' 236 Ind., at pages 392—393, 139 N.E.2d at page 901.
39
The opinion then reviews the petitioner's constitutional contentions, and concludes with the statement:
40
'It does not appear from the record and argument had, that the appellant was denied due process of law under the Fourteenth Amendment, or due course of law under the Bill of Rights, Const. art. 1, § 12, or that there was any miscarriage of justice when he was convicted and given the death penalty.' Id., 236 Ind. at page 394, 139 N.E.2d at page 902.
41
This Court's reading of the Indiana opinion makes the exhaustive discussion in that opinion of the status of an escapee under Indiana law entirely unnecessary and meaningless. While I agree with the Court that the Indiana Supreme Court reached a 'considered conclusion that the conviction resulting in the death sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States,' it is fully apparent that the state court ultimately rested its judgment of affirmance squarely on the ground that the petitioner's sole assignment of error, the denial of his motion for a new trial, was without merit because he was an escapee when that motion was made, and when it was denied. The fact that the Indiana court also reached a conclusion that petitioner's claims of constitutional deprivation were not made out does not entitle us to ignore the fact that it was on a point of state procedure that it ultimately rested.
42
Nevertheless, I do not think that in the circumstances of this case the State's contention that the federal courts lack jurisdiction to deal with petitioner's constitutional points can be accepted. The State has conceded that its Supreme Court was empowered in its discretion to disregard the procedural defects in petitioner's appeal. That being so, the state court's constitutional discussion takes on, for me, a vital significance in connection with its procedural holding under state law, namely, that affirmance of petitioner's conviction was rested on this state ground only after the Indiana court, displaying a meticulous concern that state procedural requirements should not be allowed to work a 'miscarriage of justice,' particularly in view of 'the finality of the sentence,' had satisfied itself that petitioner's constitutional contentions were untenable. Such a reading of the state court's opinion is required to give meaning to its constitutional discussion, for if petitioner's procedural failures inexorably prevented the state appellate court from reaching his constitutional claims their discussion in its opinion would appear to have been wholly pointless. At the same time this view of the opinion deprives Indiana's procedural holding of vitality as a bar to consideration of petitioner's constitutional claims by the federal courts on habeas corpus, for the decision as to those claims was inextricably a part of that holding. I therefore think that the two courts below should have dealt with the merits of petitioner's constitutional points.
43
However, even were the federal courts ultimately to hold that petitioner was denied due process, it would not be within their province thereupon to order his release. At that point it would unmistakably be the prerogative of the Indiana Supreme Court to decide whether on different postulates of federal constitutional law it would nevertheless hold that under Indiana law petitioner would still be barred from bein he ard because of his failure to comply with the State's procedural rules. For just as it is the federal courts' responsibility and duty finally to decide the federal questions presented in this case, it belongs to the Indiana Supreme Court finally to decide the state questions presented in the light of federal decision as to the commands of the Fourteenth Amendment. Hence if petitioner ultimately prevails on his constitutional claims, further proceedings in the state courts will be unavoidable.
44
In this state of affairs I think our proper course should be to proceed ourselves to a decision of the constitutional issues, rather than remand the case to the Court of Appeals. If the judgment of the Indiana Supreme Court is potentially going to be called into question because of a federal court's conclusion that it is based in part on erroneous constitutional postulates, I believe that Indiana is entitled to have that conclusion authoritatively pronounced by this Court. Moreover, the District Court, and one judge of the Court of Appeals, have already given clear (and conflicting) statements of their views as to the merits of such issues. The questions have been exhaustively briefed and fully argued before us. And this course would avoid further protracted delay.
45
Were we to conclude that the Indiana Supreme Court was correct in its premise that petitioner's constitutional points are without merit, the judgment of the Court of Appeals dismissing the writ of habeas corpus should of course be affirmed. If, on the other hand, we should decide that petitioner was in fact deprived of due process at trial, I would hold the case and give petitioner a reasonable opportunity to seek, through such avenues as may be open to him, a determination by the Indiana Supreme Court as to whether, in light of such a decision, it would nevertheless hold that petitioner's failure to comply with the State's procedural rules required affirmance of his conviction. Cf. Patterson v. State of Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082; Williams v. State of Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161. Should no such avenues be open to petitioner in Indiana, it would then be time enough to decide what final disposition should be made of this case.
46
For these reasons I concur in the view that federal consideration of petitioner's constitutional claims is not precluded, and in all other respects dissent from the Court's opinion.
1
Section 2241 provides in pertinent part:
'(a) Writs of habeas corpus may be granted by the * * * district courts * * * within their respective jurisdictions * * *
'(c) The writ of habeas corpus shall not be extended to a prisoner unless * * *
'(3) He is in custody in violation of the Constitution or laws or treaties of the United States * * *.'
2
The full text of § 2254 is as follows:
'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
'An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.'
3
The case was here previously on Irvin's petition seeking direct review on certiorari to the Indiana Supreme Court from that court's decision in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898. Certiorari was denied 'without prejudice to filing for federal habeas corpus after exhausting state remedies.' 353 U.S. 948, 77 S.Ct. 827, 1 L.Ed.2d 857. The Indiana Assistant Attorney General, on the oral argument here, advised that there was not then, nor is there now, any state procedure available for the petitioner to obtain a determination of his constitutional claim.
4
Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9—1305, provides:
'When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases not punishable by death, may, in its discretion, and in all cases punishable by death, shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of court, and, having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county, and make his return accordingly: Provided, however, That only one (1) change of venue from the judge and only one (1) change from the county shall be granted.'
5
The trial judge qualified the jurors in question under the authority of Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9 1504, which provides:
'The following shall be good causes for challenge to any person called as a juror in any criminal trial:
'Second. That he has formed or expressed an opinion as to the guilt or innocence of the defendant. But if a person called as a juror states that he has formed or expressed an opinion as to the guilt or innocence of the defendant, the court or the parties shall thereupon proceed to examine such juror on oath as to the ground of such opinion; and if it appears to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumors or hearsay, and not upon conversation with witnesses of the transaction, or reading reports of their testimony, or hearing them testify, and the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case.'
6
Rule 2—2 of the Supreme Court of Indiana, Burns' Ind.Stat.Ann., 1946 Replacement Vol. 2, pt. I, p. 8, provides:
'Time for appeal or review.—In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of the Supreme Court within 90 days from the date of the judgment or the ruling on the motion for a new trial, unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control. If within the time for filing the assignment of errors and transcript, as above provided, it is made to appear to the court to which an appeal or review is sought, notice having been given to the adverse parties, that notwithstanding due diligence on the part of the parties seeking an appeal or review, it has been and will be impossible to procure a bill of exceptions or transcript to permit the filing of the transcript within the time allowed, the court to which the appeal or review is sought may, in its discretion, grant a reasonable extension of time within which to file such transcript and assignment of errors. When the appellant is under legal disability at the time the judgment is rendered, he may file the transcript and assignment of errors within 90 days after the removal of the disability.'
The statutory provision for appeal is Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9—2301, which provides:
'Appeal by defendant—Decisions and orders reviewed.—An appeal to the Supreme Court * * * may be taken by the defendant as a matter of right, from any judgment in a criminal action against him, in the manner and in the cases prescribed herein; and, upon the appeal, any decision of the court or intermediate order made in the progress of the case may be reviewed.'
7
This conclusion was also expressed on the oral argument in this Court by the State's Assistant Attorney General.
8
The substance of the original Act of 1867 is now found in 28 U.S.C. § 2241, 28 U.S.C.A. § 2241, see note 1, supra.
9
For the legislative history, see H.R.Rep. No. 2646, 79th Cong., 2d Sess., p. A172; H.R. 3214, 80th Cong., 1st Sess.; H.R.Rep. No. 308, 80th Cong., 1st Sess., p. A180; S.Rep. No. 1559, 80th Cong., 2d Sess., pp. 9—10.
*
The formulation by Mr. Chief Justice Fuller, for the Court, of this jurisdictional sine qua non in California Powder Works Co. v. Davis, 151 U.S. 389, 393, 14 S.Ct. 350, 351, 38 L.Ed. 206, represents the undeviating practice of the Court until today:
'It is axiomatic that, in order to give this court jurisdiction on writ of error to the highest court of a state in which a decision in the suit could be had, it must appear affirmatively not only that a federal question was presented for decision by the highest court of the state having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided or that the judgment, as rendered, could not have been given without deciding it. And where the decision complained of rests on an independent ground, not involving a federal question, and broad enough to maintain the judgment, the writ of error will be dismissed by this court without conide ring any federal question that may also have been presented.'
| 89
|
359 U.S. 385
79 S.Ct. 818
3 L.Ed.2d 893
FEDERAL TRADE COMMISSION, Petitioner,v.MANDEL BROTHERS, INC.
No. 234.
Argued March 23, 1959.
Decided May 4, 1959.
Mr. Daniel M. Friedman Washington, D.C., for the petitioner.
Mr. Samuel H. Horne, Washington, D.C., for the respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner issued a complaint charging respondent, a retail department store, with violations of the Fur Products Labeling Act, 65 Stat. 175, 15 U.S.C. § 69, 15 U.S.C.A. § 69. Violations were found and a cease-and-desist order was issued. One of the principal violations found was that many of respondent's retail sales were falsely 'invoiced' in violation of § 3 of the Act.1 The term 'invoice' is defined in § 2(f) as 'a written account, memorandum, list, or catalog, which is issued in connection with any commercial dealing in fur products or furs, and describes the particulars of any fur products or furs, transported or delivered to a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs.' Section 5(b) provides that a fur product or fur is falsely 'invoiced' if it is not 'invoiced' to show (a) the name of the animal that produced the fur; and, where applicable, that the product(b) contains used fur, (c) contains bleached, dyed, or otherwise artificially colored fur, (d) is composed in whole or substantial part of paws, tails, bellies, or waste fur; (e) the name and address of the person issuing the 'invoice'; and (f) the country of origin of any imported furs.
2
The Commission found that respondent had violated the 'invoice' provisions of the Act by failure to include in many of its retail sales slips of fur products, (a) its address, (b) whether the fur was bleached, dyed, or otherwise artificially colored, and (c) the correct name of the animal producing the fur.
3
The Act in § 4 also provides2 that a fur product is misbranded (1) if it is 'falsely or deceptively labeled * * * or * * * identified,' (2) if there is not affixed a label setting forth substantially the same six items of information required for an 'invoice,' or (3) if the label designates the animal that produced the fur by some name other than that prescribed in the Fur Products Name Guide.3 The Commission found that the labels on respondent's fur products were als e in numerous instances by reason of the failure to include information in three of the categories listed under the second part of § 4. It held, however, that there was no evidence that the labels were deficient in the other three categories of information. Nevertheless, it issued a cease-and-desist order against misbranding by failure to include in the labels the required six categories of information, all of which were listed.
4
On appeal, the Court of Appeals first eliminated the prohibitions relating to invoicing on the ground that a retail sales slip was not an 'invoice' within the meaning of the Act; and second, it struck from the order the prohibition against misbranding through omission of the three categories as to which no violations were found. 254 F.2d 18. The case is here on a petition for a writ of certiorari. 358 U.S. 812, 79 S.Ct. 54, 3 L.Ed.2d 55.
I.
5
First, as to invoicing. We start with an Act whose avowed purpose, inter alia, was to protect 'consumers * * * against deception * * * resulting from the misbranding, false or deceptive advertising, or false invoicing of fur products and furs.' S.Rep. No. 78, 82d Cong., 1st Sess., p. 1. The House Report also emphasizes that the bill was 'designed to protect consumers and others from widespread abuses arising out of false and misleading matter in advertisements and otherwise. H.R.Rep. No. 546, 82d Cong., 1st Sess., p. 1. The Title of the Act (which, though not limiting the plain meaning of the text, is nonetheless a useful aid in resolving an ambiguity (see Maguire v. Commissioner, 313 U.S. 1, 9, 61 S.Ct. 789, 794, 85 L.Ed. 1149), states that its purpose was to 'protect consumers and others against * * * false invoicing of fur products and furs.' 65 Stat. 175. So we have an avowed purpose to protect retail purchasers against improper 'invoicing.' We therefore should read § 2(f) which contains the definition of 'invoice' hospitably with that end in view. Section 2(f) is not unambiguous. Yet we do not have here the problem of a penal statute that deserves strict construction. We deal with remedial legislation of a regulatory nature where our task is to fit, if possible, all parts into an harmonious whole. Black v. Magnolia Liquor Co., 355 U.S. 24, 26, 78 S.Ct. 106, 108, 2 L.Ed.2d 5.
6
Section 2(f) uses 'invoice' to include a wri tten account' and 'memorandum.' So far a retail sales slip is included. Section 2(f) requires the 'invoice' to be issued 'in connection with any commercial dealing' in furs. A retail sale is plainly a 'commercial dealing.' Section 2(f) requires the invoice to be issued to a 'purchaser.' There again a customer of a retailer is a 'purchaser.' The case for inclusion of a retail sales slip in 'invoice,' as that term is used in the Act, would therefore seem to be complete. What turned the Court of Appeals the other way was the last phrase in § 2(f)—'or any other person who is engaged in dealing commercially in fur products or furs.' It held that 'engaged in dealing commercially' modifies not only 'any other person' but also all the other preceding terms in the subsection including 'purchaser.' Cf. United States v. Standard Brewery, 251 U.S. 210, 218, 40 S.Ct. 139, 140, 64 L.Ed. 229. That is a possible construction. We conclude, however, that this limiting clause is to be applied only to the last antecedent.4 We think it would be a partial mutilation of this Act to construe it so that the 'invoice' provisions were inapplicable to retail sales. In the first place, the language of § 2(f) specifies in sweeping language the categories of persons for whose benefit the invoicing requirements were imposed, viz., purchaser, consignee, factor, bailee, correspondent, or agent. Then as a general catch-all 'any other person who is engaged in dealing commercially in fur products or furs' was added. In the second place, only by construing 'invoice' to include retail sales slips can the full protection of the Act be accorded consumers. We do not agree with the point stressed by respondent that the consumer's protection is to be found solely in the label on the fur product and that invoices are required only at each antecedent step of delivery or transfer to a person dealing commercially in either furs or fur products. The advertising and mislabeling prohibitions in § 3(b) of the Act5 are plainly applicable to retail sales. Yet the prohibition of false invoices is contained in the same clause. If we held that Congress, in spite of its desire to protect consumers, withheld from them the benefits of reliable invoices, we would have to read the clauses of § 3 distributively, making only some of them applicable to retail sales. That would be a refashioning of § 3, an undertaking more consonant with the task of a congressional committee than with judicial construction
7
Moreover, fur product 'labels,' we are advised, are not pieces of cloth sewn into garments but tags which the purchaser is likely to throw away after the purchase. The 'invoice' is the only permanent record of the transaction that the retail purchaser has. Its importance was emphasized by the Commission:
8
'Inasmuch as the invoice may serve as a documentary link connecting the sale of specific fur products back through the retailer's records with advertisements therefor, the application of the invoicing provisions of the Act to transactions between retailers and consumers represents a key implement for effective administration of the Act.'
9
The inclusion of retail sales slips in invoices has been the consistent administrative construction of the Act.6 This contemporaneous construction is entitled to great weight (United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345; Black v. Magnolia Liquor Co., supra; Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132) even though it was applied in cases settled by consent rather than in litigation.
10
Finally respondent urges that a retailer's sale is a local transaction not subject to the exercise by Congress of the commerce power. Misbranding a drug held for sale after shipment in interstate commerce was held to be within the commerce power in United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297. That decision and its predecessors sanction what is done here.
11
We conclude that a retail sales slip is an 'invoice' within the meaning of the Act and accordingly the judgment of the Court of Appeals setting aside the part of the cease-and-desist order which requires this retailer to give a proper 'invoice' to each purchaser is reversed.
II
12
Second, as to false labeling. The Commission, as we have noted, found that respondent had committed numerous violations of three of the six disclosure requirements contained in § 4(2) of the Act,7 noting that there was no evidence that it had not complied with the other three disclosure requirements of § 4(2). The cease-and-desist order of the Commission was however directed against 'misbranding fur products by: 1. Failing to affix labels to fur products showing' each of the six categories of information required by § 4(2). The Court of Appeals struck from the order the prohibition with respect to the three categories as to which there was no evidence of violation.
13
We do not believe the Commission abused the 'wide discretion' that it has in a choice of a remedy 'deemed adequate to cope with the unlawful practices' disclosed by the record. Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 611, 66 S.Ct. 758, 760, 90 L.Ed. 888. It is not limited to prohibiting 'the illegal practice in the precise form' existing in the past. Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081. This agency, like others, may fashion its relief to restrain 'other like or related unlawful acts.' National Labor Relations Board v. Express Pub. Co., 312 U.S. 426, 436, 61 S.Ct. 693, 700, 85 L.Ed. 930. The practice outlawed by § 4 is 'misbranding.' The disclosure required for a properly branded garment is specified. These disclosure requirements are so closely interrelated that the Commission might well conclude that a retailer who for example failed to disclose that the fur was bleached or dyed might well default when it came to disclosure of the fact that used fur was contained in the garment. One cannot generalize as to the proper scope of these orders. It depends on the facts of each case and a judgment as to the extent to which a particular violator should be fenced in. Here, as in Sherman Act, 15 U.S.C.A. § 1 et seq., decrees (Local 167, etc. v. United States, 291 U.S. 293, 299, 54 S.Ct. 396, 399, 78 L.Ed. 804; International Salt Co. v. United States, 332 U.S. 392, 400—401, 68 S.Ct. 17—18, 92 L.Ed. 20; International Boxing Club of New York, Inc. v. United States, 358 U.S. 242, 253, 79 S.Ct. 245, 251, 3 L.Ed.2d 270), the question of the extent to which related activity should be enjoined is one of kind and degree. We sit only to determine if the trier of facts has exercised an allowable discretion. Where the episodes of misbranding have been so extensive and so substantial in number as they were here,8 we think it permissible for the Commission to conclude that like and related acts of misbranding should also be enjoined as a prophylactic and preventive measure.
14
Respondent objects to the wording of the cease-and-desist order saying it suggests that the store has sold garments contrary to the disclosure requirements not found to have been violated here. The Commission bows to the suggestion that Part A, par. 1 of the cease-and-desist order be rephrased to enjoin 'misbranding fur products by failing to affix labels to fur products showing each element of information required by the Act.' We so order.
15
On this phase of the case the judgment of the Court of Appeals is also reversed, the cease-and-desist order to be rephrased as we have indicated.
16
It is so ordered.
17
Reversed in part with direction.
1
Section 3 provides in part:
'(a) The introduction, or manufacture for introduction, into commerce, or the sale, advertising or offering for sale in commerce, or the transportation or distribution in commerce, of any fur product which is misbranded or falsely or deceptively advertised or invoiced, within the meaning of this Act or the rules and regulations prescribed under section 8(b), is unlawful and shall be an unfair method of competition, and an unfair and deceptive act or practice, in commerce under the Federal Trade Commission Act.
'(b) The manufacture for sale, sale, advertising, offering for sale, transportation or distribution, of any fur product which is made in whole or in part of fur which has been shipped and received in commerce, and which is misbranded or falsely or deceptively advertised or invoiced, within the meaning of this Act or the rules and regulations prescribed under section 8(b), is unlawful and shall be an unfair method of competition, and an unfair and deceptive act or practice, in commerce under the Federal Trade Commission Act.'
2
Section 4 provides:
'For the purposes of this Act, a fur product shall be considered to be misbranded—
'(1) if it is falsely or deceptively labeled or otherwise falsely or deceptively identified, or if the label contains any form of misrepresentation or deception, directly or by implication, with respect to such fur product;
'(2) if there is not affixed to the fur product a label showing in words and figures plainly legible—
'(A) the name or names (as set forth in the Fur Products Name Guide) of the animal or animals that produced the fur, and such qualifying statement as may be required pursuant to section 7(c) of this Act;
'(B) that the fur product contains or is composed of used fur, when such is the fact;
'(C) that the fur product contains or is composed of bleached, dyed, or otherwise artificially colored fur, when such is the fact;
'(D) that the fur product is composed in whole or in substantial part of paws, tails, bellies, or waste fur, when such is the fact;
'(E) the name, or other identification issued and registered by the Commission, of one or more of the persons who manufacture such fur product for introduction into commerce, introduce it into commerce, sell it in commerce, advertise or offer it for sale in commerce, or transport or distribute it in commerce;
'(F) the name of the country of origin of any imported furs used in the fur product;
'(3) if the label required by paragraph (2)(A) of this section sets forth the name or names of any animal or animals other than the name or names provided for in such paragraph.'
3
This is a register of the names of hair, fleece, and fur-bearing animals which § 7 of the Act requires the Commission to maintain.
4
Cf. United States ex rel. Santarelli v. Hughes, 3 Cir., 116 F.2d 613, 616; Puget Sound Electric R. Co. v. Benson, 9 Cir., 253 F. 710, 711; 2 Sutherland, Statutory Construction (3d ed. 1943), § 4921.
5
Note 1, supra.
6
See Ed Hamilton Furs, Inc., 51 F.T.C. 186. We are advised that since that case, decided in 1954, the Commission has issued 137 complaints carg ing violations of the Act involving false and deceptive retail invoicing. There are presently outstanding 110 cease-and-desist orders relating to retail invoicing. In 92 other cases furriers have agreed to discontinue false and deceptive retail invoicing.
7
See note 2, supra.
8
The Commission found 12 instances of failure to label the product with the correct name of the animal producing the fur, 15 instances of failure to disclose that the product was bleached, dyed or otherwise artificially colored, and 58 instances of failure to show the country of origin of imported furs. There were in ddi tion 187 other violations of the rules of the Commission which provide additional labeling requirements and standards. See 16 CFR, Pt. 301.
| 78
|
359 U.S. 419
79 S.Ct. 864
3 L.Ed.2d 915
Wadelmior ARROYO, Petitioner,v.UNITED STATES of America.
No. 246.
Argued March 2, 1959.
Decided May 4, 1959.
Mr. John R. Hally, Boston, Mass., for the petitioner.
Mr. Eugene S. Grimm, for the respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 302(b) of the Labor Management Relations Act of 1947 provides: '(b) It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value.' Under § 302(c) of the Act this broad prohibition is made inapplicable in five situations, one being, 'with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer * * *.' provided that the trust fund meets certain standards specified in that subsection.1
2
The petitioner, a representative of employees in an industry affecting commerce, was convicted in the United States District Court for Puerto Rico of violating § 302(b) of the Act by receiving $15,000 from two of their employers.2 The judgment of conviction was affirmed by the Court of Appeals for the First Circuit. 256 F.2d 549. Certiorari was granted because the case presents an important question as to the scope of this provision of the Labor Management Relations Act of 1947. 358 U.S. 812, 79 S.Ct. 55, 3 L.Ed.2d 56.
3
The facts are substantially undisputed. In 1953 the petitioner was president of a union which represented the employees of two affiliated corporations. In that capacity he negotiated a collective bargaining agreement with the employers. This agreement provided for the establishment of a welfare fund, which, it is unquestioned, met the requisite criteria of § 302(c)(5) of the Act. It was agreed that the petitioner would be the union representative on the joint committee which was to administer the fund.3 After the agreement was signed, the petitioner told the employers' representative that there was to be a union meeting that evening, and that he wanted to exhibit the welfare fund checks to the union members. Accordingly, the petitioner was given two checks for $7,500. Attached vouchers idnti fied the checks as the employers' contributions to the welfare fund.
4
Instead of subsequently depositing the checks in the existing welfare fund bank administration of the fund. Over a period them to open an account in the name of the fund in another bank. A few days thereafter, he gave the bank a purported resolution from the union's board of directors authorizing withdrawals from this account upon his signature alone. As soon as the employers learned what had happened, they attempted to secure performance of the agreement for joint administration of the fund. Over a period of several months, however, the petitioner used the money for his own personal purposes and, after transferring the funds to another account, for non-welfare union purposes as well.
5
The Government does not maintain that embezzlement by an employee representative from an employer-financed welfare fund would violate the federal statute under which the petitioner was convicted.4 It contends, however, that in this case the jury could properly find that the petitioner when he accepted the two checks intended to use the funds for his personal purposes, and that he was therefore guilty not of embezzlement, but of conduct amounting to larceny by trick. We agree that the evidence could properly support an inference that the petitioner's purpose from the outset was to apporopriate the two checks for his own use. We cannot agree, however, that this conduct violated § 302(b) of the Act.
6
Section 302(b) is a reciprocal of § 302(a), applicable to employers, which provides that '(a) It shall be unlawful 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.' The good faith of the employers in delivering the two checks to the petitioner—their intent that the money go to the welfare fund created by the collective bargaining agreement—was not questioned throughout the trial and is not questioned here.5 The sole purpose of the delivery of the checks, therefore, was to make a lawful payment. What the petitioner received were checks 'paid to a trust fund.' The transaction, therefore, was within the precise language of § 302(c), and thus was not a violation of § 302(b).
7
This is not to say that the statute requires mutuality of guilt for the conviction of either the employer or the representative of employees. An employer might be guilty under subsection (a) if he paid money to a representative of employees even though the latter had no intention of accepting. Cf. Lunsford v. United States, 10 Cir., 200 F.2d 237; Schneidr v . United States, 9 Cir., 192 F.2d 498. A representative might be guilty if he coerced payments from an innocent and unwilling empoloyer. Cf. United States v. Waldin, D.C., 149 F.Supp. 912, affirmed, 3 Cir., 253 F.2d 551. Both would be guilty if the payment were ostensibly made for one of the lawful purposes specified in § 302(c) if both knew that such a purpose was merely a sham.
8
The present case, however, is not an analogue to any of those situations. The checks were drawn by the employers and delivered to the petitioner as payment to a union welfare fund. Their receipt by him, therefore, was not a violation of the federal statute, whether his intent to misappropriate existed at the time of receipt or was formed later.
9
We construe a criminal statute. 'It is the legislature, not the Court, which is to define a crime, and ordain its punishment.' United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37; United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275, 96 L.Ed. 308; Krichman v. United States, 256 U.S. 363, 41 S.Ct. 514, 66 L.Ed. 992. We are mindful, of course, that, 'though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.' United States v. Wiltberger, supra, 5 Wheat. at page 95. As Mr. Justice Holmes put it, 'We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.' Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722.
10
An examination of the legislative history confirms that a literal construction of this statute does no violence to common sense. When Congress enacted § 302 its purpose was not to assist the States in punishing criminal conduct traditionally within their jurisdiction, but to deal with problems peculiar to collective bargaining. The provision was enacted as part of a comprehensive revision of federal labor policy in the light of experience acquired during the years following passage of the Wagner Act, 29 U.S.C.A. § 151 et seq., and was aimed at practices which Congress considered inimical to the integrity of the collective bargaining process.
11
Throughout the debates in the Seventy-ninth and Eightieth Congresses there was not the slightest indication that § 302 was intended to duplicate state criminal laws.6 Those members of Congress who supported the amendment were concerned with corruption of collective bargaining through bribery of employee representatives by employers,7 with extortion by employee representatives,8 and with the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control. Congressional attention was focussed particularly upon the latter problem because of the demands which had then recently been made by a large international union for the establishment of a welfare fund to be financed by employers' contributions and administered exclusively by union officials. See United States v. Ryan, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335.
12
Congress believed that if welfare funds were established which did not define with specificity the benefits payable thereunder, a substantial danger existed that such funds might be employed to perpetuate control of union officers, for political purposes, or even for personal gain. See 92 Cong.Rec. 4892—4894, 4899, 5181, 5345—5346; S.Rep. No. 105, 80th Cong., 1st Sess., at 52; 93 Cong.Rec. 4678, 4746—4747. To remove these dangers, specific standards were established to assure that welfare funds would be established only for purposes which Congress considered proper and expended only for the purposes for which they were established. See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 290. Continuing compliance with these standards in the administration of welfare funds was made explicitly enforceable in federal district courts by civil proceedings under § 302(e).9 The legislative history is devoid of any suggestion that defalcating trustees were to be held accountable under federal law, except by way of the injunctive remedy provided in that subsection.
13
Without doubt the petitioner's conduct was reprehensible and immoral. It can be assumed also that he offended local criminal law. But, for the reasons stated, we hold that he did not criminally violate § 302(b) of the Labor Management Relations Act of 1947.
14
Reversed.
15
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS and Mr. Justice WHITTAKER join, dissenting.
16
The Court sets petitioner free. In so doing, it assumes that he violated local criminal law, but holds that he did not offend § 302(b) of the Labor Management Relations Act of 1947. It is admitted that the petitioner, as a representative of employees who are employed in an industry affecting commerce, accepted two checks for $7,500 each from employers. Instead of subsequently depositing these checks in the existing welfare fund bank account, withdrawals from which required the joint signatures of the petitioner and a representative of the eplo yers, he deposited the checks in another bank. Six days thereafter he presented to the latter bank a spurious resolution authorizing withdrawals from this account upon petitioner's signature alone. Admittedly petitioner used the money in this account for his own personal purposes. Several months thereafter the balance in the account was transferred to another account in another bank and the funds therefrom were likewise used for nonwelfare purposes. The theory of the Court seems to be that since the employers issued the two checks in good faith, with the intent that the money go to the welfare fund of the union, the receipt of the checks was therefore for the sole purpose of completing this lawful payment. Hence, the Court reasons, '(W)hat the petitioner received were checks 'paid to a trust fund.' The transaction, therefore, was within the precise language of § 302(c), and thus was not a violation of § 302(b).' The Court further states that this conclusion would follow 'whether his (petitioner's) intent to misappropriate existed at the time of receipt or was formed later.'
17
It is true that the employers had written on the vouchers attached to the checks, 'Covering: Welfare fund for the year 1953, in accordance with contract signed on Feb. 21, 1953.' The Court says that by these tags you shall know the nature of this fund. I think the Court has reached the wrong result by a failure to distinguish between the lawful fund set up under the collective bargaining agreement, and the spurious fund set up by petitioner.
18
It is well that we review the uncontradicted evidence. The bargaining agreement provided that each employer should establish a $15,000 welfare fund which 'shall be used to furnish and provide the workers of the Employer covered by this Agreement and the members of their direct family' with certain welfare benefits. It further provided that the fund should be administered by a committee appointed by mutual agreement. This committee was composed of the petitioner and the representative of the employers. The evidence showed that the fund was to be identical in amount and purpose to a welfare fund which had been created in 1952 in a previous collective bargaining agreement. An existing bank account at the Banco de Ponce contained the balance left over from the 1952 welfare fund. In previous years the employer contributions to the welfare fund had been deposited directly by the employers into this welfare account. It was a joint account authorizing withdrawal of funds only on the joint signature of the employer representative as well as the petitioner.
19
It appears, however, that after the signing of the 1953 agreement the petitioner requested the employers to issue the checks and give them to him on the ruse that he would like to exhibit them to the union meeting which was to be held that evening. The employers issued and delivered the checks to the petitioner for deposit in the existing trust fund. The checks were made payable, however, to the union, rather than to the welfare fund; and, as I have stated, the petitioner opened up a new bank account in the National City Bank instead of depositing the checks in the old trust fund account. This new account was in the name of the union, and, while it was labeled as a welfare fund, withdrawals therefrom could be made on the signature of the petitioner alone. After so establishing the account under his exclusive control, petitioner then withdrew large sums of money for his personal use.
20
The indictment charged petitioner with receiving the $15,000 for his own use and specifically charged 'nor was such sum of money received as a payment to a trust fund.' As the Court says, the evidence properly supports 'an inference that the petitioner's purpose from the outset was to appropriate the two checks for his own use.' The fact of the matter is that the evidence shows that the petitioner's action in so receiving the checks was contrary to the agreement between the parties and in no wise complied wih p rovisions of § 302(c)(5). In the light of the circumstances, as the jury found, there was no payment to a trust fund as specifically required by the provisions of the Act.
21
I am sure that the Court agrees that the petitioner's conduct came within the 'broad prohibition' of § 302(b). The only question, therefore, is whether he may properly be exculpated by the provisions of subsection (c)(5), which is quoted in full in the margin.1 Two conclusions, implicitly drawn by the jury, emerge as indisputable when the evidence is compared with this subsection. In the first place, the statutory exception applies only when the money or other thing of value is 'paid to a trust fund,' and it is clear that insofar as a lawful fund was in existence the checks were not 'paid' to it. They were made out payable to the union. Neither the checks nor the money from them ever came near the bona fide trust fund account at the Banco de Ponce. From the moment they were received by petitioner, he had complete control over them.2
22
Secondly, even a casual reading of the subsection shows, as I am sure the Court itself would agree, that the spurious fund established by the petitioner in the National City Bank failed to comply with the statute in almost every respect. Since the checks were deposited in a union account and subject to the control of petitioner, the payments were not held in trust, as required by the subsection. Moreover, the fund which he created bydep ositing the checks was not subject to the administration of both the employees and the employers, but was subject to the sole control of the petitioner. As the judge instructed the jury, 'a plan does not exist, lawfully exist, until it meets all those requirements' of the subsection. Since the sole purpose of the exception as set out in the Act was to permit the creation of a bona fide trust fund, it is obvious that the purposes of the Act were not complied with here because petitioner established no trust fund whatsoever. On the contrary, the checks were made payable to, and deposited in the name of, the union of which the petitioner was the President. His was the only authorized signature permitting withdrawals from the fund. In fact, the receipt of the checks by the petitioner as trust fund moneys was merely a sham. It does not matter what the intent of the employers was in delivering the checks since, as the Court itself says, the statute does not require mutuality of guilt.3 The petitioner, by receiving the checks from the employers and through artifice and deceit, has deprived the employees of their benefits and stands guilty under § 302(b) of the Act.
23
Moreover, the legislative history shows that that was the specific intent of the Congress. I need only quote one statement of the managers of the bill in the Senate:
24
'(U)nless we make sure that such (trust) funds, when they are established, are really trust funds * * * for the benefit to employees specified in the agreement, there is very grave danger that the funds will be used for the personal gain of union leaders * * *.' 93 Cong.Rec. 4678.
25
Furthermore, the Court itself recognizes this to be the purpose of the Congress in enacting the subsection. As the Court says:
26
'Congress believed that if welfare funds were established which did not define with specificity the benefits payable thereunder, a substantial danger existed that such funds might be employed to perpetuate control of union officers, for political purposes, or even for personal gain * * *. To remove these dangers, specific standards were established to assure that welfare funds would be established only for purposes which Congress considered proper and expended only for purposes for which they were established.' Unfortunately, the Court has converted the 'substantial danger' into an immunity bath. Section 302(b) is in all practical effect repealed. All that labor racketeers, or, for that matter, employers as well, need do is to negotiate an agreement containing a qualifying 'welfare fund' and then make sure that the vouchers on the employer checks contain some kind of notation that the money is paid for that fund. Although the Court says, 'Both would be guilty if the payment were ostensibly made for one of the lawful purposes specified in § 302(c) if both knew that such a purpose was merely a sham,' it is clear that the injection of this subtle and elusive mental element of duplicity is enough to make successful prosecution next to impossible.
27
Nor is the fact that the petitioner might be prosecuted under state law any answer to the problem. In a long line of cases coming to this Court involving industrial controversies where the State exercised authority, it has been held that the area involved had been pre-empted by the National Labor Relations Act and the Labor Management Relations Act. See Weber v. Anheuser-Busch, Inc., 1955, 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. It is a strange contradiction here for the Court to force employees to go to the state courts for redress of this most important sanction of the Labor Management Relations Act. Petitioner argues, and the Court sustains him, that he can only be prosecuted for embezzlement, a felony under the laws of Puerto Rico;4 that he cannot be convicted of this misdemeanor under the Taft-Hartley law.5 The opinion today may make this common, but it does not make it sense. I oul d affirm.
1
The relevant text of § 302(c), as it appears in 29 U.S.C. § 186(c), 29 U.S.C.A § 186(c), is as follows: '(c) The provisions of this section shall not be applicable * * * (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide sucn dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities.'
2
Sentence was imposed under authority of § 302(d) of the Act, which provides: '(d) Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both. * * *'
3
The fund was to be identical in amount and purpose to a welfare fund which had been created in 1952 under a previous collective bargaining agreement. The petitioner had also been the union representative on the committee which administered that fund.
4
Compare S. 3974, § 109(a), 85th Cong., 2d Sess., the so-called Kennedy-Ives bill, which would have provided criminal penalties of up to five years' imprisonment and a fine of $10,000 for 'Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use or the use of another any of the moneys, funds, securities, property, or other assets of an organization which is exempt from taxation under section 501(a) of the Internal Revenue Code of 1954 (26 U.S.C.A. § 501(a)) of which he is an officer or by whom he is employed directly or indirectly. * * *'
5
In argument to the trial court, government counsel made the following statement: 'The employer in this case, I would like to say, complied with the law. The employer set up a welfare fund in accordance with the law, and in accordance with the testimony by Mr. Goyco and other documentary evidence, the letter to the Banco de Ponce, the employer did all it could to make compliance with the law, because there could be a lawful welfare fund, so that's as far as the employer is concerned.
6
Section 302 had its origin in an amendment to the Case bill, H.R. 4908, 79th Cong., 2d Sess., proposed by Senator Byrd, 92 Cong.Rec. 4809, which prohibited payment by an employer, or receipt by a representative, of any money or other thing of value unless the payment was for wages or for union dues withheld by the employer under a checkoff agreement. After several modifications, including one substantially similar to subsection (c)(5) which was proposed by Senators Taft and Ball, the amendment was agreed to by the Senate, 92 Cong.Rec. 5521—5522, and the Case bill passed. 92 Cong.Rec. 5739. The House accepted the Senate amendments, 92 Cong.Rec. 5946, but the President vetoed the bill, 92 Cong.Rec. 6674—6678, and it failed of passage over his veto. 92 Cong.Rec. 6678.
In the Eightieth Congress the Senate Committee on Labor and Public Welfare reported out an original bill,S. 1126, containing no reference to payments by an employer to a representative other than that which had been contained in § 8(2) of the Wagner Act. A minority of the Committee, including Senators Taft and Ball, filed their 'Supplemental Views' in which they stated their intention to offer from the floor 'an amendment reinserting in the bill a provision regarding so-called welfare funds similar to the section in the Case bill approved by the Senate at the last session.' S.Rep. No. 105, 80th Cong., 1st Sess., p. 52. The amendment was adopted by the Senate, 93 Cong.Rec. 4754, accepted by the Conference Committee, H.R.Rep. No. 510, 80th Cong., 1st Sess., pp. 24—25, 67, and enacted as § 302 of the Labor Management Relations Act.
7
In explaining the necessity for adoption of the amendment which he offered to the Case bill, Senator Byrd stated: 'My amendment would prevent an employer from paying a royalty to the representative of a union. He would be clearly liable, under the provisions of this amendment, if he paid a royalty or other money to the representative of a labor union, the purpose of which was to bribe that representative.' 92 Cong.Rec. 4893. See also 92 Cong.Rec. 5428; 93 Cong.Rec. 4678.
8
Senator Taft, in speaking for the amendment to S. 1126 which had previously been proposed on the floor of the Senate by Senator Ball, stated that it was intended to deal with 'extortion or a case where the union representative is shaking down the employer.' 93 Cong.Rec. 4746.
9
'(e) The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 381 of Title 28 (relating to notice to opposite party) to restrain violations of this section, without regard to the provisions of section 17 of Title 15 and section 52 of this title, and the provisions of sections 101—110 and 113—115 of this title.' 29 U.S.C. § 186(e), 29 U.S.C.A. § 186(e).
1
'(c) The provisions of this section shall not be applicable * * * (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement of death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in the event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities.'
2
If the voucher had said 'in payment of 1952 federal income taxes,' and petitioner had put the checks in a bank account labeled 'United States Treasury,' query: would the companies' income taxes have been 'paid'?
3
We in nowise intimate or suggest that these employers violated the Act.
4
Laws of Puerto Rico Ann., Tit. 33, §§ 1721, 1731, 1683.
5
Petitioner's argument in this regard also shows that this is not an instance where, even in the absence of bad faith, a man is sent to jail for an inadvertent failure to comply with rigid bookkeeping requirements. Cf. Sayre, The Present Signification of Mens Rea in the Criminal Law, Harvard Legal Essays (1934), 399, 409.
| 01
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359 U.S. 354
79 S.Ct. 844
3 L.Ed.2d 872
PLUMBERS, STEAMFITTERS, REFRIGERATION, PETROLEUM FITTERS, AND APPRENTICES OF LOCAL 298, A.F. of L., et al., Petitioners,v.COUNTY OF DOOR, a Municipal Corporation, et al.
No. 396.
Argued March 6, 1959.
Decided May 4, 1959.
Mr. David Previant, Milwaukee, Wis., for petitioners.
Mr. Donald J. Howe, Sturgeon Bay, Wis., for respondents.
Opinion of the Court by Mr. Justice BLACK, announced by Mr. Justice DOUGLAS.
1
Respondent, County of Door, Wisconsin, is a municipal corporation; petitioners are a Plumbers' Union Local and a Council of Trade Unions. The County hired respondent Oudenhoven to do the general contracting work on an addition to the Door County Courthouse. At the same time some eight contracts covering specific items of construction were entered into by the County with various other firms. Among the contractors was respondent Zahn who had successfully bid for the plumbing work in the project. Unlike the other successful bidders, however, Zahn employed nonunion labor. This disturbed the Plumbers' Union which attempted to induce him to sign a union agreement. After Zahn refused, a picket was assigned to walk around the courthouse carrying a placard which stated that nonunion workers were employed on the project. The picketing, though peaceful, effectively stopped all the work since union members employed by other contractors refused to cross the picket line.
2
To end the interruption respondents Door County, Zahn, and Oudenhoven sought an injunction in the local Circuit Court. Petitioners defended by claiming, among other things, that under the National Labor Relations Act1 the state courts had no jurisdiction and that the controversy was exclusively subject to National Labor Relations Board control. The trial court, believing that interstate commerce was not affected by the dispute, denied that the Board had jurisdiction and held that state power existed. It found that state law had been violated by the picketing and issued an injunction. On appeal the Wisconsin Supreme Court affirmed. 4 Wis.2d 142, 89 N.W.2d 920. It apparently disagreed with the basis of the lower court's holding and assumed that the dispute did affect interstate commerce, but held that the N.L.R.B. had no jurisdiction because Door County, governmental subdivision, was among those seeking relief. Since the N.L.R.B. had no power, the court ruled, state laws were not pre-empted and the injunction could stand. Under similar circumstances both the National Labor Relations Board and the United States Court of Appeals for the Third Circuit have concluded that the N.L.R.B. has jurisdiction.2 We granted certiorari to resolve this conflict. 358 U.S. 878, 79 S.Ct. 123, 3 L.Ed.2d 109.
3
There can be no doubt that were Door County not a party to the litigation state courts would have no power over the dispute. The stipulated facts show that the total cost of the project was about $450,000. Roughly half of this was the cost of materials brought from outside Wisconsin. On similar facts this Court has often found a sufficient effect on commerce to give the N.L.R.B. juridic tion See, e.g., National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 683—684, 71 S.Ct. 943, 948—949, 95 L.Ed. 1284. We see no reason to deviate from those holdings. It is also admitted that the dispute here involved is the kind over which the Labor Board normally has exclusive power. Respondents allege an attempt to force Zahn and the County to stop doing business with each other or, alternatively, to coerce Zahn into making his employees organize a union shop. Both of these allegations, if proved, would constitute unfair labor practices under § 8(b)(4) of the National Labor Relations Act.3 If the charges are not proved the conduct might well be 'protected' under § 7 of the Labor Act.4 In either case this Court has held that the determination must be made by the N.L.R.B. and that 'state (courts) must decline jurisdiction in deference to the tribunal which Congress has selected. * * *'5
4
It is claimed, however, that the presence of Door County somehow deprives the Board of jurisdiction and re-establishes state power. This contention is based on the fact that political subdivisions are expressly excluded from the definition of 'employer' in the Labor Relations Act and therefore are not subject to many of its provisions.6 To allow the County to file a complaint against the union would, it has been argued, give the County the advantages of the Labor Relations Act without subjecting it to the correlative responsibilities the statute imposes.
5
In Local Union No. 25 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. New York, N.H. & H.R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166, we decided that a railroad could seek relief before the Board although railroads, like political subdivisions, are expressly excluded from the term 'employer' in the Act.7 Our opinion pointed out that 'the N.L.R.B. is empowered to issue complaints whenever 'it is charged' that any person subject to the Act is engaged in any proscribed unfair labor practice,' and that Board regulations allow such a charge to be filed by 'any person' as defined in the Act, 350 U.S. at page 160, 76 S.Ct. at page 230.8 'Since railroads are not excluded from the Act's definition of 'person' * * *.'9 we held tht ' they are entitled to Board protection from the kind of unfair labor practice proscribed by § 8(b)(4)(A),' reasoning that this result would best effectuate congressional policies of uniform control over labor abuses and protection of the parties injured by such practices. Ibid.
6
The position of a county and a railroad would seem to be identical under the Act, and the policy considerations which guided us in Local Union No. 25, like the statutory language there construed, would seem to apply equally here.10 Respondents attempt to distinguish the case by claiming that a political subdivision must be expressly included in a statute if it is to be considered within the law's coverage and that essential state functions will be impaired if the county is subjected to N.L.R.B. coverage. But this Court has many times held that government bodies not expressly included in a federal statute may, nevertheless, be subject to the law.11 And Board jurisdiction to grant relief, far from interfering with county functions, serves to safeguard the interests of such political subdivisions. Accordingly, we find neither of respondents' contentions convincing.
7
We do not, of course, attempt to decide whether the Union's conduct in this dispute violates § 8(b)(4), is protected by § 7, or is covered by neither provision of the Labor Act. Those are questions for the Board to determine in a proper proceeding brought before it. See, e.g., Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 481, 75 S.Ct. 480, 488, 99 L.Ed. 546. We merely hold that the Board has jurisdiction in this case and that, therefore, it was error for the Wisconsin courts to exercise jurisdiction.
8
The judgment of the Supreme Court of Wisconsin is reversed and the cause is remanded to that court for action not inconsistent with this opinion.
9
Reversed and remanded.
1
61 Stat. 136, as amended, 29 U.S.C. §§ 151—168, 29 U.S.C.A. §§ 151—168.
2
National Labor Relations Board v. Local Union No. 313, International Brotherhood of Electrical Workers, 3 Cir., 254 F.2d 221, affirming Peter D. Furness, 117 N.L.R.B. 437. See also New Mexico Bldg. Branch, Assoc. Gen. Contractors, CCH 1957—1958 Labor L.Rep. (4th ed.) 55,304; Freeman Constr. Co., CCH 1957—1958 Labor L.Rep. (4th ed.) 55,353.
3
Section 8(b)(4) provides in part: 'It shall be an unfair labor practice for a labor organization or its agents * * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike * * * 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; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees * * *.' 61 Stat. 141, 29 U.S.C. § 158(b)(4), 29 U.S.C.A. § 158(b)(4).
4
Section 7 reads: 'Employees 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. * * *' 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157.
5
Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 481, 75 S.Ct. 480, 488, 99 L.Ed. 546. There is in this case no question of violence or of the power of state courts to award damages. See generally, San Diego Bldg. Trades Council, Millmen's Union, Local 2020, v. Garmon, 359 U.S. 236, 79 S.Ct. 773.
6
'The term 'employer' * * * shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof * * *.' 61 Stat. 137, 29 U.S.C. § 152(2), 29 U.S.C.A. § 152(2).
7
'The term 'employer' * * * shall not include * * * any person subject to the Railway Labor Act * * *.' 61 Stat. 137, 29 U.S.C. § 152(2), 29 U.S.C.A. § 152(2). See 44 Stat. 577, as amended, 45 U.S.C. § 151, 45 U.S.C.A. § 151.
8
29 CFR, 1958 Cum.Supp. § 102.9, states 'A charge that any person has engaged in or is engaging in any unfair labor practice affecting commerce may be made by any person. * * *' The definition of person in the regulations is the same as that in the Act itself. 29 CFR, 1958 Cum.Supp. § 102.1.
9
As defined in the Act, 'The term 'person' includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.' 61 Stat. 137, 29 U.S.C. § 152(1), 29 U.S.C.A. § 152(1). (Italics added.)
10
Significantly, before this Court's decision in Local Union No. 25 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. New York, N.H. & H.R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166, the N.L.R.B. agreed with respondents that political subdivisions were not 'persons' under the Labor Act, but shortly after Local Union No. 25 the Board reversed itself since it felt the basis of its prior rulings had been completely undercut by Local Union No. 25. Compare Al J. Schneider Co., 87 N.L.R.B. 99; 80 N.L.R.B. 221; Victor M. Sprys, 104 N.L.R.B. 1128, with Peter D. Furness, 117 N.L.R.B. 437; New Mexico Bldg. Branch, Assoc, Gen. Contractors, CCH 1957—1958 Labor L.Rep. (4th ed.) 55,304.
11
See, e.g., State of Ohio v. Helvering, 292 U.S. 360, 370 371, 54 S.Ct. 725, 727, 78 L.Ed. 1307 (a State is a 'person' within the meaning of a federal law taxing persons engaged in the sale of liquor); United States v. State of California, 297 U.S. 175, 186, 56 S.Ct. 421, 425, 80 L.Ed. 567 (a federal statute regulating common carriers by rail applies to a State); State of Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (a State is a 'person' within the meaning of the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note, and may seek relief under that statute).
| 910
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359 U.S. 437
79 S.Ct. 921
3 L.Ed.2d 935
Blanche DICK, Petitioner,v.NEW YORK LIFE INSURANCE CO.
No. 58.
Argued Jan. 12, 1959.
Decided May 18, 1959.
Mr. Philip B. Vogel, Fargo, N.D., for petitioner.
Mr. Norman G. Tenneson, Fargo, N.D., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question in this case is whether the Court of Appeals for the Eighth Circuit, under the applicable principles hereinafter discussed, properly held that it was error to submit to a jury's determination whether an insured died as a result of suicide or accident.
2
Petitioner is the beneficiary of two policies issued by respondent in 1944 and 1949 insuring the life of her now-deceased husband, William Dick. Each policy contained a clause which provided that double indemnity would be payable upon receipt of proof that the death of the insured 'resulted directly, and independently of all other causes, from bodily injury effected solely through external violent and accidental means,' but that the double indemnity would not be payable if the insured's death resulted from 'self-destruction, whether sane or insane.'
3
Mr. Dick met his death while alone in the silage shed of his farm. The death resulted from two wounds caused by the discharge of his shotgun.1 Petitioner filed proofs of death but respondent rejected her claim for double indemnity payments on the ground that Mr. Dick had committed suicide. Petitioner then filed suit in the North Dakota courts. Her complaint set forth the policies in issue, the facts surrounding her husband's death, an allegation that the death was accidental, and a demand for payment. Respondent removed the case to the United States District Court for the District of North Dakota on the grounds of diversity of citizenship and jurisdictional amount. It then filed an answer to the complaint in which it set up suicide as an affirmative defense to the demand for double indemnity payments. Respondent admitted liability for the face amounts of the policies ($7,500) and no issue is presented concerning those amounts.
4
Trial proceeded before the district judge and jury. The evidence showed that the Dicks, who had been happily married since 1926, lived on a farm near Lisbon, North Dakota, where they raised sheep, cattle and field crops. Five of the six quarter sections of the farm were unmortgaged and Mr. Dick, who was not known to have any financial problems, had nearly $1,000 in the bank. He was known as a 'husky,' 'strong,' 'jolly' man who was seldom moody. 'If he had anything on his chest, he would get it off and forget about it.' Dick got along well with his neighbors and was well liked in the community. He was 47 at the time of his death. He was five feet seven inches tall, weighed approximately 165 pounds, and was generally healthy. The coroner, who was also Dick's personal doctor, testified that Dick was a mature, muscular, physically able workman who, three weeks before his death, was bright and cheerful. About a year and a half before his death, Mr. Dick visited the doctor and complained that he felt tired and pepless. His condition was diagnosed as mild to moderate non-specific prostatitis for which he received sulfa treatments and hormone shots. But the record is devoid of evidence that the condition was serious or particularly painful or that Mr. Dick was especially concerned with it. The Dicks reared five children. One daughter still lived with them and attended high school in nearby Elliott. Dick got along well with his whole family.
5
The evening before he died, the family returned from Elliott and ate ice cream and watched television together. Mr. Dick helped his daughter with a school problem in geera l science explaining to her the intricacies of a transformer. He slept soundly that night. He intended to help his cousin—a neighbor—make sausage the following day. He arose the next morning, milked the cows, ate a hearty breakfast, and spoke with his wife about their plans for the day. He said nothing to indicate that he contemplated doing anything out of the ordinary. About 8:30 a.m. Mrs. Dick drove their daughter to school. Mr. Dick backed the car out of the garage for his wife and said goodbye in a normal way. He was then in the process of feeding milk to the pigs and silage to the cattle.
6
Mrs. Dick returned in about a half hour and proceeded to work in the house. Later, when she thought it was time to leave for the cousin's house, she went to locate Mr. Dick. She walked to the barn and called for him but there was no answer. She then went to the little 8 foot by 12 foot silage shed adjacent to the barn and saw Mr. Dick lying on the floor. He was fully clothed for the zero weather Lisbon was then experiencing and he wore bulky gloves and a heavy jacket which was fully zipped up. Near him lay his shotgun. A good part of his head appeared blown off and she knew from his appearance that he was dead. She hurriedly returned to the house and called Mr. Dick's brother who lived nearby. He came immediately and at Mrs. Dick's direction went to the silage shed. There he saw Mr. Dick lying with his head to the northwest and his feet to the southeast of the shed. The body was along the south wall with the feet near the corner. Later, when he examined the shed more closely, he found a concentration of shotgun pellets high in the northwest corner of the shed and other pellets four to five feet from the floor in the southeast corner. He also noticed a sprinkle of frozen silage on the floor of the shed and on the steps leading to the door from the shed.
7
James Dick, the deceased's nephew, also responded to Mrs. Dick's call. He stated that upon arriving at the Dick's house, he saw a tub newly filled with ground corn in the silage yard and that normally his uncle fed silage with a topping of ground corn to the cattle. He also stated that the cattle were just then finishing the silage presumably laid out by Mr. Dick before his death.
8
At about 11 a.m., the sheriff arrived. Mr. Dick was still lying where he had died. The sheriff examined Mr. Dicks shotgun and found two discharged shells in its chamber. The gun was dry and clean and there were no bloodstains on it or on the gloves which Dick was still wearing. The sheriff also noticed some of the shot patterns found by Dick's brother and saw some brain tissue splattered on the southeast corner. He found a screwdriver lying on the floor about a foot from the gun. The Dicks use the screwdriver to open and close the door to the silage shed because the doorknob was missing.
9
Soon thereafter the coroner arrived. He testified that Mr. Dick's body contained a shotgun wound on the left side and one on the head. The body wound was mortal, but not immediately fatal. It consisted of a gouged out wound on the left lateral chest wall which removed skin, fat, rib muscles and portions of rib from the body. In addition, other ribs were fractured and Dick's left lung was collapsed. In the coroner's opinion, it was the type of wound which would have had to result in immense pain, although it probably would not have made it impossible for Dick again to discharge the gun. The wound to the head caused immediate death. According to the testimony of the sheriff and a member of the Fargo police department, both wounds were received from the front. In the sheriff's opinion, the chest wound was received from an upward shot into Dick's body, but this testimony conflicted with another statement of the sheriff indicating that the wound was received from a downward shot.
10
It was clear from the testimony that Mr. Dick was an experienced hunter. Petitioner testified that he kept the shotgun in the barn because of attacks on his sheep b vi cious dogs during the preceding year. A number of the sheep had been killed in this manner. In addition, Dick had mentioned seeing foxes near the barn. Mrs. Dick testified that when her husband went hunting, he sometimes borrowed his father's gun because he didn't trust his own. She was with him once when the gun wouldn't fire and had been told that occasionally it fired accidentally. In addition, Dick's brother testified that while hunting with Dick he heard a shot at an unexpected time which Dick explained as an accidental discharge that occurred 'once in a while.' The gun was over 26 years old.
11
The sheriff testified that after the death he tested Dick's gun by cocking and dropping it a number of times.2 The triggers did not release on any of these occasions. The sheriff also explained that the gun had a safety and could not discharge with the safety on. The safety was off during each of his tests. Finally, the sheriff stated that each trigger had approximately a seven-pound trigger pull.
12
No suicide notes were found. Mr. Dick had said nothing to his relatives or friends concerning suicide. He left no will.
13
At the conclusion of the evidence, respondent unsuccessful moved for a directed verdict. The court charged the jury that under state law accidental death should be presumed and that respondent had the burden to show by a fair preponderance of the evidence that Dick committed suicide. The jury returned a verdict of $7,500 for petitioner. Respondent's motions for judgment notwithstanding the verdict and for new trial were denied.
14
In this Court and before the Court of Appeals, both parties assumed that the propriety of the District Court's refusal to grant respondent's motions was a matter of North Dakota law. Under that law, it is clear that under the circumstances present in this case a presumption arises, which has the weight of affirmative evidence, that death was accidental. Svihovec v. Woodmen Accident Co., 69 N.D. 259, 285 N.W. 447. See Paulsen v. Modern Woodmen of America, 21 N.D. 235, 130 N.W. 231; Clemens v. Royal Neighbors of America, 14 N.D. 116, 103 N.W. 402; Stevens v. Continental Casualty Co., 12 N.D. 463, 97 N.W. 862.3 Proof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide. Svihovec v. Woodmen Accident Co., supra. Under North Dakota law, this presumption does not disappear once the insurer presents any evidence of suicide. Ibid. Rather, the presumed fact (accidental death) continues and a plaintiff is entitled to affirmative instructions to the jury concerning its existence and weight.4 This is not to say that under North Dakota law the presumption of accidental death may not be overcome by so much evidence that the insurer is entitled to a directed verdict. For it is clear that where 'there is no evidence in the record that can be said to be inconsistent with the conclusion of death by suicide,' or 'the facts and circumstances surrounding the death (can) not be reconciled with any reasonable theory of accidental or nonintentional injury,' the state court may direct a verdict for the insurer even though the insurer is charged with the burden of proving that death was caused by suicide.5 These state rules determine when the evidence in a 'suicide' case is sufficient to go to a jury. They are not directed at determining when the presumption of accidental death is rebutted, and thus excised from the case, because, as stated bov e, the presumed fact of accidental death continues throughout the trial and has the weight of affirmative evidence.
15
The Court of Appeals, in its opinion, (252 F.2d 43, 46) reviewed the evidence in detail and resolved at least one disputed point in respondent's favor. It found, as 'definitely established by the evidence,' that 'neither barrel (of the shotgun) could have been fired unless someone or something either pulled or pushed one of the triggers.' It stated that '(o)ne can believe that even an experienced hunter might accidentally shoot himself once, but the asserted theory that he could accidentally shoot himself first with one barrel and then with the other stretches credulity beyond the breaking point.'6 And it concluded that the facts and circumstances could not 'be reconciled with any reasonable theory of accident, and that, under the evidence, the question whether the death was accidental was not a question of fact for the jury.' Judgment was reversed with directions to dismiss the complaint. We granted certiorari, 357 U.S. 925, 78 S.Ct. 1370, 2 L.Ed.2d 1369.
16
Lurking in this case is the question whether it is proper to apply a state or federal test of sufficiency of the evidence to support a jury verdict where federal jurisdiction is rested on diversity of citizenship. On this question, the lower courts are not in agreement. Compare Rowe v. Pennsylvania Greyhound Lines, Inc., 2 Cir., 231 F.2d 922; Cooper v. Brown, 3 Cir., 126 F.2d 874; Lovas v. General Motors Corp., 6 Cir., 212 F.2d 805, with Davis Frozen Foods, Inc. v. Norfolk Southern Ry. Co., 4 Cir., 204 F.2d 839; Reuter v. Eastern Air Lines, 5 Cir., 226 F.2d 443; Diederich v. American News Co., 10 Cir., 128 F.2d 144. And see Morgan, Choice of Law Governing Proof, 58 Harv.L.Rev. 153, 174, and 5 Moore's Federal Practice (2d ed. 1951) § 38.10. But the question is not properly here for decision because, in the briefs and arguments in this Court, both parties assumed that the North Dakota standard applied.7 Moreover, although the Court of Appeals appears to have applied the state standard, that court did not discuss the issue. Under these circumstances, we will not reach out to decide this important question particularly where, in the context of this case, the two standards are substantially the same.8 A decision as to which standard should be applied can well be left to another case where the question is briefed and argued. This case can be decidedon the simple issue stated at the outset of the opinion.
17
In our view, the Court of Appeals improperly reversed the judgment of the District Court. It committed its basic error in resolving a factual dispute in favor of respondent that the shotgun would not fire unless someone or something pulled the triggers. Petitioner's evidence on this score, despite the 'tests' performed by the sheriff, could support a jury conclusion that the gun might have fired accidentally from other causes. Once an accidental discharge is possible, a jury could rationally conceive of a number of explanations of accidental death which were consistent with evidence which the jury might well have believed showed the overwhelming improbability of suicide. The record indisputably shows lack of motive—in fact there is affirmative evidence from which the jury could infer that Dick was a most unlikely suicide prospect. He was relatively healthy, financially secure, happily married, well liked, and apparently emotionally stable. He left nothing behind to indicate that he had committed suicide and nothing in his conduct before death indicated an intention to destroy himself. The timing of the death, while in the midst of normal chores and immediately preceding a planned appointment with neighbors, militates against such a conclusion. Dick's presence in the shed and the accessibility of the gun are explicable in view of the fact that dogs had previously attacked his sheep and the fact that the door in the shed provided a convenient exit to the adjoining fields. And a jury could well believe it improbable that a man would not even bother to remove his bulky gloves, or thick jacket, when he intended to commit suicide even though those articles of clothing made it difficult to turn the gun on himself.
18
In a case like this one, North Dakota presumes that death was accidental and places on the insurer the burden of proving that death resulted from suicide. Stevens v. Continental Casualty Co., supra; Paulsen v. Modern Woodmen of America, supra. Under the Erie rule,9 presumptions (and their effects) and burden of proof are 'substantive' and hence respondent was required to shoulder the burden during the instant trial. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645; Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196. And see Balchunas v. Palmer, 2 Cir., 151 F.2d 842; Sylvania Electric Products v. Barker, 1 Cir., 228 F.2d 842; Matsumoto v. Chicago & N.W. Ry. Co., 7 Cir., 168 F.2d 496. After all the evidence was in, the district judge, who was intimately concerned with the trial and who has a first-hand knowledge of the applicable state principles, believed that the case should go to the jury. Under all the circumstances, we believe that he was correct and that reasonable men could conclude that the respondent failed to satisfy its burden of showing that death resulted from suicide.
19
Reversed.
20
Mr. Justice HARLAN took no part in the consideration or decision of this case.
21
Mr. Justice STEWART, concurring.
22
I concur in the judgment, believing that the district judge correctly followed applicable North Dakota law in submitting this case to the jury. Not having been a member of the Court when the petition for certiorari was granted, 357 U.S. 925, 78 S.Ct. 1370, 2 L.Ed.2d 1369, I consider it inappropriate now to express a view as to the wisdom of bringing here a case like this.
23
Mr. Justice FRNKF URTER, whom Mr. Justice WHITTAKER, joins, dissenting.
24
On several occasions I have stated the reasons for my adherence to the traditional practice of the Court not to note dissent from the Court's disposition of petitions for certiorari.1 Different considerations apply once a case is decided.
25
Establishment of intermediate appellate courts in 18912 was designed by Congress to relieve the overburdened docket of the Court.3 The Circuit Courts of Appeals were to be equal in dignity to the Supreme Courts of the several States.4 The essential purpose of the Evarts Act was to enable the Supreme Court to discharge its indispensable functions in our federal system by relieving it of the duty of adjudication in cases that are important only to the litigants.5 The legislative history of the Evarts Act demonstrates that it was clear in 1891, no less than today that litigation allowed to be brought into the federal courts solely on the basis of diversity of citizenship is rarely of moment except to the parties.6 The Act provided, therefore, that in diversity cases 'the judgments or decrees of the circuit courts of appeals shall be final.'7 In a provision which Senator Evarts referred to as a 'weakness' in the Act,8 this Court was given the discretionary power to grant certiorari in these cases, to be exercised if some question of general interest, outside the limited scope of an ordinary diversity litigation, was also involved.9
26
Any hesitance which Senator Evarts may have felt was not justified by the early history of use of this certiorari power. The Court, mindful of the reasons for the restriction, so long and eagerly sought by the Court itself, on its obligatory jurisdiction, and faithful to the complementary obligation imposed upon it by its newly conferred power to control its docket, exercised the greatest restraint and caution in granting certiorari in cases resting solely on diversity of citizenship.10
27
Time and again in the years immediately following the passage of the Evarts Act this Court stated that it was only in cases of 'gravity and general importance' or 'to secure uniformity of decision' that the certiorari power should be exercised.11 Mr. Justice Brewer explained the Court's wariness in granting certiorari in terms of the purpose of the Act:
28
'Obviously, a power so broad and comprehensive, if carelessly exercised, might defeat the very thought and purpose f t he act creating the courts of appeal. So exercised it might burden the docket of this court with cases which it was the intent of congress to terminate in the courts of appeal, and which, brought here, would simply prevent that promptness of decision which in all judicial actions is one of the elements of justice.'12
29
In order to justify the establishment of the Circuit Courts of Appeals it was necessary to view certiorari as
30
'a power which will be sparingly exercised, and only when the circumstances of the case satisfy us that the importance of the question involved, the necessity of avoiding conflict between two or more courts of appeal, or between courts of appeal and the courts of a State, or some matter affecting the interests of this nation in its internal or external relations demands such exercise.'13
31
These considerations have led the Court in scores of cases to dismiss the writ of certiorari even after oral argument when it became manifest that the writ was granted under a misapprehension of the true issues.14 Cases which raised as their sole question the sufficiency of evidence for submission to a jury were not regarded as complying with the standards necessitated by the purposes of the Evarts Act for limiting the power of review by certiorari.15
32
To strengthen further this Court's control over its docket and to avoid review of cases which in the main raise only factal controversies, Congress in 1916 made cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., final in the Courts of Appeals, reviewable by this Court only when required by the guiding standards for exercising its certiorari jurisdiction.16 The Senate Report which accompanied this bill to the floor of the Senate suggested that this change would allow the Supreme Court more time for 'expeditious determination of those (cases) having real substance.'17
33
In 1925 Congress enacted the 'Judges' Bill,'18 called such because it was drafted by a committee of this Court composed of Van Devanter, McReynolds, and Sutherland, JJ.19 At the hearings on the bill these Justices and Mr. Chief Justice Taft explained the bill and also the Court's past practice in respecting the limitations of its certiorari jurisdiction.20 These authoritative expositions and assurances to Congress, on the basis of which Congress sharply restricted the Court's obligatory jurisdiction, admit of no doubt, contain no ambiguity. Mr. Chief Justice Taft said:
34
'No litigant is entitled to more than two chances, namely, to the original trial and to a review, and the intermediate courts of review are provided for that purpose. When a case goes beyond that, it is not primarily to preserve the rights of the litigants. The Supreme Court's function is for the purpose of expounding and stabilizing principles of law for the benefit of the people of the country, passing upon constitutional questions and other important questions of law for the public benefit. It is to preserve uniformity of decision among the intermediate courts of appeal.'21
35
The House Report, in recommending to the House of Representatives passage of the bill, stated the matter succinctly:
36
'The problem is whether the time and attention and energy of the court shall be devoted to matters of large public concern, or whether they shall be consumed by matters of less concern, without especial general interest, and only because the litigant wants to have the court of last resort pass upon his right.'22
37
Though various objections to certain jurisdictional changes worked by the bill were voiced on the floor of the Senate, even critical Senators recognized the great difference between the Supreme Court and other appellate tribunals. Thus Senator Copeland:
38
'The United States Supreme Court is one of the three great coordinate branches of the Government, and its time and labor should, generally speaking, be devoted to matters of general interest and importance and not to deciding private controversies between citizens involving no questions of general public importance.'23
39
In correspondence between Senator Copeland and Mr. Chief JusticeTaf t, the latter wrote: 'The appeal to us should not be based on the right of a litigant to have a second appeal.'24
40
This understanding of the role of the Supreme Court and the way in which it is to be maintained in observing the scope of certiorari jurisdiction, are clearly set forth in a contemporary exposition by Mr. Chief Justice Taft of the purposes of the Judiciary Act of 1925:
41
'The sound theory of that Act (Act of 1891) and of the new Act is that litigants have their rights sufficiently protected by a hearing or trial in the courts of first instance, and by one review in an intermediate appellate Federal court. The function of the Supreme Court is conceived to be, not the remedying of a particular litigant's wrong, but the consideration of cases whose decision involves principles, the application of which are of wide public or governmental interest, and which should be authoritatively declared by the final court.'25
42
Questions of fact have traditionally been deemed to be the kind of questions which ought not to be recanvassed here unless they are entangled in the proper determination of constitutional or other important legal issues. In Newell v. Norton, 3 Wall. 257, 18 L.Ed. 271, Mr. Justice Grier stated the considerations weighing against Supreme Court review of factual determinations: 'It would be a very tedious as well as a very unprofitable task to again examine and compare the conflicting statements of the witnesses in this volume of depositions. And, even if we could make our opinion intelligible, the case could never be a precedent for any other case, or worth the trouble of understanding.' 3 Wall. at page 267. And he issued this caveat: 'Parties ought not to expect this court to revise their decrees merely on a doubt raised in our minds as to the correctness of their judgment, on the credibility of witnesses, or the weight of conflicting testimony.' 3 Wall. at page 268. In Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S.Ct. 140, 62 L.Ed. 385, certiorari was dismissed as improvidently granted after it became apparent that the only question in the case was the 'propriety of submitting' certain questions to the jury and this 'depended essentially upon an appreciation of the evidence.' 245 U.S. at page 441, 38 S.Ct. at page 141. Testifying before the Senate Judiciary Committee in hearings concerning the Judges' Bill, Mr. Justice Van Devanter related a similar incident.26 The proper use of the discretionary certiorari jurisdiction was on a later occasion thus expounded by Mr. Chief Justice Hughes:
43
'Records are replete with testimony and evidence of facts. But the questions on certiorari are questions of law. So many cases turn on the facts, principles of law not being in controversy. It is only when the facts are interwoven with the questions of law which we should review that the evidence must be examined and then only to the extent that it is necessary to decide the questions of law.
44
'This at once disposes of a vast number of factual controversies where the parties have been fully heard in the courts below and have no right to burden the Supreme Court with the dispute which interests no one but themselves.'27
45
What are the questions which petitioner here presses upon us? The petition for certiorari sets forth as the questions presented: (1) was petitioner deprived of her constitutional right to a jury trial guaranteed by the Seventh Amendment? (2) did the Court of Appeals refuse to follow North Dakota law as it was required to do under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188? If this case raises a question under the Seventh Amendment, so does every grantedmot ion for dismissal of a complaint calling for trial by jury, every direction of verdict, every judgment notwithstanding the verdict. Fabulous inflation cannot turn these conventional motions turning on appreciation of evidence into constitutional issues, nor can the many diversity cases sought to be brought here on contested questions of evidentiary weight be similarly transformed by insisting before this Court that the Constitution has been violated. This verbal smoke screen cannot obscure the truth that all that is involved is an appraisal of the fair inferences to be drawn from the evidence. Chief Judge Magruder has expressed the common sense of the matter:
46
'If an appellate court is of the view that the trial judge made an error of judgment in withdrawing a case from the jury, or in entering judgment for the defendant notwithstanding a plaintiff's verdict, a reversal (by a Court of Appeals) is no doubt called for; but we cannot see that anything is gained by blowing up that error of judgment into a denial of the constitutional right to a jury trial as guaranteed by the Seventh Amendment.'28
47
Petitioner's insistence that the Court of Appeals ignored or acted at variance with the law of North Dakota is disproved by the citation and discussion of the relevant North Dakota decision in the opinion below. See 252 F.2d 43, 46. The test of sufficiency applied by the Court of Appeals below is the same test which petitioner asks us to apply, and is the test established by the North Dakota Supreme Court in Svihovec v. Woodmen Acc. Co., 69 N.D. 259, 285 N.W. 447. 'Our conclusion,' the opinion below announced, 'is that the infliction of two wounds in succession, one in the left side in close proximity to the heart, and the other in the head, cannot be reconciled with any reasonable theory of accident, and that, under the evidence, the question whether the death was accidental was not a question of fact for the jury.' 252 F.2d 43, 47. Thus, as the record was interpreted by the Court of Appeals the evidence fell short of the requirements of North Dakota law for submission to a jury. It might be noted that its interpretation of the record would have required the same result were federal law to determine sufficiency. We have held that '(w)hatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.'29
48
Alike in Congress and here it has been repeatedly insisted that a question like that raised by petitioner—was there sufficient evidence for submission to a jury—is not proper for review in this Court. The circumstances in the type of situation before us are infinite in their variety. Judicial judgments upon such circumstances are bound to vary with the particularities of the individual situation. The decision in each case is a strictly particular adjudication—a unique case since it turns on unique facts—and cannot have precedential value. Of course it is of interest, perhaps of great importance to the parties, but only as such and not independently of any general public interest.
49
The considerations that demand strict adherence by the Court to the rules it has laid down for the bar in applying for the exercise of the Court's 'sound judicial discretion' in granting a writ of certiorari are not technical, in the invidious sense of the term. They go to the very heart of the effective discharge of this Court's functions. To bring a case here when there is no 'special and important'30 reason for doing so, when there is no reason other than the interest of a particular litigant, especially when the decision turns solely on a view of conflicting evidence or the application of a particular local doctrine decided one way rather than another by a Court of Appeals better versed in the field of such local law than we can possibly be, works inroads on the time available for due study and reflection of those classes of cases for the adjudication of which this Court exists.
50
The conditions that are indispensable for enabling this Court adequately to discharge the duties in its special keeping cannot be too consciously and too persistently kept in mind. The farreaching and delicate problems that call for the ultimate judgment of the Nation's highest tribunal require vigor of thought and high effort, and their conservation, even for the ablest judges. Listening to arguments, examining records and briefs, analyzing the issues, investigating materials beyond what partisan counsel offer, constitute only a fraction of what goes into the judicial process of this Court.
51
For one thing, the types of cases that now come before the Court (as the rpesent United States Reports compared with those of even a generation ago bear ample testimony) require to a considerable extent study of materials outside the legal literature. More important, however, the judgments of this Court are collective judgments. Such judgments presuppose ample time and freshness of mind for private study and reflection in preparation for discussion at Conference. Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussion; without adequate discussion there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions. It is therefore imperative that the docket of the Court be kept down so that its volume does not preclude wise adjudication. This can be avoided only if the Court rigorously excludes any case from coming here that does not rise to the significance of inescapability in meeting the responsibilities vested in this Court.
52
Adjudication is, of course, the most exacting and most time-consuming of the Court's labors; it is by no means the whole story. In 1925 the Congress, by withdrawing all but a few categories of cases which can come to the Court as a matter of right, gave to the Court power to control its docket, to control, that is, the volume of its business. Congress conferred this discretionary power on the Court's own urging that this was necessary if the proper discharge of the Court's indispensable functions were to be rendered feasible. The process of screening those cases which alone justify adjudication by the Supreme Court is in itself a very demanding aspect of the Court's work. The litigious tendency of our people and the unwillingness of litigants to rest content with adverse decisions after their cause has been litigated in two and often in three courts, lead to attempts to get a final review by the Supreme Court in literally thousands of cases which should neverrea ch the highest Court of the land.31 The examination of the papers in these cases, to sift out the few that properly belong in this Court from the very many that have no business here, is a laborious process in a Court in which every member is charged and properly charged with making an independent examination of the right of access to the Court.32
53
Every time the Court grants certiorari in disregard of its own professed criteria, it invites disregard of the responsibility of lawyers enjoined upon the bar by the Court's own formal rules and pronouncements. It is idle to preach obedience to the justifying considerations for filing petitions for certiorari, which Mr. Chief Justice Taft and his successors and other members of the Court have impressively addressed to the bar year after year if the Court itself disregards the code of conduct by which it seeks to bind the profession. Lawyers not unnaturally hope to draw a prize in the lottery and even conscientious lawyers who feel it their duty, as officers of the Court, to obey the paper requirements of a petition for certiorari, may feel obligated to their clients not to abstain where others have succeeded. No doubt the most rigorous adherence to the criteria for granting certiorari will not prevent too many hopeless petitions for certiorari from being filed. But laxity by the Court in respecting its own rules is bound to stimulate petitions for certiorari with which the Court should never be burdened.
54
Therefore, ever since Congress, in 1891, established the Courts of Appeals as the customary tribunal for final adjudication of the class of cases to which the present belongs, this Court has, as a rule, been resolute in guarding against abuse of its closely restricted discretionary certiorari jurisdiction. Due regard for our practice and for the vital jurisdictional principle which underlies it, compels the conclusion that this writ of certiorari should never have issued.
55
However, if we are to review facts, we must establish and adhere to a rational standard of review. In so doing we cannot ignore the relevance to this task of the many expressions of the impropriety of such review. If it is unwise for this Court to grant review of cases turning solely on questions of fact, how much less wise to undertake to reassess the record in disregard of the reasoned assessment of the evidence by the Court of Appeals.
56
'The same considerations that should lead us to leave undisturbed, by denying certiorari, decisions of Courts of Appeals involving solely a fair assessment of a record on the issue of unsubstantiality, ought to lead us to do no more than decide that there was such a fair assessment when the case is here, as this is, on other legal issues.
57
'This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way.'33
58
It is the staple business of Courts of Appeals to examine records for the sufficiency of evidence. To undertake an independent review of the review by the Court of Appeals of evidence is neither our function nor within our special aptitude through constant practice. Such disregard of sound judicial administration is emphasized by the fact that the judges of the Court of Appeals are, by the very nature of the business with which they deal, far more experienced than we in dealing with evidence, ascertaining the facts, and determining the sufficiency of evidence to go to a jury.34 If due regard be paid to the weighing of conflicting evidence and inferences drawn therefrom by these experienced judges, can it be fairly said that there was no reasoned justification for their conclusion and that their judgment was baseless? If not, we should leave undisturbed the judgment below.35 After all, we are reviewing the judgment of the Court of Appeals, and it is its judgment that must be subjected to the rule of reason. Comparison of the Court of Appeals' opinion with the record made at the trial manifests scrupulous deference to the local law of North Dakota, as pronounced by its Supreme Court, and unmistakable care by the Court of Appeals in considering all the evidence and the inferences which the evidence reasonably yields. Whether we agree or disagree with its evaluation of the evidence, a tolerant judgment can surely not conclude that it does not represent a fair, judicial determination. If we are to consider the merits of the case, I would affirm the judgment of the Court of Appeals.
1
The gun was a Stevens, 12 gauge, double barreled shotgun with two triggers placed one behind the other. It weighed approximately seven pounds. It had an over-all length of 46 inches and measured 32 inches from muzzle to triggers.
2
The sheriff stated that he did not 'pretend to be an expert as far as shotguns are concerned.' His tests consisted of dropping the gun with the muzzle down ten times from a height of ten inches and holding the gun with the butt down about ten inches from the floor and dropping it on a board eight or ten times. He also placed the gun in a normal shooting position against his shoulder and swung the barrel against an obstacle three or four times.
3
This statement of the presumption and its weight accords with the requirements of N.D.Rev.Code, 1943, § 31—1101, which provides:
'A presumption, unless declared by law to be conclusive, may be controverted by other direct or indirect evidence but unless so controverted, the jurors are bound to find according to the presumption.'
4
Respondent's argument below that the court should adopt the 'modern' rule on the effect of presumptions, see, e.g., 9 Wigmore On Evidence (3d ed. 1940) § 2491, was rejected. The 'modern' rule was applied by this Court in New York Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726, a decision predating Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. For the subsequent history of the Gamer case, see 9 Cir., 106 F.2d 375.
5
Svihovec v. Woodmen Accident Co., supra; Clemens v. Royal Neighbors of America, supra.
6
The Court of Appeals admitted the improbability of Dick's being able to pull the triggers with bulky gloves on but believed that this was offset by the probability that he used the screwdriver to push the triggers. This resolution of the facts seems strained indeed. The presence of the screwdriver was accounted for by testimony indicating that it was used to open the silage shed door. And the jury could reject as improbable the court's implicit theory that a man mortally wounded in the chest and bulkily clothed could hold a heavy shotgun at arm's length and shoot off his head particularly when he was wearing heavy gloves that could only be inserted in the trigger guard with difficulty.
7
Respondent argued that the North Dakota rule on presumptions should be abandoned in favor of the 'modern' rule, see note 4, supra, but the record does not show that it argued for the application of the federal standard of sufficiency of the evidence.
8
Compare Brady v. Southern R. Co., 320 U.S. 476, 479—480, 64 S.Ct. 232, 234, 88 L.Ed. 239 and Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, with Svihovec v. Woodmen Accident Co., supra.
9
Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.
1
E.g., State of Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562; Bondholders, Inc., v. Powell, 342 U.S. 921, 72 S.Ct. 319, 96 L.Ed. 688; Chemical Bank & Trust Co. v. Group of Institutional Investors, 343 U.S. 982, 72 S.Ct. 1018, 96 L.Ed. 1372; Rosenberg v. United States, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 687.
2
Act of March 3, 1891, 26 Stat. 826 (commonly known as the Evarts or Circuit Courts of Appeals Act).
3
H.R.Rep. No. 1295, 51st Cong., 1st Sess. 3.
4
Ibid.
5
See 21 Cong.Rec. 3403—3405, 10220—10222; 22 Cong.Rec. 3585.
6
Ibid.
7
26 Stat. 828.
8
21 Cong.Rec. 10221.
9
26 Stat. 828.
10
See the expressions of the necessity of restraint in granting writs of certiorari which the Court voiced in Lau Ow Bew, 141 U.S. 583, 12 S.Ct. 43, 35 L.Ed. 868; In re Woods, 143 U.S. 202, 12 S.Ct. 417, 36 L.Ed. 125; Lau Ow Bew v. United States, 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340; American Construction Co. v. Jacksonville, T. & K.W.R. Co., 148 U.S. 372, 13 S.Ct. 758, 37 L.Ed. 486; Forsyth v. City of Hammond, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095; Fields v. United States, 205 U.S. 292, 27 S.Ct. 543, 51 L.Ed. 807; United States v. Rimer, 220 U.S. 547, 31 S.Ct. 596, 55 L.Ed. 578. On March 27, 1893, two years after the enactment of the Evarts Act, the Court could write that only two petitions for certiorari had been granted. American Construction Co. v. Jacksonville, T. & K.W.R. Co., supra, 148 U.S. at page 383, 13 S.Ct. at page 763.
11
See cases cited, note 10, supra.
12
Forsyth v. City of Hammond, 166 U.S. 506, 513, 17 S.Ct. 665, 668.
13
Id., 166 U.S. at pages 514—515, 17 S.Ct. at page 669.
14
In Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 879, after listing some sixth relevant cases, this Court said:
'Only in the light of argument on the merits did it become clear in these numerous cases that the petitions for certiorari should not have been granted. In some instances an asserted conflict turned out to be illusory; in others, a federal question was wanting or decision could be rested on a non-federal ground; in a number, it became manifest that the question was of importance merely to the litigants and did not present an issue of immediate public significance.' 349 U.S. at page 79, note 2, 75 S.Ct. at page 619.
In an earlier case Mr. Justice Stone, in a dissent joined by Mr. Justice Brandeis, had written:
'It thus appears that the construction of the statute which we were asked to review is not in the case, and, even if it were, it is of local significance only. The conflict of decisions asserted is not shown. Plainly the question is not of such general interest or importance as under the rules and practice of this Court warrants its review upon certiorari. For these reasons, it is the duty of this Court to dismiss the writ as improvidently granted.' Washington Fidelity National Ins. Co. v. Burton, 287 U.S. 97, 100, 101—102, 53 S.Ct. 26, 27, 77 L.Ed. 196. See also United States v. Knight, 336 U.S. 505, 509, 69 S.Ct. 704, 706, 93 L.Ed. 845 (dissenting opinion). Nor need we rummage in the recesses of our memories: see Triplett v. State of Iowa, 357 U.S. 217, 78 S.Ct. 1358, 2 L.Ed.2d 1361; Hinkle v. New England Mutual Ins. Co., 358 U.S. 65, 79 S.Ct. 116, 3 L.Ed.2d 106; Joseph v. Indiana, 359 U.S. 117, 79 S.Ct. 720, 3 L.Ed.2d 673.
15
See Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S.Ct. 140, 62 L.Ed. 385. In Lutcher & Moore Lumber Co. v. Knight, 217 U.S. 257, 267—268, 30 S.Ct. 505, 509, 54 L.Ed. 757, the Court said: 'The great purpose of the act of 1891, however, to which all its provisions are subervient, is to distribute the jurisdiction of the courts of the United States, and thus to relieve the docket of this court by casting upon the circuit courts of appeal the duty of finally deciding the cases over which the jurisdiction of those courts is by the act made final. The power to issue certiorari in accordance with the act, in its essence, is only a means to the end that this imperative and responsible duty may be adequately performed.'
16
Act of Sept. 6, 1916, § 3, 39 Stat. 727.
17
S.Rep. No. 775, 64th Cong., 1st Sess. 3. See also H.R.Rep. No. 794, 64th Cong., 1st Sess. 3.
18
Act of Feb. 13, 1925, 43 Stat. 936.
19
For a summary of the history of the bill see Frankfurter and Landis, The Business of the Supreme Court, 273—280. The authors also analyze the Act. Id., at 280—294.
20
Hearings before the Committee on the Judiciary of the House of Representatives on H.R. 10479, 67th Cong., 2d Sess.; Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2060 and S. 2061, 68th Cong., 1st Sess.; Hearing before the Committee on the Judiciary of the House of Representatives on H.R. 8206, 68th Cong., 2d Sess.
21
Hearings before the Committee on the Judiciary of the House of Representatives on H.R. 10479, 67th Cong., 2d Sess. 2. Writing for the Court in Magnum Import Co. v. Coty, 262 U.S. 159, 163, 43 S.Ct. 531, 532, 67 L.Ed. 922, Mr. Chief Justice Taft said: 'The jurisdiction (to review decisions of the Courts of Appeals) was not conferred upon this court merely to give the defeated party in the Circuit Court of Appeals another hearing.'
22
H.R.Rep. No. 1075, 68th Cong., 2d Sess. 2.
23
66 Cong.Rec. 2755.
24
Id., at 2920.
25
Taft, The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, 35 Yale L.J. 1, 2 (1925).
26
Hearing before a Subcommittee of the Senate Committee on the Judiciary on S. 2060 and S. 2061, 68th Cong., 1st Sess. 31.
27
Printed in S.Rep. No. 711, 75th Cong., 1st Sess. 40.
28
Smith v. Reinauer Oil Transport, Inc., 1 Cir., 256 F.2d 646, 649.
Negligence litigation occupies a substantial portion of the time of federal district judges. 'During the last year I myself have calculated with some care that over half the days when I was taking evidence, I was taking evidence in cases involving negligence, either diversity jurisdiction cases, Jones Act, FELA, Federal Tort Claim, or the lot.' Judge Charles E. Wyzanski, Jr., Proceedings of the Attorney General's Conference on Court Congestion (1958), 137. Every negligence case, when tried before a jury, necessitates a decision on sufficiency of evidence for submission to a jury. In many cases it is the only issue. We ought not, with due regard to our special functions, encourage the bringing of such cases here. We could not possibly review all the cases sought to be brought here. But if we occasionally review such a case, we discriminate against the others, since no rational classification can justify taking one but not all. That is why all are appealable to the Courts of Appeals.
29
Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458.
30
Rule 19, Rules of the Supreme Court of the United States, 28 U.S.C.A.
31
In the last three Terms of Court preceding the current Term there were filed, respectively, 1,382, 1,473, and 1,407 petitions for certiorari on the appellate and miscellaneous dockets.
32
'We have to consider the certiorari because it was only after effort that we got a bill passed that makes an appeal to our court dependent upon our discretion in many cases in which until lately it was matter of right. Let it ever be understood that the preliminary judgment was delegated, I should expect the law to be changed back again very quickly with the result that we should have to hear many cases that have no right to our time; as it is we barely keep up with the work.' Mr. Justice Holmes, writing under date of August 30, 1929, to Sir Frederick Pollock, 2 Holmes-Pollock Letters (Howe ed. 1941) 251.
33
Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 502—503, 71 S.Ct. 453, 456, 95 L.Ed. 479. See also National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 409—410, 7 S. Ct. 824, 832, 96 L.Ed. 1027; McAllister v. United States, 348 U.S. 19, 24, 75 S.Ct. 6, 9, 99 L.Ed. 20 (separate opinion).
34
The Circuit Judges who decided this case have had the following judicial experience:
Judge Sanborn: District Court of Minnesota, 1922—1925; United States District Court for the District of Minnesota, 1925—1932; United States Court of Appeals for the Eighth Circuit, since 1932.
Judge Woodrough: County Court, Ward County, Texas, 1894—1896; United States District Court for the District of Nebraska, 1916 1933; United States Court of Appeals for the Eighth Circuit, since 1933.
Judge Johnsen: Supreme Court of Nebraska, 1939—1940; United States Court of Appeals for the Eighth Circuit, since 1940.
If a claim were made that the Court of Appeals had 'departed from the accepted and usual course of judicial proceedings,' Rule 19, Rules of the Supreme Court of the United States, that it had, for instance, manifested a strong bias for or against a particular class of litigants, a proper case would be presented for 'an exercise of this court's power of supervision.' Rule 19, Rules of the Supreme Court of the United States. No suggestion has been made that the decision of the Court of Appeals reflected a bias in favor of an insurance company. On the contrary, animadversion against the complete disinterestedness of the court was disavowed at the bar.
35
See Federal Trade Commission v. American Tobacco Co., 274 U.S. 543, 47 S.Ct. 663, 71 L.Ed. 1193.
| 78
|
359 U.S. 464
79 S.Ct. 904
3 L.Ed.2d 952
T.I.M.E. INCORPORATED, Petitioner,v.UNITED STATES of America. DAVIDSON TRANSFER & STORAGE COMPANY, Inc., Petitioner, v. UNITED STATES of America.
Nos. 68, 96.
Argued Jan. 20, 1959.
Decided May 18, 1959.
Mr. W. D. Benson, Jr., Lubbock, Tex., for petitioner T.I.M.E., inc.
Mr. Bryce Rea, Jr., Washington, D.C., for petitioner Davidson Transfer & Storage Co.
Mr. Morton Hollander, Washington, D.C., for United States.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioners are interstate motor common carriers, certificated by the Interstate Commerce Commission (I.C.C.) under the Motor Carrier Act of 1935.1 Section 217 of that Act, 49 U.S.C. § 317, 49 U.S.C.A. § 317, requires such carriers to file their transportation charges as tariffs with the I.C.C. These tariffs remain effective until suspended or changed in accordance with specified procedures, and so long as they are effective carriers are forbidden to charge or collect any rate other than that provided in the applicable tariff.2
2
These cases present in common a single question under the Motor Carrier Act: Can a shipper of goods by a certificated motor carrier challenge in post-shipment litigation the reasonableness of the carrier's charges which were made in accordance with the tariff governing the shipment?
3
In No. 68, T.I.M.E. transported several shipments of scientific instruments for the United States from Oklahoma to California. One of the shipments, illustrative of all involved in this litigation, originated at Marion, Oklahoma, and was carried over the lines of petitioner and a connecting carrier to Planehaven, California. At the time, the petitioning carrier had on file with the I.C.C. a tariff relating to such shipments which specified a through rate from Marion to Planehaven of $10.74 per hundredweight. Petitioner was also subject to tariffs which provided a rate of $2.56 per hundredweight from Marion to El Paso, Texas, and of $4.35 per hundredweight from El Paso to Planehaven. The through rate thus exceeded to combination rate by $3.83. T.I.M.E. charged and collected on the basis of the through rate. On postpayment audit by the General Accounting Office under § 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U.S.C. § 66, 49 U.S.C.A. § 66, that office concluded that the combination rather than the through rate was applicable to this shipment and required T.I.M.E. to refund the difference between the sum collected under the through tariff and that which would have been due under the combination tariffs. This T.I.M.E. did under protest.
4
Thereafter T.I.M.E. brought suit under the Tucker Act, 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2), claiming that the through tariff was applicable to the shipment and that it was thus entitled to recovery the difference between the through and combination rates. The Government defended on the ground that the combination rate was applicable, and alternatively contended that if the through tariff were applicable the rate specified therein was unreasonably high insofar as it exceeded the combination rate. It asked that T.I.M.E.'s suit be stayed to permit the Government to bring a proceeding before the I.C.C. to determine the reasonableness of the through rate. The District Court in an unreported opinion held that the through rate was applicable, and that neither it nor the I.C.C. had power to pass upon the Government's contention that such rate was as to th pa st unreasonable. Accordingly, the District Court entered summary judgment for T.I.M.E.
5
The Government appealed, accepting the District Court's determination as to the applicability of the through rate, but contending that the District Court had erred in refusing to refer to the I.C.C. the issue of the reasonableness of that rate as to past shipments. The Court of Appeals reversed, holding that the Government was entitled to an I.C.C. determination upon the question of reasonableness, and that the fact that the Motor Carrier Act gives the I.C.C. no power to award reparations as to admittedly governing past rates does not prevent that body from passing on the question of past reasonableness when that issue arises in litigation in the courts. 252 F.2d 178.
6
In No. 96, petitioner Davidson transported four shipments of goods for the United States from Poughkeepsie, N.Y., to Bellbluff, Va., and billed the United States on the basis of concededly applicable filed tariffs. On post-payment audit the General Accounting Office concluded that a part of these charges was unreasonable and should be refunded to the United States.3 Davidson refunded under protest the sum demanded, which amounted to $18.34, and then brought suit under the Tucker Act to recover the refund. The Government defended on the sole ground that the applicable rate had been unreasonable. The District Court, without opinion, granted Davidson summary judgment, but on the Government's appeal the judgment was reversed, the Court of Appeals holding that the Government could defend on 'unreasonableness' grounds, and directing a referral to the I.C.C. of the issue as to the reasonableness of the rate in question. 104 U.S.App.D.C. 72, 259 F.2d 802.
7
We granted certiorari in both cases because of the suggestion that the result reached by the Courts of Appeals conflicted with this Court's decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, and in order to settle the questions of statutory interpretation involved.4 358 U.S. 810, 79 S.Ct. 27, 3 L.Ed.2d 55.
8
The courts below held that the right of the United States to resist on the ground of unreasonableness the payment of the charges incurred by it was one deriving from the common law and preserved by § 216(j) of the Motor Carrier Act.5 In this Court the Government, although defending this ground of decision, relies primarily on the proposition that the Motor Carrier Act itself creates a judicially enforceable right in a shipper to be free from the exaction of unreasonable charges as to past shipments even though such charges reflect applicable rates duly filed with the I.C.C. The Government concedes that whatever the source of the asserted right may be, the question of the reasonableness of past rates cannot itself be decided in the courts, but takes the position that when such question arises in court litigation it may properly be referred to the I.C.C.for decision, and the results of that adjudication used to determine the respective rights of the litigants.
I.
9
The contention that the Motor Carrier Act itself creates a cause of action or affords a defense with respect to the recovery of unreasonable rates rests on the provisions of s 216(b) and (d) of the Act, 49 U.S.C. § 316(b, d), 49 U.S.C.A. § 316(b, d), which provide as to interstate motor carriers:
10
'(b) It shall be the duty of every (such) common carrier * * * to establish, observe, and enforce just and reasonable rates, charges, and classifications, and just and reasonable regulations and practices relating thereto * * *.
11
'(d) All charges made for any service rendered or to be rendered by any (such) common carrier * * * shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful. * * *'
12
The Government urges that this language imposes a statutory duty on motor carriers not to charge or collect other than 'reasonable' rates, and asks us to imply a cause of action under the Motor Carrier Act for any shipper injured by violation of that duty. We cannot agree. As this Court recognized in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251, 71 S.Ct. 692, 695, 95 L.Ed. 912, language of this sort in a statute which entrusts rate regulation to an administrative agency in itself creates only a 'criterion for administrative application in determining a lawful rate' rather than a 'justiciable legal right.' In Montana-Dakota it was held that the Federal Power Act, which like the Motor Carrier Act expressly declares unreasonable rates to be 'unlawful,'6 does not create a cause of action for the recovery of allegedly unreasonable past rates. In the absence of any indication that Congress intended that despite the absence of any reparations power in the Federal Power Commission the federal courts should entertain suits for reparation of unreasonable rates, and refer to the Commission the controlling issue of past unreasonableness, the Court declined to permit the Commission to accomplish indirectly through such a proceeding that which Congress did not allow it to accomplish directly.
13
It is true that under Parts I and III of the Interstate Commerce Act, relating respectively to rail and water carriers, a shipper may litigate as to the reasonableness of past charges even if those charges were based on the applicable and effective filed rates. The structure and history of Part II (the Motor Carrier Act), however, lead to the conclusion that here, as in the Federal Power Act, Congress did not intend to give shippers a statutory cause of action for the recovery of allegedly unreasonable past rates, or to enable them to assert 'unreasonableness' as a defense in carrier suits to recover applicable tariff rates.
14
The very provisions of Part I, and their counterparts in Part III, which give a right of action to shippers against carriers for damages incurred by carrier violations of the Act and provide the mechanics for the enforcement of that right are conspicuously absent in the Motor Carrier Act. Thus, whereas § 8 of Part I7 provides that 'any common carrier subject to the provisions of this chapter (who) shall do * * * any act * * * in this chapter * * * declared to be unlawful * * * shall be liable to the person or persons injured thereby for the full amount of the damages sustained * * *,' Part I h as no comparable provision. Again, whereas § 9 of Part I8 gives an injured shipper the right to sue in the I.C.C. or in the Federal District Court, Part II contains no comparable provision. In addition, §§ 13(1) and 16 of Part I9 give a shipper claiming reparation the right to proceed in the Commission and to enforce his reparation award in the courts, and Part II contains no comparable provisions.
15
To hold that the Motor Carrier Act nevertheless gives shippers a right of reparation with respect to allegedly unreasonable past filed tariff rates would require a complete disregard of these significant omissions in Part II of the very provisions which establish and implement a similar right as against rail carriers in Part I. We find it impossible to impute to Congress an intention to give such a right to shippers under the Motor Carrier Act when the very sections which established that right in Part I were wholly omitted in the Motor Carrier Act.
16
Further, the I.C.C. itself has consistently recognized that nothing in Part II creates a statutory liability on the part of the carrier for past allegedly unreasonable filed rates. In the hearings which preceded the passage of legislation in 1949 adding to the Motor Carrier Act a statute of limitations on suits to recover amounts paid to carriers in excess of applicable filed rates, proposals were also made to amend the statute by adding to it provisions similar to those already found in §§ 8, 9, 13, and 16 of Part I. The Commission noted that the proposal 'would add to the Interstate Commerce Act a number of new sections which would make common carriers by motor vehicle * * * liable for the payment of damages to persons injured by them through violations of the act. At present this liability exists only in respect of carriers subject to parts I and III * * *.'10 The suggested changes were not adopted. And in 1957 the Commission again recommended amendment of the Motor Carrier Act to provide a remedy for violation of the statute to persons injured thereby,11 and once more the measure failed of adoption.
17
In light of the statute and its history, it is plain that if a shipper has a 'justiciable legal right' to recover or resist past motor carrier charges alleged to have been unreasonable, it is necessary to look beyond the Motor Carrier Act for the source of that right.
II.
18
The Government urges that even if the Motor Carrier Act does not grant the right which is claimed here, the Act must at least be read to preserve a pre-existing common-law right of that kind. It relies on § 216(j) of the statute, 49 U.S.C. § 316(j), 49 U.S.C.A. § 316(j), as showing a congressional intention to confirm such a right in its statement that nothing in § 216 'shall be held to extinguish any remedy or right of action not inconsistent herewith.' The contention is that the common law recognized the right of a shipper by common carrier to recover exorbitant rates paid under protest,12 and that although the doctrine of primary jurisdiction requires that the issue of whether rates which are retrospectively challenged were in fact 'unreasonable' be determined by the I.C.C., the common-law right may be vindicated in a suit in the courts through referral of the issue of 'unreasonableness' to the Commission.
19
The saving clause of § 216(j) must be read in light of the judicial decisions interpreting Part I of the Interstate Commerce Act before 1935, for the course of those decisions illuminates the significance of the striking differences which Congress saw fit to make between the provisions of Part I and those of the Motor Carrier Act. The landmark case is Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. There a shipper sued in a state court to recover the difference between an allegedly unreasonable charge exacted from it by a rail carrier pursuant to tariffs filed by the carrier with the I.C.C. and what was claimed would have been a just and reasonable charge. One of the issues before this Court was whether any common-law right to recover an exorbitant common carrier freight charge paid under protest survived the passage of the Interstate Commerce Act. The Court held, despite the existence in Part I of a saving clause much broader in scope than that here involved,13 that because under the statutory scheme only the I.C.C. could decide in the first instance whether any filed rate was 'unreasonable' either as to the past or future, any common-law right was necessarily extinguished as 'absolutely inconsistent' with recognition of the Commission's primary jurisdiction. It is important to note that this conclusion did not rest upon the fact that under Part I the I.C.C. had reparations authority with respect to unreasonable charges paid by shippers, but instead was evidently dictated by the broader conclusion that the crucial question of reasonableness could not be decided by the courts.
20
Since the Government concedes that under Part II, as under Part I, the issue of the unreasonableness of rates cannot be adjudicated in the courts, it would seem to follow that the common-law right which the Government urges as surviving under § 216(j) cannot in fact survive, since that clause preserves only 'any remedy or right of action not inconsistent' with the statutory scheme. The Government urges, however, that there is nothing actually inconsistent with the Commission's primary jurisdiction in recognizing the survival of a common-law right, because the demands of primary jurisdiction can be satisfied by referral of the question of the reasonableness of the assailed rate to the I.C.C., and that although the Commission concededly has no independent authority to entertain and adjudicate a claim for reparations, it nevertheless should be permitted in effect to exercise such an authority as an adjunct to a judicial proceeding.
21
The question is, of course, one of statutory intent. We do not think that Congress, which we cannot assume was unaware of the holding of the Abilene case that a common-law right of action to recover unreasonable common carrier charges is incompatible with a statutory scheme in which the courts have no authority to adjudicate the primary question in issue, intended by the saving clause of § 216(j) to sanction a procedure such as that here proposed. It would be anomalous to hold that Congress intended that the sole effect of the omission of reparations provisions in the Motor Carrier Act would be to require the shipper in effect to bring two lawsuits instead of one, with the parties required to file their complaint and answer in a court of competent jurisdiction and then immediately proceed to the I.C.C. to litigate what would ordinarily be the sole controverted issue in the suit. No convincing reason has been suggested to us why Congess would have wished to omit a direct reparations procedure, as it has concededly here done, and yet leave open to the shipper the circuitous route contended for.
22
To permit a utilization of the procedure here sought by the Government would be to engage in the very 'improvisation' against which this Court cautioned in Montana-Dakota, supra, in order to permit the I.C.C. to accomplish indirectly what Congress has not chosen to give it the authority to accomplish directly. In the absence of the clearest indication that Congress intended that the Motor Carrier Act should preserve rights which could be vindicated only by such an improvisation, we must decline to consider a defense which 'involves only issues which a federal court cannot decide and can only refer to a body which also would have no independent jurisdiction to decide. * * *'14 Montana-Dakota, supra, 341 U.S. at page 255, 71 S.Ct. at page 697. The Government's reliance upon United States v. Western Pacific R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126, is misplaced, for in that case, involving Part I of the Interstate Commerce Act, the authority of the I.C.C. to determine the reasonableness of past filed rates in aid of court litigation was undoubted. The case decided no more than that referral to the I.C.C. of the issue of 'unreasonableness' involved in the shipper's defense to the carrier's timely Tucker Act suit was not foreclosed by the fact that affirmative reparations relief before the Commission would have been barred by limitations. It has no bearing on the question whether a judicial remedy in respect of allegedly unreasonable past rates survived the passage of the Motor Carrier Act.
23
It is pointed out that the I.C.C. has long claimed the authority to make findings as to the reasonableness of past motor carrier rates embodied in tariffs duly filed with the Commission. It is true that in a series of cases beginning with Barrows Porcelain Enamel Co. v. Cushman Motor Delivery Co., 11 M.C.C. 365, decided in 1939, divisions of the Commission, and eventually the Commission itself, Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, announced that the I.C.C. possessed such authority. But in these cases the anterior question now before us, whether a shipper has a right, derived from outside the statute, to put the question of the reasonableness of past rates in issue in judicial proceedings, was given only cursory consideration or else wholly ignored.15 The cases devoted themselves to searching out authorization in the Act for I.C.C. participation, by adjudication as to past unreasonableness, in the vindication of whatever reparation rights might exist.16 The Government is able to point to only two cases in addition to the present ones, in the 24 years since passage of the Motor Carrier Act, in which courts have appeared to assume that the issue of reasonableness of past motor carrier rates was litigable,17 and in neither of these cases was the question given other than the most cursory attention. Under these circumstances the issue before § c annot fairly be said to be foreclosed by long-standing interpretation and understanding.
24
We are told that Congress has long been aware that the Commission was of the view that a common-law action for recovery of unreasonable rates paid to a motor carrier, with referral to the Commission of the issue of unreasonableness, would lie, and that its failure to legislate in derogation of this view implies an approval and acceptance of it. But it appears that each time the Commission's views in this regard were communicated to committees of Congress, it was in connection with a request by the Commission for legislation which would have given to shippers a cause of action under the statute and granted to the Commission the authority to award reparations, and each time that request was rejected.18 Had Congress been asked legislatively to overrule the doctrines enunciated in Bell Potato Chip, supra, and declined to do so, that fact would no doubt have been entitled to some weight in our interpretation of the Act. But we do not think that from the failure of Congress to grant a new authority any reliable inference can permissibly be drawn to the effect that any authority previously claimed was recognized and confirmed.
25
Finally, it is contended that denial of a remedy to the shipper who has paid unreasonable rates is to sanction injustice.19 The fact that during the 24-year history of the Motor Carrier Act shippers have sought to secure adjudications in the I.C.C. as to the reasonableness of past rates on only a handful of occasions, despite the Commission's invitation to shippers to pursue that course in the line of cases culminating in Bell Potato Chip, supra, strongly suggests that few occasions have arisen where the application of filed rates has aggrieved shippers by motor carrier.20 Furthermore, this contention overlooks the fact that Congress has in the Motor Carrier Act apparently sought to strike a balance between the interests of the shipper and those of the carrier, and that the statute cut significantly into pre-existing rights of the carrier to set his own rates and put them into immediate effect, at least so long as they were within the 'zone of reasonableness.' Under the Act a trucker can raise its rates only on 30 days' prior notice, and the I.C.C. may, on its own initiative or on complaint, suspend the effectiveness of the proposed rate for an additional seven months while its reasonableness is scrutinized.21 Even if the new rate is eventually determined to be reasonable, the carrier concededly has no avenue whereby to collect the increment of that rate over the previous one for the notice or suspension period. Thus although under the statutory scheme it is possible that a shipper will for a time be forced to pay a rate which he has challenged and which is eventually determined to be unreasonable as to the future, as when the suspension period expires before the I.C.C. has acted on the challenge, it is ordinarily the carrier, rather than the shipper, which is made to suffer by any period of administrative 'lag.'22
26
For the foregoing reasons the judgment of the Court of Appeals in each of these cases must fall.
27
Reversed.
28
Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice CLARK join, dissenting.
29
There can be no serious doubt that at common law a cause of action existed against carriers who charged unreasonable rates. See Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436, 27 S.Ct. 350, 353, 51 L.Ed. 553; Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 383, 52 S.Ct. 183, 184, 76 L.Ed. 348.1 Nor can it be questioned that the Motor Carrier Act confirmed the common-law policy against unreasonable rates and in fact expressly made such rates illegal.2 It is also clear that the Act attempted to preserve all pre-existing remedies which did not directly conflict with its aims.3 Nevertheless the Court today holds that the statute abolished the common-law remedy by implication and left shippers helpless against carriers who have charged unreasonable and therefore illegal rates. To accomplish this result the Court relies essentially on two prior decisions of this Court; Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, which I believe has virtually nothing to do with the issue, and Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, which, I think, supports a holding opposite to that which the Court makes today. Moreover, in reaching its conclusion, the Court overturns a long-standing and consistent I.C.C. interpretation of the Motor Carrier Act—an interpretation which was based in large part on the Abilene case, which was first formulated by men who helped draft the Act, and which has been generally accepted by shippers, carriers, and Congress alike. I am unable to understand why the Court strains so hard to reach so bad a result.
30
The Motor Carrier Act, though largely patterned after the Interstate Commerce Act of 1887 regulating railroads, had no counterpart of §§ 8, 9, 13 and 16 of that Act.4 These sections provided two remedies either of which a shipper could pursue to recover damages suffered as a result of unlawful carrier rates or practices. One remedy was by complaint to the Commission the other by suit brought in an appropriate District Court of the United States. Both these remedies authoried imposition of reasonable attorneys' fees on a carrier should a claim reach the court and be decided in the shipper's favor. See Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 432—433, 35 S.Ct. 328, 336—337, 59 L.Ed. 644.
31
In Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, this Court considered the effect of these reparation sections on common-law actions by shippers for damages caused by rates alleged to be unlawful because unreasonable. The Court implied that the state court in which the shipper had sued had no jurisdiction since the congressional remedies in the reparation sections were complete and exclusive in themselves and supplanted the pre-existing common-law right of shippers to sue for damages caused by unreasonable rates, this right being deemed inconsistent with the statutory remedies; and held that the power to determine the reasonableness of rates was primarily and exclusively vested by the Act in the Commission. It did not hold, as the Court now assumes, that the existence of primary jurisdiction alone destroyed all court remedies. Accordingly, since the Abilene case, when the question of unreasonableness has arisen in court proceedings courts have often refused to dismiss the cause but have stayed the action pending I.C.C. determination of that issue. See, e.g., Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432—433, 60 S.Ct. 325, 331, 84 L.Ed. 361; United States v. Western P.R. Co., 352 U.S. 59, 62—70, 77 S.Ct. 161, 164—168, 1 L.Ed.2d 126.5 The Court today seems to decide instead that primary jurisdiction is inconsistent with court remedies of any kind, and that the mere omission of reparations provisions in the Motor Carrier Act showed a congressional purpose to deprive shippers of the common-law right to obtain damages resulting from unreasonable rates. It reaches this conclusion although to do so leaves shippers with no remedy at all however unreasonable and unlawful a past rate may have been, and although there is not a word in the Act, and nothing to which we have been directed in its history, that shows any congressional purpose to take away the pre-existing remedy.
32
On the contrary, since passage of the Motor Carrier Act in 1935, a steady line of decisions by the I.C.C. has interpreted that Act as leaving shippers the right to sue in the courts for damages resulting from unlawful rates. This action lay only where the rates had not previously been held reasonably by the Commission, cf. Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 387—388, 52 S.Ct. 183, 185—186, 76 L.Ed. 348, and consisted of two parts, (1) a suit by a shipper in a court, (2) a determination by the Commission that the rates sued on had, in fact, been unreasonable or otherwise unlawful when charged. The first case of this kind, Barrows Porcelain Enam. Co. v. Cushman Motor Deliv. Co., 11 M.C.C. 365, was submitted to the Commission in April 1938, and handed down in February 1939. It was decided by Division 5 which was specially charged with the administration of the Motor Carrier Act and was concurred in by Commissioner Eastman who had by then served on the Commission or as Coordinator of the Transportation System of the country for 17 years. He had drafted the 1935 Act and probably knew mre about what it meant than anybody on this Court then or now.6 Admitting that the Commission could not itself award reparations, Division 5 held, in Barrows, that it did have authority to pass on the reasonableness of past rates since unreasonable rates were unlawful under the Act. Significantly Division 5 stated, 'This conclusion is, we believe, supported by the reasoning of the United States Supreme Court in Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (27 S.Ct. 350, 51 L.Ed. 553).' 11 M.C.C. at 367. Barrows was reaffirmed in early 1940 with Commissioner Eastman again on the panel.7
33
In September 1940, after very extensive hearings, the Interstate Commerce Act was amended and broadened in many respects.8 At the same time, water carriers were brought under Commission regulation. To achieve uniformity between the different parts of the Act efforts were made to subject motor carriers to reparation proceedings before the Commission.9 The representative of the motor carriers strenuously objected. The hearings before the Senate Committee on Interstate Commerce show that the objections were directed against subjection of motor carriers to Commission reparations not to common-law actions in the courts. Commission actions, it was stated, might result in the taxing of attorneys' fees in addition to damages and might thereby encourage 'claim chasers.'10 The Committee members and the witnesses before Congress all appeared to recognize that suits could be filed in court. Thus the Chairman of the Committee stated 'He has that right now. It does not add anything, as a matter of fact, to the rights of the shipper * * *. (I)f you were afraid that the railroad might go and stir up a claim against (the truckers), they can do that now.'11 And the representative of the truckers answered 'We are not fearful of that, but we are fearful of practices occurring where (the truckers) will be constantly harassed.' To which a member of the omm ittee added 'The objection is that under the existing law you have to go to the court to get relief and under the proposed law the Interstate Commerce Commission could give you relief?'12 Commissioner Eastman also appeared before the Committee, two months after the Barrows opinion came down, and stated
34
'(M)otor carrier tariffs have been, by and large, very imperfect products, and while the situation is improving continually, much room for improvement remains.
35
'Where tariffs are poorly worded and imperfectly constructed, experienced traffic experts can often raise troublesome questions as to the applicability of the rates charged, and there are those who make this their business, obtaining their compensation from such reparation awards as they are successful in securing.
36
'In the early stages of their regulation and tariff development, it was thought that the motor carriers might well be spared the burden of defending such claims before the Commission.'13
37
Accordingly the Committee Report on the 1940 Act stated that the paragraph of the bill which would have subjected the motor carriers to reparation claims before the Commission was changed
38
'because of motor carrier objections to awards of reparation by the Commission. Shippers have the right to recover in court any damages resulting from violations of the law by motor carriers or carriers by water.' S.Rep.No. 433, 76th Cong., 1st Sess. 18. (Emphasis supplied.)14
39
It seems clear, therefore, that when the 1940 Motor Carrier Act was adopted, at least the Senate Committee was fully informed of an existing interpretation of the 1935 Act under which shippers could sue for damages on the basis of unreasonable rates.
40
After the passage of the 1940 Act, Divisions of the Commission continued to construe the Motor Carrier law to allow determinations of the reasonableness of past rates. In 1942, for example, the Commission did this in a case involving the same question presented by the Government in T.I.M.E., No. 68—the reasonableness of a joint through-rate which exceeds the aggregate of intermediate rates between the same points. The Commission held that on the facts presented the rates 'were unreasonable * * * to the extent that they exceeded the corresponding aggregate * * *.' Kingan & Co. v. Olson Trans. Co., 32 M.C.C. 10, 12. Finally in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, the whole Commission reviewed the question to provide a 'precedent for future guidance' and emphatically approved the Barrows line of cases. It established safeguards against frivolous or moot complaints but reaffirmed the existence of court remedies for unreasonable rates and the need for Commission determinations of the fact of unreasonableness before the courts could award damages.
41
Both the Bell case and the Barrows case have been cited to Congressional Committees time and again. In 1947 and 1948 extended hearings were held before Senate and House Committees on bills to establish uniform statutes of limitations for court actions arising out of violations of the Commerce Act and to subject motor carriers and freight forwarders to Commission reparations.15 Members of the I.C.C. in written statements, briefs and testimony, stressed to the Committees considering the bills both the existence of the court remedies described in the Bell case and the fact that few common-law actions were in fact undertaken because of the expense involved in a split procedure.16 Witnesses for and againstthe bills accepted the rule of the Bell case.17 Thus the representative of the freight forwarders, whose status under the Act is the same as that of motor carriers, referring to the Bell case said 'It is the law today,' and then added 'If the Commission finds that the rates have been unreasonable in the past, damages may be obtained under the law as it stands today.'18 He opposed the proposed change because he felt that it would make it easier for shippers to obtain reparations where no damages were actually suffered.19 When the bills were reported by the Committees the provisions for reparations before the Commission were excluded. The report of the House Committee explained that reparations before the Commission were not available under the law as it stood. After stating that the bills originally had included reparation provisions before the Commission similar to those applied to rail carriers and that these had been dropped, the report incorporated a letter from the I.C.C. explaining the existence of the court remedy and pointing out the weaknesses of this remedy. The Committee then stated that legislation making additional reparations provisions applicable to motor carriers and freight forwarders was not at that time deemed desirable. It concluded that the other provisions, including a uniform statute of limitations in cases arising from the charging of tariffs different from those on file should be enacted.20 While Congress did not enact these measures before adjournment,21 they were passed in the following Congress after Committee Reports which referred to the hearings of the prior two years.22
42
Once more, as late as 1957, after this Court's decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, the I.C.C. sought to have reparations before the Commission established. Again hearings were held; in these the Chairman of the I.C.C., the Under Secretary of Commerce, a representative of the freight forwarders and others unequivocally testified that a remedy for unreasonable past rates was available through the courts.23 This testimony by the representative of the freight forwarders caused the presiding member of the Subcommittee to ask 'What does this bill propose that is different from what we now have? That is what I am trying to determine.' To which the representative, opposing Commission reparations, replied: 'It just adds some cumbersome machinery that we think will cause litigation.'24
43
This Court has frequently had occasion to say that interpretations of statutes by agencies charged with their administration are entitled to very great weight.25 Moreover, the legislative history of bills attempting to grant the I.C.C. power to award reparations goes far, in view of the arguments made against them, toward approving the original interpretation of the Motor Carrier Act made by Division 5 of the I.C.C. and Commissioner Eastan. Recently, the Commission has reaffirmed its interpretation which has stood for more than 20 years.26 Against reaffirmance a dissent was written based on the belief that this Court's holding in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912, required a new interpretation. The Court seems to stress the same contention here. Quite apart from the fact that the question actually up for decision in Montana-Dakota was whether the Federal Power Act created a federal cause of action and not whether it destroyed common-law rights, I believe that there are important differences between the Power Act and the Motor Carrier Act which make the Montana-Dakota case wholly inapplicable here.
44
Admittedly Montana-Dakota and the statute it interpreted have some similarities to these cases and this statute. But unlike the Carrier Act the provisions of the Power Act under consideration in Montana-Dakota regulated wholesale rates, that is rates charged purchasers for resale, not rates charged retail customers.27 The purpose of that Act was, nevertheless, to benefit consumers by holding down wholesale prices. Whole-salers whose purchase price was reduced prospectively could pass the reduction on to their customers, the consumers. In Montana-Dakota the Court indicated that the consumers would not be helped by ex post facto determinations of unreasonableness resulting in a refund to wholesalers. 341 U.S. at page 254, 71 S.Ct. at page 697. The facts of the case lent themselves to such a finding. Damages were asked for a back period of many years; consumers had long since paid their rates on the basis of the unreasonable prices charged the wholesalers; and there was no reason to believe that any consumers who benefited from whatever lower prices the refund might allow would be the same ones who had paid the excessive rates. The Federal Power Commission, in an amicus brief, stressed these facts and argued that any refund would likely be a windfall providing an unjust enrichment to the wholesaler. Citing this brief the Court accepted the F.P.C. argument, 341 U.S. at page 254, 71 S.Ct. at page 697, note 11, over a vigorous dissent which indicated that perhaps ways of refunding the excess to consumers might be found. 341 U.S. at pages 265, 266, 71 S.Ct. at page 702. No similar problem exists under the Motor Carrier Act. The relevant sections were in large measure designed to protect shippers,28 and in fact the shippers are, in many instances, the ultimate parties on whom the burden falls. Both these cases are, of course, such instances. And even when the shippers are not necessarily the ultimate parties the economics of the industry is such that windfalls to them are unlikely.
45
Similarly other reasons which induced this Court's holding in Montana-Dakota are inapplicable here. In refusing to include in the Power Act provisions authorizing wholesalers to seek reparations before the Federal Power Commission, the Senate Committee which reported the bill said, 'They are appropriate sections for a State utility law, but the committee does not consider them applicable to one governing merely wholesale transactions.'29 This report, unlike any in the Motor Carrier Act, is easily understood when read in the light of evidence presented to the Committee considering the Power Act. The reparation provisions of that Act were opposed by the National Association of Railroad and Utilities Commissioners, whose General Solicitor told the Committee:
46
'That is an entirely proper provision in a railroad statute. When a man goes to the railroad station with a load of goods to ship somewhere he has to ship at the rate that is fixed in the tariff. He must make the shipment then; and he ought to be able to come thereafter to the Commission and show that he was required to pay an unreasonable rate, if it was unreasonable, and to ask for a determination of a reasonable rate and get reparation that is due him for any overpayment. That is perfectly proper. But this bill relates only to service between the wholesale generating or producing company and the distributing utility. We question whether the public interest will be served by giving any company the right to go ahead receiving service at the established rate for 2 years, and then to bring a complaint before the Federal Commission that the rate has been unreasonable.'30
47
The testimony was emphasized, as shown above, in the briefs in Montana-Dakota.31 Doubtless this history led the minority as well as the majority in that case to the view that 'Congress did not intend either court or Commission to have the power to award reparations on the ground that a properly filed rate or charge has in fact been unreasonably high or low.' 341 U.S. at page 258, 71 S.Ct. at page 698. Since the history of the Motor Carrier Act points in the opposite direction there is no reason to apply the Montana-Dakota case to the Motor Carrier Act.
48
Moreover, if motor carrier shippers are deprived of court actions to recover for unreasonable rates, they are placed in a much worse position than wholesale power purchasers. 16 U.S.C. § 824d(e), 16 U.S.C.A. § 824d(e), authorizes the Power Commission to suspend rates for five months and, if a hearing on those rates is not concluded by that time, to order the power company to keep an accurate account of the amount and source of all money received. Should the rates be found unreasonable, the Commission can order the excess refunded with interest. The Motor Carrier Act, on the other hand, while authorizing suspension of rates has no provision for refunds if hearings are not completed when the suspension expires. § 216(g), 49 U.S.C. § 316(g), 49 U.S.C.A. § 316(g). Had there been such a provision in the Carrier Act the Government would have been fully protected from the rates charged in the Davidson case, No. 96.
49
The Power Act and the Motor Carrier Act are quite different in language, scope, purpose and meaning. The Court in Montana-Dakota carefully limited its holding to the Power Act, e.g., 341 U.S. at page 254, 71 S.Ct. at page 697. The arguments advanced in that context for the conclusive effect of power rates once filed are wholly inapplicable to rates under the Motor Carrier Act. In these Motor Carrier cases we have 20 years of Commission interpretation, in part by men who helped write the Act and who administered it from the time it first went into effect, to help us in deciding the question. Congress passed the 1940 revision of the Motor Carrier Act, apparently with full knowledge of the Commission rulings which indicated that shippers could challenge, in the courts, carrier-fixed rates so long as these rates had not been expressly held reasonable by the Commission. Cf. Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348. The changes made in 1949, and those not made in 1957, again indicate a reliance on the Commission's interpretation. I believe that interpretation should govern here, and therefore would affirm the judgments of the Courts of Appeals in both these cases.
1
Interstate Commerce Act, Part II, 49 Stat. 543, as amended, 49 U.S.C. § 301 et seq., 49 U.S.C.A. § 301 et seq.
2
See Motor Carrier Act §§ 216(e, g), 217(b, c), 49 U.S.C. §§ 316(e, g), 317(b, c), 49 U.S.C.A. §§ 316(e, g), 317(b, c).
3
This part of the charges was that represented by a 'New York State Surcharge,' included by Davidson in its rate to recoup the cost of a New York tonmile truck tax. The tariff including the surcharge had been filed to become effective October 8, 1951. The I.C.C. had suspended the tariff for the maximum period permitted by the Act, but since the inquiry as to its reasonableness was not completed within the suspension period it went into effect on May 8, 1952, and was in effect at the time of shipment. The I.C.C. subsequently found the surcharge to be unreasonable and ordered its excision from Davidson's rates, 62 M.C.C. 117. This order was purely prospective and did not affect the shipments involved here.
4
In our view of these cases it becomes unnecessary to consider Davidson's alternative contention that in any event the General Accounting Office had no right under § 322 of the Transportation Act of 1940 to deduct from the carrier's charges the amount claimed by the United States to have been unreasonable.
5
Section 216(j), 49 U.S.C. § 316(j), 49 U.S.C.A. § 316(j), provides that 'Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith.'
6
Section 205(a) of the Power Act, 49 Stat. 851, 16 U.S.C. § 824d(a), 16 U.S.C.A. § 824d(a), provides that 'All rates and charges * * * and all rules and regulations affecting or pertaining to such rates or charges shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful.'
7
49 U.S.C. § 8, 49 U.S.C.A. § 8.
8
49 U.S.C. § 9, 49 U.S.C.A. § 9.
9
49 U.S.C. §§ 13(1), 16, 49 U.S.C.A. §§ 13(1), 16.
10
Hearings before Senate Committee on Interstate and Foreign Commerce on S. 1194, 80th Cong., 2d Sess., pp. 1, 5, 11 12.
11
See Hearings before Senate Committee on Interstate and Foreign Commerce on S. 378, 85th Cong., 2d Sess., pp. 3, 12.
12
Such a right was assumed by this Court to have existed at common law in Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 436, 27 S.Ct. 350, 353, 51 L.Ed. 553, and Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348. But see Aitchison, Fair Reward and Just Compensation Co mmon Carrier Service, p. 10, suggesting that the common-law right is one to be free from undue discrimination, rather than from mere exorbitance.
13
Section 22 of the Interstate Commerce Act provided at the time of the Abilene case, and continues in substance to provide, that: 'Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.'
14
It is noteworthy that in 1949, when Congress added to the Motor Carrier Act a statute of limitations provision governing suits by and against carriers involving charges, such provision was made applicable only to suits for 'overcharges,' defined to mean 'charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the Commission.' 49 U.S.C. § 304a, 49 U.S.C.A. § 304a. It would be surprising, given the policy of uniformity reflected in this provision, for Congress not to have also added a statute of limitations provision applicable to suits on account of unreasonable rates, had a cause of action with respect to such rates been deemed to exist. Compare 49 U.S.C. § 16(3)(b), 49 U.S.C.A. § 16(3)(b), providing a limitations provision for complaints for the recovery of damages 'not based on overcharges' from rail carriers.
15
See, e.g., United States v. Davidson Transfer & Storage Co., Inc., 302 I.C.C. 87, 90—91, involving the same parties as those now before us in No. 96. Barrows, relied on heavily in the dissenting opinion because it was decided by a Division of the I.C.C. of which Commissioner Eastman, previously Federal Coordinator of Transportation and a principal architect of the Motor Carrier Act, was a member, does not even suggest that a common-law action to recover unreasonable rates might be maintainable. Rather it referred to findings as to the reasonableness of past rates only as 'valuable future guides to shippers and carriers.' 11 M.C.C., at 367.
16
The Bell case purported to find such authorization in §§ 216(e) and 204(c) (49 U.S.C. §§ 316(e), 304(c), 49 U.S.C.A. §§ 316(e), 304(c)), although both these provisions appear in terms directed only to the authorization of findings and orders operating solely prospectively. It relied also on the provisions of the statute which impose on the carrier the duty of maintaining reasonable and nondiscriminatory rates. 49 U.S.C. § 316(b, d), 49 U.S.C.A. § 316(b, d). But see Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., supra.
17
New York & New Brunswick Auto Express Co. v. United States, 126 F.Supp. 215, 130 Ct.Cl. 339; United States v. Garner, D.C.E.D.N.C., 134 F.Supp. 16.
18
See notes 10, 11, supra.
It is suggested that Congress was fully informed at the time of passage of the Transportation Act of 1940 of 'an existing interpretation' of the Motor Carrier Act which would allow common-law actions for the recovery of unreasonable rates. We do not so read the legislative history relied upon. On the contrary, Commissioner Eastman, testifying before the Senate Committee, appeared to distinguish between the availability of a judicial remedy in respect of inapplicable tariff rates and the unavailability of such a remedy in respect of rates claimed to be 'unreasonable' though embodied in a filed tariff. The Commissioner said:
'So far as reparation is concerned, there is no reason why these
provisions should not be applied to motor carriers as well as to railroads. They were omitted from the Motor Carrier Act only because of the desire to lighten the burdens of the motor carriers in the early stages of regulation, in the absence of any strong indication of public need. Motor carriers have practically no traffic which is noncompetitive, and there is little danger that they will exact exorbitant charges. Since the Motor Carrier Act became effective in 1935, the Commission has not once had occasion to condemn motor-carrier rates as unreasonably high. I don't think we have had any complaints to that effect. It follows that that there is nothing to indicate that shippers need provisions to enable the Cmmi ssion to award reparation for damages suffered because of unreasonable charges.
'The occasion for reparation from motor carriers would chiefly arise, therefore, in the event of overcharges above published tariff rates. Shippers can recover such overcharges in court as the law now stands.' (Emphasis added.) Hearings before Senate Interstate Commerce Committee on S. 1310, S. 2016, S. 1869, and S. 2009, 76th Cong., 1st Sess., pp. 791—792.
See also Hearings at p. 132, where Senator Reed asked a truckers' representative opposing the addition of reparations provisions to the Motor Carrier Act '(I)f a shipper by railroad, which is one form of common carrier, now has a remedy at law in the way of damages which he may have suffered through a collection of an unreasonable rate, and if we are trying to make uniform regulations, why should a common carrier by truck be exempted from the right or remedy of the shipper against an unreasonable charge any more than any other form of common carrier?' The reparations provision was subsequently stricken from the bill.
19
But see Jaffe, Primary Jurisdiction Reconsidered, 102 U. of Pa.L.Rev. 577, 589, commenting on Bell Potato Chip, supra: 'It is, to be sure, doubtful that reparations in such a case serve a useful function. Rates are under continuous scrutiny. Administrative condemnation implies new circumstances or new understanding rather than serious past injustice. And, as Mr. Justice Jackson observes in the Montana-Dakota case, the overcharge has usually been passed along by the one who paid it to some undiscoverable and unreimbursable consumer.'
20
It was recognized at the time of passage of the Motor Carrier Act that competitive conditions in the trucking industry were such that the possibility of unreasonably high rates presented no problem. Commissioner Eastman, who had conducted an inquiry into the motor carrier industry, stated during the hearings preceding passage of the Act that 'I do not recall that there were any complaints based upon excessive charges.' Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H.R. 5262, 6016, 74th Cong., 1st Sess. p. 32. See also his 1939 statement before the Interstate Commerce Committee of the Senate, quoted at note 18, supra.
21
See Motor Carrier Act, §§ 217(c), 216(g), 49 U.S.C. §§ 317(c), 316(g), 49 U.S.C.A. §§ 317(c), 316(g).
22
Counsel for the Government stated on oral argument that the situation presented in No. 96, where the suspension period expired before the adjudication of the reasonableness of the challenged rate had been completed, arises very infrequently, since the suspension period is ordinarily ample to permit such adjudication.
1
'The exaction of unreasonable rates by a public carrier was forbidden by the common law. * * * The public policy which underlay this rule could * * * be vindicated * * * in an action brought by him who paid the excessive charge to recover damages thus sustained.' 284 U.S. at page 383, 52 S.Ct. at page 184.
2
49 Stat. 543, as amended, 49 U.S.C. §§ 301—327, 49 U.S.C.A. §§ 301—327. Section 216(d) of the Act, as amended, 49 U.S.C. § 316(d), 49 U.S.C.A. § 316(d), reads in part: 'All charges made for any service rendered or to be rendered by any common carrier by motor vehicle engaged in interstate or foreign commerce in the transportation of passengers or property * * * shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful.' See also § 216(b), 49 U.S.C. § 316(b), 49 U.S.C.A. § 316(b).
3
Section 216(j), 49 U.S.C. § 316(j), 49 U.S.C.A. § 316(j), states 'Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith.'
4
See 24 Stat. 382—384, as amended, 49 U.S.C. §§ 8, 9, 13, 16, 49 U.S.C.A. §§ 8, 9, 13, 16.
5
Conversely many instances have been cited of shippers seeking only a determination of the reasonableness of a past practice from the I.C.C. and reserving their rights to obtain damages later in the courts. See generally the discussion of this problem in United States v. Interstate Commerce Comm'n, 337 U.S. 426, 464—466, 69 S.Ct. 1410, 1430—1431, 93 L.Ed. 1451 (dissenting opinion). See also United States v. Interstate Commerce Comm'n, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (opinion of the Court).
6
See Hearings, Senate Committee on Interstate Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 756—757, 762, 785.
7
Dixie Mercerizing Co. v. ET & WNC Motor Transp. Co., 21 M.C.C. 491. The Court suggests that this line of cases gave only cursory treatment to the question of whether a court remedy existed. But in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M.C.C. 337, 341—343, the I.C.C. stated in part:
'To hold that a motor carrier which has violated any of these prescribed duties is immune to civil liability to one injured thereby while rail and water carriers similarly offending must respond in damages would be not only at variance with the fundamental rule of ubi jus ibi remedium but would also disregard the provisions of sections 216(j), 217(b), and 22, which preserve all common-law and statutory remedies. The statute, by declaring unlawful and prohibiting unreasonable and discriminatory rates, has superseded the common-law right but has not abrogated remedies heretofore recognized. See Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (27 S.Ct. 350, 51 L.Ed. 553); Mitchell Coal & Coke Co. v. Pennsylvania R. Co. 230 U.S. 247, 258 (33 S.Ct. 916, 921, 57 L.Ed. 1472). * * *
'How, then, is a shipper who has been injured by the exaction of an unlawful motor-carrier rate to obtain redress against an unwilling carrier? The answer is, in the courts.
'* * * In this connection, it may be noted that it is a recognized practice to hold in abeyance court proceedings pending the determination by the Commission of administrative questions. Eastern-Central Motor Carriers Ass'n v. United States, 321 U.S. 194 (64 S.Ct. 499, 88 L.Ed. 668); General American Tank Car Corp. v. El Dorado Term. Co., 308 U.S. 422 (60 S.Ct. 325, 84 L.Ed. 361); Mitchell Coal & Coke Co. v. Pennsylvania R. Co., supra; Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.S. 304, 314 (33 S.Ct. 938, 941, 57 L.Ed. 1494); Southern Ry. Co. v. Tift, 206 U.S. 428, 434 (27 S.Ct. 709, 710, 51 L.Ed. 1124).'
8
54 Stat. 898.
9
See, e.g., statement of Senator Reed, Hearings, Senate Committee on Interstate and Foreign Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 132.
10
Id., at 129—133.
11
Id., at 130.
12
Ibid.
13
Id., at 792.
14
The statute expressly declares unreasonable rates unlawful. See note 2, supra. Barrows Porcelain Enam. Co. v. Cushman Motor Deliv. Co., 11 M.C.C. 365, confirmed this fact as to past unreasonable rates.
15
See Hearings, House Committee on Interstate and Foreign Commerce on H.R. 2324, H.R. 2295, 80th Cong., 1st Sess.; Hearings, Senate Subcommittee of the Committee on Interstate and Foreign Commerce on S. 571—H.R. 2759, S. 935, S. 1194, S. 290—2426, 80th Cong., 2d Sess.
16
Hearings, House Committee, supra, n. 15, at 5—6; Hearings, Senate Subcommittee, supra, n. 15, at 8—16.
17
See, e.g., Hearings, House Committee, supra, n. 15, at 41 47, 52.
18
Id., at 41, 42.
19
Id., at 42—47.
20
H.R.Rep. No. 208, 80th Cong., 1st Sess. 3, 4.
21
The bill passed the House of Representatives but the Senate did not debate it before adjournment. See H.R.Rep. No. 766, 81st Cong., 1st Sess. 1; S.Rep.No. 83, 81st Cong., 1st Sess. 2.
22
63 Stat. 280. See H.R.Rep. No. 766, 81st Cong., 1st Sess.; S.Rep. No. 83, 81st Cong., 1st Sess.
23
Hearings, Senate Subcommittee of Committee on Interstate and Foreign Commerce on S. 377, S. 378, S. 937, S. 939, S. 943, 85th Cong., 1st Sess. 3, 12, 49, 116—117, 137.
24
Id., at 1, 117.
25
See, e.g., Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124; cf. Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462.
26
United States v. Davidson Transfer & Storage Co., 302 I.C.C. 87.
27
41 Stat. 1063, as amended, 16 U.S.C. §§ 791a—825r, 16 U.S.C.A. §§ 791a—825r.
28
See testimony of Commissioner Eastman in Hearings, Senate Subcommittee on Interstate and Foreign Commerce on S. 1310, S. 2016, S. 1869, S. 2009, 76th Cong., 1st Sess. 792.
29
S.Rep. No. 621, 74th Cong., 1st Sess. 20.
30
Hearings, House Committee on Interterstate and Foreign Commerce on H.R. 5423, 74th Cong., 1st Sess. 1685.
31
See Brief of Respondent Northwestern Pub. Serv. Co., pp. 26—27; Brief of the Federal Power Commission as amicus curiae, p. 13.
| 78
|
359 U.S. 495
79 S.Ct. 936
3 L.Ed.2d 971
James S. PATTERSON, General Administrator for Mobile County, Alabama, etc., Leonard Lester Sullivan, Melvin A. Hays, et al., Petitioners,v.UNITED STATES of America.
No. 429.
Argued April 21, 1959.
Decided May 18, 1959.
Rehearing Denied June 15, 1959.
See 360 U.S. 914, 79 S.Ct. 1293.
Mr. Jacob Rassner, New York City, for petitioners.
Mr. Leavenworth Colby, Washington, D.C., for respondent.
PER CURIAM.
1
Petitioners, Melvin A. Hays, Sterling E. Duncan, and Leonard L. Sullivan, were injured in the course of their employment with the United States while aboard vessels operated by the Government and engaged in merchant service. Petitioner Patterson is the administrator of the estate of Edgar A. Doody, Jr., who died as the result of injuries sustained by him while he wassim ilarly employed. Each of the petitioners filed a libel in personam against the United States under the Suits in Admiralty Act, 41 Stat. 525 et seq., 46 U.S.C. § 741 et seq., 46 U.S.C.A. § 741 et seq. The Court of Appeals for the Second Circuit affirmed dismissal of the libels on the ground that petitioners' exclusive remedy was under the Federal Employees' Compensation Act, 39 Stat. 742 et seq., 5 U.S.C. § 751 et seq., 5 U.S.C.A. § 751 et seq., 2 Cir., 258 F.2d 702. We granted certiorari, 358 U.S. 898, 79 S.Ct. 223, 3 L.Ed.2d 148, to resolve a conflict between the decision below and that of the Court of Appeals for the Eighth Circuit in Inland Waterways Corp. v. Doyle, 204 F.2d 874.
2
In Johansen v. United States, 343 U.S. 427, 441, 72 S.Ct. 849, 857, 96 L.Ed. 1051, the Court held 'that the Federal Employees Compensation Act is the exclusive remedy for civilian * * *' employees of the United States on government vessels engaged in public service and that the United States was therefore not liable to such employees under the Public Vessels Act. 43 Stat. 1112 et seq., 46 U.S.C. § 781 et seq., 46 U.S.C.A. § 781 et seq. The considerations which led to that conclusion are equally applicable to cases where the government vessel is engaged in merchant service. The United States 'has established by the Compensation Act a method of redress for employees. There is no reason to have two systems of redress.' 343 U.S. at page 439, 72 S.Ct. at page 856.1
3
The major portion of petitioners' argument, however, is addressed to the proposition that Johansen was incorrectly decided and that we should avail ourselves of this opportunity to reconsider it. We decline to do so. No arguments are presented by petitioners which were not fully considered in Johansen and rejected. '(W)hen the questions are of statutory construction, not of constitutional import, Congress can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made.' United States v. South Buffalo R. Co., 333 U.S. 771, 774—775, 68 S.Ct. 868, 870, 92 L.Ed. 1077. If civilian seamen employed by the Government are to be accorded rights different from or greater than those which they enjoy under the Compensation Act, it is for Congress to provide them.2
4
Accordingly, the judgment of dismissal entered against petitioners Hays, Duncan, Sullivan, and Patterson are affirmed. We also affirm dismissal of the libel filed by petitioner Vallebuona, who has conceded that he could prevail only if Johansen were overruled.
5
Affirmed.
6
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.
1
It is worthy of note that in Johansen the Court expressly disapproved the decision in United States v. Marine, 4 Cir., 155 F.2d 456, in which a civilian employee of the Government was awarded damages under the Suits in Admiralty Act for injuries sustained by him while aboard a vessel operated by the United States in the merchant service.
2
The Clarification Act of 1943, 57 Stat. 45, 50 U.S.C.App. § 1291, 50 U.S.C.A. Appendix, § 1291, indicates that Congress has chosen with care the remedies which it has made available to civilian seamen employed by the United States. That legislation provided that 'officers and members of crews * * * employed on United States or foreign flag vessels as employees of the United States through the War Shipping Administration, * * * because of the temporary wartime character of their employment by the War Shipping Administration, shall not be considered as officers or employees of the United States for the purposes of the United States Employees Compensation Act, as amended * * *.'
| 78
|
359 U.S. 500
79 S.Ct. 948
3 L.Ed.2d 988
BEACON THEATERS, INC., Petitioner,v.The Hon. Harry C. WESTOVER, Judge of the United States District Court of the Southern District of California, Central Division, et al.
No. 45.
Argued Dec. 10, 1958.
Decided May 25, 1959.
Mr. Jack Corinblit, Los Angeles, Cal., for petitioner.
Mr. Frank R. Johnston, Los Angeles, Cal., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
eti tioner, Beacon Theatres, Inc., sought by mandamus to require a district judge in the Southern District of California to vacate certain orders alleged to deprive it of a jury trial of issues arising in a suit brought against it by Fox West Coast Theatres, Inc. The Court of Appeals for the Ninth Circuit refused the writ, holding that the trial judge had acted within his proper discretion in denying petitioner's request for a jury. 252 F.2d 864. We granted certiorari, 356 U.S. 956, 78 S.Ct. 996, 2 L.Ed.2d 1064, because 'Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.' Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603.
2
Fox had asked for declaratory relief against Beacon alleging a controversy arising under the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2, and under the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, 15 U.S.C.A. § 15, which authorizes suits for treble damages against Sherman Act violators. According to the complaint Fox operates a movie theatre in San Bernardino, California, and has long been exhibiting films under contracts with movie distributors. These contracts grant if the exclusive right to show 'first run' pictures in the 'San Bernardino competitive area' and provide for 'clearance'—a period of time during which no other theatre can exhibit the same pictures. After building a drive-in theatre about 11 miles from San Bernardino, Beacon notified Fox that it considered contracts barring simultaneous exhibitions of first-run films in the two theatres to be overt acts in violation of the antitrust laws.1 Fox's complaint alleged that this notification, together with threats of treble damage suits against Fox and its distributors, gave rise to 'duress and coercion' which deprived Fox of a valuable property right, the right to negotiate for exclusive first-run contracts. Unless Beacon was restrained, the complaint continued, irreparable harm would result. Accordingly, while its pleading was styled a 'Complaint for Declaratory Relief,' Fox prayed both for a declaration that a grant of clearance between the Fox and Beacon theatres is reasonable and not in violation of the antitrust laws, and for an injunction, pending final resolution of the litigation, to prevent Beacon from instituting any action under the antitrust laws against Fox and its distributors arising out of the controversy alleged in the complaint.2 Beacon filed an answer, a counterclaim against Fox, and a cross-claim against an exhibitor who had intervened. These denied the threats and asserted that there was no substantial competition between the two theatres, that the clearances granted were therefore unreasonable, and that a conspiracy existed between Fox and its distributors to manipulate contracts and clearances so as to restrain trade and monopolize first-run pictures in violation of the antitrust laws. Treble damages were asked.
3
Beacon demanded a jury trial of the factul i ssues in the case as provided by Federal Rule of Civil Procedure 38(b), 28 U.S.C.A. The District Court, however, viewed the issues raised by the 'Complaint for Declaratory Relief,' including the question of competition between the two theatres, as essentially equitable. Acting under the purported authority of Rules 42(b) and 57, it directed that these issues be tried to the court before jury determination of the validity of the charges of antitrust violations made in the counterclaim and cross-claim.3 A common issue of the 'Complaint for Declaratory Relief,' the counterclaim, and the cross-claim was the reasonableness of the clearances granted to Fox, which depended, in part, on the existence of competition between the two theatres. Thus the effect of the action of the District Court could be, as the Court of Appeals believed, 'to limit the petitioner's opportunity fully to try to a jury every issue which has a bearing upon its treble damage suit,' for determination of the issue of clearances by the judge might 'operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim.' 252 F.2d at page 874.
4
The District Court's finding that the Complaint for Declaratory Relief presented basically equitable issues draws no support from the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, 28 U.S.C.A. §§ 2201, 2202; Fed.Rules Civ.Proc. 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.) § 400. That statute, while allowing prospective defendants to sue to establish their nonliability, specifically preserves the right to jury trial for both parties.4 It follows that if Beacon would have been entitled to a jury trial in a treble damage suit against Fox it cannot be deprived of that right merely because Fox took advantage of the availability of declaratory relief to sue Beacon first. Since the right to trial by jury applies to treble damage suits under the antitrust laws, and is, in fact, an essential part of the congressional plan for making competition rather than monopoly the rule of trade, see Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 29, 36 S.Ct. 233, 234, 60 L.Ed. 505, the Sherman and Clayton Act issues on which Fox sought a declaration were essentially jury questions.
5
Nevertheless the Court of Appeals refused to upset the order of the district judge. It held that the question of whether a right to jury trial existed was to be judged by Fox's complaint read as a whole. In addition to seeking a declaratory judgment, the court said, Fox's complaint can be read as making out a valid plea for injunctive relief, thus stating a claim traditionally cognizable in equity. A party who is entitled to maintain a suit in equity for an injunction, said the court, may have all the issues in his suit determined by the judge without a jury regardless of whether legal rights are involved. The court then rejected the argument that equitable relief, traditionally available only when legal remedies are inadequate, was rendered unnecessary in this case by the filing of the counterclaim and cross-claim which presented all the issues necessary to a determination of the right to injunctive relief. Relying on American Life Ins. Co. v. Stewart, 300 U.S. 203 21 5, 57 S.Ct. 377, 380, 81 L.Ed. 605, decided before the enactment of the Federal Rules of Civil Procedure, it invoked the principle that a court sitting in equity could retain jurisdiction even though later a legal remedy became available. In such instances the equity court had discretion to enjoin the later lawsuit in order to allow the whole dispute to be determined in one case in one court.5 Reasoning by analogy, the Court of Appeals held it was not an abuse of discretion for the district judge, acting under Federal Rule of Civil Procedure 42(b), to try the equitable cause first even though this might, through collateral estoppel, prevent a full jury trial of the counterclaim and cross-claim which were as effectively stopped as by an equity injunction.6
6
Beacon takes issue with the holding of the Court of Appeals that the complaint stated a claim upon which equitable relief could be granted. As initially filed the complaint alleged that threats of lawsuits by petitioner against Fox and its distributors were causing irreparable harm to Fox's business relationships. The prayer for relief, however, made no mention of the threats but asked only that pending litigation of the claim for declaratory judgment, Beacon be enjoined from beginning any lawsuits under the antitrust laws against Fox and its distributors arising out of the controversy alleged in the complaint. Evidently of the opinion that this prayer did not state a good claim for equitable relief, the Court of Appeals construed it to include a request for an injunction against threats of lawsuits. This liberal construction of a pleading is in line with Rule 8 of the Federal Rules of Civil Procedure. See Conley v. Gibson, 355 U.S. 41, 47—48, 78 S.Ct. 99, 102—103, 2 L.Ed.2d 80. But this fact does not solve our problem. Assuming that the pleadings can be construed to support such a request and assuming additionally that the complaint can be read as alleging the kind of harassment by a multiplicity of lawsuits which would traditionally have justified equity to take jurisdiction and settle the case in one suit,7 we are nevertheless of the opinion that, under the Declaratory Judgment Act and the Federal Rules of Civil Procedure, neither claim can justify denying Beacon a trial by jury of all the issues in the antitrust controversy.
7
The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.8 At least as much is required to justify a trial court in using its discretion under the Federal Rules to allow claims of equitable origins to be tried ahead of legal ones, since this has the same effect as an equitable injunction of the legal claims. And it is immaterial, in judging if that discretion is properly employed,tha t before the Federal Rules and the Declaratory Judgment Act were passed, courts of equity, exercising a jurisdiction separate from courts of law, were, in some cass, allowed to enjoin subsequent legal actions between the same parties involving the same controversy. This was because the subsequent legal action, though providing an opportunity to try the case to a jury, might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy. See, e.g., New York Lie Ins. Co. v. Seymour, 6 Cir., 45 F.2d 47, 73 A.L.R. 1523. Under such circumstances the legal remedy could quite naturally be deemed inadequate. Inadequacy of remedy and irreparable harm are practical terms, however. As such their existence today must be determined, not by precedents decided under discarded procedures, but in the light of the remedies now made available by the Declaratory Judgment Act and the Federal Rules.9
8
Viewed in this manner, the use of discretion by the trial court under Rule 42(b) to deprive Beacon of a full jury trial on its counterclaim and cross-claim, as well as on Fox's plea for declaratory relief, cannot be justified. Under the Federal Rules the same court may try both legal and equitable causes in the same action. Fed.Rules Civ.Proc., 1, 2, 18. Thus any defenses, equitable or legal, Fox may have to charges of antitrust violations can be raised either in its suit for declaratory relief or in answer to Beacon's counterclaim. On proper showing, harassment by threats of other suits, or other suits actually brought, involving the issues being tried in this case, could be temporarily enjoined pending the outcome of this litigation. Whatever permanent injunctive relief Fox might be entitled to on the basis of the decision in this case could, of course, be given by the court after the jury renders its verdict. In this way the issues between these parties could be settled in one suit giving Beacon a full jury trial of every antitrust issue. Cf. Ring v. Spina, 2 Cir., 166 F.2d 546. By contrast, the holding of the court below while granting Fox no additional protection unless the avoidance of jury trial be considered as such, would compel Beacon to split his antitrust case, trying part to a judge and part to a jury.10 Such a result, which involves the postponement and subordination of Fox's own legal claim for declaratory relief as well as of the counterclaim which Beacon was compelled by the Federal Rules to bring,11 is not permissible.
9
Our decision is consistent with the plan of the Federal Rules and the Declaratory Judgment Act to effect substantia pr ocedural reform while retaining a distinction between jury and nonjury issues and leaving substantive rights unchanged.12 Since in the federal courts equity has always acted only when legal remedies were inadequate,13 the expansion of adequate legal remedies provided by the Declaratory Judgment Act and the Federal Rules necessarily affects the scope of equity. Thus, the justification for equity's deciding legal issues once it obtains jurisdiction, and refusing to dismiss a case, merely because subsequently a legal remedy becomes available, must be re-evaluated in the light of the liberal joinder provisions of the Federal Rules which allow legal and equitable causes to be brought and resolved in one civil action.14 Similarly the need for, and therefore, the availability of such equitable remedies as Bills of Peace, Quia Timet and Injunction must be reconsidered in view of the existence of the Declaratory Judgment Act as well as the liberal joinder provision of the Rules.15 This is not only in accord with the spirit of the Rules and the Act but is required by the provision in the Rules that '(t)he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved * * * inviolate.'16
10
If there should be cases where the availability of declaratory judgment or joinder in one suit of legal and equitable causes would not in all respects protect the plaintiff seeking equitable relief from irreparable harm while affording a jury trial in the legal cause, the trial court will necessarily have to use its discretion in deciding whether the legal or equitable cause should be tried first. Since the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court,17 that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial. As this Court said in Scott v. Neely, 140 U.S. 106, 109—110, 11 S.Ct. 712, 714, 35 L.Ed. 358: 'In the Federal courts this (jury) right cannot be dispensed with, except by the assent of the parties entitled to it; nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action, or during its pendency.'18 This long-standing principle of equity dictates that only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate,19 can the right to a jury trial of legal issues be lost through prior determination of equitable claims. See Leimer v. Woods, 8 Cir., 196 F.2d 828, 833—836. We as have shown, this is far from being such a case.
11
Respondent claims mandamus is not available under the All Writs Act, 28 U.S.C. § 1651, 28 U.S.C.A. § 1651. Whatever differences of opinion there may be in other types of cases, we think the right to grant mandamus to require jury trial where it has been improperly denied is settled.20
12
The judgment of the Court of Appeals is reversed.
13
Reversed.
14
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
15
Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice WHITTAKER concur, dissenting.
16
There can be no doubt that a litigant is entitled to a writ of mandamus to protect a clear constitutional or statutory right to a jury trial. But there was no denial of such a right here. The district judge simply exercised his inherent discretion, now explicitly confirmed by the Federal Rules of Civil Procedure, to schedule the trial of an equitable claim in advance of an action at law. Even an abuse of such discretion could not, I think, be attacked by the extraordinary writ of mandamus.1 In any event no abuse of discretion is apparent in this case.
17
The complaint filed by Fox stated a claim traditionally cognizable in equity. That claim, in brief, was that Beacon had wrongfully interfered with the right of Fox to compete freely with Beacon and other distributors for the licensing of films for first-run exhibition in the San Bernardino area. The complaint alleged that the plaintiff was without an adequate remedy at law and would be irreparably harmed unless the defendant were restrained from continuing to interfere—by coercion and threats of litigation—with the plaintiff's lawful business relationships.
18
The Court of Appeals found that the complaint, although inartistically drawn, contained allegations entitling the petitioner to equitable relief.2 That finding is accepted in the prevailing opinion today. If the complaint had been answered simply by a general denial, therefore, the issues would under traditional principles have been triable as a proceeding in equity. Instead of just puting in issue the allegations of the complaint, however, Beacon filed pleadings which affirmatively alleged the existence of a broad conspiracy among the plaintiff and other theatre owners to monopolize the first-run exhibition of films in the San Bernardino area to refrain from competing among themselves, and to discriminate against Beacon in granting film licenses. Based upon these allegations, Beacon asked damages in the amount of $300,000. Clearly these conspiracy allegations stated a cause of action triable as of right by a jury. What was demanded by Beacon, however, was a jury trial not only of this cause of action, but also of the issues presented by the original complaint.
19
Upon motion of Fox the trial judge ordered the original action for declaratory and equitable relief to be tried separately to the court and in advance of the trial of the defendant's counter-claim and cross-claim for damages. The court's order, which carefully preserved the right to trial by jury upon the conspiracy and damage issues raised by the counterclaim and cross-claim, was in conformity with the specific provisions of the Federal Rules of Civil Procedure.3 Yet it is decided today that the Court of Appeals must compel the district judge to rescind it.
20
Assuming the existence of a factual issue common both to the plaintiff's original action and the defendant's counterclaim for damages, I cannot agree that the District Court must be compelled to try the counterclaim first.4 It is, of course, a matter of no great moment in what order the issues between the parties in the present litigation are tried. What is disturbing is the process by which the Court arrives at its decision—a process which appears to disregard the historic relationship between equity and law.
I.
21
The Court suggests that 'the expansion of adequate legal remedies provided by the Declaratory Judgment Act * * * necessarily affects the scope of equity.' Does the Court mean to say that the mere availability of an action for a declaratory judgment operates to furnish 'an adequate remedy at law' so as to deprive a court of equity of the power to act? That novel line of reasoning is at least implied in the Court's opinion. But the Declaratory Judgment Act did not 'expand' the substantive law. That Act merely provided a new statutory remedy, neither legal nor equitable, but available in the areas of both equity and law. When declaratory relief is sought, the right to trial by jury depends upon the basic context in which the issues are presented. See Moore's Federal Practice (2d ed.) §§ 38.29, 57.30; Borchard, Declaratory Judgments (2d ed.), 399—404. If the basic issues in an action for declaratory relief are of a kind traditionally cognizable in equity, e.g., a suit for cancellation of a written instrument, the declaratory judgment is not a 'remedy at law.'5 If, on the other hand, the issues arise in a context traditionally cognizable at common law, the right to a jury trial of course remains unimpaired, even though the only relief demanded is a declaratory judgment.6
22
Thus, if in this case the complaint had asked merely for a judgment declaring that the plaintiff's specified manner of business dealings with distributors and other exhibitors did not render it liable to Beacon under the antitrust laws, this would have been simply a 'juxtaposition of parties' case in which Beacon could have demanded a jury trial.7 But the complaint in the present case, as the Court recognizes, presented issues of exclusively equitable cognizance, going well beyond a mere defense to any subsequent action at law. Fox sought from the court protection against Beacon's allegedly unlawful interference with its business relationships—protection which this Court seems to recognize might not have been afforded by a declaratory judgment, unsupplemented by equitable relief. The availability of a declaratory judgment did not, therefore, operate to confer upon Beacon the right to trial by jury with respect to the issues raised by the complaint.
II.
23
The Court's opinion does not, of course, hold or even suggest that a court of equity may never determine 'legal rights.' For indeed it is precisely such rights which the Chancellor, when his jurisdictio has been properly invoked, has often been called upon to decide. Issues of fact are rarely either 'legal' or 'equitable.' All depends upon the context in which they arise. The examples cited by Chief Judge Pope in his thorough opinion in the Court of Appeals in this case are illustrative: '* * * (I)n a suit by one in possession of real property to quiet title, or to remove a cloud on title, the court of equity may determine the legal title. In a suit for specific performance of a contract, the court may determine the making, validity and the terms of the contract involved. In a suit for an injunction against trespass to real property the court may determine the legal right of the plaintiff to the possession of that property. Cf. Pomeroy, Equity Jurisprudence, 5th ed., §§ 138—221, 221a, 221b, 221d, 250.' 252 F.2d 864, 874.
24
Though apparently not disputing these principles, the Court holds, quite apart from its reliance upon the Declaratory Judgment Act, that Beacon by filing its counterclaim and cross-claim acquired a right to trial by jury of issues which otherwise would have been properly triable to the court. Support for this position is found in the principle that, 'in the federal courts equity has always acted only when legal remedies were inadequate. * * *' Yet that principle is not employed in its traditional sense as a limitation upon the exercise of power by a court of equity. This is apparent in the Court's recognition that the allegations of the complaint entitled Fox to equitable relief relief to which Fox would not have been entitled if it had had an adequate remedy at law. Instead, the principle is employed today to mean that because it is possible under the counterclaim to have a jury trial of the factual issue of substantial competition, that issue must be tried by a jury, even though the issue was primarily presented in the original claim for equitable relief. This is a marked departure from long-settled principles.
25
It has been an established rule 'that equitable jurisdiction existing at the filing of a bill is not destroyed because an adequate legal remedy may have become available thereafter.'8 American Life Ins. Co. v. Stewart, 300 U.S. 203, 215, 57 S.Ct. 377, 380, 81 L.Ed. 605. See Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 296, 41 S.Ct. 272, 275, 65 L.Ed. 638. It has also been long settled that the District Court in its discretion may order the trial of a suit in equity in advance of an action at law between the same parties, even if there is a factual issue common to both. In the words of Mr. Justice Cardozo, writing for a unanimous Court in American Life Ins. Co. v. Stewart, supra:
26
'A court has control over its own docket. * * * In the exercise of a sound discretion it may hold one lawsuit in abeyance to abide the outcome of another, especially where the parties and the issues are the same. * * * If request had been made by the respondents to suspend the suits in equity till the other causes were disposed of, the District Court could have considered whether justice would not be done by pursuing such a course, the remedy in equity being exceptional and the outcome of necessity. * * * There would be many circumstances to be weighed, as, for instance, the condition of the court calendar, whether the insurer had been precipitate or its adversaries dilatory, as well as other factors. In the end, benefit and hardship would have to be set off, the one against the other, and a balance ascertained.' 300 U.S. 203, 215—216, 57 S.Ct. 377, 380.9
III.
27
The Court today sweeps away these basic principles as 'precedents decided under discarded procedures.' It suggests that the Federal Rules of Civil Procedure have somehow worked an 'expansion of adequate legal remedies' so as to oust the District Courts of equitable jurisdiction, as well as to deprive them of their traditional power to control their own dockets. But obviously the Federal Rules could not and did not 'expand' the substantive law one whit.10
28
Like the Declaratory Judgment Act, the Federal Rules preserve inviolate the right to trial by jury in actions historically cognizable at common law, as under the Constitution they must.11 They do not create a right of trial by jury where that right 'does not exist under the Constitution or statutes of the United States.' Rule 39(a). Since Beacon's counterclaim was compulsory under the Rules, see Rule 13(a), it is apparent that by filing it Beacon could not be held to have waived its jury rights.12 Compare American Mills Co. v. American Surety Co., 260 U.S. 360, 43 S.Ct. 149, 67 L.Ed. 306. But neither can the counterclaim be held to have transformed Fox's original complaint into an action at law.13 See Bendix Aviation Corp. v. Glass, D.C., 81 F.Supp. 645.
29
The Rules make possible the trial of legal and equitable claims in the same proceeding, but they expressly affirm the power of a trial judge to determine the order in which claims shall be heard. Rule 42(b). Certainly the Federal Rules were not intended to undermine the basic structure of equity jurisprudence, developed over the centuries and explicitly recognized in the United States Constitution.14
30
For these reasons I think the petition for a writ of mandamus should have been dismissed.
1
Beacon allegedly stated that the clearances granted violated both the antitrust laws and the decrees issued in United States v. Paramount Pictures, Inc., D.C., 66 F.Supp. 323; 70 F.Supp. 53, affirmed in part and reversed in part, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, subsequent proceedings in the District Court, 85 F.Supp. 881. The decrees in that case set limits on what clearances could be given when theatres were in competition with each other and held that there should be no clearances between theatres not in substantial competition. Neither Beacon nor Fox, however, appears to have been a party to those decrees. Their relevance, therefore, seems to be only that of significant precedents.
2
Other prayers aside from the general equitable plea for 'such further relief as the court deems proper' added nothing material to those set out.
3
Fed.Rules Civ.Proc., 42(b) reads: 'The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.' Rule 57 reads in part: 'The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.'
4
See, e.g., (American) Lumbermens Mut. Cas. Co. of Illinois v. Timms & Howard, Inc., 2 Cir., 108 F.2d 497; Hargrove v. American Cent. Ins. Co., 10 Cir., 125 F.2d 225; Johnson v. Fidelity & Casualty Co., 8 Cir., 238 F.2d 322. See Fed.Rules Civ.Proc., 57, 38, 39.
5
Compare Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440, with American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605. See also City of Morgantown, W. Va. v. Royal Ins. Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Peake v. Lincoln Nat. Life Ins. Co., 8 Cir., 15 F.2d 303.
6
252 F.2d at page 874. In Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 192, 63 S.Ct. 163, 164, 87 L.Ed. 176, this Court recognized that orders enabling equitable causes to be tried before legal ones had the same effect as injunctions. In City of Morgantown, W. Va. v. Royal Ins. Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347, the Court denied at least some such orders the status of injunctions for the purposes of appealability. It did not, of course, imply that when the orders came to be reviewed they would be examined any less strictly than injunctions. 337 U.S. at page 258, 69 S.Ct. at page 1069.
7
See, e.g., Smyth v. Ames, 169 U.S. 466, 515, 18 S.Ct. 418, 42 L.Ed. 819; City of Detroit of Detroit Citizens' Street R. Co., 184 U.S. 368, 378—382, 22 S.Ct. 410, 414—416, 46 L.Ed. 592; cf. Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447.
8
E.g., State of Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 561, 14 L.Ed. 249; Parker v. Winnipiseogee Lake Cotton & Woollen Co., 2 Black 545, 551, 17 L.Ed. 333; Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440.
9
See, e.g., Cook, Cases on Equity (4th ed.), 18; 4 Pomeroy, Equity Jurisprudence (5th ed.), § 1370; 5 Moore, Federal Practice, 154—158; Morris, Jury Trial Under the Federal Fusion of Law and Equity, 20 Tex.L.Rev. 427, 441—443. Cf. Maryland Theater Corp. v. Brennan, 180 Md. 377, 389, 24 A.2d 911; Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 93 A.L.R. 1170. But cf. 1 Pomeroy, Equity Jurisprudence (5th ed.), §§ 182, 183. Significantly the Court of Appeals itself relied on the procedural changes brought about by the Federal Rules when it found the plea for equitable relief valid, for it did so by relying on Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, which emphasized the liberal construction policies of the Rules.
10
Since the issue of violation of the antitrust laws often turns on the reasonableness of a restraint on trade in the light of all the facts, see, e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 60, 31 S.Ct. 502, 515, 55 L.Ed. 619, it is particularly undesirable to have some of the relevant considerations tried by one factfinder and some by another.
11
Fed.Rules Civ.Proc., 13(a).
12
See 28 U.S.C. § 2072, 28 U.S.C.A. § 2072; Fed.Rules Civ.Proc., 39(a), 57. See also Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 382, note 26, 69 S.Ct. 606, 614, 93 L.Ed. 741; United States v. Yellow Cab Co., 340 U.S. 543, 555-556, 71 S.Ct. 399, 407, 95 L.Ed. 523.
13
See 36 Stat. 1163, derived from Act of Sept. 24, 1789, § 16, 1 Stat. 82. This provision, which antedates the Seventh Amendment, is discussed in 5 Moore, Federal Practice, 32. See, e.g., Hipp v. Town of Babin, 19 How. 271, 277—278, 15 L.Ed. 633; Insurance Co. v. Bailey, 13 Wall. 616, 620—621, 20 L.Ed. 501; Grand Chute v. Winegar, 15 Wall. 373, 21 L.Ed. 174; Buzard v. Houston, 119 U.S. 347, 351—352, 7 S.Ct. 249, 251—252, 30 L.Ed. 451.
14
See Fed.Rules Civ.Proc., 1, 2, 18. Cf. Prudential Ins. Co. of America v. Saxe, 77 U.S.App.D.C. 144, 134 F.2d 16, 31—34; Morris, Jury Trial Under the Federal Fusion of Law and Equity, 20 Tex.L.Rev. 427, 441—443.
15
See 1 Pomeroy, Equity Jurisprudence (5th ed.) §§ 251 3/4, 254, 264(b); 5 Moore, Federal Practice, 32; but cf. id., 209—211. See also, Note, The Joinder Rules and Equity Jurisdiction in the Avoidance of a Multiplicity of Suits, 12 Md.L.Rev. 88. Of course, unless there is an issue of a right to jury trial or of other rights which depend on whether the cause is a 'legal' or 'equitable' one, the question of adequacy of legal remedies is purely academic and need not arise.
16
Fed.Rules Civ.Proc., 38(a). In delegating to the Supreme Court responsibility for drawing up rules, Congress declared that: 'Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.' 28 U.S.C. § 2072, 28 U.S.C.A. § 2072. The Seventh Amendment reads: 'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.'
17
See Hurwitz v. Hurwitz, 78 U.S.App.D.C. 66, 136 F.2d 796, 798—799, 148 A.L.R. 226; cf. The Genesee Chief v. Fitzhugh, 12 How. 443, 459—460, 13 L.Ed. 1058.
18
This Court has long emphasized the importance of the jury trial. See Parsons v. Bedford, 3 Pet. 433, 446, 7 L.Ed. 732. See also Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. Id., 319 U.S. at page 396, 63 S.Ct. at page 1090 (dissenting opinion).
19
For an example of the flexible procedures available under the Federal Rules, see Ring v. Spina, 2 Cir., 166 F.2d 546, 550.
20
E.g., Ex parte Simons, 247 U.S. 231, 239—240, 38 S.Ct. 497, 498, 62 L.Ed. 1094; Ex parte Peterson, 253 U.S. 300, 305—306, 40 S.Ct. 543, 544—545, 64 L.Ed. 919; Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499; Canister Co. v. Leahy, 3 Cir., 191 F.2d 255; Black v. Boyd, 6 Cir., 248 F.2d 156, 160—161. Cf. Bruckman v. Hollzer, 9 Cir., 152 F.2d 730. But cf. In re Chappell & Co., 1 Cir., 201 F.2d 343. See also La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290.
1
Compare Black v. Boyd, 6 Cir., 248 F.2d 156, with Black v. Boyd, 6 Cir., 251 F.2d 843.
2
Cf. De Groot v. Peters, 124 Cal. 406, 57 P. 209; California Grape Control Bd. v. California P. Corp., 4 Cal.App.2d 242, 244, 40 P.2d 846. Compare Kessler v. Eldred, 206 U.S. 285, 27 S.Ct. 611, 51 L.Ed. 1065; International News Service v. Associated Press, 248 U.S. 215, 236, 39 S.Ct. 68, 71, 63 L.Ed. 211; Truax v. Raich, 239 U.S. 33, 38, 36 S.Ct. 7, 9, 60 L.Ed. 131.
3
Rule 42(b) provides: '(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.'
The Note to Rule 39 of the Advisory Committee on Rules states that, 'When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried.' This language was at one time contained in a draft of the Rules, but was deleted because 'the power is adequately given by Rule 42(b) * * *.' Moore's Federal Practice (2d. ed.) § 39.12, n. 8.
See also Rule 57, which provides, inter alia, that 'The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.'
4
It is not altogether clear at this stage of the proceedings whether the existence of substantial competition between Fox and Beacon is actually a material issue of fact common to both the equitable claim and the counterclaim for damages. The respondent ingeniously argues that determination in the equitable suit of the issue of competition between the theatres would be determinative of little or nothing in the counterclaim for damages.
'The fact issue in the action for equitable and declaratory relief is whether the Fox West Coast California Theatre and the Petitioner's drive-in are substantially competitive with each other. The fact issue in the counterclaim is whether the cross-defendants and co-conspirators therein named conspired together in restraint of trade and to monopolize in the manner alleged in the counterclaim. Absent conspiracy, whether or not the distributors licensed a single first run picture to Petitioner's drive-in, be it in substnti al competition or not in substantial competition with other first run theatres in the San Bernardino area, Petitioner will not have made out a case on its counterclaim. * * * If Petitioner on its counterclaim should fail to prove conspiracy the issue of competition between the theatres is meaningless. If petitioner on the other hand success in proving the allegations of its counterclaim, the conspiracy to monopolize first run and to discriminate against the new drivein, the existence or non-existence of competition between the theatres would exculpate none of the alleged wrongdoers, although if there was an absence of competition between the drive-in and the other first run theatres, as Petitioner contended in its answer to the complaint, it might have some difficulty proving injury to its business.'
5
State Farm Mut. Auto. Ins. Co. v. Mossey, 7 Cir., 195 F.2d 56, 60; Connecticut General Life Ins. Co. v. Candimat Co., D.C., 83 F.Supp. 1.
6
Dickinson v. General Accident F. & L. Assur. Corp., 9 Cir., 147 F.2d 396; Hargrove v. American Cent. Ins. Co., 10 Cir., 125 F.2d 225; Pacific Indemnity Co. v. McDonald, 9 Cir., 107 F.2d 446, 131 A.L.R. 208.
7
Moore's Federal Practice (2d ed.) § 57.31(2). 'Transposition of parties' would perhaps be a more accurate description. A typical such case is one in which a plaintiff uses the declaratory judgment procedure to seek a determination of nonliability to a legal claim asserted by the defendant. The defendant in such a case is, of course, entitled to a jury trial.
8
The suggestion by the Court that 'This was because the subsequent legal action, though providing an opportunity to try the case to a jury, might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy' is plainly inconsistent with many of the cases in which the rule has been applied. See, e.g., Beedle v. Bennett, 122 U.S. 71, 7 S.Ct. 1090, 30 L.Ed. 1074; Clark v. Wooster, 119 U.S. 332, 7 S.Ct. 217, 30 L.Ed. 392.
9
It is arguable that if a case factually similar to American Life Ins. Co. v. Stewart were to arise under the Declaratory Judgment Act, the defendant would be entitled to a jury trial. See footnote 7. But cf. 5 Moore's Federal Practice (2d ed.), p. 158.
10
Congressional authorization of the Rules expressly provided that 'Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant.' 48 Stat. 1064. See 28 U.S.C. § 2072, 28 U.S.C.A. § 2072.
11
'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.' U.S.Const., Amend. VII. See Rules 38, 39, Fed.Rules Civ.Proc.
12
This is not, of course, to suggest that the filing of a permissive 'legal' counterclaim to an 'equitable' complaint would amount to a waiver of jury rights on the issues raised by the counterclaim.
13
Determination of whether a claim stated by the complaint is triable by the court or by a jury will normally not be dependent upon the 'legal' or 'equitable' character of the counterclaim. See Borchard, Declaratory Judgments (2d ed.), p. 404. There are situations, however, such as a case in which the plaintiff seeks a declaration of invalidity or non-infringement of a patent, in which the relief sought by the counterclaim will determine the nature of the entire case. See Moore's Federal Practice (2d ed.) § 38.29.
14
'The judicial Power shall extend to all Cases, in Law and Equity. * * *' Art. III, § 2.
| 01
|
359 U.S. 520
79 S.Ct. 962
3 L.Ed.2d 1003
Joseph D. BIBB, Director of the Department of Public Safety of the State of Illinois, et al., Appellants,v.NAVAJO FREIGHT LINES, INC., a New Mexico Corporation, Ringsby Truck Lines, Inc., a Nebraska Corporation, et al.
No. 94.
Argued March 30, 31, 1959.
Decided May 25, 1959.
Mr. William C. Wines, Chicago, Ill., for appellants.
Mr. David Axelrod, Chicago, Ill., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
We are asked in this case to hold that an Illinois statute1 requiring the use of a certain type of rear fender mudguard on trucks and trailers operated on the highways of that State conflicts with the Commerce Clause of the Constitution. The statutory specification for this type of mudguard provides that the guard shall contour the rear wheel, with the inside surface being relatively parallel to the top 90 degrees of the rear 180 degrees of the whole surface.2 The surface of the guard must extend downward to within 10 inches from the ground when the truck is loaded to its maximum legal capacity. The guards must be wide enough to cover the width of the protected tire, must be installed not more than 6 inches from the tire surface when the vehicle is loaded to maximum capacity, and must have a lip or flange on its outer edge of not less than 2 inches.3
2
Appellees, interstate motor carriers holding certificates from the Interstate Commerce Commission, challenged the constitutionality of the Illinois Act. A specially constituted three-judge District Court concluded that it unduly and unreasonably burdened and obstructed interstate commerce, because it made the conventional or straight mudflap, which is legal in at least 45 States, illegal in Illinois, and because the statute, taken together with a Rule of the Arkansas Commerce Commission4 requiring straight mudflaps, rendered the use of the same motor vehicle equipment in both States impossible. The statute was declared to be violative of the Commerce Clause and appellants were enjoined from enforcing it. 159 F.Supp. 385. An appeal was taken and we noted probable jurisdiction. 358 U.S. 808, 79 S.Ct. 26, 3 L.Ed.2d 53.
3
The power of the State to regulate the use of its highways is broad and pervasive. We have recognized the peculiarly local nature of this subject of safety, and have upheld state statutes applicable alike to interstate and intrastate commerce, despite the fact that they may have an impact on interstate commerce. South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734; Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167. The regulation of highways 'is akin to quarantine measures, same laws, and like local regulations of rivers, harbors, piers, and docks, with respect to which the state has exceptional scope for the exercise of its regulatory power, and which, Congress not acting, have been sustained even though they materially interfere with interstate commerce.' Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 783, 65 S.Ct. 1515, 1527, 89 L.Ed. 1915.
4
These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field.5 Unless we can conclude on the whole record that 'the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it' (Southern Pacific Co. v. State of Arizona, supra, 325 U.S. at pages 775—776, 65 S.Ct. at page 1523) we must uphold the statute.
5
The District Court fond that 'since it is impossible for a carrier operating in interstate commerce to determine which of its equipment will be used in a particular area, or on a particular day, or days, carriers operating into or through Illinois * * * will be required to equip all their trailers in accordance with the requirements of the Illinois Splash Guard statute.' With two possible exceptions the mudflaps required in those States which have mudguard regulations would not meet the standards required by the Illinois statute. The cost of installing the contour mudguards is $30 or more per vehicle. The District Court found that the initial cost of installing those mudguards on all the trucks owned by the appellees ranged from $4,500 to $45,840. There was also evidence in the record to indicate that the cost of maintenance and replacement of these guards is substantial.
6
Illinois introduced evidence seeking to establish that contour mudguards had a decided safety factor in that they prevented the throwing of debris into the faces of drivers of passing cars and into the windshields of a following vehicle. But the District Court in its opinion stated that it was 'conclusively shown that the contour mud flap possesses no advantages over the conventional or straight mud flap previously required in Illinois and presently required in most of the states,' (159 F.Supp. at page 388) and that 'there is rather convincing testimony that use of the contour flap creates hazards previously unknown to those using the highways.' Id., at page 390. These hazards were found to be occasioned by the fact that this new type of mudguard tended to cause an accumulation of heat in the brake drum, thus decreasing the effectiveness of brakes, and by the fact that they were susceptible of being hit and bumped when the trucks were backed up and of falling off on the highway.
7
These findings on cost and on safety are not the end of our problem. Local regulation of the weight of trucks using the highways upheld in Sproles v. Binford, supra, also involved increased financial burdens for interstate carriers. State control of the width and weight of motor trucks and trailers sustained in South Carolina State Highway Dept. v. Barnwell Bros., supra, involved nice questions of judgment concerning the need of those regulations so far as the issue of safety was concerned. That case also presented the problem whether interstate motor carriers, who were required to replace all equipment or keep out of the State, suffered an unconstitutional restraint on interstate commerce. The matter of safety was said to be one essentially for the legislative judgment; and the burden of redesigning or replacing equipment was said to be a proper price to exact from interstate and intrastate motor carriers alike. And the same conclusion was reached in Maurer v. Hamilton, supra, where a state law prohibited any motor carrier from carrying any other vehicle above the cab of the carrier vehicle or over the head of the operator of that vehicle. Cost taken into consideration with other factors might be relevant in some cases to the issue of burden on commerce. But it has assumed no such proportions here. If we had here only a question whether the cost of adjusting an interstate operation to these new local safety regulations prescribed by Illinois unduly burdened interstate commerce, we would have to sustain the law under the authority of the Sproles, Barnwell, and Maurer cases. The same result would obtain if we had to resolve the much discussed issues of safety presented in this case.
8
This case presents a different issue. The equipment in the Sproles, Barnwell, and Maurer cases could pass muster in any State, so far as the records in those cases reveal. We were not faced there with the question whether one State could prescribe standards for interstate carriers that would conflict with the standards of another State, making it necessary, say, for an interstate carrier to shift its cargo to differently designed vehicles one a nother state line was reached. We had a related problem in Southern Pacific Co. v. State of Arizona, supra, where the Court invalidated a statute of Arizona prescribing a maximum length of 70 cars for freight trains moving through that State. More closely in point is Morgan v. Commonwealth of Virginia, 328 U.S. 373, 375, 66 S.Ct. 1050, 1052, 90 L.Ed. 1317, where a local law required a reseating of passengers on interstate busses entering Virginia in order to comply with a local segregation law. Diverse seating arrangements for people of different races imposed by several States interfered, we concluded, with 'the need for national uniformity in the regulations for interstate travel.' Id., 328 U.S. at page 386, 66 S.Ct. at page 1058. Those cases indicate the dimensions of our present problem.
9
An order of the Arkansas Commerce Commission, already mentioned,6 requires that trailers operating in that State be equipped with straight or conventional mudflaps. Vehicles equipped to meet the standards of the Illinois statute would not comply with Arkansas standards, and vice versa. Thus if a trailer is to be operated in both States, mudguards would have to be interchanged, causing a significant delay in an operation where prompt movement may be of the essence. It was found that from two to four hours of labor are required to install or remove a contour mudguard. Moreover, the contour guard is attached to the trailer by welding and if the trailer is conveying a cargo of explosives (e.g., for the United States Government) it would be exceedingly dangerous to attempt to weld on a contour mudguard without unloading the trailer.
10
It was also found that the Illinois statute seriously interferes with the 'interline' operations of motor carriers—that is to say, with the interchanging of trailers between an originating carrier and another carrier when the latter serves an area not served by the former. These 'interline' operations provide a speedy through-service for the shipper. Interlining contemplates the physical transfer of the entire trailer; there is no unloading and reloading of the cargo. The interlining process is particularly vital in connection with shipment of perishables, which would spoil if unloaded before reaching their destination, or with the movement of explosives carried under seal. Of course, if the originating carrier never operated in Illinois, it would not be expected to equip its trailers with contour mudguards. Yet if an interchanged trailer of that carrier were hauled to or through Illinois, the statute would require that it contain contour guards. Since carriers which operate in and through Illinois cannot compel the originating carriers to equip their trailers with contour guards, they may be forced to cease interlining with those who do not meet the Illinois requirements. Over 60 percent of the business of 5 of the 6 plaintiffs is interline traffic. For the other it constitutes 30 percent. All of the plaintiffs operate extensively in interstate commerce, and the annual mileage in Illinois of none of them exceeds 7 percent of total mileage.
11
This is summary is the rather massive showing of burden on interstate commerce which appellees made at the hearing.
12
Appellants did not attempt to rebut the appellees' showing that the statute in question severely burdens interstate commerce. Appellants' showing was aimed at establishing that contour mudguards prevented the throwing of debris into the faces of drivers of passing cars and into the windshields of a following vehicle. They concluded that, because the Illinois statute is a reasonable exercise of the police power, a federal court is precluded from weighing the relative merits of the contour mudguard against any other kind of mudguard and must sustain the validity of the statute notwithstanding the extent of the burden it imposes on interstate commerce. They rely in the main on South Carolina State Highway Dept. v. Barnwell Bros., supra. There is languagein that opinion which, read in isolation from such later decisions as Southern Pacific Co. v. State of Arizona, supra, and Morgan v. Commonwealth of Virginia, supra, would suggest that no showing of burden on interstate commerce is sufficient to invalidate local safety regulations in absence of some element of discrimination against interstate commerce.
13
The various exercises by the States of their police power stand, however, on an equal footing. All are entitled to the same presumption of validity when challenged under the Due Process Clause of the Fourteenth Amendment. Lincoln Federal Labor Union, etc., v. Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Day-Brite Lighting, Inc., v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563. Similarly the various state regulatory statutes are of equal dignity when measured against the Commerce Clause, art. 1, § 8, cl. 3. Local regulations which would pass muster under the Due Process Clause might nonetheless fail to survive other challenges to constitutionality that bring the Supremacy Clause into play. Like any local law that conflicts with federal regulatory measures (Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470; Service Storage & Transfer Co. v. Commonwealth of Virginia, 359 U.S. 171, 79 S.Ct. 714, 3 L.Ed.2d 717), state regulations that run afoul of the policy of free trade reflected in the Commerce Clause must also bow.
14
This is one of those cases—few in number—where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce. This conclusion is especially underlined by the deleterious effect which the Illinois law will have on the 'interline' operation of interstate motor carriers. The conflict between the Arkansas regulation and the Illinois regulation also suggests that this regulation of mudguards is not one of those matters 'admitting of diversity of treatment, according to the special requirements of local conditions,' to use the words of Chief Justice Hughes in Sproles v. Binford, supra, 286 U.S. at page 390, 52 S.Ct. at page 585. A State which insists on a design out of line with the requirements of almost all the other States may sometimes place a great burden of delay and inconvenience on those interstate motor carriers entering or crossing its territory. Such a new safety device—out of line with the requirements of the other States—may be so compelling that the innovating State need not be the one to give way. But the present showing—balanced against the clear burden on commerce—is far too inconclusive to make this mudguard meet that test.
15
We deal not with absolutes but with questions of degree. The state legislatures plainly have great leeway in providing safety regulations for all vehicles—interstate as well as local. Our decisions so hold. Yet the heavy burden which the Illinois mudguard law places on the interstate movement of trucks and trailers seems to us to pass the permissible limits even for safety regulations.
16
Affirmed.
17
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
18
The opinion of the Court clearly demonstrates the heavy burden, in terms of cost and interference with 'interlining,' which the Illinois statute here involved imposes on interstate commerce. In view of the findings of the District Court, summarized on page 965 of 79 S.Ct. of the Court's opinion and fully justified by the record, to the effect that the contour mudflap 'possesses no advantages' in terms of safety over the conventional flap permitted in all other States, and indeed creates certain safety hazards, this heavy burden cannot be justified on the theory that the Illinois statute is a necessary, appropriate, or helpful local safety measure. Accordingly, I concur in the judgment of the Court.
1
The state statute (effective July 8, 1957) in relevant part provides:
'It is unlawful for any person to operate any motor vehicle of the second division upon the highways of this state outside the corporate limits of a city, village or incorporated town unless such vehicle is equipped with rear fender splash guards which shall comply with the specifications hereinafter provided in this Section; except that any motor vehicle of the second division which is or has been purchased, new or used, prior to August 1, 1957 shall be equipped with rear fender splash guards which are so attached as to prevent the splashing of mud or water upon the windshield of other motor vehicles and such splash guards on such vehicle shall not be required to comply with the specifications hereinafter provided in this Section until January 1, 1958.
'The rear fender splash guards shall contour the wheel in such a manner that the relationship of the inside surface of any such splash guard to the tread surface of the tire or wheel shall be relatively parallel, both laterally and across the wheel, at least throughout the top 90 degrees of the rear 180 degrees of the wheel surface; provided however, on vehicles which have a clearance of less than 5 inches between the top of the tire or wheel and that part of the body of the vehicle directly above the tire or wheel when the vehicle is loaded to maximum legal capacity, the curved portion of the splash guard need only extend from a point directly behind the center of the rear axle and to the rear of the wheel surface upwards to within at least 2 inches of the bottom line of the body when the vehicle is loaded to maximum quarantine measures, game laws, and this Section applies, there shall be a downward extension of the curved surface which shall end not more than 10 inches from the ground
when the vehicle is loaded to maximum legal capacity. This downward extension shall be part of the curved surface or attached directly to said curved surface, but it need not contour the wheel.
'The spash guards shall be wide enough to cover the full tread or treads of the tires being protected and shall be installed not more than 6 inches from the tread surface of the tire or wheel when the vehicle is loaded to maximum legal capacity. The splash guard shall have a lip or flange on its outside edge to minimize side throw and splash. The lip or flange shall extend toward the center of the wheel, and shall be perpendicular to and extend not less than 2 inches below the inside or bottom surface line or plane of the guard.
'The splash guards may be constructed of a rigid or flexible material, but shall be attached in such a manner that, regardless of movement, either by the splash guards or the vehicle, the splash guards will retain their general parallel relationship to the tread surface of the tire or wheel under all ordinary operating conditions.' Ill.Rev.Stats.1957, c. 95 1/2, § 218b.
Motor vehicles of the second division are defined as 'Those vehicles which are designed and used for pulling or carrying freight and also those vehicles or motor cars which are designed and used for the carrying of more than seven persons.' Ill.Rev.Stats.1957, c. 95 1/2 § 99(b).
2
The specifications are somewhat modified if the clearance between the top of the tire and the body of the vehicle directly above it is less than 5 inches when the vehicle is loaded to its maximum legal capacity.
3
There are certain exemptions from the statute, but their validity or the validity of the statute in light of them is not questioned here. But see Rudolph Express Co. v. Bibb, 15 Ill.2d 76, 153 N.E.2d 820. No contention is here made that the statute discriminates against interstate commerce, and it is clear that its provisions apply alike to vehicles in intrastate as well as in interstate commerce. Nor is it contended that the statute violates the Due Process Clause of the Fourteenth Amendment. Cf. People v. Warren, 11 Ill.2d 420, 143 N.E.2d 28.
4
Arkansas Commerce Commission Rule 100, December 13, 1957.
5
It is not argued that there has been a pre-emption of the field by federal regulation. While the Interstate Commerce Commission has, pursuant to § 204(a) of the Interstate Commerce Act (49 Stat. 546, 49 U.S.C. § 304(a), 49 U.S.C.A. § 304(a), promulgated its Motor Carrier Safety Regulations to govern vehicles operating in interstate or foreign commerce (see 49 CFR, Pts. 190—197), it has expressly declined to establish any requirements concerning wheel flaps, and has disclaimed any intention to occupy the field or abrogate state regulations not inconsistent with its standards. 54 M.C.C. 337, 354, 358.
6
Note 4, supra.
| 910
|
359 U.S. 535
79 S.Ct. 968
3 L.Ed.2d 1012
William Vincent VITARELLI, Pettio nerv.Fred A. SEATON, Secretary of the Interior, et al.
No. 101.
Argued April 1 and 2, 1959.
Decided June 1, 1959.
Mr. Clifford J. Hynning, Washington, D.C., for petitioner.
Mr. John G. Laughlin, Jr., Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case concerns the legality of petitioner's discharge as an employee of the Department of the Interior. Vitarelli, an educator holding a doctor's degree from Columbia University, was appointed in 1952 by the Department of the Interior as an Education and Training Specialist in the Education Department of the Trust Territory of the Pacific Islands, at Koror in the Palau District, a mandated area for which this country has responsibility.
2
By a letter dated March 30, 1954, respondent Secretary's predecessor in office notified petitioner of his suspension from duty without pay, effective April 2, 1954, assigning as ground therefor various charges. Essentially, the charges were that petitioner from 1941 to 1945 had been in 'sympathetic association' with three named persons alleged to have been members of or in sympathetic association with the Communist Party, and had concealed from the Government the true extent of these associations at the time of a previous inquiry into them; that he had registered as a supporter of the American Labor Party in New York City in 1945, had subscribed to the USSR Information Bulletin, and had purchased copies of the Daily Worker and New Masses; and that because such associations and activities tended to show that petitioner was 'not reliable or trustworthy' his continued employment might be 'contrary to the best interests of national security.'
3
Petitioner filed a written answer to the statement of charges, and appeared before a security hearing board on June 22 and July 1, 1954. At this hearing no evidence was adduced by the Department in support of the charges, nor did any witness testify against petitioner. Petitioner testified at length, and presented four witnesses, and he and the witnesses were extensively cross-examined by the security officer and the members of the hearing board. On September 2, 1954, a notice of dismissal effective September 10, 1954, was sent petitioner over the signature of the Secretary, reciting that the dismissal was 'in the interest of national security for the reasons specifically set forth in the letter of charges dated March 30, 1954.' This was followed on September 21, 1954, with the filing of a 'Notification of Personnel Action' setting forth the Secretary's action. The record does not show that a copy of this document was ever sent to petitioner.
4
After having failed to obtain reinstatement by a demand upon the Secretary, petitioner filed suit in the United States District Court for the District of Columbia seeking a declaration that his dismissal had been illegal and ineffective and an injunction requiring his reinstatement. On October 10, 1956, while the case was pending in the District Court, a copy of a new 'Notification of Personnel Action,' dated September 21, 1954, and reciting that it was 'a revision of and replaces the original bearing the same date,' was filed in the District Court, and another copy of this document was delivered to petitioner shortly thereafter. This notification was identical with the one already mentioned, except that it omitted any reference to the reason for petitioner's discharge and to the authority under which it was carried out.1 Thereafter the District Court granted summary judgment for the respondent. That judgment was affirmed by the Court of Appeals, one judge dissenting. 102 U.S.App.D.C. 316, 253 F.2d 338. We granted certiorari to consider the validity of petitioner's discharge. 358 U.S. 871, 79 S.Ct. 110, 3 L.Ed.2d 103.
5
The Secretary's letter of March 30, 1954, and notice of dismissal of September 2, 1954, both relied upon Exec. Order No. 10450, 18 Fed.Reg. 2489 (1953), 5 U.S.C.A. § 631 note, the Act of August 26. 1950, 64 Stat. 476, 5 U.S.C. § 22—1 et seq., 5 U.S.C.A. § 22—1 et seq., and Department of the Interior Order No. 2738, all relating to discharges of government employees on security or loyalty grounds, as the authority for petitioner's dismissal. In Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396, this Court held that the statute referred to did not apply to government employees in positions not designated as 'sentitive.' Respondent takes the position that since petitioner's position in government service has at no time been designated as sensitive the effect of Cole, which was decided after the 1954 dismissal of petitioner, was to render also inapplicable to petitioner Department of the Interior Order No. 2738, under which the proceedings relating to petitioner's dismissal were had. It is urged that in this state of affairs petitioner, who concededly was at no time within the protection of the Civil Service Act, 5 U.S.C.A. § 632 et seq., Veterans' Preference Act, 5 U.S.C.A. § 851 et seq., or any other statute relating to employment rights of government employees, and who, as a 'Schedule A' employee, could have been summarily discharged by the Secretary at any time without the giving of a reason, under no circumstances could be entitled to more than that which he has already received—namely, an 'expunging' from the record of his 1954 discharge of any reference to the authority or reasons therefor.
6
Respondent misconceives the effect of our decision in Cole. It is true that the Act of August 26, 1950, and the Executive Order did not alter the power of the Secretary to discharge summarily an employee in petitioner's status, without the giving of any reason. Nor did the Department's own regulations preclude such a course. Since, however, the Secretary gratuitously decided to give a reason, and that reason was national security, he was obligated to conform to the procedural standards he had formulated in Order No. 2738 for the dismissal of employees on security grounds. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403. That Order on its face applies to all security discharges in the Department of the Interior, including such discharges of Schedule A employees. Cole v. Young established that the Act of August 26, 1950, did not permit the discharge of nonsensitive employees pursuant to procedures authorized by that Act if those procedures were more summary than those to which the employee would have been entitled by virtue of any pre-existing statute or regulation. That decision cannot, however, justify noncompliance by the Secretary with regulations promulgated by him in the departmental Order, which as to petitioner afford greater procedural protections in the case of a dismissal stated to be for security reasons than in the case of dismissal without any statement of reasons. Having chosen to proceed against petitioner on security grounds, the Secretary here, as in Service, was bound by the regulations which he himself had promulgated for dealing with such cases, even though without such regulations he could have discharged petitioner summarily.
7
Petitioner makes various contentions as to the constitutional invalidity of the procedures provided by Order No. 2738. He further urges that even assuming the validity of the governing procedures, his dismissal cannot stand because the notice of suspension and hearing given him did not comply with the Order. We find it unnecessary to reach the constitutional issues, for we think that petitioner's second position is well taken and must be sustained.
8
Preliminarily, it should be said that departures from departmental egu lations in matters of this kind involve more than mere consideration of procedural irregularities. For in proceedings of this nature, in which the ordinary rules of evidence do not apply, in which matters involving the disclosure of confidential information are withheld, and where it must be recognized that counsel is under practical constraints in the making of objections and in the tactical handling of his case which would not obtain in a cause being tried in a court of law before trained judges, scrupulous observance of departmental procedural safeguards is clearly of particular importance.2 In this instance an examination of the record, and of the transcript of the hearing before the departmental security board, discloses that petitioner's procedural rights under the applicable regulations were violated in at least three material respects in the proceedings which terminated in the final notice of his dismissal.
9
First, § 15(a) of Order No. 2738 requires that the statement of charges served upon an employee at the time of his suspension on security grounds 'shall be as specific and detailed as security considerations, including the need for protection of confidential sources of information, permit * * * and shall be subject to amendment within 30 days of issuance.' Although the statement of charges furnished petitioner appears on its face to be reasonably specific,3 the transcript of hearing establishes that the statement, which was never amended, cannot conceivably be said in fact to be as specific and detailed as 'security considerations * * * permit.' For petitioner was questioned by the security officer and by the hearing board in great detail concerning his association with and knowledge of various persons and organizations nowhere mentioned in the statement of charges,4 and at length concerning his activities in Bucks County, Pennsylvania, and elsewhere after 1945, activities as to which the charges are also completely silent. These questions were presumably asked because they were deemed relevant to the inquiry before the board, and the very fact that they were asked and thus spread on the record is conclusive indication that 'security considerations' could not have justified the omission of any statement concerning them in the charges furnished petitioner.
10
Second, §§ 21(a) and (e) require that hearings before security hearing boards shall be 'orderly' and that 'reasonable restrictions still be imposed as to relevancy, competency, and materiality of matters considered.' The material set forth in the margin, taken from the transcript, and illustrative rather than exhaustive, shows that these ndi spensable indicia of a meaningful hearing were not observed.5 It is not an over-characterization to say that as the hearing proceeded it developed into a wideranging inquisition into this man's educational, social, and political beliefs, encompassing even a question as to whether he was 'a religious man.' Third, § 21(c)(4) gives the employee the right 'to cross-examine any witness offered in support of the charges.' It is apparent from an over-all reading of the regulations that it was not contemplated that this provision should require the Department to call witnesses to testify in support of any or all of the charges, because it was expected that charges might rest on information gathered from or by 'confidential informants.' We think, however, that § 21(c) (4) did contemplate the calling by the Department of any informant not properly classifiable as 'confidential,' if information furnished by that informant was to be used by the board in assessing an employee's status.6 The transcript shows that this provision was violated on at least one occasion at petitioner's hearing, for the security officer identified by name a person who had given information apparently considered detrimental to petitioner, thus negating any possible inference that that person was considered a 'confidential informant' whose identity it was necessary to keep secret, and questioned petitioner at some length concerning the information supplied from this source without calling the informant and affording petitioner the right to cross- examine.7
11
Because the proceedings attendant upon petitioner's dismissal from government service on grounds of national security fell substantially short of the requirements of the applicable departmental regulations, we hold that such dismissal was illegal and of no effect.
12
Respondent urges that even if the dismissal of September 10, 1954, was invalid, petitioner is not entitled to reinstatement by reason of the fact that he was at all events validly dismissed in October 1956, when a copy of the second 'Notification of Personnel Action,' omitting all reference to any statute, order, or regulation relating to security discharges, was delivered to him. Granting that the Secretary could at any time after September 10, 1954, have validly dismissed petitioner without any statement of reasons, and independently of the proceedings taken against him under Order No. 2738, we cannot view the delivery of the new notification to petitioner as an exercise of that summary dismissal power. Rather, the fact that it was dated '9—21—54,' contained a termination of employment date of '9—10—54,' was designated as 'a revision' of he 1954 notification, and was evidently filed in the District Court before its delivery to petitioner indicates that its sole purpose was an attempt to moot petitioner's suit in the District Court by an 'expunging' of the grounds for the dismissal which brought October No. 2738 into play.8 In these circumstances, we would not be justified in now treating the 1956 action, plainly intended by the Secretary as a grant of relief to petitioner in connection with the form of the 1954 discharge, as an exercise of the Secretary's summary removal power as of the date of its delivery to petitioner.9
13
It follows from what we have said that petitioner is entitled to the reinstatement which he seeks, subject, of course to any lawful exercise of the Secretary's authority hereafter to dismiss him from employment in the Department of the Interior.
14
Reversed.
15
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK, Mr. Justice WHITTAKER and Mr. Justice STEWART join, concurring in part and dissenting in part.
16
An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 87—88, 63 S.Ct. 454, 459, 87 L.Ed. 626. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. Therefore, I unreservedly join in the Court's main conclusion, that the attempted dismissal of Vitarelli in September 1954 was abortive and of no validity because the procedure under Department of the Interior Order No. 2738 was invoked but not observed.
17
But when an executive agency draws on the freedom that the law vests in it, the judiciary cannot deny or curtail such freedom. The Secretary of the Interior concededly had untrammelled right to dismiss Vitarelli out of hand, since he had no protected employment rights. He could do so as freely as a private employer who is not bound by procedural restrictions of a collective bargaining contract. The Secretary was under no law-imposed or self-imposed restriction in discharging an employee in Vitarelli's position without statement of reasons and without a hearing. And so the question is, did the Secretary take action, after the abortive discharge in 1954, dismissing Vitarelli?
18
In October 1956 there was served upon Vitarelli a copy of a new notice of dismissal which had been inserted in the Department's personnel records in place of the first notice. Another copy was filed with the District Court in this proceeding. This second notice contained no mention of grounds of discharge. If, instead of sending this second notice to Vitarelli, the Secretary had telephoned Vitarelli to convey the contents of the second notice, he would have said: 'I note that you are contesting the validity of the dismissal. I want to make this very clear to you. If I did not succeed in dismissing you before, I now dismissyou , and I dismiss you retroactively, effective September 1954.'
19
The Court disallows this significance to the second notice of discharge because it finds controlling meaning in the suggestion of the Government that the expunging from the record of any adverse comment, and the second notice of discharge, signified a reassertion of the effectiveness of the first attempt at dismissal. And so, the Court concludes, no intention of severance from service in 1956 could legally be found since the Secretary expressed no doubt that the first dismissal had been effective. But this document of 1956 was not a mere piece of paper in a dialectic. The paper was a record of a process, a manifestation of purpose and action. The intendment of the second notice, to be sure, was to discharge Vitarelli retroactively, resting this attempted dismissal on valid authority—the summary power to dismiss without reason. Though the second notice could not pre-date the summary discharge because the Secretary rested his 1954 discharge on an unsustainable ground, and Vitarelli could not be deprived of rights accured during two years of unlawful discharge, the prior wrongful action did not deprive the Secretary of the power in him to fire Vitarelli prospectively. And if the intent of the Secretary be manifested in fact by what he did, however that intent be expressed—here, the intent to be rid of Vitarelli—the Court should not frustrate the Secretary's rightful exercise of this power as of October 1956. The fact that he wished to accomplish more does not mean he accomplished nothing.
20
To construe the second notice to mean administratively nothing is to attribute to the Secretary the purpose of a mere diarist, the corrector of entries in the Department's archieves. This wholly disregards the actualities in the conduct of a Department concerned with terminating the services of an undesired employee as completely and by whatever means that may legally be accomplished. If an employer summons before him an employee over whom he has unfettered power of dismissal and says to him: 'You are no longer employed here because I fired you last week,' can one reasonably escape the conclusion that though the employer was in error and had not effectively carried out his purpose to fire the employee last week, the employer's statement clearly manifests a present belief that the employee is dismissed and an intention that he be foreverafter dismissed? Certainly the employee would have no doubt his employment was now at an end. Of course if some special formal document were required to bring about a severance of a relationship, cf. Felter v. Southern Pacific Co., 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854, because of non-compliance with the formality the severance would not come into being. But no such formality was requisite to Vitarelli's dismissal.
21
This is the common sense of it: In 1956 the Secretary said to Vitarelli: 'This document tells you without any ifs, ands, or buts, you have been fired right along and of course that means you are not presently employed by this Department.' Since he had not been fired successfully in 1954, the Court concludes he must still be employed. I cannot join in an unreal interpretation which attributes to governmental action the empty meaning of confetti throwing.
1
An affidavit of the custodian of records of the Civil Service Commission, filed in the District Court together with this revised notification, states 'That all records of the said Commission have been expunged of all adverse findings made with respect to Mr. William Vincent Vitarelli under Executive Order 10450.'
2
As already noted, we do not reach the question of the constitutional permissibility of an administrative adjudication based on 'confidential information' not disclosed to the employee.
3
The substance of the charges has been stated 79 S.Ct. on page 971, supra.
4
The statement of charges referred to petitioner's alleged associations with only three named persons, 'F_ _, W_ _, and W_ _.' During the course of the hearing the security officer, however, asked 'How well did you know L_ _ B_ _? * * * Did you ever meet H_ _ B_ _ C_ _? * * * Did you ever remember meeting a J_ _ L% 6d _?' Further, petitioner was questioned as to his knowledge of and relationships with a wide variety of organizations not mentioned in the statement of charges. Thus he was asked: 'Do you know what Black Mountain Transcendentalism is? * * * Do you recall an organization by the name of National Council for Soviet-American Friendship? * * * How about the Southern Conference for Human Welfare? * * * What is the organization called the Joint Antifascist Refugee Committee? * * * Have you ever had any contact with the Negro Youth Congress? * * * How about Abraham Lincoln Brigade? * * * Have you ever heard of a magazine called 'Cooperative Union'? * * * I was wondering whether you had ever heard of Consumers Union?'
5
'Mr. Armstrong (the departmental security officer, inquiring about petitioner's activities as a teacher in a Georgia college): Where these activities designed to be put into effect by both the white and the colored races? * * * What were your feelings at that time concerning race equality? * * * How about civil rights? Did that enter into a discussion in your seminar groups?'
'Mr. Armstrong: Do I interpret your statement correctly that maybe Negroes and Jews are denied some of their constitutional rights at present?
'Mr. Vitarelli: Yes.
'Mr. Armstrong: In what way?
'Mr. Vitarelli: I saw it in the South where certain jobs were open to white people and not open to Negroes because they were Negroes. * * * In our own university, there was a quota at Columbia College for the medical students. Because they were Jewish, they would permit only so many. I thought that was wrong.
'Chairman Towson: Doctor, isn't it also true that Columbia College had quotas by states and other classifications as well?
'Mr. Vitarelli: I don't remember that. It may be true.
'Mr. Armstrong: In other words, wasn't there a quota on Gentiles as well as Jews?
'Mr. Vitarelli: * * * I had remembered that some Jews seemed to feel, and I felt, too, at the time, that they were being persecuted somewhat.
'Chairman Towson: Did you ever take the trouble to investigate whether or not they were or did you just accept their word?
'Mr. Vitarelli: No, I didn't investigate it.
'Chairman Towson: You accepted their word for it.
'Mr. Vitarelli: I accepted the general opinion of the group of professors with whom I associated and was taught. * * *
'Chairman Towson: I am simply asking you to verify the vague impression I have that Columbia College puts a severe quota on residents of New York City, whatever their race, creed or color may be.
'Mr. Vitarelli: I think that is true. * * *
'Chairman Towson: Otherwise there would be no students at Columbia College except residents of New York City.
'Mr. Vitarelli: There may be a few others, but mostly New York City.
'Chairman Towson: Isn't it true that the quota system is designed by the college in order to make it available to persons other than live in New York City?
'Mr. Vitarelli: I believe that is the reason.
'Chairman Towson: And any exclusion of a resident of New York City would be for that reason, rather than the race, creed or color?
'Mr. Vitarelli: I think that is the way the policy is stated.
'Chairman Towson: Is it not a fact?
'Mr. Vitarelli: I don't think so. * * *
'Chairman Towson: Excuse me, Mr. Armstrong.
'Mr. Armstrong: I went to Columbia Law School for two years and certainly there was not any quota system there at that time, and that is a long time ago. All right, we are getting afield.'
Petitioner was also asked the following questions by the security officer during the course of the hearing:
'Mr. Armstrong: I think you indicated in an answer or a reply to an interrogatory that you at times voted for and sponsored the principles of Franklin Delano Roosevelt, Norman A. Thomas, and Henry Wallace? * * * How many times did you vote for * * * (Thomas) if you care to say? * * * How about Henry Wallace? * * * How about Norman Thomas? Did his platform coincide more nearly with your ideas of democracy? * * * At one time, or two, you were a strong advocate of the United Nations. Are you
still? * * * The file indicates, too, that you were quite hepped up over the one world idea at one time; is that right?'
Witnesses presented by petitioner were asked by the security officer and board members such questions as:
'The Doctor indicated that he was acquainted with and talked to NormanTho mas on occasions. Did you know about that? * * * How about Dr. Vitarelli? Is he scholarly? * * * A good administrator? * * * Was he careless with his language around the students or careful? * * * Did you consider Dr. Vitarelli as a religious man? * * * Was he an extremist on equality of races? * * * In connection with the activities that Dr. Vitarelli worked on that you know about, either in the form of projects or in connection with the educational activities that you have mentioned, did they extend to the Negro population of the country? In other words, were they contacts with Negro groups, with Negro instructors, with Negro students, and so on?'
It is not apparent how any of the above matters could be material to a consideration of the question whether petitioner's retention in government service would be consistent with national security.
6
This reading of the provision is supported by § 21(e) of the Order, which provides in part that 'if the employee is or may be handicapped by the nondisclosure to him of confidential information or by lack of opportunity to cross-examine confidential informants, the hearing board shall take that fact into consideration,' thus implying that the employee is to have the right to cross-examine nonconfidential informants who provide material taken into consideration by the board.
7
The information was to the effect that petitioner had criticized as 'bourgeois' the purchase of a house by a woman associate in Georgia. Petitioner flatly denied that he had made the remark attributed to him, and said that he could never have made such a statement except in a spirit of levity.
8
The Secretary successfully took the position in the courts below that the only possible defect in the 1954 discharge was the articulation of the 'national security' grounds therefor, and that since that defect did not void the dismissal as such, an 'expunging' of these grounds gave petitioner the maximum relief to which he could possibly be entitled.
9
Respondent's brief in this Court refers to the 1956 notice as part of 'corrective administrative action which has been taken,' and as 'relief voluntarily accorded (petitioner).' The premise upon which the dissenting opinion essentially rests—that the 1956 action was an attempt 'to discharge Vitarelli retroactively'—thus is contrary to the Secretary's own position as to the reason for that action.
| 23
|
359 U.S. 550
79 S.Ct. 947
3 L.Ed.2d 1023
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLEv.WILLIAMS, Revenue Commissioner.
No. 783.
Decided June 1, 1959.
Messrs. Robert L. Carter, Frank D. Reeves and A. T. Walden, for petitioners.
Messrs. Eugene Cook, Atty. Gen. of Georgia, Robert H. Hall, Asst. Atty. Gen., and E. Freeman Leverett, Deputy Asst. Atty. Gen., for respondent.
PER CURIAM.
1
The motion to substitute Dixon Oxford in the place of T. V. Williams as the party respondent is granted. The State represents to us that no fine against petitioner has been finally determined and assessed. Accordingly, the petition for a writ of certiorari is denied, leaving petitioner free to take further proceedings here when the judgment below becomes final or the jurisdiction of this Court may otherwise be appropriately invoked.
2
Motion granted and petition denied.
3
Mr. Justice DOUGLAS filed a separate opinion.
4
Mr. Justice DOUGLAS.
5
With some doubts I bow to the conclusion that this judgment is not final within the meaning of the jurisdictional statute, 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. It ordered the petitioner to 'produce all its books, records and other data bearing on said corporation's income, disbursements and expense prepared or used by said corporation in the conduct of its business during said taxable years wherever said business was transacted, whether within or without this state (except such as may be otherwise theretofore produced hereunder) * * * within thirty-five days * * * (and) that said corporation forthwith pay into the registry of the Clerk of this Court a fine of twenty-five thousand dollars, to be hereafter assessed and apportioned remedially and punitively, as shall appear just and appropriate to the Court, the Court reserving jurisdiction, after the production of the books, records and data hereby ordered, to reduce the amount of said fine if such should be just under the circumstances then existing.'
6
By the terms of this judgment, the Georgia court reverses the power to reduce the amount of the fine. One question tendered by the petitioner would turn on the amount of the fine. It is the issue of 'cruel and unusual punishments' which is outlawed by the Eighth Amendment that it is turn made applicable to the States by the Fourteenth, State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422. That is a subsidiary question and one that the State contends is not properly here because, it is said, no such assignment of error was included in the bill of exceptions.
7
The central issue in the case has nothing to do with the amount of the fine. It seems that the order to produce the records and the citation for contempt followed each other in a matter of a few hours. The basic question is whether holding petitioner in contempt and imposing any fine comported with that due process required of every government under our Bill of Rights. Were that question here alone, I would think the judgment was final. But since the issue of 'cruel and unusual punishment' is also tendered and since a reduction of the fine may eliminate it from the case, I acquiesce in the denial of certiorari at this stage of the proceedings.
| 89
|
360 U.S. 1
79 S.Ct. 991
3 L.Ed.2d 1041
Johnny Ray SMITH, Petitioner,v.UNITED STATES of America.
No. 90.
Argued Jan. 21, 1959.
Decided June 8, 1959.
Mr. William B. Moore, Jr., Montgomery, Ala., for petitioner.
Mr. Leon Silverman, New York City, for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The petitioner seeks relief under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, fromhis conviction and sentence for violation of the Federal Kidnapping Act, 18 U.S.C. § 1201, 18 U.S.C.A. § 1201. Briefly, the kidnapping charge grew out of the following facts: Petitioner, a young man of twenty-six, and two seventeen-year-old boys, while in custody under state charges, escaped from a Florida jail on November 12, 1949. They were almost immediately pursued by men and bloodhounds through swampy everglade terrain. On November 14, 1949, they allegedly pre-empted an automobile and seized its owner forcing him to accompany them into the State of Alabama where they released the victim without harming him and subsequently abandoned the car. On November 18, 1949, the defendants were arrested by federal authorities in a hiding place under the floor of a building. Petitioner claimed that he was weak from lack of food and sleep and that his back had been injured in the course of the escape. The defendants were taken promptly before the United States Commissioner where they were charged with transporting a kidnapping victim across state boundaries.
2
On the following day, petitioner was interviewed at length by a government agent concerning both the kidnapping offense and his prior record. There was a conflict in the evidence concerning what transpired at this interview. The petitioner testified that he was promised leniency if he would plead guilty and that he was assured that the juveniles would be given no more than four years, imprisonment if they pleaded guilty. The Government offered evidence to the effect that no promises were made. In any event, on Monday morning, November 21, 1949, petitioner and his codefendants were brought by the government agent to the office of the United States Attorney where a discussion ensued concerning waivers of indictments, counsel, and venue, and pleas of guilty to an information which the United States Attorney proposed to file.
3
While that conference was proceeding, the government agent who had previously interviewed petitioner had a private out-of-court audience and conference with the district judge in his chambers at which, in the absence of the defendants, he discussed the contemplated proceedings with the judge and informed him about the alleged kidnapping offense and other alleged crimes of petitioner. Soon thereafter, and, in the words of the Court of Appeals, '(a)fter the judge's mind had become thoroughly conditioned by this interview with, and the disclosures made to him by, (the government agent) regarding the defendants,' there followed in open court 'a stilted and formal colloquy consisting of brief and didactic statements by the judge' that the defendants could have a lawyer if they wished and could have their cases submitted to a grand jury. 5 Cir., 238 F.2d 925, 927, note 5. The defendants, including petitioner, stated that they did not wish to have an attorney and were willing to waive indictment and be prosecuted under an information to be filed by the prosecutor. The information was immediately filed and the defendants waived counsel and venue.1 They then immediately pleaded guilty to the information and stated that they wanted to be sentenced promptly before their parents knew of their predicaments. The judge then sentenced petitioner to thirty years in the penitentiary and the two seventeen-year-old accomplices to fifteen years each. No appeals were taken.2
4
Because of these precipitous and telescoped proceedings, the case has had a long and troublesome history in the Court of Appeals for the Fifth Circuit. It has been three times before that court. Soon after the sentence was imposed, petitioner filed his initial application under § 2255 to vacate the judgment. The application was denied without a hearing and no appeal was taken. In March 1954 petitioner filed a second, similar application which was likewise denied without a hearing, but on appeal the Court of Appeals determined that petitioner's allegations required a hearing. Smith v. United States, 5 Cir., 223 F.2d 750. After the hearing was held, the District Court again dismissed the application. D.C., 137 F.Supp. 222. Again the Court of Appeals reversed, this time finding that petitioner had been deprived of due process by the summary manner in which the Government had proceeded against him.3 Smith v. United States, 5 Cir., 238 F.2d 925, 930. First the court remanded the cause 'with directions to grant the motion, to set aside the conviction and sentence, and to proceed further and not inconsistently' with the opinion. 238 F.2d at page 931. On rehearing, however, the court modified its directions as follows:
5
'The judgment is reversed and the cause is remanded with directions to set aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty and to stand trial.' 5 Cir., 240 F.2d 347.
6
On the remanded proceedings, the District Court resentenced petitioner, but refused him permission to withdraw his waivers and guilty plea. The Court of Appeals affirmed this decision, Smith v. United States, 5 Cir., 250 F.2d 842, over the dissent of Judge Rives who believed that the court's action in setting aside the conviction on justified due process grounds necessarily required the vacation of the plea of guilty. 250 F.2d 842, 843—844. He also dissented on the ground that kidnapping under 18 U.S.C. § 1201, 18 U.S.C.A. § 1201, is a capital offense, which, pursuant to the Federal Rules of Criminal Procedure, Rule 7(a), requires prosecution by indictment regardless of a defendant's waiver, and that prosecution by information in the instant proceeding had not conferred on the convicting curt jurisdiction to try petitioner's case. We granted certiorari because of the serious due process and statutory questions raised. 357 U.S. 904, 78 S.Ct. 1153, 2 L.Ed.2d 1155. But in view of our belief that the indictment point is dispositive of the case in petitioner's favor, we find it unnecessary to reach the due process questions presented.
7
The precise question at issue, therefore, is whether petitioner's alleged violation of the Kidnapping Act had to be prosecuted by indictment. A number of statutory and constitutional provisions and the information charging petitioner are relevant to this inquiry. The Fifth Amendment provides in part that '(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,' except in cases not pertinent here. But the command of the Amendment may be waived under certain circumstances,4 and the Federal Rules of Criminal Procedure, Rule 7(a), provide as follows:
8
'An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information. An information may be filed without leave of court.' (Emphasis added.)
9
These enactments become particularly pertinent in view of the language of 18 U.S.C. § 1201, 18 U.S.C.A. § 1201, the statute under which petitioner was convicted, which provides in part that:
10
'(a) Whoever knowingly transports in interstate * * * commerce, any person who has been unlawfully * * * kidnapped * * * shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'
11
The charging part of the information against petitioner stated that he 'did knowingly transport in interstate commerce * * * a person, to wit, Alan W. Spearman, Jr., who had been unlawfully seized, kidnapped, abducted, and carried away and held for the safe conduct of the three defendants * * *.' The charge did not state whether Spearman was released harmed or unharmed.
12
It has been held by two Courts of Appeals that indictments similar in terms to the charge here were sufficient to support capital punishments despite the absence of allegations that the kidnapping victims were released harmed. United States v. Parrino, 2 Cir., 180 F.2d 613; Robinson v. United States, 6 Cir., 144 F.2d 392. Cf. United States v. Parker, 3 Cir., 103 F.2d 857. Petitioner contends that these holdings dispose of his case because they make clear that the statute creates a single offense of kidnapping which may be punished by death if the prosecution, at trial, shows that the victim was released in a harmed condition. The Government claims, however, that whether a specific kidnapping constitutes a capital offense requires examination of the evidence to determine whether the victim was released harmed or unharmed; in other words, that the statute creates two offenses: kidnapping without harm, which is punishable by a term of years, and kidnapping with harm, which is punishable by death. Further, the Government contends that the mere filing of an information by the United States Attorney eliminated the capital element of the crime.
13
The Courts of Appeals which have been concerned with the statute have uniformly construed it to create the single offense of transporting a kidnapping victim across state lines. We agree with this construction. Under the statute, that offense is punishable by death if certain proof is introduced at trial. When an accused is charged, as here, with transporting a kidnapping victim across state lines, he is charged and will be tried for anoff ense which may be punished by death. Although the imposition of that penalty will depend on whether sufficient proof of harm is introduced during the trial, that circumstance does not alter the fact that the offense itself is one which may be punished by death and thus must be prosecuted by indictment. In other words, when the offense as charged is sufficiently broad to justify a capital verdict, the trial must proceed on that basis, even though the evidence later establishes that such a verdict cannot be sustained because the victim was released unharmed. It is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the accused is being prosecuted for a capital offense. For the trial judge must make informed decisions prior to trial which will depend on whether the offense may be so punished. He must decide, among other things, whether the accused has the right to obtain a list of veniremen and government witnesses, 18 U.S.C. § 3432, 18 U.S.C.A. § 3432, whether venue is properly set, 18 U.S.C. § 3235, 18 U.S.C.A. § 3235, whether the accused has the benefit of twenty rather than ten peremptory challenges, Federal Rules of Criminal Procedure, Rule 24(b), whether indictment rather than information is necessary, Federal Rules of Criminal Procedure, Rule 7, and who may bail the accused. 18 U.S.C. § 3141, 18 U.S.C.A. § 3141.
14
This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. E.g., Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92. This has been a salutary development in the criminal law. But the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules. The use of indictments in all cases warranting serious punishment was the rule at common law. Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909. The Fifth Amendment made the rule mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 16, 76 S.Ct. 1, 4, 100 L.Ed. 8. Rule 7(a) recognizes that this safeguard may be waived, but only in those proceedings which are noncapital. To construe the provisions of the Rule loosely to permit the use of informations where, as here, the charge states a capital offense, would do violence to that Rule and would make vulnerable to summary treatment those accused of one of our most serious crimes. We cannot do this in view of the traditional canon of construction which calls for the strict interpretation of criminal statutes and rules in favor of defendants where substantial rights are involved.
15
It is urged that this result will fail to protect substantial rights of defendants in other cases. We see no merit in that contention, particularly where the opposite conclusion would deprive defendants of the protection of a grand jury indictment as required by the Constitution and Rule 7(a). Under our holding, there is no reason to believe that a defendant in a case such as this would be surprised on his trial by any possible trickery of the prosecution. If there is no allegation of harm in the indictment, the discovery proceedings afforded in capital cases and the provisions of Rule 7(f) authorizing bills of particulars will enable the defendant to acquaint himself with the scope of the trial and the criminal transaction to be proved. It is further suggested that it mightbe in the interests of the defendant to have the benefit of the speed that can be mustered by the filing of an information instead of an indictment. While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed. It is well to note that in this very case the inordinate speed that was generated through the filing of the information caused many of the difficulties which led the court below to conclude that petitioner had been deprived of due process of law. Moreover, if, contrary to sound judicial administration in our federal system, arrest and incarceration are followed by inordinate delay prior to indictment, a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment.
16
Under our view of Rule 7(a), the United States Attorney did not have authority to file an information in this case and the waivers made by petitioner were not binding and did not confer power on the convicting court to hear the case. Cf. Ex parte Wilson, supra. The judgment and conviction are reversed and the case is remanded to the District Court with instructions to dismiss the information.
17
It is so ordered.
18
Judgment reversed and case remanded with instructions.
19
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part and dissenting in part.
20
Johnny Ray Smith, presently an inmate of Alcatraz, began his career of crime as a juvenile. Soon thereafter he escaped from the Federal Correctional Institution at Tallahassee, Florida. At age 26 he had twice been convicted of violations of the Dyer Act, 18 U.S.C. § 2312, 18 U.S.C.A. § 2312, was serving 25 years in a Florida prison for armed robbery, and had seriously wounded an officer while fleeing from the scene of the latter crime. He, with two juvenile inmates, escaped the Florida prison, burglarized a house, stole a shotgun, and allegedly kidnaped Alan W. Spearman, Jr., at shotgun point, while the latter was sitting in his company's automobile. They forced Spearman to accompany them in the car across the Florida line into Alabama. There, after the release of Spearman, they abandoned the car and were later arrested in their hiding place under a building. Each admitted guilt and asked for a speedy trial. Smith advised the United States Commissioner, the Federal Bureau of Investigation, the prosecutor and the district judge that he did not want a lawyer; he waived indictment and venue, pleaded guilty to an information charging kidnaping and threw himself on the mercy of the court in these words:
21
'Well, your Honor, I would like for you to take under consideration that there was no viciousness in connection with this abduction of this boy. We were nice to him and did not harm him any way and we wanted transportation and did not harm him any at all.'
22
Smith received a 30-year sentence; the juveniles 15 years each. He was sent to Alcatraz and from there has prosecuted a series of motions under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, appearing twice to testify in the District Court of Florida. The Court of Appeals has considered his case three times and he is now here attacking his sentence on two points: (1) Can a kidnaping charge, where the kidnaped person is released unharmed, be prosecuted by information; and, (2) Is due process violated when the trial judge, before a guilty plea is entered and outside the presence of the accused or his counsel, confers with an FBI agent concerning the facts of the charge and the prior record of the accused? The Court, without reaching the second question, says that kidnaping can be prosecuted only by indictment and that a charge in the general words of the statute is sufficient.
23
In attempting to do what it believes to be a great right the Court in reality does a great wrong to the administration of justice. The most serious result is that the Court's procedure allows the United States Attorney to secure an indictment for a dapital offense without the grand jury's knowing tat he is doing so. This deprives kidnaping defendants of the very protection of the Fifth Amendment that the Court professes to be enforcing. The Court also clouds the meaning of Rule 7(b) as to waiver of indictment by carving noncapital kidnaping offenses out of its specific permissive terms.
24
Both the Fifth Amendment and Rule 7(a) require capital offenses to be prosecuted by indictment. Kidnaping is not such an offense unless 'the kidnaped person has not been liberated unharmed.' 18 U.S.C. § 1201(a), 18 U.S.C.A. § 1201(a). It is reasonable to say that before one can be prosecuted for the capital offense he must be charged with it, namely, kidnaping where 'the kidnaped person has not been liberated unharmed.' To do otherwise does not place him on notice of the offense for which he is to be tried. The Court, however, holds that § 1201(a) creates a 'single offense * * * (which) is punishable by death if certain proof is introduced at trial.' It reasons that this makes every kidnaping a capital case requring grand jury action. But it does not require that the grand jury consider whether 'the kidnaped person has not been liberated unharmed' and so allege in the indictment. Thus the grand jury is deprived of any knowledge of the element of the offense that makes it capital. Hence a grand jury in complete ignorance of the facts as to harm suffered by the victim at the time of release is required to return an indictment which will support the death penalty if proof of such harm is shown at the trial. This puts the law as to capital cases into the hands of the prosecutor, not the grand jury, where both the Fifth Amendment and Rule 7(a) have lodged it. Nor does it strengthen the grand jury, to use the words of the Court, as a 'substantial safeguard against oppressive and arbitrary proceedings.' On the contrary, the Court's reference to discovery proceedings after indictment as a means for acquainting a defendant 'with the scope of the trial and the criminal transaction to be proved' clearly shows the fallacy of its position. The grand jury should have this information before it returns a capital charge, otherwise, none should exist under the indictment. By this reasoning, the Court deprives the defendant of the safeguard of proper grand jury proceedings as required by the Constitution in capital cases.
25
Moreover, as the Court says, '(i)t is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the accused is being prosecuted for a capital offense.' Despite this language, the opinion requires just that since it does not compel the indictment to charge 'a capital offense.' I would require capital kidnaping cases to be prosecuted by indictment charging specifically that the kidnaped person was not liberated unharmed.
26
Turning to the procedural point under Rule 7(a) and (b) we should remember it was this Court that adopted these Rules of Criminal Procedure, certified them to the Congress, which added its sanction, and then promulgated them. They are simple and clear. Rule 7(a) provides that an offense 'which may' be punished by death must begin by indictment, while a noncapital offense may be prosecuted by information, if indictment is waived. Rule 7(b) repeats that an offense 'which may' receive a sentence for a term of years 'may be' begun by information 'if the defendant, after he has been advised of the nature of the charge and of his rights, waivers in open court prosecution by indictment.' In filing the information under the Kidnaping Act, the Government forecloses itself from seeking the death penalty. The Fifth Amendment, as well as Rule 7(a), would prevent it from reneging on this bargain. The only possible sentence would, therefore, be one for a term of years. Moreover, Smith knew this full well, as is shown by his own testimony. Not only had the United States Attorney so advised but the United States Commissioner and the district judge had clearly told Smith of the law in the matter. His request at sentencing points up his understanding thereof. The record also indicates that the requirements of Rule 7(b) were scrupulously followed.
27
The Court, however, superimposes a new rule in kidnaping cases by requiring that they be begun only by indictment. This deprives such defendants not only of the beneficent provisions of Rule 7(b) but subjects them to greater jeopardy in that the United States Attorney may insist on the death penalty at trial. This leaves open for play all of the evils that flesh is heir to, including the ambitions or disfavor of the prosecutor, the animosity of the victim or his malingerings from the kidnaping as well as other post-indictment speculations. In rural districts where the grand jury only meets twice a year it would also place considerable hardship on a defendant waiting for a grand jury to be empaneled.1 He receives no credit for the time so served and puts the Federal Government to the expense of incarceration in the local jail on a per diem basis. Nor would the calling of a special grand jury solve the problem. It would not only be very expensive to the Government but burdensome to those called to serve, likewise taking the time of the court from other pressing matters, either in its own district or in others that suffer from congested dockets. On the other hand, following Rule 7(b) would fully protect society. The defendant would be on notice of the charge against him and would receive the full enjoyment of all of his rights.2 And, finally, the prosecutor would not be able, at his whim, to superinduce the death penalty on an otherwise noncapital case. In short, justice would be done.
28
It is true that three Courts of Appeals have passed on this statute. However, none of those cases is dispositive of the issue here. In Robinson v. United States, 6 Cir., 144 F.2d 392, 396, the indictment alleged that the accused did 'beat, injure, bruise and harm (Mrs. Stoll) * * * and did not liberate her unharmed.' It is, therefore, entirely inapposite since the indictment specifically alleged a capital offense. United States v. Parker, 3 Cir., 103 F.2d 857, in construing the then § 40 of the Judicial Code requiring trial of capital cases to be 'had in the county where the offense was committed, where that can be done without great inconvenience,' only decided that the application for change of venue was addressed to the sound discretion of the court, which 'was not abused.' It specifically held that '(w)hether such averments (that the victim had been released in a harmed condition) were necessary (in the indictment) to support a demand for the imposition of the death penalty we need not decide * * *.' Id., at page 861. The court concluded that 'since the evidence taken at the trial established that he was liberated * * * in a sound and unharmed condition,' ibid., the case, in any event, was not one in which the death penalty could be imposed. The last case mentioned by the majority is United States v. Parrino, 2 Cir., 180 F.2d 613. That case involved the statute of limitations and the issue involved here was not, as the court said, 'relevant to * * * whether the second indictment was found in time.' Id., at page 615. The Government contended that if the case was 'c apital' the indictment might be returned at any time. The court held that there was no information in the record as to the condition of the victim at the time of his release. Although it agreed with the Government 'that it was not necessary to allege that the victim was not released 'unharmed' in order that the jury might recommend the death-penalty,' it held that 'the accused has to be adequately advised of it (released harmed), since the jury must pass upon it, (and that) it will be enough if he gets the information in season from any source.' Ibid. Certainly the case is not dispositive of the issue here. In fact it supports the proposition that 'the accused must be adequately advised * * * in season' if the Government claims the victim was released 'harmed.' I say that 'adequately advised in season' would be certain only if such an allegation was made in the indictment. Whether from a technical standpoint that makes two offenses of the crime of 'kidnaping' is, therefore, not material. In my view, it does create two such offenses, (1) where the kidnaped person has not been released unharmed, and (2) where he has been liberated unharmed. In either event we should follow the mandate of the Fifth Amendment and Rule 7 and under our power of supervision over federal courts require in the future such procedural safeguards as are outlined herein.
29
This brings me to the second contention. I shall discuss the facts briefly. The 'inordinate speed' which the Court says was present here was not generated by the Government but by the petitioner himself. The record clearly shows his anxiety to have the case concluded and fails to indicate any objection on his part to the immediate imposition of sentence. The disposition of cases on information and plea in four to five days, as occurred here, is normal in the federal system. I therefore put no credence in this claim. However, the record does indicate that at the instance of an Assistant United States Attorney a Special Agent of the Federal Bureau of Investigation called upon the trial judge in his chambers and talked at some length about Smith's background as well as his connection with the kidnaping. This was before Smith had signed any waivers or entered any plea. Neither Smith nor any one representing him was present at the interview. The record shows this contact not to have been covertly made, for at the time of sentence the trial judge in open court told Smith that it had occurred. I do not reach the due process contention, for it appears to me that our duty of supervision over the administration of justice in the federal courts, McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, requires reversal because of this interview. In a criminal case, such a private conference must be deemed presumptively prejudicial where, in violation of Fed.Rules Crim.Proc., 32(c)(1),3 it was conducted prior to the plea.
30
For these reasons I would reverse the judgment with instructions that Smith be allowed to withdraw his guilty plea and stand trial on the information.
1
18 U.S.C. § 3235, 18 U.S.C.A. § 3235, provides:
'The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience.'
The Federal Rules of Criminal Procedure, Rule 18, 18 U.S.C.A., provide:
'Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed, but if the district consists of two or more divisions the trial shall be had in a division in which the offense was committed.'
The offense of which petitioner was accused was committed in Dothan, Alaama , which was within the Southern Division of the District Court. The proceedings against petitioner were held in Montgomery, Alabama, which is located in another county in Alabama in the Northern Division of that court.
2
This left petitioner with a substantial sentence still pending in Florida under the charge for which he was in custody when he escaped. In addition, petitioner was apparently still in jeopardy of state prosecution for escaping.
3
The Court of Appeals stated, at 238 F.2d 930:
'When it comes to the controlling question, however, which the motion presents, whether under the undisputed facts the defendant was denied due process in the taking of waivers and plea, and the imposition of sentence the matter stands quite differently, and because it is clear that it was not accorded to him, the judgment appealed from must be reversed.
'This is so, because, considering the inordinate speed, the incontinent haste, with which the defendants were brought up for hearing and the trial moved on apace, the fact that the government prosecuting agent and the district judge, before the defendant had made any waivers or pleaded in the cause, conferred privately in chambers with regard to defendants' guilt and the punishment to be imposed therefor, in connection with both what was said and done and what was left unsaid and undone by the judge in taking the waivers and the plea and sentencing the defendant, we are left in no doubt that the movant was not accorded, but was denied, due process, and that the judgment against, and sentence imposed upon him may not stand.'
4
Barkman v. Sanford, 5 Cir., 162 F.2d 592; United States v. Gill, D.C., 55 F.2d 399.
1
The Court says that 'a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment' where 'arrest and incarceration are followed by inordinate delay prior to indictment. * * *' Such has never been the case heretofore where capital cases are held awaiting the statutory meeting of the next grand jury. This strange doctrine can only cause additional confusion in the effective enforcement of the kidnaping statute.
2
The Court in holding that proceeding by information 'would deprive defendants of the protection of a grand jury indictment as required by the Constitution and Rule 7(a)' overlooks the fact that neither the Constitution nor that Rule requires kidnaping to be charged by indictment where the victim is released unharmed.
3
Rule 32(c)(1), Fed.Rules Crim.Proc., provides:
'(c) Presentence Investigation
'(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.'
| 01
|
360 U.S. 240
79 S.Ct. 1001
3 L.Ed.2d 1205
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Petitioner,v.ALABAMA ex rel. John PATTERSON. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Petitioner, v. Honorable J. Ed LIVINGSTON, Chief Justice of the Supreme Court of Alabama, etal.
Nos. 753, 674, Misc.
Decided June 8, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 43.
Messrs.Rob ert L. Carter, Thurgood Marshall, Arthur D. Shores, William T. Coleman, Jr., George E. C. Hayes, William R. Ming, Jr., James M. Nabrit, Jr., Louis H. Pollak, Frank D. Reeves and William Taylor, for petitioner.
Messrs. MacDonald Gallion, Atty. Gen. of Alabama, and James W. Webb, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
The petitioner for a writ of certiorari is granted.
2
In our original opinion in this case, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, we held the Alabama judgment of civil contempt against this petitioner, together with the $100,000 fine which it carried, constitutionally impermissible in the circumstances disclosed by the record. We declined, however, to review the trial court's restraining order prohibiting petitioner from engaging in further activities in the State, that order then not being properly before us. 357 U.S. at pages 466—467, 78 S.Ct. at pages 1173—1174. Our mandate, issued on August 1, 1958, accordingly remanded the case to the Supreme Court of Alabama 'for proceedings not inconsistent with' our opinion.
3
In due course the petitioner moved in the Supreme Court of Alabama that our mandate be forwarded to the Circuit Court of Montgomery County for the further proceedings which were left open by our decision. After the motion had been twice renewed1 the Supreme Court of Alabama on February 12, 1959, 'again affirmed' the contempt adjudication and $100,000 fine which this Court had set aside.2 Finding that the Circuit Court had determined that petitioner had failed to 'produce the documents described' in its production order, the State Supreme Court concluded that this Court was 'mistaken' in considering that, except for the refusal to provide its membership lists, petitioner had complied, or tendered satisfactory compliance, with such order. This conclusion was considered as 'necessitating another affirmance of the (contempt) judgment,' involving, so the State Court thought, matters not covered by the opinion and mandate of this Court.
4
We have reviewed the petition, the response of the State and all of the briefs and the record filed here in the former proceedings. Petitioner there claimed that it had satisfactorily complied with the production order, except as to its membership lists, and this the State did not deny. In fact, aside from the procedural point, both the State and petitioner in the certiorari papers posed one identical question, namely, had the petitioner 'the constitutional right to refuse to produce records of its membership in Alabama, relevant to issues in a judicial proceeding to which it is a party, on the mere speculation that these members may be exposed to economic and social sanctions by private citizens of Alabama because of their membership?' (State's Brief in Opposition to Petition for Certiorari, p. .)3 The State made not even an indication that other portions of the production order had not been complied with and, therefore, required its affirmance. On the contrary, the State on this phase of the case relied entirely on petitioner's refusal to furnish the 'records of its membership.' That was also the basis on which the issue was briefed and argued before us by both sides after certiorari had been granted. That was the view of the record which underlay this Court's conclusion that petitioner had 'apparently complied satisfactorily with the production order, except for the membership lists,' 357 U.S., at page 465, 78 S.Ct. at page 1173.4 And that was the premise on which the Court disposed of the case. The State plainly accepted this view of the issue presented by the record and by its argument on it, for it did not seek a rehearing or suggest a clarification or correction of our opinion in that regard.
5
It now for the first time here says that it 'has never agreed, and does not now agree, that the petitioner has complied with the trial court's order to produce with the exception of membership. The respondent, in fact, specifically denies that the petitioner has produced or offered to produce in all aspects except for lists of membership.' This denial comes too late. The State is bound by its previously taken position, namely, that decision of the sole question regarding the membership lists is dispositive of the whole case.
6
We take it from the record now before us that the Supreme Court of Alabama evidently was not acquainted with the detailed basis of the proceedings here and the consequent ground for our defined disposition. Petitioner was, as the Supreme Court of Alabama held, obliged to produce the items included in the Circuit Court's order. It having claimed here its satisfactory compliance with the order, except as to its membership lists, and the State having not denied this claim, it was taken as true.5
7
In these circumstances the Alabama Supreme Court is foreclosed from re-examining the grounds of our disposition. 'Whatever was before the Court, and is disposed of, is considered as finally settled.' Sibbald v. United States, 12 Pet. 488, 492, 9 L.Ed. 1167. See also Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97; Tyler v. Magwire, 17 Wall. 253, 21 L.Ed. 576.
8
This requires that the judgment of the Supreme Court of Alabama be reversed. Upon further proceedings in the Circuit Court, if it appears that further production is necessary, that court may, of course, require the petitioner to produce such further items, not inconsistent with this and our earlier opinion, that may be appropriate, reasonable and constitutional under the circumstances then appearing.
9
We assume that the State Supreme Court, thus advised, will not fail to proceed promptly with the disposition of the matters left open under our mandate for further proceedings, 357 U.S. at pages 466—467, 78 S.Ct. at pages 1173—1174, and, therefore, deny petitioner's application in No. 674, Misc., for a writ of mandamus.
10
It is so ordered.
11
Certiorari granted; judgment of Supreme Court of Alabama reversed, and application for writ of mandamus denied.
12
Mr. Justice STEWART took no part in the consideration or decision of this case.
1
Petitioner's motion was first made on November 5, 1958, and was renewed, on November 19, 1958, and on December 1, 1958, by mailing to the Attorney General and filing with the Alabama Supreme Court copies of the original.
2
In its previous order, on which the former proceeding here was based, the Alabama Supreme Court held that certiorari did not lie to review the merits of the contempt adjudication, and dismissed the original petition for certiorari on that ground, 265 Ala. 349, 91 So.2d 214. Its opinion on which the present proceedings are based includes this statement: 'Lest there be no misapprehension on the part of the bench and bar of Alabama, we here reaffirm the well recognized and uniform pronouncements of this Court with respect to the functions and limitations of common-law certiorari, and the distinctions between that and other methods of review. 265 Ala. 349, 91 So.2d 214, supra. As we stated in American Federation of State, County and Municipal Employees v. Dawkins, 268 Ala. 13, 104 So.2d 827, 834: 'We cannot hurdle or make shipwreck of well known rules of procedure in order to accommodate a single case." 268 Ala. 531, 532, 109 So.2d 138—139.
3
Question I in the petition for certiorari was as follows: 'Whether the refusal of petitioner to produce names and addresses of its Alabama members was protected by the Fourteenth Amendment's interdiction against state inferference with First Amendment rights?'
4
See Note 5, infra.
5
Indeed had the State denied this claim it would have raised additional serious constitutional issues. As we noted in our original opinion the contempt adjudication not only carried a fine of serious proportions, but under Alabama law it had the effect of foreclosing '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.' 357 U.S. at page 454, 78 S.Ct. at page 1167. Yet upon the facts disclosed by the record, the validity of a contempt decree carrying these consequences would, apart from the refusal to produce the membership lists, have depended upon nothing more substantial than the reasonableness of the degree of petitioner's tendered compliance. For example, Item '5' of the production order called for: 'All files, letters, copies of letters, telegrams and other correspondence, dated or occurring within the last twelve months next preceding the date of filing the petition for injunction, pertaining to or between the National Association for the Advancement of Colored People, Inc., and persons, corporations, associations, groups, chapters and partnerships within the State of Alabama.' Petitioner's tender was this: 'the files in the offices of respondent (petitioner) are filed under subject matter headings. Therefore, to comply with this paragraph would require respondent to search all of its files in order to secure all information requested. Respondent receives correspondence in its offices at the rate of 50,000 letters alone per year and files are maintained for a period of ten years. Respondent produces, however, all memoranda to branches during the twelve months period next precedig J une 1, 1956, which would include its branches in the State of Alabama.'
| 89
|
360 U.S. 203
79 S.Ct. 1015.
3 L.Ed.2d 1175
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.CABOT CARBON COMPANY and Cabot Shops, Inc.
No. 329.
Argued March 24, 1959.
Decided June 8, 1959.
[Syllabus from 203-204 intentionally omitted]
Mr. Thomas J. McDermott, Washington, D.C., for petitioner.
Mr. Haywood H. Hillyer, for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The question for decision in this case is whether 'Employee Committees' established and supported by respondents at each of their several plants for the stated purposes of meeting regularly with management to consider and discuss problems of mutual interest, including grievances, and of handling 'grievances at nonunion plants and departments,' are, in the light of their declared purposes and actual practices, 'labor organizations' within the meaning of § 2(5) of the National Labor Relations Act.1
2
Respondents are affiliated corporations under the same general management and maintain their principal office at Pampa, Texas. They are, and for many years have been, engaged in operating a number of plants, principally in Texas and Louisiana, primarily for the purposes of manufacturing and selling carbon black and oil field equipment. Pursuant to a suggestion of the War Production Board in 1943, respondents decided to establish an Employee Committee at each of their plants. To that end, respondents prepared, in collaboration with employee representatives from their several plants, a set of bylaws, stating the purposes, duties and functions of the proposed Employee Committees, for transmittal to and adoption by the employees in establishing such Committees. The bylaws were adopted by a majority of employees at each plant and by respondents, and, thus, the Employee Committees were established. Those bylaws, and certain related company rules, were later published by respondents in a company manual called 'The Guide,' and are still in effect.
3
In essence, the bylaws state: that the purpose of the Committees is to provide a procedure for considering employees' ideas and problems of mutual interest to employees and management;2 that each plant Committee shall consist of a stated number of employees (ranging from 2 to 3) whose terms shall be one year, and that retiring members, with the help of plant clerks, will conduct the nomination and election of their successors; that each plant Committee shall meet with the plant management at regular monthly meetings and at all special meetings called by management, shall assist the plant management in solving problems of mutual interest, and that time so spent will be considered time worked; and that 'It shall be the Committee's responsibility to: * * * Handle grievances at nonunion plants and departments according to procedure set up for these plants and departments.'3
4
In November 1954, International Chemical Workers Union, AFL CIO, filed with the National Labor Relations Board, and later several times amended, an unfair labor practice charge against respondents, alleging, in part, that respondents were unlawfully dominating, interfering with and supporting labor organizations, called Employee Committees, at their several plants. Thereafter the Board, in April 1956, issued a complaint against respondents under § 10(b) of the Act (29 U.S.C. § 160(b), 29 U.S.C.A. § 160(b)) alleging inter alia, that the Employee Committees were labor organizations within the meaning of § 2(5) (see note 1), and that respondents, since May 1954, had dominated, interfered with, and supported the Committees in violation of § 8(a)(2) of the Act.4
5
After a hearing, the trial examiner issued his intermediate report containing detailed findings of fact. The relevant findings, mainly based on undisputed evidence, may be summarized as follows: The Committees' bylaws were prepared and adopted in the manner, and contain the provisions, above stated. During the period here involved (from May 1954 to the date of the hearing before the Board in June 1956), the Employee Committees, in addition to considering and discussing with respondents' plant officials problems of the nature covered by the bylaws, made and discussed proposals and requests respecting many other aspects of the employee relationship, including seniority, job classifications, job bidding, makeup time, overtime records, time cards, a merit system, wage corrections, working schedules, holidays, vacations, sick leave, and improvement of working facilities and conditions. Respondents' plant officials participated in those discussions and in some instances granted the Committees' requests.5 Although not provided for in the bylaws, a 'Central Committee,' consisting of the chairmen of the several plant Committees, met annually with respondents' Director of Industrial Relations in Pampa, Texas, where, during the 1955 and 1956 meetings, the Central Committee made proposals and requests with respect to many matters covering nearly the whole scope of the employment relationship.6 The Director of Industrial Relations discussed those proposals and requests, their feasibility and economic consequences from respondents' point of view, and sought to reach some solution. In some instances he expressed approval of requests or promised to see what could be done toward meeting them, in other instances he suggested that the matter be taken up with local management, and in still other instances he rejected the proposals and requests and explained his reasons for doing so.
6
The trial examiner also found that the Employee Committees have no membership requirements, collect no dues and have no funds; that plant clerks assist the Committees in conducting their elections and do all of their clerical work; and that respondents pay all of the necessary expenses of the Committees. None of the Committees has ever attempted to negotiate a collective bargaining contract with respondents. From time to time the Board has certified independent labor organizations as the exclusive bargaining agents for certain bargaining units of employees in approximately one-third of respondents' plants, and, as such agents for those bargaining units, the respective certified labor organizations have entered into collective bargaining contracts with respondents which, as they may have been amended, are still in effect. Since the respective dates of those collective bargaining contracts the certified labor organizations and the Employee Committees have coexisted in those plants, but the functions of those Employee Committees have generally been reduced to plant efficiency, production promotion and the handling of grievances for employees who are not included in the bargaining units.
7
Upon these findings the trial examiner concluded in his intermediate report that the Employee Committees and the Central Committee are labor organizations within the meaning of § 2(5), and that during the period here involved respondents dominated, interfered with, and supported those labor organizations in violation of § 8(a)(2) (see note 4). He therefore recommended that respondents be ordered to cease such conduct, and to withdraw all recognition from, and completely disestablish, the Committees 'as the representative of any of (their) employees for the purpose of dealing with Respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.' The Board adopted the findings, conclusions and recommendations of the trial examiner and entered its order accordingly. 117 N.L.R.B. 1633.
8
Respondents then petitioned the Court of Appeals to review and vacate the Board's findings and order, and the Board's answer sought enforcement of its order. The Court of Appeals denied enforcement of the Board's order and set it aside. 256 F.2d 281. It found that respondents dominated and supported the Committees but held that they were not 'labor organizations' within the meaning of § 2(5) (see note 1) because it thought (a) that the term 'dealing with,' as used in that section, means 'bargaining with,' and that these Committees 'aboid(ed) the usual concept of collective bargaining,' and (b) that the provisions and legislative history of the 1947 amendment of § 9(a) of the Act, 29 U.S.C.A. § 159(a) show that Congress, in effect, excluded such employee committees from the definition of 'labor organization' contained in § 2(5). 256 F.2d, at pages 285—289. Because of an asserted conflict of that decision with the decisions of other Courts of Appeals, and of the importance of the matter to the proper administration of the National Labor Relations Act, we granted certiorari. 358 U.S. 863, 79 S.Ct. 98, 3 L.Ed.2d 97.
9
We turn first to the Court of Appeals' holding that an employee committee which does not 'bargain with' employers in 'the usual concept of collective bargaining' does not engage in 'dealing with' employers, and is therefore not a 'labor organization' within the meaning of § 2(5). Our study of the matter has convinced us that there is nothing in the plain words of § 2(5), in its legislative history, or in the decisions construing it, that supports that conclusion.
10
Section 2(5) includes in its definition of'la bor organization' any 'employee representation committee or plan * * * which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.'7 (Emphasis added.) Certainly nothing in that section indicates that the broad term 'dealing with' is to be read as synonymous with the more limited term 'bargaining with.' See e.g., National Labor Relations Board v. Jas. H. Matthews & Co., 3 Cir., 156 F.2d 706, 708, and Indiana Metal Products Corp. v. National Labor Relations Board, 7 Cir., 202 F.2d 613, 620—621. The legislative history of § 2(5) strongly confirms that Congress did not understand or intend those terms to be synonymous. When the original print of the 1935 Wagner bill (S.1958) was being considered in the Senate, the then Secretary of Labor proposed an amendment to § 2(5) which, if adopted, would have given that section the meaning now ascribed to it by the Court of Appeals. The proposal was that the term 'bargaining collectively' be substituted for the term 'dealing.'8 But the proposal was not adopted.9 It is therefore quite clear that Congress, by adopting the broad term 'dealing' and rejecting the more limited term 'bargaining collectively,' did not intend that the broad term 'dealing with' should be limited to and mean only 'bargaining with' as held by the Court of Appeals.10 Construing § 2(5) of the original Wagner Act, the Courts of Appeals uniformly held that employee committees or plans, under whatever name called, that functioned similarly to those here, were 'labor organizations' as defined in that statute.11 With full knowledge of the terms of § 2(5) of the original Wagner Act,12 and of its legislative history and judicial interpretation, Congress in the Taft-Hartley Act re-enacted the section without change.13 Since that time, as before, the several Courts of Appeals have uniformly held that employee committees or plans, functioning similarly to those here, were 'labor organizations' within the definition of § 2(5).14
11
The Court of Appeals was therefore in error in holding that company-dominated Employee Committees, which exist for the purpose, in part at least (256 F.2d 285), 'of dealing with employers concerning grievances * * * or conditions of work,' are not 'labor organizations,' within the meaning of § 2(5), simply because they do not 'bargain with' employers in 'the usual concept of collective bargaining.' (Emphasis added.)
12
Consideration of the declared purposes and actual functions of these Committees shows that they existed for the purpose, in part at least, 'of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.' It cannot be, and is not, disputed that, by the terms of the bylaws, which were accepted both by the employees and by respondents, the Employee Committees undertook the 'responsibility to,' and did, '(h)andle grievances (with respondents on behalf of employees) at nonunion plants and departments according to grievance procedure set up (by respondents) for these plants and departments' (see note 3). It is therefore as plain as words can express that these Committees existed, at least in part, for the purpose 'of dealing with employers concerning grievances * * *.' This alone brings these Committees squarely within the statutory definition of 'labor organizations.'
13
Moreover, although none of the Employee Committees attempted to negotiate any formal bargaining contract with respondents, the Employee Committees, at the regular Employee Committee-Management meetings held during the period here involved, made proposals and requests respecting such matters as seniority, job classification, job bidding, working schedules, holidays, vacations, sick leave, a merit system, wage corrections, and improvement of working facilities and conditions. Respondents' plant officials participated in the discussion of these matters and frequently granted the Committees' requests (see note 5). Also, during the 1955 and 1956 meetings of the Central Committee with respondents' Director of Industrial Relations in Pampa, Texas, the Central Committee made proposals and requests with respect to matters covering nearly the whole scope of the employment relationship and which are commonly considered and dealt with in collective bargaining (see note 6). The Director of Industrial Relations discussed those proposals and requests with the Central Committee, and sought to reach some solution. He granted some of them and rejected others, explaining his reasons for doing so. Respondents say that these activities by the Committees and respondents' officials do not mean that the Committees were 'dealing with' respondents in respect to those matters, because, they argue, the proposals and requests amounted only to recommendations and that final decision remained with respondents. But this is true of all such 'dealing,' whether with an independent or a company-dominated 'labor organization.' The principal distinction lies in the unfettered power of the former to insist upon its requests. National Labor Relations Board v. Jas. H. Matthews & Co., 3 Cir., 156 F.2d 706, 708.15 Whether those proposals and requests by the Committees, and respondents' consideration of and action upon them, do or do not constitute 'the usual concept of collective bargaining' (256 F.2d at page 285), we think that those activities establish that the Committees were dea ling with' respondents, with respect to those subjects, within the meaning of § 2(5).
14
We therefore conclude that under the declared purposes and actual practices of these Committees they are labor organizations unless, as the Court of Appeals held and as respondents contend, Congress by the 1947 amendment of § 9(a), in legal effect, eliminated such committees from the term 'labor organization' as defined in § 2(5) and used in § 8(a)(2) (see note 4). We now turn to that contention.
15
In 1947 the House passed H.R. 3020, known as the 'Hartley Bill,' which, among other things, proposed a new section, to be designated 8(d)(3), providing:
16
'(d) Notwithstanding any other provision of this section, the following shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act:
17
'(3) Forming or maintaining by an employer of a committee of employees and discussing with it matters of mutual interest, including grievances, wages, hours of employment, and other working conditions, if the Board has not certified or the employer has not recognized a representative as their representative under section 9.'16
18
The Senate amended H.R. 3020 by substituting its own bill, S. 1126, known as the 'Taft Bill.'17 The Senate bill contained no provision corresponding to the new § 8(d)(3) proposed by the House, but it did propose an amendment to § 9(a) of the original Wagner Act (49 Stat. 453) by adding to the proviso of that section which read:
19
'Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer'
20
the words
21
'and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.'18
22
Thereupon the Senate requested a conference.19 The conferees later reported a new measure, taken partly from the House bill and partly from the Senate bill and containing some entirely new provisions.20 That bill as finally agreed upon by the conferees did not contain the House's proposed new § 8(d)(3) or any similar language, but it did contain the Senate's proposed amendment to § 9(a).
23
In reporting to the House, the House conferees stated with respect to the elimination of its proposed new § 8(d)(3) that:
24
'Section 8(d)(3) * * * in the House bill provided that nothing in the act was to be construed as prohibiting an employer from forming or maintaining a committee of employees and discussing with it matters of mutual interest, if the employees did not have a bargaining representative. This provision is omitted from the conference agreement since the act by its terms permits individual employees and groups of employees to meet with the employer and section 9(a) of the conferenceagr eement permits employers to answer their grievances.'21
25
The bill so agreed upon by the conferees was passed by both Houses and eventually became the law.22
26
Notwithstanding the fact that Congress rejected the House proposal of a new section, to be designated § 8(d)(3), which, if adopted, would have permitted an employer to form or maintain a committee of employees and to discuss with it matters of mutual interest, including grievances, wages, hours of employment, and other working conditions, if there was no employee representative, respondents contend that Congress intended to accomplish the same purposes by its amendment to § 9(a), and that, in consequence, an employer, whose employees have no bargaining representative, may now legally form or maintain a committee of employees and discuss with it the matters referred to in the proposed § 8(d) (3) advocated by the House.
27
This argument treats the amendment to § 9(a) as though Congress had adopted, rather than rejected as it did, the proposed § 8(d)(3) advocated by the House. And it overlooks the facts that the House Conference Report itself declared that 'The conference agreement does not make any change' in the definition of 'labor organization,'23 and that, as pointed out by Senator Taft, the conferees specifically rejected all attempts to 'amend * * * the provisions in subsection 8(2) (of the original Wagner Act) relating to company-dominated unions' and had left its prohibitions 'unchanged.'24 The amendment to § 9(a) does not say that an employer may form or maintain an employee committee for the purpose of 'dealing with' the employer, on behalf of employees, concerning grievances. On the contrary the amendment to § 9(a) simply provides, in substance, that any individual employee or group of employees shall have the right personally to present their own grievances to their employer, and to have such grievances adjusted, without the intervention of any bargaining representative, as long as the adjustment is not inconsistent with the terms of any collective bargaining contract then in effect, provided that the bargaining representative, if there is one, has been given an opportunity to be present. It is thus evident that there is nothing in the amendment of § 9(a) that authorizes an employer to engage in 'dealing with' an employer-dominated 'labor organization' as the representative of his employees concerning their grievances.
28
We therefore conclude that there is nothing in the amendment of § 9(a), or in its legislative history, to indicate that Congress thereby eliminated or intended to eliminate such employee committees from the term 'labor organization' as defined in § 2(5) and used in § 8(a)(2).
29
Respondents argue that to hold these employee committees to be labor organizations would prevent employers and employees from discussing matters of mutual interest concerning the employment relationship, and would thus abridge freedom of speech in violation of the First Amendment of the Constitution. But the Board's order does not impose any such bar; it merely precludes the employers from dominating, interfering with or supporting such employee committees which Congress has defined to be labor organizations.
30
The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
31
Reversed and remanded.
1
Section 2(5) of the National Labor Relations Act, 61 Stat. 138, 29 U.S.C. § 152(5), 29 U.S.C.A. § 152(5) provides:
'The term 'labor organization' means any organization of anykin d, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.'
2
Examples of the problems of mutual interest to employees and management to be considered at the Committee-Management meetings were stated in the bylaws to be, but were not limited to, safety; increased efficiency and production; conservation of supplies, materials, and equipment; encouragement of ingenuity and initiative; and grievances at nonunion plants or departments.
3
As published in The Guide the established grievance procedure applicable to nonunion plants and departments provides, in summary, that in handling an employee's grievance it shall be the Committee's duty to consult with the Foreman, the Assistant Plant Superintendent and the Plant Superintendent, and consider all the facts. If, after having done so, the Committee believes that the employee has a just grievance it shall prepare in writing a formal statement of its supporting reasons and present it to the Plant Superintendent, who shall send copies of it, attaching his own report and recommendations, to the District Superintendent, the department head and Industrial Relations Department of the company. Within five days after receipt of such grievance the District Superintendent or the department head, or both, shall meet with the Committee and plant management and discuss the problem and announce their decision. If the Committee still feels that the grievance has not been fairly settled it may appeal to the General Manager who, within five days, shall meet with the Committee and plant management and announce his decision.
4
Section 8(a)(2) of the Act, 61 Stat. 140, 29 U.S.C. § 158(a)(2), 29 U.S.C.A. § 158(a)(2), provides:
'(a) It shall be an unfair labor practice for an employer—
'(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it; Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay * * *.' (Emphasis added.)
5
Among other things, respondents' plant officials agreed to Employee Committee requests to change from a company to a plant seniority system in several plants where employees desired the change; to provide longer notice periods concerning jobs up for bid; to permit employees to report early and leave early on week ends; to establish an annual basis for allocating overtime; and to install vents in the roofs of warehouses.
6
The subjects discussed by the Central Committee with respondents' Director of Industrial Relations at those meetings included Committee proposals and requests for: a vacation of 3 weeks for employees with 10 years' service; annual sick leave; a disability benefit plan; amendments in the practice of working on holidays; the establishment and financing by respondents of an employee educational program; the granting of leaves of absence to employees wishing to attend college; the furnishing to certain employees of work clothing; a change in policy to permit shiftmen to make up work days lost; the creation of more job cass ifications, with resulting higher wages; more opportunities for employees to transfer from one plant or department to another; payment of wages to employees while attending National Guard camps; making the working day of shiftworkers the same as that of the gangs with which they work; and a general wage increase.
7
'The term 'labor organization' is phrased very broadly in order that the independence of action guaranteed by section 7 * * * and protected by section 8 shall extend to all organizations of employees that deal with employers in regard to 'grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.' This definition includes employee-representation committees and plans in order that the employers' activities in connection therewith shall be equally subject to the application of section 8.' S.Rep. No. 573, 74th Cong., 1st Sess. 7, reprinted in 2 Legislative History of the National Labor Relations Act, 1935, p. 2306. (The latter publication will hereafter be cited, for example, as 2 Leg.Hist. (1935) 2306.)
8
Hearings before Senate Committee on Education and Labor on S.1958, 74th Cong., 1st Sess. 66—67, reprinted in 1 Leg.Hist. (1935) 1442—1443.
9
S.1958 (2d print), 74th Cong., 1st Sess. 4, reprinted in 2 Leg.Hist. (1935) 2287.
10
See comparison of S. 2926 (73d Cong.) and S. 1958 (74th Cong.), pp. 1, 22—23, reprinted in 1 Leg.Hist. (1935) 1320, 1347.
11
National Labor Relations Board v. American Furnace Co., 7 Cir., 158 F.2d 376, 378; National Labor Relations Board v. Jas. H. Matthews & Co., 3 Cir., 156 F.2d 706, 707—708; National Labor Relations Board v. C. Nelson Mfg. Co., 8 Cir., 120 F.2d 444, 445. Compare National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 268—269, 58 S.Ct. 571, 575, 82 L.Ed. 831; National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 246—248, 60 S.Ct. 203, 206—207, 84 L.Ed. 219.
12
49 Stat. 450.
13
61 Stat. 138, 29 U.S.C. § 152(5), 29 U.S.C.A. § 152(5).
14
Pacemaker Corp. v. National Labor Relations Board, 7 Cir., 260 F.2d 880, 883 (where the Seventh Circuit expressly disagreed with the ruling below); National Labor Relations Board v. Sand ard Coil Products Co., 1 Cir., 224 F.2d 465, 467—468, 51 A.L.R.2d 1268; National Labor Relations Board v. Stow Mfg. Co., 2 Cir., 217 F.2d 900, 903—904; National Labor Relations Board v. Sharples Chemicals, Inc., 6 Cir., 209 F.2d 645, 651—652; Indiana Metal Products Corp. v. N.L.R.B., 7 Cir., 202 F.2d 613, 621; Harrison Sheet Steel Co. v. National Labor Relations Board, 7 Cir., 194 F.2d 407, 410; National Labor Relations Board v. General Shoe Corp., 6 Cir., 192 F.2d 504, 507. But see National Labor Relations Board v. Associated Machines, 6 Cir., 219 F.2d 433.
15
In National Labor Relations Board v. Jas. H. Matthews & Co., the court said: 'Respondent says that this Junior Board did not deal, it only recommended and that final decision was with management. Final decision is always with management, although when a claim is made by a well organized, good sized union, management is doubtless more strongly influenced in its decision than it would be by a recommendation of a board which it, itself, has selected and which has been provided with no fighting arms.' 156 F.2d at page 708.
16
H.R. 3020, 80th Cong., 1st Sess. 26, reprinted in 1 Leg.Hist. (1947) 183.
17
S. 1126, 80th Cong., 1st Sess., reprinted in 1 Leg.Hist. (1947) 99.
18
H.R. 3020, as amended by the Senate, 80th Cong., 1st Sess. 86, reprinted in 1 Leg.Hist. (1947) 244; now 61 Stat. 143, 29 U.S.C. § 159(a), 29 U.S.C.A. § 159(a).
19
93 Cong.Rec. 5298, reprinted in 2 Leg.Hist. (1947) 1522.
20
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., reprinted in 1 Leg.Hist. (1947) 505.
21
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 45, reprinted in 1 Leg.Hist. (1947) 549.
22
61 Stat. 136 et seq., 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq.
23
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 33, 1 Leg.Hist. (1947) 537.
24
93 Cong.Rec. 6600, reprinted in 2 Leg.Hist. (1947) 1539.
| 67
|
360 U.S. 246
79 S.Ct. 978
3 L.Ed.2d 1200
OHIO ex rel. EATON, Appellant,v.PRICE, Chief of Police.
No. 699.
Decided June 8, 1959.
On Appeal from the Supreme Court of Ohio.
Mr. J. Harvey Crow, for appellant.
Messrs. Charles S. Rhyne and Joseph P. Duffy, for appellee.
PER CURIAM.
1
Probable jurisdiction is noted.
2
Mr. Justice BRENNAN, who voted to note probable jurisdiction, filed a separate memorandum.
3
Mr. Justice FRANKFURTER, Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITTAKER, who voted against noting probable jurisdiction, filed a separate memorandum.
4
Mr. Justice CLARK, who voted against noting probable jurisdiction, filed a separate memorandu.
5
Mr. Justice STEWART took no part in the consideration or decision of this application.
6
Mr. Justice BRENNAN.
7
The Court's practice, when considering a jurisdictional statement whereby a litigant attempts to invoke the Court's jurisdiction on appeal, is quite similar to its well-known one on applications for writs of certiorari. That is, if four Justices or more are of opinion that the questions presented by the appeal should be fully briefed and argued orally, an order noting probable jurisdiction or postponing further consideration of the jurisdictional questions to a hearing on the merits is entered. Even though this action is taken on the votes of only a minority of four of the Justices, the Court then approaches plenary consideration of the case anew as a Court; votes previously cast in Conference that the judgment of the court appealed from be summarily affirmed, or that the appeal be dismissed for want of a substantial federal question, do not conclude the Justices casting them, and every member of the Court brings to the ultimate disposition of the case his judgment based on the full briefs and the oral arguments. Because of this, disagreeing Justices do not ordinarily make a public notation, when an order setting an appeal for argument is entered, that they would have summarily affirmed the judgment below, or have dismissed the appeal from it for want of a substantial federal question. Research has not disclosed any instance of such notations until today.1
8
The reasons for such forbearance are obvious. Votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case, and public expression of views on the merits of a case by a Justice before argument and decision may well be misunderstood; the usual practice in judicial adjudication in this country, where hearings are held, is that judgment follow, and not precede them. Public respect for the judiciary might well suffer if any basis were given for an assumption, however wrong in fact, that this were not so. Thus, the practice of not noting dissents from such orders has been followed, regardless of now strongly Justices may have felt as to the merits of a case or how clearly they have thought decision in it controlled by past precedent.2 A precedent which appears to some Justices, upon the preliminary consideration given a jurisdictional statement, to be completely controlling may not appear to be so to other Justices. Plenary consideration can change views strongly held, and on close, reflective analysis precedents may appear inapplicable to varying fact situations. I believe that this approach will obtain in this case despite the unusual notation made today by four of my colleagues.
9
Mr. Justice FRANKFURTER, Mr. Justice CLARK, Mr.Jus tice HARLAN and Mr. Justice WHITTAKER are of the view that this case is controlled by, and should be affirmed on the authority of, Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804.
10
The Frank case was decided on May 4. Application to review this case came before us within two weeks of the Frank decision. Since we deem the decision in the Maryland case to be completely controlling upon the Ohio decision, we are of the opinion that it would manifest disrespect by the Court for its own process to indicate its willingness to create an opportunity to overrule a case decided only a fortnight ago after thorough discussion at the bar and in the briefs and after the weightiest deliberation within the Court.
11
Mr. Justice CLARK.
12
This case cannot be considered in isolation. In his jurisdictional statement filed February 12, 1959, appellant stated that No. 278, Frank v. Maryland, 'is similar to the facts in this case at bar and involves the same constitutional questions,' thus raising 'substantially the same problems presented by this appeal.' We, therefore, held this case awaiting the decision in Frank v. State of Maryland, 79 S.Ct. 804. It was decided May 4, 1959, by a 5—4 vote. 359 U.S. 360, 79 S.Ct. 804. Thereafter this case was again considered and brother STEWART, who was with the majority in Frank, recused himself because the case came from Ohio's Supreme Court, where his father then served. After a study of the two cases I agreed with appellant that this case was 'similar to the facts,' involved the same constitutional questions and raised 'substantially the same problems' as the Frank case. In fact, as presented here, the cases appeared to be on all fours, except that the penalty provision in Maryland's Act is $20, while that of Ohio's law is a maximum of $200, or a jail sentence not exceeding 30 days. I therefore voted to affirm. My brothers in the majority in Frank voted likewise. However, the four dissenters in Frank voted to note probable jurisdiction and bring the case on for argument. The result, for all practical purposes, is a reconsideration of the constitutional question decided in Frank by a full Court. This flies in the face of the real purpose, as well as the intended effet, of our Rule 58, 28 U.S.C.A., which permits rehearings only 'at the instance of a justice who concurred in the judgment or decision * * *.' It likewise is, in my view, very poor judicial administration, especially since Frank was decided less than four weeks ago and only an eight-man Court can sit to review the question decided there.
13
Believing that the Bar will be confused by this action today, which beyond doubt will be characterized as a reconsideration of the Frank holding, I have noted my adherence to Frank. Otherwise my silence would be construed as acquiescence in a reconsideration of that case. While I have followed a policy of not noting my vote in Conference, except on the merits, our reports are full of such notations.
1
Likewise, dissents from orders granting certiorari are ordinarily not publicly noted, even though the grant or denial of certiorari, as we have often said, expresses no intimation as to the merits of a case. The sole exception found appears to be Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937, 72 S.Ct. 775, 96 L.Ed. 1344, where the extraordinary power to grant certiorari before judgment in the Court of Appeals was exercised, and two Justices expressed their view that judgment in that court should have been obtained before this Court reviewed the case. Of course, in these circumstances, the notation could not possibly have implied or have been taken to imply any view of the case on the merits.
2
Notation of dissent from a denial of certiorari, or from a summary disposition of an appeal, is a completely different matter. Such notations occur with some frequency and I have made them myself. They are expressions of a Justice's view that a case should be heard when the Court decides not to have a hearing. Obviously such notations do not tend to foreclose or embarrass consideration of the case when it is later heard, since by definition it is not to be heard.
| 01
|
360 U.S. 55
79 S.Ct. 1005
3 L.Ed.2d 1079
FEDERAL TRADE COMMISSION, Petitioner,v.SIMPLICITY PATTERN CO., Inc. SIMPLICITY PATTERN CO., Inc., Petitioner, v. FEDERAL TRADE COMMISSION.
Nos. 406, 447.
Argued April 21, 1959.
Decided June 8, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 41.
Mr. Charles H. Weston, Washington, D.C., for Federal Trade commission.
Mr. William Simon, Washington, D.C., for Simplicity Pattern Co.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case presents, for the first time in this Court, issues relating to the availability of certain defenses to a prima facie violation of § 2(e) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526.1 The Federal Trade Commission has found that Simplicity Pattern Co., Inc., one of the Nation's largest dress pattern manufacturers, discriminated in favor of its larger customers by furnishing to them services and facilities not accorded to competing smaller customers on proportionally equal terms. The Commission held that neither the presence of 'cost justification' nor the absence of competitive injury may constitute a defense to a § 2(e) violation.
2
The Court of Appeals found that competition existed between thee larger and smaller customers of Simplicity and, with one judge dissenting, held that an absence of competitive injury would not constitute a 'justification' rebutting a prima facie showing of a § 2(e) violation. Through a different majority,2 however, it remanded the case on the 'cost justification' defense under § 2(b), holding that Simplicity might rebut the prima facie case by showing that the discriminations in services and facilities were justified by differences in Simplicity's costs in dealing with the two classes of customers. 103 U.S.App.D.C. 373, 258 F.2d 673. The Commission, in No. 406, and Simplicity, in No. 447, filed cross-petitions for certiorari which we consider together. We granted both petitions because of the fundamental significance of these issues in the application of an important Act of Congress. 358 U.S. 897, 79 S.Ct. 221, 3 L.Ed.2d 148. We have concluded that, given competition between the two classes of customers, neither absence of competitive injury nor the presence of 'cost justification' defeats enforcement of the provisions of § 2(e) of the Act. The action of the Commission in issuing the cease-and-desist order is, therefore, affirmed.
3
Simplicity manufactures and sells tissue patterns which are used in the home for making women's and children's wearing apparel. Its volume of pattern sales, in terms of sales units, is greater than that resulting from the combined effort of all other major producers.3 The patterns are sold to some 12,300 retailers, with 17,200 outlets. For present purposes, these customers can be divided roughly into two categories. One, consisting largely of department and variety stores, comprises only 18% Of the total number of customers, but accounts for 70% Of the total sales volume. The remaining 82% Of the customers are small stores whose primary business is the sale of yard-good fabrics.
4
About 600 different patterns are made available to Simplicity's customers. New patterns are added at the rate of 40 per month, while three times annually the obsolete designs are discontinued so as to maintain the number of designs at a relatively constant level. The different designs are displayed in a catalogue which is changed monthly in order to reflect the changes in available designs. The patterns themselves are stored and displayed in steel cabinets. The catalogues and storage cabinets are both furnished by Simplicity.
5
The variety stores handle and sell a multitude of relatively low-priced articles. Each article, including dress patterns, is sold for the purpose of returning a profit and would be dropped if it failed to do so. The fabric stores, on the other hand, are primarily interested in selling yard goods; they handle patterns at no profit or even at a loss as an accommodation to their fabric customers and for the purpose of stimulating fabric sales. These differences in motive are reflected in the manner in which each type of store handles its patterns. The variety stores devote the minimum amount of display space consistent with adequate merchandising—consisting usually of nothing more than a place on the counter for the catalogues, with the patterns themselves stored underneath the counter in the steel cabinets furnished by Simplicity. In contrast, the fabric stores usually provide tables and chairs where the customers may peruse the catalogues in comfort and at their leisure.
6
The retail prices of Simplicity patterns are uniform at 25$, 35$, or 50$. Similarly, Simplicity charges a uniform price, to all its customers, of 60% Of the retail price. However, inthe furnishing of certain services and facilities Simplicity does not follow this uniformity. It furnishes patterns to the variety stores on a consignment basis, requiring payment only as and when patterns are sold—thus affording them an investment-free inventory. The fabric stores are required to pay cash for their patterns in regular course. In addition, the cabinets and the catalogues are furnished to variety stores free while the fabric stores are charged therefor, the catalogues averaging from $2 to $3 each. Finally, all transportation costs in connection with its business with variety stores are paid by Simplicity but none is paid on fabricstore transactions.
7
The free services and facilities thus furnished variety store chains are substantial in value. As to four variety store chains, the catalogues which Simplicity furnished free in 1954 were valued at $128,904; the cabinets furnished free which those stores had on hand at the end of 1954 were valued at over $500,000; and their inventory of Simplicity's patterns at the end of 1954 was valued at more than $1,775,000, each of these values being based on Simplicity's usual sales price. Simplicity's president testified that it would cost over $2,000,000 annually to give its other customers the free transportation, free catalogues, and free cabinets furnished to variety stores.4
8
Simplicity does not dispute these findings. Assuming that the existence of competition between purchasers is a necessary element in a § 2(e) prosecution, it insists that no real competition in patterns exists between the variety and the fabric stores. It also contends that even if competition is present its conduct may be justified by a showing that no competitive injury resulted or, alternatively, that the discriminations are not unlawful if it could be shown that the differential treatment was only reflective of the differences in its costs in dealing with the two types of customers.
9
1. EXISTENCE OF COMPETITION.
10
The unanimous conclusion of the Examiner, the Commission, and the Court of Appeals on this point was, as stated by the Court of Appeals, that the variety and fabric stores, 'operating in the same cities and in the same shopping area, often side by side, were competitors, purchasing from Simplicity at the same price and then at like prices retailing the identical product to substantially the same segment of the public.' 103 U.S.App.D.C. 378, 258 F.2d at page 677. Simplicity argues that 'motivation' controls and that since the variety store sells for a profit and the fabric store for accommodation that the competition is minuscule. But the existence of competition does not depend on such motives. Regardless of the necessity the fabric stores find in the handling of patterns it does not remove their incentive to sell those on hand, especially when cash is tied up in keeping patterns on the shelves. The discriminatory terms under which they are obliged to handle them increase their losses. Furthermore, Simplicity not only takes advantage of the captive nature of the fabric stores in not granting them these advantages but compounds the damage by creating a sales outlet in the variety stores through the granting of these substantial incentives to engage in the pattern business. Without such partial subsidization the variety stores might not enter into the pattern trade at all.
11
Nor does it follow that the failure here to show specific injury to competition in patterns is inconsistent with a finding that competition in fact exists.5 It may be, as Simplicity argues, that the sale of patterns is minuscule in the overall business of a variety store, but the same is true of thousands of other items. While the giving of discriminatory concessions to a variety store on any one isolated item might cause no injury to competition with a fabric store in its overall operation, that fact does not render nonexistent the actual competition between them in patterns. It remains, and, because of the discriminatory concessions, causes further losses to the fabric store. As this Court said in Federal Trade Comm. v. Morton Salt Co., 1948, 334 U.S. 37, 49, 68 S.Ct. 822, 829, 92 L.Ed. 1196.
12
'There are many articles in a grocery store that, considered separately, are comparatively small parts of a merchant's stock. Congress intended to protect a merchant from competitive injury attributable to discriminatory prices on any or all goods sold in interstate commerce, whether the particular goods constituted a major or minor portion of his stock. Since a grocery store consists of many comparatively small articles, there is no possible way effectively to protect a grocer from discriminatory prices except by applying the prohibitions of the Act to each individual article in the store.'
13
2. APPLICATION OF THE JUSTIFICATION DEFENSES OF § 2(b).
14
Simplicity contends that an absence of competitive injury constitutes a defense under the justification provisions of § 2(b) and further that it should have been permitted, under that subsection, to dispel its discrimination in services and facilities by a showing of lower costs in its transactions with the variety stores. We agree with the Commission that the language of the Act, when considered in its entirety, will not support this construction.
15
Section 2(a) makes unlawful price discriminations
16
'where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition * * *.'
17
This price discrimination provision is hedged with qualifications. An exception is made for price differentials 'which make only due allowance for differences in the cost of manufacture, sale, or delivery.' Care was taken that price changes are not outlawed where made in response to changing market conditions. Finally, § 2(a) codifies the rule of United States v. Colgate & Co., 1919, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, protecting the right of a person in commerce to select his 'own customers in bona fide transactions and not in restraint of trade.' Subsections (c), (d), and (e), on the other hand, unqualifiedly make unlawful certain business practices other than price discriminations.6 Subsection (c) applies to the payment or receipt of commissions or brokerage allowances 'except for services rendered.' Subsection (d) prohibits the payment by a seller to a customer for any services or facilities furnished by the latter, unless 'such payment * * * is available on proportionally equal terms to all other (competing) customers.' Subsection (e), which as noted is the provision applicable in this case, makes it unlawful for a seller
18
'to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale * * * by * * * furnishing * * * any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.'
19
It terms, the proscriptions of these three subsections are absolute. Unlike § 2(a), none of them requires, as proof of a prima facie violation, a showing that the illicit practice has had an injurious or destructive effect on competition.7 Similarly, none has any built-in defensive matter, as does § 2(a). Simplicity's contentions boil down to an argument that the exculpatory provisions which Congress has made expressly applicable only to price discriminations are somehow included as 'justifications' for discriminations in services or facilities by § 2(b),8 which provides that
20
'Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with vi olation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the primafacie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.' (Emphasis added.)
21
We hold that the key word 'justification' can be read no more broadly than to allow rebuttal of the respective offenses in one of the ways expressly made available by Congress. Thus, a discrimination in prices may be rebutted by a showing under any of the § 2(a) provisos, or under the § 2(b) proviso9—all of which by their terms apply to price discriminations. On the other hand, the only escape Congress has provided for discriminations in services or facilities is the permission to meet competition as found in the § 2(b) proviso. We cannot supply what Congress has studiously omitted.10
22
Simplicity's arguments to the contrary are based essentially on the ground that it would be 'bad law and bad economics' to make discriminations unlawful even where they may be accounted for by cost differentials or where there is no competitive injury.11 Entirely aside from the fact that this Court is not in a position to review the economic wisdom of Congress, we cannot say that the legislative decision to treat price and other discriminations differently is without a rational basis. In allowing a 'cost justification' for price discriminations and not for others, Congress could very well have felt that sellers would be forced to confine their discriminatory practices to price differentials, where they could be more readily detected and where it would be much easier to make accurate comparisons with any alleged cost savings.12 Biddle Purchasing Co. v. Federal Trade Comm., 2 Cir., 1938, 96 F.2d 687, 692. And, with respect to the absence of competitive injury requirements, it suffices to say that the antitrust laws are not strangers to the policy of nipping potentially destructive practices before they reach full bloom. Cf. Klor's Inc., v. Broadway-Hale Stores, 1959, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741.13
23
Our conclusions are further confirmed by the historical setting of the Robinson-Patman amendments to § 2 of the Clayton Act. As originally worded in 1914 (38 Stat. 730), § 2 applied only to price discriminations, and then only where the effect of such discrimination was 'to substantially lessen competition or tend to create a monopoly in any line of commerce.'14 Furthermore, a proviso excepted price discriminations based on 'differences in the * * * quantity of the commodity sold,' regardless of whether the differences in quantity resulted in corresponding cost differentials.
24
A lengthy investigation conducted in the 1930's by the Federal Trade Commission disclosed that several large chain buyers were effectively avoiding § 2 by taking advantage of gaps in its coverage. Because of their enormous purchasing power, these chains were able to exact price concessions, based on differences in quantity, which far exceeded any related cost savings to the seller. Consequently, the seller was forced to raise prices even further on smaller quantity lots in order to cover the concessions made to the large purchasers. Comparable competitive advantages were obtained by the large purchasers in several ways other than direct price concessions. Rebates were induced for 'brokerage fees,' even though no brokerage services had been performed. 'Advertising allowances' were paid by the sellers to the large buyers in return for certain promotional services undertaken by the latter. Some sellers furnished special services or facilities to the chain buyers. Lacking the purchasing power to demand comparable advantages, the small independent stores were at a hopeless competitive disadvantage.15
25
The Robinson-Patman amendments were enacted to eliminate these inequities. The exception to price discriminations based on quantitative differences was limited to those making 'only due allowance for difference in * * * cost.' As noted above, false brokerage allowances and the paying for or furnishing of nonproportional services or facilities were banned outright. The portion of § 2(b) preceding the proviso, on which Simplicity relies, was inserted in the House bill for the sole purpose of laying down 'directions with reference to procedure including a statement with respect to burden of proof.'16 It was clearly not intended to have any independent substantive weight of its own.17
26
We hold, therefore, that neither 'cost-justification' nor an absence of competitive injury may constitute 'justification' of a prima facie § 2(e) violation.18 The judgment of the Court of Appeals must accordingly be reversed insofar as it set aside and remanded the Commission's order and affirmed as to the remainder.
27
It is so ordered.
28
Judgment of Court of Appeals reversed in part and affirmed in part.
1
The complaint was in two counts, the first being under the Federal Trade Commission Act. This count was dismissed. The second count, which is the only one before us, involves certain subsections of § 2 of the Clayton Act, 15 U.S.C. § 13, 15 U.S.C.A. § 13. For ready reference we quote § 2 in its entirety:
'(a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or eli very resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due investigation and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly in any line of commerce; and the foregoing shall then not be construed to permit differentials based on differences in quantities greater than those so fixed and established: And provided
further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
'(b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.
'(c) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.
'(d) That it shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally
equal terms to all other customers competing in the distribution of such products or commodities.
'(e) That it shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.
'(f) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or ece ive a discrimination in price which is prohibited by this section.'
2
Judge Washington dissented on the 'cost-justification' issue, while Judge Burger was in dissent on the competitive injury question.
3
In dollar volume, Simplicity's percentage-of-industry total is somewhat lower, due to the fact that its prices are among the lowest in the industry.
4
It should be noted that Simplicity has apparently acted entirely in good faith. While the services and facilities described in the body of the opinion are admittedly furnished free only to the variety stores, Simplicity asserts that other services and facilities are furnished only to the smaller customers. These claimed services include: A staff of 12 young ladies travels throughout the country giving fashion shows and sewing demonstrations in schools, 4-H Clubs and the like. These demonstrations are coordinated through the local fabric stores to assist the latter in pushing sales both of patterns and of fabrics. Large promotional posters, portraying fabrics and fashion trends, are furnished monthly to the fabric stores. 'Flyers,' or brochures, designed, printed and distributed by Simplicity solely for the small merchant, tell him (in the words of Simplicity's president) 'what the proper sources of supply are in New York, what the trends are, how to trim his windows, how to run certain aspects of his department and a great deal of other material.' A monthly publication called the 'Simplicity Pattern Book' is sold through fabric stores at an annual loss to Simplicity of over $100,000. The publication is designed to 'glamorize and dramatize for the consumer and for the merchant the textiles and trends throughout the country.'
These services and facilities are apparently available to the variety stores, but are not used by them because of their method of doing business. Thus, Simplicity claims that the fabric stores receive services and facilities, valued by Simplicity at more than $1,000,000 annually, which in fact if not in law are not used by the variety stores. The parties did not explore, before the Commission, the possibility that this tailoring of services and facilities to meet the different needs of two classes of customers in fact constituted 'proportionally equal terms.' And, of course, this point was not raised in the Court of Appeals or in this Court. We note in passing, however, that the Commission has indicated a willingness to give a relatively broad scope to the standard of proportional equality under §§ 2(d) and 2(e). See Lever Brothers Co., 50 F.T.C. 494, 512 (1953). ('(§ 2(d)) does not prohibit a seller from paying for services of various types.' A 'plan providing payment for promotional services and facilities * * * must be honest in its purpose and fair and reasonable in its application.') See also Proctor & Gamble Distributing Co., 50 F.T.C. 513 (1953); Colgate-Palmolive-Peet Co., 50 F.T.C. 525 (1953); Report of the Attorney General's National Committee to Study the Antitrust Laws 189—190 (1955). Since the issue is not properly befoe u s, we of course do not pass on it.
5
Simplicity argues that the Examiner 'affirmatively found an absence of competitive injury.' This view was apparently adopted by the Court of Appeals. 258 F.2d at page 678. We do not so read the record, however. What the Examiner said was that 'there is no showing of competitive injury.' (Emphasis added.)
6
Subsection (f) is a corollary to § 2(a), making it unlawful 'knowingly to induce or receive' a price discrimination barred by the latter. See Automatic Canteen Co. v. Federal Trade Comm., 1953, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454.
7
Simplicity concedes this, in effect, but argues that it should be allowed under § 2(b) to 'justify' the § 2(e) violation by making an affirmative showing of absence of competitive injury.
8
In allowing a showing of 'cost-justification' under § 2(b), the Court of Appeals negated any inference that it was thereby importing '§ 2(a) criteria as matters of defense to a Section 2(e) charge.' Rather, it held that 'the justification to be shown under the first clause of § 2(b) as to a § 2(e) charge of discrimination in 'facilities furnished' to various customers, (would) depend upon the facts in a particular case.' 103 U.S.App.D.C. 381, 258 F.2d at page 681. (Italics in the original.) On this theory, the limits of the justification which could be shown would be established by litigation, on a case-to-case basis.
9
See Standard Oil Co. v. Federal Trade Comm., 1951, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239.
10
The Courts of Appeals, prior to this case, had uniformly rejected the argument that § 2(e) violations were subject to a cost-justification defense or required a showing of adverse effect on competition. Elizabeth Arden, Inc., v. Federal Trade Comm., 2 Cir., 1946, 156 F.2d 132 (competitive injury); Corn Products Refining Co. v. Federal Trade Comm., 7 Cir., 1944, 144 F.2d 211, 219, affirmed on other grounds 324 U.S. 726, 65 S.Ct 961, 89 L.Ed. 1320 (competitive injury); Southgate Brokerage Co., v. Federal Trade Comm., 4 Cir., 1945, 150 F.2d 607, 610 (dictum as to competitive injury); Great Atlantic & Pacific Tea Co. v. Federal Trade Comm., 3 Cir., 1939, 106 F.2d 667 (dictum as to cost-justification); Oliver Bros., Inc., v. Federal Trade Comm., 4 Cir., 1939, 102 F.2d 763, 767 (dictum as to competitive injury). It does not appear that any Court of Appeals had previously been asked to decide whether an absence of competitive injury could constitute a 'justification' under § 2(b).
11
Compare the Report of the Attorney General's National Committee to Study the Antitrust Laws (1955). The Committee recognized that as of that date subsections (c), (d) and (e) had been uniformly interpreted as not requiring a showing of competitive injury, and as not allowing a cost-justification defense. Pp. 187—193. It expressed disagreement with the desirability of this result, in view of what it deemed the 'broader antitrust objectives,' and recommended that § 2(c) be changed by legislation and § 2(d) and (e) by 'interpretive reform.' P. 93.
12
During congressional debates on the bill, there were continual references to the subsections (c), (d) and (e) practices as 'secret' discriminations. See, e.g., 80 Cong.Rec. 8126, 8127, 8132, 8135, 8137, 8226.
13
Compare Northern Pacific R. Co. v. United States, 1958, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545; United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129, which contain examples of per se violations under the Sherman Act, 15 U.S.C.A. §§ 1—715 note. It is not without significance that earlier versions of both the House and Senate bills would have outlawed even price discriminations without regard to their effect upon competition. H.R. 8442, 74th Cong., 1st Sess.; S.3154, 74th Cong., 1st Sess.
14
This language was retained in § 2(a) under the Robinson-Patman Act amendment, and the following was added, 'or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.'
15
Final Report on the Chain-Store Investigation, S.Doc.No. 4, 74th Cong., 1st Sess.
16
H.R.Rep. No. 2287, 74th Cong., 2d Sess., p. 16.
17
As reported out of Committee, the equivalent of § 2(b) (which was § 2(e) in the House bill) applied only to price discriminations. During the floor debate, Congressman McLaughlin introduced an amendment which would add 'or services or facilities furnished' at appropriate places in the subsection. He said, 'Mr. Chairman, this is a committee amendment agreed to unanimously by the committee. * * * It simply allows asel ler to meet not only competition in price of other competitors but also competition in services and facilities furnished.' 80 Cong.Rec. 8225. The amendment was adopted without further comment. Throughout the debate, what reference there was to this subsection (other than to the proviso) was to the effect that it was a 'procedural' or 'burden of proof' provision. See, e.g., 80 Cong.Rec. 8110, 9414, 9418. Congressman Patman, referring to it as a 'burden of proof' provision, said 'Let me analyze that for you. What does that mean? It means exactly the rule of law today. It is a restatement of existing law. So far as I am concerned you can strike it out. It makes no difference.' 80 Cong.Rec. 8231. This statement, coming from one of the authors of the bill, makes it clear beyond peradventure that the provision in question was not intended to operate as a source of substantive defenses. See also Automatic Canteen Co. v. Federal Trade Comm., supra, 346 U.S., at page 78, 73 S.Ct. at page 1026.
The history of the Senate bill is not helpful. As reported out of Committee, it contained neither a provision comparable to § 2(b) nor one comparable to § 2(e). S.Rep. No. 1502, 74th Cong., 2d Sess. A provision identical to § 2(b) was adopted as a floor amendment at a time when the bill did not in terms even cover the furnishing of services and facilities. 80 Cong.Rec. 6435—6436. The short debate on the amendment is not enlightening.
18
While both of these questions have been presented to us in terms of the 'justification' clause of § 2(b), we are equally convinced that the competitive injury and cost-differential clauses of § 2(a) cannot be read directly into § 2(e). Elizabeth Arden, Inc., v. Federal Trade Comm., supra, note 10; Corn Products Refining Co. v. Federal Trade Comm., supra, note 10; Great Atlantic & Pacific Tea Co. v. Federal Trade Comm., supra, note 10. It is true that, in reference to the cost-differential clause, we have said, 'Time and again there was recognition in Congress of a freedom to adopt and pass on to buyers the benefits of more economical processes.' Automatic Canteen Co. v. Federal Trade Comm., supra, 346 U.S. at page 72, 73 S.Ct. at page 1023. But the contexts of the statements referred to show that the benefits were to be made available in price differentials or not at all. See, e.g., 80 Cong.Rec. 8106—8107, 8111-8112, 8114, 8127—8128, 8137, 9415; H.R.Rep. No. 2287, 74th Cong., 2d Sess. See also notes 12 and 13, supra.
| 78
|
360 U.S. 109
79 S.Ct. 1081
3 L.Ed.2d 1115
Lloyd BARENBLATT, Petitioner,v.UNITED STATES of America.
No. 35.
Argued Nov. 18, 1958.
Decided June 8, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 40.
[Syllabus from pages 109-110 intentionally omitted]
Mr. Edward J. Ennis, Washington, D.C., for the petitioner.
Mr. Philip R. Monahan, Washington, D.C., for the respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Once more the Court is required to resolve the conflicting constitutional claims of congressional power and of an individual's right to resist its exercise. The congressional power in question concerns the internal process of Congress in moving within its legislative domain; it involves the utilization of its committees to secure 'testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.' McGrain v. Dougherty, 273 U.S. 135, 160, 47 S.Ct. 319, 324, 71 L.Ed. 580. The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.
2
Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. And the Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case the relevant limitations of the Bill of Rights.
3
The congressional power of inquiry, its range and scope, and an individual's duty in relation to it, must be viewed in proper perspective. McGrain v. Daugherty, supra; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 214; Black, Inside a Senate Investigation, 172 Harpers Monthly 275 (February 1936). The power and the right of resistance to it are to be judged in the concrete, not on the basis of abstractions. In the present case congressional efforts to learn the extent of a nation-wide, indeed worldwide, problem have brought one of its investigating committees into the field of education. Of course, broadly viewed, inquires cannot be made into the teaching that is pursued in any of our educational institutions. When academic teaching-freedom and its corollary learning-freedom, so essential to the well-being of the Nation, are claimed, this Court will always be on the alert againstint rusion by Congress into this constitutionally protected domain. But this does not mean that the Congress is precluded from interrogating a witness merely because he is a teacher. An educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is made of someone within its walls.
4
In the setting of this framework of constitutional history, practice and legal precedents, we turn to the particularities of this case.
5
We here review petitioner's conviction under 2 U.S.C. § 192, 2 U.S.C.A. § 192.1 for contempt of Congress, arising from his refusal to answer certain questions put to him by a Subcommittee of the House Committee on Un-American Activities during the course of an inquiry concerning alleged Communist infiltration into the field of education.
6
The case is before us for the second time. Petitioner's conviction was originally affirmed in 1957 by a unanimous panel of the Court of Appeals, 100 U.S.App.D.C. 13, 240 F.2d 875. This Court granted certiorari, 354 U.S. 930, 77 S.Ct. 1394, 1 L.Ed.2d 1533, vacated the judgment of the Court of Appeals, and remanded the case to that court for further consideration in light of Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, which had reversed a contempt of Congress conviction, and which was decided after the Court of Appeals' decision here had issued. Thereafter the Court of Appeals, sitting en banc, reaffirmed the conviction by a divided court. 102 U.S.App.D.C. 217, 252 F.2d 129. We again granted certiorari, 356 U.S. 929, 78 S.Ct. 771, 2 L.Ed.2d 760, to consider petitioner's statutory and constitutional challenges to his conviction, and particularly has claim that the judgment below cannot stand under our decision in the Watkins case.
7
Pursuant to a subpoena, and accompanied by counsel, petitioner on June 28, 1954, appeared as a witness before this congressional Subcommittee. After answering a few preliminary questions and testifying that he had been a graduate student and teaching fellow at the University of Michigan from 1947 to 1950 and an instructor in psychology at Vassar College from 1950 to shortly before his appearance before the Subcommittee, petitioner objected generally to the right of the Subcommittee to inquire into his 'political' and 'religious' beliefs or any 'other personal and private affairs' or 'associational activities,' upon grounds set forth in a previously prepared memorandum which he was allowed to file with the Subcommittee.2 Thereafter petitioner specifically declined to answer each of the following five questions:
8
'Are you now a member of the Communist Party? (Count One.)
9
'Have you ever been a member of the Communist Party? (Count Two.)
10
'Now, you have stated that you knew Francis Crowley. Did you know Francis row ley as a member of the Communist Party? (Count Three.)
11
'Were you ever a member of the Haldane Club of the Communist Party while at the University of Michigan? (Count Four.)
12
'Were you a member while a student of the University of Michigan Council of Arts, Sciences, and Professions?' (Count Five.)
13
In each instance the grounds of refusal were those set forth in the prepared statement. Petitioner expressly disclaimed reliance upon 'the Fifth Amendment.'3
14
Following receipt of the Subcommittee's report of these occurrences the House duly certified the matter to the District of Columbia United States Attorney for contempt proceedings. An indictment in five Counts, each embracing one of petitioner's several refusals to answer, ensued. With the consent of both sides the case was tried to the court without a jury, and upon conviction under all Counts a general sentence of six months' imprisonment and a fine of $250 was imposed.
15
Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count,4 the judgment below must be upheld if the conviction upon any of the Counts is sustainable. See Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; Whitfield v. State of Ohio, 297 U.S. 431, 56 S.Ct. 532, 80 L.Ed. 778. As we conceive the ultimate issue in this case to be whether petitioner could properly be convicted of contempt for refusing to answer questions relating to his participation in or knowledge of alleged Communist Party activities at educational institutions in this country, we find it unnecessary to consider the validity of his conviction under the Third and Fifth Counts, the only ones involving questions which on their face do not directly relate to such participation or knowledge.
16
Petitioner's various contentions resolve themselves into three propositions: First, the compelling of testimony by the Subcommittee was neither legislatively authorized nor constitutionally permissible because of the vagueness of Rule XI of the House of Representatives, Eighty-third Congress, the charter of authority of the parent Committee.5 Second, petitioner was not adequately apprised of the pertinency of the Subcommittee's questions to the subject matter of the inquiry. Third, the questions petitioner refused to answer infringed rights protected by the First Amendment.
17
Subcommittee's Authority to Compel Testimony.
18
At the outset it should be noted that Rule XI authorized this Subcommittee to compel testimony within the framework of the investigative authority conferred on the Un-American Activities Committee.6 Petitioner contends that Watkins v. United States, supra, nevertheless held the grant of this power in all circumstances ineffective because of the vagueness of Rule XI in delineating the Committee jurisdiction to which its exercise was to be appurtenant. This view of Watkins was accepted by two of the dissenting judges below. 102 U.S.App.D.C. 124, 252 F.2d at page 136.
19
The Watkins case cannot properly be read as standing for such a proposition. A principal contention in Watkins was that the refusals to answer were justified because the requirement of 2 U.S.C. § 192, 2 U.S.C.A. § 192 that the questions asked be 'pertinent to the question under inquiry' had not been satisfied. 354 U.S. at pages 208—209, 77 S.Ct. at page 1190. This Court reversed the conviction solely on that ground, holding that Watkins had not been adequately apprised of the subject matter of the Subcommittee's investigation or the pertinency thereto of the questions he refused to answer. Id., 354 U.S. at pages 206—209, 214—215, 77 S.Ct. at pages 1188—1190, 1193 1194; and see the concurring opinion in that case, id., 354 U.S. at page 216, 77 S.Ct. at page 1194. In so deciding the Court drew upon Rule XI only as one of the facets in the total mise en scene in its search for the 'question under inquiry' in that particular investigation. Id., 354 U.S. at pages 209—215, 77 S.Ct. at pages 1190—1194. The Court, in other words, was not dealing with Rule XI at large, and indeed in effect stated that no such issue was before it, id., 354 U.S. at page 209, 77 S.Ct. at page 1190. That the vagueness of Rule XI was not alone determinative is also shown by the Court's further statement that aside from the Rule 'the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic (under inquiry) clear.' Ibid. In short, while Watkins was critical of Rule XI, it did not involve the broad and inflexible holding petitioner now attributes to it.7
20
Petitioner also contends, independently of Watkins, that the vagueness of Rule XI deprived the Subcommittee of the right to compel testimony in this investigation into Communist activity. We cannot agree with this contention which in its furthest reach would mean that the House Un-American Activities Committee under its existing authority has no right to compel testimony in any circumstances. Granting the vagueness of the Rule, we may not read it in isolation from its long history in the House of Representatives. Just as legislation is often given meaning by the gloss of legislative reports, administrative interpretation, and long usage, so the proper meaning of an authorization to a congressional committee is not to be derived alone from its abstract terms unrelated to the definite content furnished them by the course of congressional actions. The Rule comes to us with a 'persuasive gloss of legislative history,' United States v. Witkovich, 353 U.S. 194, 199, 77 S.Ct. 779, 782, 1 L.Ed.2d 765, which shows beyond doubt that in pursuance of its legislative concerns in the domain of 'national security' the House has clothed the Un-American Activities Committee with pervasive authority to investigate Communist activities in this country.
21
The essence of that history can be briefly stated. The Un-American Activities Committee, originally known as the Dies Committee, was first established by the House in 1938.8 The Committee was principally a consequence of concern over the activities of the German-American Bund, whose members were suspected of allegiance to Hitler Germany, and of the Communist Party, supposed by many to be under the domination of the Soviet Union.9 From the beginning, without interruption to the present time, and with the undoubted knowledge and approval of the House, the Committee has devoted a major part of its energies to the investigation of Communist activities.10 More particularly, in 1947 the Committee announced a wide-range progrm i n this field,11 pursuant to which during the years 1948 to 1952 it conducted diverse inquiries into such alleged Communist activities as espionage; efforts to learn atom bomb secrets; infiltration into labor, farmer, veteran, professional, youth, and motion picture groups; and in addition held a number of hearings upon various legislative proposals to curb Communist activities.12
22
In the context of these unremitting pursuits, the House has steadily continued the life of the Committee at the commencement of each new Congress;13 it has never narrowed the powers of the Committee, whose authority has remained throughout identical with that contained in Rule XI; and it has continuingly supported the Committee's activities with substantial appropriations.14 Beyond this, the Committee was raised to the level of a standing committee of the House in 1945, it having been but a special committee prior to that time.15
23
In light of this long and illuminating history it can hardly be seriously argued that the investigation of Communist activities generally, and the attendant use of compulsory process, was beyond the purview of the Committee's intended authority under Rule XI.
24
We are urged, however, to construe Rule XI so as at least to exclude the field of education from the Committee's compulsory authority. Two of the four dissenting judges below relied entirely, the other two alternatively, on this ground. 102 U.S.App.D.C. 224, 226, 252 F.2d at pages 136, 138. The contention is premised on the course we took in United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, where in order to avoid constitutional issues we construed narrowly the authority of the congressional committee there involved. We cannot follow that route here, for this is not a case where Rule XI has to 'speak for itself, since Congress put no gloss upon it at the time of its passage,' nor one where the subsequent history of the Rule has the 'infirmity of post litem motam, self-serving declarations.' See United States v. Rumely, supra, 345 U.S. at pages 44—45, 48, 73 S.Ct. at pages 545, 547.
25
To the contrary, the legislative gloss on Rule XI is again compelling. Not only is there no indication that the House ever viewed the field of education as being outside the Committee's authority under Rule XI, but the legislative history affirmatively evinces House approval of this phase of the Committee's work. During the first year of its activities, 1938, the Committee heard testimony on alleged Communist activities at Brooklyn College, N.Y.16 The following year it conducted similar hearings relating to the American Student Union and the Teachers Union.17 The field of 'Communist influences in education' was one of the items contained in the Committee's 1947 program.18 Other investigations including education took place in 1952 and 1953.19 And in 1953, after the Committee had instituted the investigation involved in this case, the desirability of investigating Communism in education was specifically discussed during consideration of its appropriation for that year, which after controversial debate was approved.20
26
In this framework of the Committee's history we must conclude that its legislative authority to conduct the inquiry presently under consideration is unassailable, and that independently of whatever bearing the broad scope of Rule XI may have on the issue of 'pertinency' in a given investigation into Communist activities, as in Watkins, the Rule cannot be said to be constitutionally infirm on the score of vagueness. The constitutional permissibility of that authority otherwise is a matter to be discussed later.
27
Pertinency Claim.
28
Undeniably a conviction for contempt under 2 U.S.C. § 192, 2 U.S.C.A. § 192 cannot stand unless the questions asked are pertinent to the subject matter of the investigation. Watkins v. United States, supra, 354 U.S. at pages 214—215, 77 S.Ct. at pages 1193—1194. But the factors which led us to rest decision on this ground in Watkins were very different from those involved here.
29
In Watkins the petitioner had made specific objection to the Subcommittee's questions on the ground of pertinency; the question under inquiry had not been disclosed in any illuminating manner; and the questions asked the petitioner were not only amorphous on their face, but in some instances clearly foreign to the alleged subject matter of the investigation—'Communism in labor.' Id., 354 U.S. at pages 185, 209—215, 77 S.Ct. at pages 1178, 1190—1194.
30
In contrast, petitioner in the case before us raised no objections on the ground of pertinency at the time any of the questions were put to him. It is true that the memorandum which petitioner brought with him to the Subcommittee hearing contained the statement, 'to ask me whether I am or have been a member of the Communist Party may have dire consequences. I might wish to * * * challenge the pertinency of the question to the investigation,' and at another point quoted from this Court's opinion in Jones v. Securities & Exchange Comm., 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, language relating to a witness' right to be informed of the pertinency of questions asked him by an administrative agency.21 These statements cannot, however, be accepted as the equivalent of a pertinency objection. At best they constituted but a contemplated objection to questions still unasked, and buried as they were in the context of petitioner's general challenge to the power of the Subcommittee they can hardly be considered adequate, within the meaning of what was said in Watkins, supra, 354 U.S. at pages 214—215, 77 S.Ct. at pages 1193—1194, to trigger what would have been the Subcommittee's reciprocal obligation had it been faced with a pertinency objection.
31
We need not, however, rest decision on petitone r's failure to object on this score, for here 'pertinency' was made to appear 'with undisputable clarity.' Id., 354 U.S. at page 214, 77 S.Ct. at page 1193. First of all, it goes without saying that the scope of the Committee's authority was for the House, not a witness, to determine, subject to the ultimate reviewing responsibility of this Court. What we deal with here is whether petitioner was sufficiently apprised of 'the topic under inquiry' thus authorized 'and the connective reasoning whereby the precise questions asked relate(d) to it.' Id., 354 U.S. at page 215, 77 S.Ct. at page 1193. In light of his prepared memorandum of constitutional objections there can be no doubt that this petitioner was well aware of the Subcommittee's authority and purpose to question him as it did. See 79 S.Ct. at page 1091, supra. In addition the other sources of this information which we recognized in Watkins, supra, 354 U.S. at pages 209—215, 77 S.Ct. at pages, 1190—1194, leave no room for a 'pertinency' objection on this record. The subject matter of the inquiry had been identified at the commencement of the investigation as Communist infiltration into the filed of education.22 Just prior to petitioner's appearance before the Subcommittee, the scope of the day's hearings had been announced as 'in the main communism in education and the experiences and background in the party by Francis X. T. Crowley. It will deal with activities in Michigan, Boston, and in some small degree, New York.' Petitioner had heard the Subcommittee interrogate the witness Crowley along the same lines as he, petitioner, was evidently to be questioned, and had listened to Crowley's testimony identifying him as a former member of an alleged Communist student organization at the University of Michigan while they both were in attendance there.23 Further, petitioner had stood mute in the face of the Chairman's statement as to why he had been called as a witness by the Subcommittee.24 And, lastly, unlike Watkins, 354 U.S. at pages 182—185, 77 S.Ct. at pages 1176—1178, petitioner refused to answer questions as to his own Communist Party affiliations, whose pertinency of course was clear beyond doubt.
32
Petitioner's contentions on this aspect of the case cannot be sustained.
33
Constitutional Contentions.
34
Our function, at this point, is purely one of constitutional adjudication in the particular case and upon the particular record before us, not to pass judgment upon the general wisdom or efficacy of the activities of this Committee in a vexing and complicated filed.
35
The precise constitutional issue confronting us is whether the Subcommittee's inquiry into petitioner's past or present membership in the Communist Party25 transgressed the provisions of the First Amendment,26 which of course reach and limit congressional investigations. Watkins, supra, 354 U.S. at page 197, 77 S.Ct. at page 1184.
36
The Court's past cases establish sure guides to decision. Undeniably, the First Amendment in some circumstances protects an individual from being compelled to disclose his associational relationships. However, the protections of the First Amendment, unlike a proper claim of the privilege against self-incrimination under the Fifth Amendment, do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown. These principles were recognized in the Watkins case, where, in speaking of the First Amendment in relation to congressional inquiries, we said (354 U.S. at page 198, 77 S.Ct. at page 1185): 'It is manifest that despite the adverse effects which follow upon compelled disclosure of private matters, not all such inquiries are barred. * * * The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.' See also American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 399 400, 70 S.Ct. 674, 684—685, 94 L.Ed. 925; United States v. Rumely, supra, 345 U.S. at pages 43—44, 73 S.Ct. at pages 544—545. More recently in National Association for Advancement of Colored People v. State of Alabama, 357 U.S. 449, 463—466, 78 S.Ct. 1163, 1172 1174, 2 L.Ed.2d 1488, we applied the same principles in judging state action claimed to infringe rights of association assured by the Due Process Clause of the Fourteenth Amendment, and stated that the "subordinating interest of the State must be compelling" in order to overcome the individual constitutional rights at stake. See Sweezy v. State of New Hampshire, 354 U.S. 234, 255, 265, 77 S.Ct. 1203, 1214, 1219, 1 L.Ed.2d 1311 (concurring opinion). In light of these principles we now consider petitioner's First Amendment claims.
37
The first question is whether this investigation was related to a valid legislative purpose, for Congress may not constitutionally require an individual to disclose his political relationships or other private affairs except in relation to such a purpose. See Watkins v. United States, supra, 354 U.S. at page 198, 77 S.Ct. at page 1184.
38
That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never been questioned by this Court, and it is sufficient to say, without particularization, that Congress has enacted or considered in this field a wide range of legislative measures, not a few of which have stemmed from recommendations of the very Committee whose actions have been drawn in question here.27 In the last analysis this power rests on the right of self-preservation, 'the ultimate value of any society,' Dennis v. United States, 341 U.S. 494, 509, 71 S.Ct. 857, 867, 95 L.Ed. 1137. Justification for its exercise in turn rests on the long and widely accepted view that the tenets of the Communist Party include the ultimate overthrow of the Government of the United States by force and violence, a view which has been given formal expression by the Congress.28
39
On these premises, this Court in its constitutional adjudications has consistently refused to view the Communist Party as an ordinary political party, and has upheld federal legislation aimed at the Communist problem which in a different context would certainly have raised constitutional issues of the gravest character. See, e.g., Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. On the same premises this Court has upheld under the Fourteenth Amendment state legislation requiring those occupying or seeking public office to disclaim knowing membership in any organization advocating overthrow of the Government by force and violence, which legislation none can avoid seeing was aimed at membership in the Communist Party. See Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745; Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. See also Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. Similarly, in other areas, this Court has recognized the close nexus between the Communist Party and violent overthrow of government. See Dennis v. United States, supra; American Communications Ass'n, C.I.O. v. Douds, supra. To suggest that because the Communist Party may also sponsor peaceable political reforms the constitutional issues before us should now be judged as if that Party were just an ordinary political party from the standpoint of national security, is to ask this Court to blind itself to world affairs which have determined the whole course of our national policy since the close of World War II, affairs to which Judge Learned Hand gave vivid expression in his opinion in United States v. Dennis, 2 Cir., 183 F.2d 201, 213, and to the vast burdens which these conditions have entailed for the entire Nation.
40
We think that investigatory power in this domain is not to be denied Congress solely because the field of education is involved. Nothing in the prevailing opinions in Sweezy v. State of New Hampshire, supra, stands for a contrary view. The vice existing there was that the questioning of Sweezy, who had not been shown ever to have been connected with the Communist Party, as to the contents of a lecture he had given at the University of New Hampshire, and as to his connections with the Progressive Party, then on the ballot as a normal political party in some 26 States, was too far removed from the premises on which the constitutionality of the State's investigation had to depend to withstand attack under the Fourteenth Amendment. See the concurring opinion in Sweezy, supra, 354 U.S. at pages 261, 265, 266, 77 S.Ct. 1217, 1219, 1220, note 3. This is a very different thing from inquiring into the extent to which the Communist Party has succeeded in infiltrating into our universities, or elsewhere, persons and groups committed to furthering the objective of overthrow. See Note 20, supra. Indeed we do not understand petitioner here to suggest that Congress in no circumstances may inquire into Communist activity in the field of education.29 Rather, his position is in effect that this particular investigation was aimed not at the revolutionary aspects but at the theoretical classroom discussion of communism.
41
In our opinion this position rests on a too constricted view of the nature of the investigatory process, and is not supported by a fair assessment of the record before us. An investigation of advocacy of or preparation for overthrow certainly embraces the right to identify a witness as a member of the Communist Party, see Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, and to inquire into the various manifestations of the Party's tenets. The strict requirements of a prosecution under the Smith Act,30 see Dennis v. United States, supra, and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, are not the measure of the permissible scope of a congressional investigation into 'overthrow,' for of necessity the investigatory process must proceed step by step. Nor can it fairly be concluded that this investigation was directed at controlling what is being taught at our universities rather than at overthrow. The statement of the Subcommittee Chairman at the opening of the investigation evinces no such intention,31 and so far as this record reveals nothing thereafter transpired which would justify our holding that the thrust of the investigation later changed. The record discloses considerable testimony concerning the foreign domination and revolutionary purposes and efforts of the Communist Party.32 That there was also testimony on the abstract philosophical level does not detract from the dominant theme of this investigation—Communist infiltration furthering the alleged ultimate purpose of overthrow. And certainly the conclusion would not be justified that the questioning of petitioner would have exceeded permissible bounds had he not shut off the Subcommittee at the threshold.
42
Nor can we accept the further contention that this investigation should not be deemed to have been in furtherance of a legislative purpose because the true objective of the Committee and of the Congress was purely 'exposure.' So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power. State of Arizona v. State of California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154, and cases there cited. 'It is, of course, true,' as was said in McCray v. United States, 195 U.S. 27, 55, 24 S.Ct. 769, 776, 49 L.Ed. 78, 'that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power.' These principles of course apply as well to committee investigations into the need for legislation as to the enactments which such investigations may produce. Cf. Tenney v. Brandhove, 341 U.S. 367, 377—378, 71 S.Ct. 783, 788—789, 95 L.Ed. 1019. Thus, in stating in the Watkins case, 354 U.S. at page 200, 77 S.Ct. at page 1185, that 'there is no congressional power to expose for the sake of exposure,' we at the same time declined to inquire into the 'motives of committee members,' and recognized that their 'motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served.' Having scrutinized this record we cannot say that the unanimous panel of the Court of Appeals which first considered this case was wrong in concluding that 'the primary purpose of the inquiry were in aid of legislative processes.' 100 U.S.App.D.C. 19, 240 F.2d at page 881.33 Certainly this is not a case like Kilbourn v. Thompson, 103 U.S. 168, 192, 26 L.Ed. 377, where 'the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was in its nature clearly judicial.' See McGrain v. Daugherty, 273 U.S. 135, 171, 47 S.Ct. 319, 327, 71 L.Ed. 580. The constitutional legislative power of Congress in this instance is beyond question.
43
Finally, the record is barren of other factors which in themselves might sometimes lead to the conclusion that the individual interests at stake were not subordinate to those of the state. There is no indication in this record that the Subcommittee was attempting to pillory witnesses. Nor did petitioner's appearance as a witness follow from indiscriminate dragnet procedures, lacking in probable cause for belief that he possessed information which might be helpful to the Subcommittee.34 And the relevancy of the questions put to him by the Subcommittee is not open to doubt.
44
We conclude that the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and that therefore the provisions of the First Amendment have not been offended.
45
We hold that petitioner's conviction for contempt of Congress discloses no infirmity, and that the judgment of the Court of Appeals must be affirmed.
46
Affirmed.
47
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
48
On May 28, 1954, petitioner Lloyd Barenblatt, then 31 years old, and a teacher of psychology at Vassar College, was summoned to appear before a Subcommittee of the House Committee on Un-American Activities. After service of the summons, but before Barenblatt appeared on June 28, his four-year contract with Vassar expired and was not renewed. He, therefore, came to the Committee as a private citizen without a job. Earlier that day, the Committee's interest in Barenblatt had been aroused by the testimony of an ex-Communist named Crowley. When Crowley had first appeared before the Un-American Activities Committee he had steadfastly refused to admit or deny Communist affiliations or to identify others as Communists. After the House reported this refusal to the United States Attorney for prosecution, Crowley 'voluntarily' returned and asked to testify. He was sworn in and interrogated, but not before he was made aware by various Committee members of Committee policy to 'make an appropriate recommendation' to protect any witness who 'fully cooperates with the committee.' He then talked at length, identifying by name, address and occupation, whenever possible, people he claimed had been Communists. One of these was Barenblatt, who, according to Crowley, had been a Communist during 1947—1950 while a graduate student and teaching fellow at the University of Michigan. Though Crowley testified in great detail about the small group of Communists who had been at Michigan at that time and though the Committee was very satisfied with his testimony, it sought repetition of much of the information from Barenblatt. Barenblatt, however, refused to answer their questions and filed a long statement outlining his constitutional objections. He asserted that the Commitee was violating the Constitution by abridging freedom of speech, thought, press, and association, and by conducting legislative trials of known or suspected Communists which trespassed on the exclusive power of the judiciary. He argued that however he answered questions relating to membership in the Communist Party his position in society and his ability to earn a living would be seriously jeopardized; that he would, in effect, be subjected to a bill of attainder despite the twice-expressed constitutional mandate against such legislative punishments.1 This would occur, he pointed out, even if he did no more than invoke the protection of clearly applicable provisions of the Bill of Rights as a reason for refusing to answer.
49
He repeated these, and other objections, in the District Court as a reason for dismissing an indictment for contempt of Congress. His position, however, was rejected at the trial and in the Court of Appeals for the District of Columbia Circuit over the strong dissents of Chief Judge Edgerton and Judges Bazelon, Fahy and Washington. The Court today affirms, and thereby sanctions the use of the contempt power to enforce questioning by congressional committees in the realm of speech and association. I cannot agree with this disposition of the case for I believe that the resolution establishing the House Un-American Activities Committee and the questions that Committee asked Barenblatt violate the Constitution in several respects. (1) Rule XI creating the Committee authorizes such a sweeping, unlimited, all-inclusive and undiscriminating compulsory examination of witnesses in the field of speech, press, petition and assembly that it violates the procedural requirements of the Due Process Clause of the Fifth Amendment. (2) Compelling an answer to the questions asked Barenblatt abridges freedom of speech and association in contravention of the First Amendment. (3) The Committee proceedings were part of a legislative program to stigmatize and punish by public identification and exposure all witnesses considered by the Committee to be guilty of Communist affiliations, as well as all witnesses who refused to answer Committee questions on constitutional grounds; the Committee was thus improperly seeking to try, convict, and punish suspects, a task which the Constitution expressly denies to Congress and grants exclusively to the courts, to be exercised by them only after indictment and in full compliance with all the safeguards provided by the Bill of Rights.
I.
50
It goes without saying that a law to be valid must be clear enough to make its commands understandable. For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noncriminal statutes.2 This is simply because it would be unthinkable to convict a man for violating a law he could not understand. This Court has recognized that the stricter standard is as much required in criminal contempt cases as in all other criminal cases,3 and has emphasized that the 'vice of vagueness' is especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved.4 In this area the statement that a statute is void if it 'attempts to cover so much that it effectively covers nothing,' see Musser v. State of Utah, 333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562, takes on double significance. For a statute broad enough to support infringement of speech, writtings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what he law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others.5 Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult at best to make a man guess—at the penalty or imprisonment—whether a court will consider the State's need for certain information superior to society's interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the 'state's interest' is too vague to give him guidance. Cf. Scull v. Commonwealth of Virginia, 359 U.S. 344, 79 S.Ct. 838.
51
Measured by the foregoing standards, Rule XI cannot support any conviction for refusal to testify. In substance it authorizes the Committee to compel witnesses to give evidence about all 'un-American propaganda,' whether instigated in this country or abroad.6 The word 'propaganda' seems to mean anything that people say, write, think or associate together about. The term 'un-American' is equally vague. As was said in Watkins v. United States, 354 U.S. 178, 202, 77 S.Ct. 1173, 1187, 'Who can define (its) meaning * * *? What is that single, solitary 'principle of the form of government as guaranteed by our Constitution'?' I think it clear that the boundaries of the Committee are, to say the least, 'nebulous.' Indeed, 'It would be difficult to imagine a less explicit authorizing resolution.' Ibid.
52
The Court—while not denying the vagueness of Rule XI nevertheless defends its application here because the questions asked concerned communism, a subject of investigation which had been reported to the House by the Committee on numerous occasions. If the issue were merely whether Congress intended to allow an investigation of communism, or even of communism in education, it may well be that we could hold the data cited by the Court sufficient to support a finding of intent. But that is expressly not the issue. On the Court's own test, the issue is whether Barenblatt can know with sufficient certainty, at the time of his interrogation, that there is so compelling a need for his replies that infringement of his rights of free association § j ustified. The record does not disclose where Barenblatt can find what that need is. There is certainly no clear congressional statement of it in Rule XI. Perhaps if Barenblatt had had time to read all the reports of the Committee to the House, and in addition had examined the appropriations made to the Committee he, like the Court, could have discerned an intent by Congress to allow an investigation of communism in education. Even so he would be hard put to decide what the need for this investigation is since Congress expressed it neither when it enacted Rule XI nor when it acquiesced in the Committee's assertions of power. Yet it is knowledge of this need—what is wanted from him and why it is wanted—that a witness must have if he is to be in a position to comply with the Court's rule that he balance individual rights against the requirements of the State. I cannot see how that knowledge can exist under Rule XI.
53
But even if Barenblatt could evaluate the importance to the Government of the information sought, Rule XI would still be too broad to support his conviction. For we are dealing here with governmental procedures which the Court itself admits reach to the very fringes of congressional power. In such cases more is required of legislatures than a vague delegation to be filled in later by mute acquiescence.7 If Congress wants ideas investigated, if it even wants them investigated in the field of education, it must be prepared to say so expressly and unequivocally. And it is not enough that a court through exhaustive research can establish, even conclusively, that Congress wished to allow the investigation. I can find no such unequivocal statement here.
54
For all these reasons, I would hold that Rule XI is too broad to be meaningful and cannot support petitioner's conviction.8
II.
55
The First Amendment says in no equivocal language that Congress shall pass no law abridging freedom of speech, press, assembly or petition.9 The activities of this Committee, authorized by Congress, do precisely that, through exposure, obloquy and public scorn. See Watkins v. United States, 354 U.S. 178, 197—198, 77 S.Ct. 1173, 1184—1185. The Court does not really deny this fact but relies on a combination of three reasons for permitting the infringement: (A) The notion that despite the First Amendment's command Congress can abridge speech and association if this Court decides that the governmental interest in abridging speech is greater than an individual's interest in exercising that freedom, (B) the Government's right to 'preserve itself,' (C) the fact that the Committee is only after Communists or suspected Communists in this investigation.
56
(A) I do not agree that laws directly abridging First Amendment freedoms can be justified by a congressional or judicial balancing process. There are, of course, cases suggesting that a law which primarily regulates conduct but which might also indirectly affect speech can be upheld if the effect on speech is minor in relation to the need for control of the conduct. With these cases I agree. Typical of them are Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, and Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. Both of these involved the right of a city to control its streets. In Cantwell, a man had been convicted of breach of the peace for playing a phonograph on the street. He defended on the ground that he was disseminating religious views and could not, therefore, be stopped. We upheld his defense, but in so doing we pointed out that the city did have substantial power over conduct on the streets even where this power might to some extent affect speech. A State, we said, might 'by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and holding meetings thereon.' 310 U.S. at page 304, 60 S.Ct. at page 903. But even such laws governing conduct, we emphasized, must be tested, though only by a balancing process, if they indirectly affect ideas. On one side of the balance, we pointed out, is the interest of the United States in seeing that its fundamental law protecting freedom of communication is not abridged; on the other the obvious interest of the State to regulate conduct within its boundaries. In Cantwell we held that the need to control the streets could not justify the restriction made on speech. We stressed the fact that where a man had a right to be on a street, 'he had a right peacefully to impart his views to others.' 310 U.S. at page 308, 60 S.Ct. at page 905. Similar views were expressed in Schneider, which concerned ordinances prohibiting the distribution of handbills to prevent littering. We forbade application of such ordinances when they affected literature designed to spread ideas. There were other ways, we said, to protect the city from littering which would not sacrifice the right of the people to be informed. In so holding, we, of course, found it necessary to 'weigh the circumstances.' 308 U.S. at page 161, 60 S.Ct. at page 151. But we did not in Schneider, any more than in Cantwell, even remotely suggest that a law directly aimed at curtailing speech and political persuasion could be saved through a balancing process. Neither these cases, nor any others, can be read as allowing legislative bodies to pass laws abridging freedom of speech, press and association merely because of hostility to views peacefully expressed in a place where the speaker had a right to be. Rule XI, on its face and as here applied, since it attempts inquiry into beliefs, not action—ideas and associations, not conduct—does just that.10
57
To apply the Court's balancing test under such circumstances is to read the First Amendment to say 'Congress shall pass no law abridging freedom of speech, press, assembly and petition, unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the Government in stifling these freedoms is greater than the interest of the people in having them exercised.' This is closely akin to the notion that neither the First Amendment nor any other provision of the Bill of Rights should be enforced unless the Court believes it is reasonable to do so. Not only does this violate the genius of our written Constitution, but it runs expressly counter to the injunction to Court and Congress made by Madison when he introduced the Bill of Rights. 'If they (the first ten amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.'11 Unless we return to this view of our judicial function, unless we once again accept the notion that the Bill of Rights means what it says and that this Court must enforce that meaning, I am of the opinion that our great charter of liberty will be more honored in the breach than in the observance.
58
But even assuming what I cannot assume, that some balancing is proper in this case, I feel that the Court after stating the test ignores it completely. At most it balances the right of the Government to preserve itself, against Barenblatt's right to refrain from revealing Communist affiliations. Such a balance, however, mistakes the factors to be weighed. In the first place, it completely leaves out the real interest in Barenblatt's silence, the interest of the people as a whole in being able to join organizations, advocate causes and make political 'mistakes' without later being subjected to governmental penalties for having dared to think for themselves. It is this right, the right to err politically, which keeps us strong as a Nation. For no number of laws against communism can have as much effect as the personal conviction which comes from having heard its arguments and rejected them, or from having once accepted its tenets and later recognized their worthlessness. Instead, the obloquy which results from investigations such as this not only stifles 'mistakes' but prevents all but the most courageous from hazarding any views which might at some later time become disfavored. This result, whose importance cannot be overestimated, is doubly crucial when it affects the universities, on which we must largely rely for the experimentation and development of new ideas essential to our country's welfare. It is these interests of society, rather that Barenblatt's own right to silence, which I think the Court should put on the balance against the demands of the Government, if any balancing proces is to be tolerated. Instead they are not mentioned, while on the other side the demands of the Government are vastly overstated and called 'self preservation.' It is admitted that this Committee can only seek information for the purpose of suggesting laws, and that Congress' power to make laws in the realm of speech and association is quite limited, even on the Court's test. Its interest in making such laws in the field of education, primarily a state function, is clearly narrower still. Yet the Court styles this attenuated interset self-preservation and allows it to overcome the need our country has to let us all think, speak, and associate politically as we like and without fear of reprisal. Such a result reduces 'balancing' to a mere play on words and is completely inconsistent with the rules this Court has previously given for applying a 'balancing test,' where it is proper: '(T)he courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs * * * may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.' Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155. (Italics supplied.)
59
(B) Moreover, I cannot agree with the Court's notion that First Amendment freedoms must be abridged in order to 'preserve' our country. That notion rests on the unarticulated premise that this Nation's security hangs upon its power to punish people because of what they think, speak or write about, or because of those with whom they associate for political purposes. The Government, in its brief, virtually admits this position when it speaks of the 'communication of unlawful ideas.' I challenge this premise, and deny that ideas can be proscribed under our Constitution. I agree that despotic governments cannot exist without stifling the voice of opposition to their oppressive practices. The First Amendment means to me, however, that the only constitutional way our Government can preserve itself is to leave its people the fullest possible freedom to praise, criticize or discuss, as they see fit, all governmental policies and to suggest, if they desire, that even its most fundamental postulates are bad and should be changed; 'Therein lies the security of the Republic, the very foundation of constitutional government.'12 On that premise this land was created, and on that premise it has grown to greatness. Our Constitution assumes that the common sense of the people and their attachment to our country will enable them, after free discussion, to withstand ideas that are wrong. To say that our patriotism must be protected against false ideas by means other than there is, I think, to make a baseless charge. Unless we can rely on these qualities—if, in short, we begin to punish speech—we cannot honestly proclaim ourselves to be a free Nation and we have lost what the Founders of this land risked their lives and their sacred honor to defend.
60
(C) The Court implies, however, that the ordinary rules and requirements of the Constitution do not apply because the Committee is merely after Communists and they do not constitute a political party but only a criminal gang. '(T)he long and widely accepted view' t he Court says, is 'that the tenets of the Communist Party include the ultimate overthrow of the Government of the United States by force and violence.'13 This justifies the investigation undertaken. By accepting this charge and allowing it to support treatment of the Communist Party and its members which would violate the Constitution if applied to other groups, the Court, in effect, declares that Party outlawed. It has been only a few years since there was a practically unanimous feeling throughout the country and in our courts that this could not be done in our free land. Of course it has always been recognized that members of the Party who, either individually or in combination, commit acts in violation of valid laws can be prosecuted. But the Party as a whole and innocent members of it could not be attainted merely because it had some illegal aims and because some of its members were lawbreakers. Thus in De Jonge v. State of Oregon, 299 U.S. 353, 357, 57 S.Ct. 255, 256, on stipulated facts that the Communist Party advocated criminal syndicalism—'crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution'—a unanimous Court, speaking through Chief Justice Hughes, held that a Communist addressing a Communist rally could be found guilty of no offense so long as no violence or crime was urged at the meeting. The Court absolutely refused to concede that either De Jonge or the Communist Party forfeited the protections of the First and Fourteenth Amendments because one of the Party's purposes was to effect a violent change of government. See also Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.
61
Later, in 1948, when various bills were proposed in the House and Senate to handicap or outlaw the Communist Party, leaders of the Bar who had been asked to give their views rose up to contest the constitutionality of the measures. The late Charles Evans Hughes, Jr., questioned the validity under both the First and Fifth Amendments of one of these bills, which in effect outlawed the Party. The late John W. Davis attacked it as lacking an ascertainable standard of guilt under many of this Court's cases.14 And the Attorney General of the United States not only indicated that such a measure would be unconstitutional but declared it to be unwise even if valid. He buttressed his position by citing a statement by J. Edgar Hoover, Director of the Federal Bureau of Investigation, and the declaration of this Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, that:
62
'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.'15
63
Even the proponent of the bill disclaimed any aim to outlaw the Communist Party and pointed out the 'disadvantages' of such a move by stating that 'the Communist Party was illegal and outlawed in Russia when it took over control of the Soviet Union.'16 Again, when the Attorney General testified on a prpos al to bar the Communist Party from the ballot he said, 'an organized group, whether you call it political or not, could hardly be barred from the ballot without jeopardizing the constitutional guarantees of all other political groups and parties.'17
64
All these statements indicate quite clearly that no matter how often or how quickly we repeat the claim that the Communist Party is not a political party, we cannot outlaw it, as a group, without endangering the liberty of all of us. The reason is not hard to find, for mixed among those aims of communism which are illegal are perfectly normal political and social goals. And muddled with its revolutionary tenets is a drive to achieve power through the ballot, if it can be done. These things necessarily make it a political party whatever other, illegal, aims it may have. Cf. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. Significantly until recently the Communist Party was on the ballot in many States. When that was so, many Communists undoubtedly hoped to accomplish its lawful goals through support of Communist candidates. Even now some such may still remain.18 To attribute to them, and to those who have left the Party, the taint of the group is to ignore both our traditions that guilt like belief is 'personal and not a matter of mere association' and the obvious fact that 'men adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.' Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796. See also Dennis v. United States, 341 U.S. 494, 579, 581, 71 S.Ct. 857, 902, 903, 95 L.Ed. 1137 (dissenting opinions).
65
The fact is that once we allow any group which has some political aims or ideas to be driven from the ballot and from the battle for men's minds because some of its members are bad and some of its tenets are illegal, no group is safe. Today we deal with Communists or suspected Communists. In 1920, instead, the New York Assembly sspe nded duly elected legislators on the ground that, being Socialists, they were disloyal to the country's principles.19 In the 1830's the Masons were hunted as outlaws and subversives, and abolitionists were considered revolutionaries of the most dangerous kind in both North and South.20 Earlier still, at the time of the universally unlamented alien and sedition laws, Thomas Jefferson's party was attacked and its members were derisively called 'Jacobins.' Fisher Ames described the party as a 'French faction' guilty of 'subversion' and 'officered, regimented and formed to subordination.' Its members, he claimed, intended to 'take arms against the laws as soon as they dare.'21 History should teach us then, that in times of high emotional excitement minority parties and groups which advocate extremely unpopular social or governmental innovations will always be typed as criminal gangs and attempts will always be made to drive them out.22 It was knowledge of this fact, and of its great dangers, that caused the Founders of our land to enact the First Amendment as a guarantee that neither Congress nor the people would do anything to hinder or destroy the capacity of individuals and groups to seek converts and votes for any cause, however radical or unpalatable their principles might seem under the accepted notions of the time. Whatever the States were left free to do, the First Amendment sought to leave Congress devoid of any kind or quality of power to direct any type of national laws against the freedom of individuals to think what they please, advocate whatever policy they choose, and join with others to bring about the social, religious, political and governmental changes which seem best to them.23 Today's holding, in my judgment, marks another major step in the progressively increasing retreat from the safeguards of the First Amendment.
66
It is, sadly, no answer to say that this Court will not allow the trend to overwhelm us; that today's holding will be strictly confined to 'Communists,' as the Court's language implies. This decision can no more be contained than could the holding in American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. In that case the Court sustained as an exercise of the commerce power an Act which required labor union officials to take an oath that they were not members of the Communist Party. The Court rejected the idea that the Douds holding meant that the Party and all its members could e a ttainted because of their Communist beliefs. It went to great lengths to explain that the Act held valid 'touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint.' '(W)hile this Court sits,' the Court proclaimed, no wholesale proscription of Communists or their Party can occur. 339 U.S. at pages 404, 410, 70 S.Ct. at pages 687, 690. I dissented and said:
67
'Under such circumstances, restrictions imposed on proscribed groups are seldom static, even though the rate of expansion may not move in geometric progression from discrimination to arm-band to ghetto and worse. Thus I cannot regard the Court's holding as one which merely bars Communists from holding union office and nothing more. For its reasoning would apply just as forcibly to statutes barring Communists and their suspected sympathizers from election to political office, mere membership in unions, and in fact from getting or holding any job whereby they could earn a living.' 339 U.S. at page 449, 70 S.Ct. at page 709.
68
My prediction was all too accurate. Today, Communists or suspected Communists have been denied an opportunity to work as government employees, lawyers, doctors, teachers, pharmacists, veterinarians, subway conductors, industrial workers and in just about any other job. See Speiser v. Randall, 357 U.S. 513, 531, 78 S.Ct. 1332, 1352, 2 L.Ed.2d 1460 (concurring opinion). Cf. Barsky v. Board of Regents, 347 U.S. 442, 456, 467, 472, 74 S.Ct. 650, 658, 664, 666, 98 L.Ed. 829 (dissenting opinions). In today's holding they are singled out and, as a class, are subjected to inquisitions which the Court suggests would be unconstitutional but for the fact of 'Communism.' Nevertheless, this Court still sits!24
III.
69
Finally, I think Barenblatt's conviction violates the Constitution because the chief aim, purpose and practice of the House Un-American Activities Committee, as disclosed by its many reports, is to try witnesses and punish them because they are or have been Communists or because they refuse to admit or deny Communist affiliations. The punishment imposed is generally punishment by humiliation and public shame. There is nothing strange or novel about this kind of punishment. It is in fact one of the oldest forms of governmental punishment known to mankind; branding, the pillory, ostracism and subjection to public hatred being but a few examples of it.25 Nor is there anything strange about a court's reviewing the power of a congressional committee to inflict punishment. In 1880 this Court nullified the action of the House of Representatives in sentencing a witness to jail for failing to answer questions of a congressional committee. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. The Court held that the Committee in its investigation of the Jay Cooke bankruptcy was seeking to exercise judicial power, and this, it emphatically said, no committee could do. It seems to me that the proof that the Un- American Activities Committee is here undertaking a purely judicial function is overwhelming, far stronger, in fact, than it was in the Jay Cooke investigation which, moreover, concerned only business transactions, not freedom of association.
70
The Un-American Activities Committee was created in 1938. It immediately conceived of its function on a grand scale as one of ferreting out 'subversives' and especially of having them removed from government jobs.26 It made many reports to the House urging removal of such employees.27 Finally, at the instigation of the Committee, the House put a rider on an appropriation bill to bar three government workers from collecting their salaries.28 The House action was based on Committee findings that each of the three employees was a member of, or associated with, organizations deemed undesirable and that the 'views and philosophies' of these workers 'as expressed in various statements and writings constitute subversive activity within the definition adopted by your committee, and that (they are), therefore, unfit for the present to continue in Government employment.'29 The Senate and the President agreed to the rider, though not without protest. We held that statute void as a bill of attainder in United States v. Lovett, 1946, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, stating that its 'effect was to inflict punishment without the safeguards of a judicial trial' and that this 'cannot be done either by a state or by the United States.' 328 U.S. at pages 316—317, 66 S.Ct. at page 1079.
71
Even after our Lovett holding, however, the Committee continued to view itself as the 'only agency of government that has the power of exposure,' and to work unceasingly and sincerely to identify and expose all suspected Communists and 'subversives' in order to eliminate them from virtually all fields of employment.30 How well it has succeeded in its declared program of 'pitiless publicity and exposure' is a matter of public record. It is enough to cite the experience of a man who masqueraded as a Communist for the F.B.I. and who reported to this same Committee that since 1952 when his 'membership' became known he has been unable to hold any job.31 To accomplish this kind of result, the Committee has called witnesses who are suspected of Communist affiliation, has subjected them to severe questioning and has insisted that each tell the name of every person he has ever known at any time to have been a Communist, and, if possible, to give the addresses and occupations of the people named. These names are then indexed, published, and reported to Congress, and often to the press.32 The same technique is employed to cripple the job opportunities of those who strongly criticize the Committee or take other actions it deems undesirable.33 Thus, in 1949, the Committee reported that it had indexed and printed some 335,000 names of people who had signed 'Communist' petitions of one kind or another.34 All this the Committee did and does to punish by exposure the many phases of 'un-American' activities that it reports cannot be reached by legislation, by administrative action, or by any other agency of Government, which, of course, includes the courts.
72
The same intent to expose and punish is manifest in the Committee's investigation which led to Barenblatt's conviction. The declared purpose of the investigation was to identify to the people of Michigan the individuals responsible for the, alleged, Communist success there.35 The Committee claimed that its investigation 'uncovered' members of the Communist Party holding positions in the school systems in Michigan; that most of the teachers subpoenaed before the Committee refused to answer questions on the ground that to do so might result in self-incrimination, and that most of these teachers had lost their jobs. It then stated that 'the Committee on Un-American Activities approves of this action * * *.'36 Similarly, as a result of its Michigan investigation, the Committee called upon American labor unions to amend their constitutions, if necessary, in order to deny membership to any Communist Party member.37 This would, of course, prevent many workers from getting or holding the only kind of jobs their particular skills qualified them for. The Court, today, barely mentions these statements, which, especially when read in the context of past reports by the Committee, show unmistakably what the Committee was doing. I cannot understand why these reports are deemed relevant to a determination of a congressional intent to investigate communism in education, but irrelevant to any finding of congressional intent to bring about exposure for its own sake or for the purposes of punishment.
73
I do not question the Committee's patriotism and sincerity in doing all this.38 I merely feel that it cannot be done by Congress under our Constitution. For, even assuming that the Federal Government can compel witnesses to testify as to Communist affiliations in order to subject them to ridicule and social and economic retaliation, I cannot agree that this is a legislative function. Such publicity is clearly punishment, and the Constitution allows only one way in which people can be convicted and punished. As we said in Lovett, 'Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.' 328 U.S. at page 317, 66 S.Ct. at page 1079. (Italics added.) Thus if communism is to be made a crime, and Communists are to be subjected to 'pains and penalties,' I would still hold this conviction bad, for the crime of communism, like all others, can be punished only by court and jury after a trial with all judicial safeguards.
74
It is no answer to all this to suggest that legislative committees should be allowed to punish if they grant the accused some rules of courtesy or allow him counsel. For the Constitution proscribes all bills of attainder by State or Nation, not merely those which lack counsel or courtesy. It does this because the Founders believed that punishment was too serious a matter to be entrusted to any group other than an independent judiciary and a jury of twelve men acting on previously passed, unambiguous laws, with all the procedural safeguards they put in the Constitution as essential to a fair trial—safeguards which included the right to counsel, compulsory process for witnesses, specific indictments, confrontation of accusers, as well as protection against self-incrimination, double jeopardy and cruel and unusual punishment—in short, due process of law. Cf. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. They believed this because not long before worthy men had been deprived of their liberties, and indeed their lives, through parliamentary trials without these safeguards. The memory of one of these, John Lilburne—banished and disgraced by a parliamentary committee on penalty of death if he returned to this country—was particularly vivid when our Constitution was written. His attack on trials by such committees and his warning that 'what is done unto any one, may be done unto every one'39 were part of the history of the times which moved those who wrote our Constitution to determine that no such arbitrary punishments should ever occur here. It is the protection from arbitrary punishments through the right to a judicial trial with all these safeguards which over the years has distinguished America from lands where drumhead courts and other similar 'tribunals' deprive the weak and the unorthodox of life, liberty and property without due process of law. It is this same right which is denied to Barenblatt, because the Court today fails to see what is here for all to see—that exposure and punishment is the aim of this Committee and the reason for its existence. To deny this is to ignore the Committee's own claims and the reports it has issued ever since it was established. I cannot believe that the nature of our judicial office requires us to be so blind, and must conclude that the Un-American Activities Committee's 'identification' and 'exposure' of Communists and suspected Communists, like the activities of the Committee in Kilbourn v. Thompson, amount to an encroachment on the judiciary which bodes ill for the liberties of the people of this land.
75
Ultimately all the questions in this case really boil down to one—whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with our traditions and our Constitution we will have the confidence and courage to be free.
76
I would reverse this conviction.
APPENDIX.
77
RANDOM SELECTION OF STATEMENTS BY THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE ON EXPOSURE AND PUNISHMENT OF 'SUBVERSIVES.'
78
'(T)o inform the American people of the activities of any such organizations * * * is the real purpose of the House Committee'. 'The purpose of this committee is the task of protecting our constitutional democracy by turning the light of pitiless publicity on (these) organizations.' H.R. Rep. No. 1476, 76th Cong., 3d Sess. 1—2, 24.
79
'The very first exposure which our committee undertook in the summer of 1938 was that of the German-American Bund'. 'Other organizations * * * have been greatly crippled * * * as a result of our exposures. The American Youth Congress once enjoyed a very considerable prestige * * *. Today many of its distinguished former sponsors refuse to be found in its company * * *. We kept the spotlight of publicity focused upon the American Youth Congress, and today it is clear to all that, in spite of a degree of participation in its activities by many fine young people, it was never at its core anything less than a tool of Moscow'. 'This committee is the only agency of Government that has the power of exposure * * *. There are many phases of un-American activities that cannot be reached by legislation or administrative action. We believe that the committee has shown that fearlessexp osure * * * is the * * * answer.' H.R. Rep. No. 1, 77th Cong., 1st Sess. 21 22, 24.
80
'Our investigation has shown that a steady barrage against Congress comes * * * from the New Republic, one of whose editors * * * was recently forced out of an $8,000 Government job by the exposure of his Communist activities.' H.R. Rep. No. 2277, 77th Cong., 2d Sess. 3.
81
'(T)he House Committee on Un-American Activities is empowered to explore and expose activities by un-American individuals and organizations which, while sometimes being legal, are nonetheless inimical to our American concepts'. The Committee recommends that Congress 'discharge * * * any employee or official of the Federal Government whose loyalty to the United States is found to be in doubt.' H.R. Rep. No. 2742, 79th Cong., 2d Sess. 16, 17.
82
'Index of Persons and Organizations.' (Six pages of names follow.) H.R. Rep. No. 2233, 79th Cong., 2d Sess. III—VIII.
83
'Early in 1947 the committee adopted the following eight point program. * * *
84
'1. To expose and ferret out the Communists and Communist sympathizers in the Federal Government.
85
'2. To spotlight the spectacle of * * * Communists * * * in American labor.'
86
'In a sense the storm of opposition to the activities of the committee is a tribute to its achievements in the field of exposure.' Report of the Committee on Un-American Activities to the United States House of Representatives, 80th Cong., 2d Sess., Dec. 31, 1948, 2, 3 (Committee print).
87
'The committee would like to remind the Congress that its work is part of an 11-year continuity of effort that began * * * in August 1938. The committee would also like to recall that at no time in those 11 years has it ever wavered from a relentless pursuit and exposure'. 'In the course of its investigations * * * the committee has made available a large, completely indexed, and readily accessible reference collection of lists of signers of Communist Party election petitions.' H.R. Rep. No. 1950, 81st Cong., 2d Sess. 15, 19.
88
'To conduct the expose * * * it was necessary for the investigative staff to interview over 100 persons * * *.
89
'The same tedious investigation of details was necessary prior to the successful exposure * * * in the Territory of Hawaii'. 'As a result of the investigation and hearings held by the committee, Dolivet's contract with the United Nations has not been renewed, and it is the committee's understanding that he was removed from editorship of the United States World.' H.R. Rep. No. 3249, 81st Cong., 2d Sess. 4, 5.
90
'During 1951 the committee's hearings disclosed the positive identification of more individuals * * * than during any preceding year'. 'If communism in Hollywood is now mythical, it is only because this committee conducted three investigations to bring it about. The industry itself certainly did not accomplish this'. 'The committee's investigation * * * was concerned almost entirely with the problem of exposure of the actual members of the Communist Party and did not deal, except in a few instances, with * * * fellow travelers'. 'On the question of fellow travelers, suffice it to say * * * 'The time has come now when even the fellow traveler must get out". 'Dr. Struik was identified as a Communist teacher * * *. Nevertheless, he was permitted to teach * * * until this year'. 'With individuals like * * * Struik * * * teaching in our leading universities, your committee wonders who the Professor Struiks were * * * who led Alger Hiss along the road of communism.' H.R. Rep. No. 2431, 82d Cong., 2d Sess. 6, 8—9, 16 17.
91
'In this annual report, the committee feels that the Congress and the American people will have a much clearer and fuller picture * * * by having set forth the names and, where possible, the positions occupied by individuals who have been identified as Communists, or former Communists, during the past year'. 'The committee considers the failure of certain trade-unionists to rid themselves of Communists to be a ntio nal disgrace'. 'The following persons were identified.' (Approximately fifty pages of names follow.) H.R. Rep. No. 2516, 82d Cong., 2d Sess. 6—7, 12—27, 28—34, 36—40, 41—56, 58—67 (similar lists can be found in various other reports).
92
'The focal point of the investigation into the general area of education was to the individual who had been identified'; 'The question has been asked as to what purpose it served by the disclosure of the names of individuals who may long ago have left the conspiracy'. 'The committee has no way of knowing the status of his membership at present until he is placed under oath and the information is sought to be elicited.' H.R.Rep.No.1192, 83d Cong., 2d Sess. 1, 7.
93
Mr. Justice BRENNAN, dissenting.
94
I would reverse this conviction. It is sufficient that I state my complete agreement with my Brother Black that no purpose for the investigation of Barenblatt is revealed by the record except exposure purely for the sake of exposure. This is not a purpose to which Barenblatt's rights under the First Amendment can validly be subordinated. An investigation in which the processes of law-making and law-evaluating are submerged entirely in exposure of individual behavior—in adjudication, of a sort, through the exposure process—is outside the constitutional pale of congressional inquiry. Watkins v. United States, 354 U.S. 178, 187, 200, 77 S.Ct. 1173, 1179, 1185, 1 L.Ed.2d 1273; see also Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311; NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Uphaus v. Wyman, 360 U.S. 72, 82, 79 S.Ct. 1040, 1046 (dissenting opinion).
1
'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.'
2
In the words of the panel of the Court of Appeals which first heard the case this memorandum 'can best be described as a lengthy legal brief attacking the jurisdiction of the committee to ask appellant any questions or to conduct any inquiry at all, based on the First, Ninth and Tenth Amendments, the prohibition against bills of attainder, and the doctrine of separation of powers.' 100 U.S.App.D.C. at page 17, note 4, 240 F.2d at page 879, note 4.
3
We take this to mean the privilege against self-incrimination.
4
See Note 1, supra.
5
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24. The Committee's charter appears as paragraph 17(b) of Rule XI. References to the Rule throughout this opinion are intended to signify that paragraph.
6
'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' H.Res. 5, 83d Cong., 1st Sess., 99 Cng. Rec. 15, 18, 24. The Rule remains current in the same form. H.Res. 7, 86th Cong., 1st Sess., Cong.Rec., Jan. 7, 1959, p. 13.
7
Had Watkins reached to the extent now claimed by petitioner a reversal of the judgment of the Court of Appeals, not a remand for further consideration, would have been required when this case first came to us.
8
H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586.
9
See debate on the original authorizing resolution, 75th Cong., 3d Sess., 83 Cong.Rec. 7567, 7572—7573, 7577, 7583—7586.
10
H.R.Rep. No. 2, 76th Cong., 1st Sess.; H.R.Rep. No. 1476, 76th Cong., 3d Sess.; H.R.Rep. No. 1, 77th Cong., 1st Sess.; H.R.Rep. No. 2277, 77th Cong., 2d Sess.; H.R.Rep. No. 2748, 77th Cong., 2d Sess.; H.R.Rep. No. 2233, 79th Cong., 2d Sess.; H.R.Rep. No. 2742, 79th Cong., 2d Sess.; Report of the Committee on Un-American Activities to the United States House of Representatives, 80th Cong., 2d Sess., December 31, 1948 (Committee Print); H.R.Rep. No. 1950, 81st Cong., 2d Sess.; H.R.Rep. No. 3249, 81st Cong., 2d Sess.; H.R.Rep. No. 2431, 82d Cong., 2d Sess.; H.R.Rep. No. 2516, 82d Cong., 2d Sess.; H.R.Rep. No. 1192, 83d Cong., 2d Sess.; H.R.Rep. No. 57, 84th Cong., 1st Sess.; H.R.Rep. No. 1648, 84th Cong., 2d Sess.; H.R.Rep. No. 53, 85th Cong., 1st Sess.; H.R.Rep. No. 1360, 85th Cong., 2d Sess.
11
The scope of the program was as follows:
'1. To expose and ferret out the Communists and Communist sympathizers in the Federal Government.
'2. To spotlight the spectacle of having outright Communists controlling and dominating some of the most vital unions in American labor.
'3. To institute a countereducational program against the subversive propaganda which has been hurled at the American people.
'4. Investigation of those groups and movements which are trying to dissipate our atomic bomb knowledge of the benefit of a foreign power.
'5. Investigation of Communist influences in Hollywood.
'6. Investigation of Communist influences in education.
'7. Organization of the research staff so as to furnish reference service to Members of Congress and to keep them currently informed on all subjects relating to subversive and un-American activities in the United States.
'8. Continued accumulation of files and records to be placed at the disposal of the investigative units of the Government and armed services.' Report of the Committee on Un-American Activities to the United States House of Representatives, 80th Cong., 2d Sess., Dec. 31, 1948, 2—3 (Committee Print).
12
Report of the Committee on Un-American Activities to the United States House of Representatives, 80th Cong., 2d Sess., December 31, 1948, 15—21 (Committee Print); H.R.Rep. No. 1950, 81st Cong., 2d Sess. 1—10; H.R.Rep. No. 3249, 81st Cong., 2d Sess. 5—6, 27—29; H.R.Rep.No. 2431, 82d Cong., 2d Sess. 6—9; H.R.Rep. No. 2516, 82d Cong., 2d Sess. 7—67, 69—73.
13
H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098, 1128; H.Res. 321, 76th Cong., 3d Sess., 86 Cong.Rec. 532, 605; H.Res. 90, 77th Cong., 1st Sess., 87 Cong.Rec. 886, 899; H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282, 2297; H.Res. 65, 78th Cong., 1st Sess., 89 Cong.Rec. 795, 810. See Note 15, infra.
14
See, e.g., H.Res. 510, 75th Cong., 3d Sess., 83 Cong.Rec. 8637, 8638 (1938); H.Res. 91, 77th Cong., 1st Sess., 87 Cong.Rec. 899 (1941); H.Res. 415, 78th Cong., 2d Sess., 90 Cong.Rec. 763 (1944); H.Res. 77, 80th Cong., 1st Sess., 93 Cog.R ec. 699, 700 (1947); H.Res. 152, 80th Cong., 1st Sess., 93 Cong.Rec. 3074 (1947); H.Res. 482, 81st Cong., 2d Sess., 96 Cong.Rec. 3941, 3944 (1950); H.Res. 119, 83d Cong., 1st Sess., 99 Cong.Rec. 1358—1359, 1361—1362 (1953); H.Res. 352, 84th Cong., 2d Sess., 102 Cong.Rec. 1585, 1718—1719 (1956); H.Res. 137, 86th Cong., 1st Sess., Cong.Rec., Jan. 29, 1959, p. 1286.
15
H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15. In 1946 the Committee's charter was embodied in the Legislative Reorganization Act of 1946, 60 Stat. 812, 828, U.S.Code Cong. Service 1946, p. 793. Since then the House has continued the life of the Committee by making the charter provisions of the Act part of the House Rules for each new Congress. H.Res. 5, 80th Cong., 1st Sess., 93 Cong.Rec. 38; H.Res. 5, 81st Cong., 1st Sess., 95 Cong.Rec. 10, 11; H.Res. 7, 82d Cong., 1st Sess., 97 Cong.Rec. 9 17, 19; H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24; H.Res. 5, 84th Cong., 1st Sess. 101 Cong.Rec. 11; H.Res. 5, 85th Cong., 1st Sess., 103 Cong.Rec. 47; H.Res. 7, 86th Cong., 1st Sess., Cong.Rec., Jan. 7, 1959, p. 13.
16
Hearings before House Special Committee on Un-American Activities on H.Res. 282, 75th Cong., 3d Sess. 943—973.
17
Hearings before House Special Committee on Un-American Activities on H.Res. 282, 76th Cong., 1st Sess. 6827—6911.
18
See Note 11, supra.
19
Defense area hearings at Detroit in 1952 involved inquiries into Communist activities among the students and teachers in Michigan schools and universities. H.R.Rep. No. 2516, 82d Cong., 2d Sess. 10. Similar investigations were conducted by the Committee the same year in the Chicago defense area. Id., at 28. In 1953 the Committee investigated alleged Communist infiltration into the public school systemsin Philadelphia and New York, H.R.Rep. No. 1192, 83d Cong., 2d Sess. 2, 4.
20
In the course of that debate a member of the Un-American Activities Committee, Representative Jackson, commented: 'So far as education is concerned, if the American educators, and if the gentlemen who are objecting to the investigation of communism and Communists in education, will recognize a valid distinction, I want to point out this is not a blunderbuss approach to the problem of communism in education. We are not interested in textbooks. We are not interested in the classroom operations of the universities. We are interested instead in finding out who the Communists are and what they are doing to further the Communist conspiracy. I may say in that connection that we have sworn testimony identifying individuals presently on the campuses of this country, men who have been identified under oath as one-time members of the Communist Party. Is there any Member of this body who would say we should not investigate this situation?' 83d Cong., 1st Sess., 99 Cong.Rec. 1360.
21
'The citizen, when interrogated about his private affairs, has a right before answering to know why the inquiry is made; and if the purpose disclosed is not a legitimate one, he may not be compelled to answer.' 298 U.S. at page 26, 56 S.Ct. at page 662.
22
Excerpts from the Chairman's statement at the opening of the investigation on February 25, 1953, as to the nature of this inquiry are set forth in Note 31, infra.
23
Crowley immediately preceded petitioner on the witness stand. It appears to be undisputed that petitioner was in the hearing room at the time this statement was made and during Crowley's testimony. In his own examination petitioner acknowledged knowing Crowley.
24
The Chairman stated at the hearing, just before petitioner was excused,
'that the evidence or information contained in the files of this committee, some of them in the nature of evidence, shows clearly that the witness has information about Communist activities in the United States of America, particularly while he attended the University of Michigan.
'That information which the witness has would be very valuable to this committee and its work.'
25
Because the sustaining of petitioner's conviction on any one of the five Counts of the indictment suffices for affirmance of the judgment under review, we state the constitutional isse o nly in terms of petitioner's refusals to answer the questions involved in Counts One and Two in order to sharpen discussion. However, we consider his refusal to answer the question embraced in Count Four would require the same constitutional result. As to Conts Three and Five, see 79 S.Ct. at page 1087, supra.
26
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'
27
See, Legislative Recommendations by House Committee n U n-American Activities, Subsequent Action Taken by Congress or Executive Agencies (A Research Study by Legislative Reference Service of the Library of Congress), Committee on Un-American Activities, House of Representatives, 85th Cong., 2d Sess., June 1958.
28
See, Subversive Activities Control Act of 1950, Title I of the Internal Security Act of 1950, § 2, 64 Stat. 987—989, 50 U.S.C.A. § 781. See also Carlson v. Landon, 342 U.S. 524, 535, 72 S.Ct. 525, 531, 96 L.Ed. 547, note 21.
29
The amicus brief of the American Association of University Prfes sors states at page 24: 'The claims of academic freedom cannot be asserted unqualifiedly. The social interest it embodies is but one of a larger set, within which the interest in national self-preservation and in enlightened and well-informed law-making also prominently appear. When two major interests collide, as they do in the present
case, neither the one nor the other can claim a priori supremacy. But it is in the nature of our system of laws that there must be demonstrable justification for an action by the Government which endangers or denies a freedom guaranteed by the Constitution.'
30
54 Stat. 670, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385.
31
The following are excerpts from that statement:
'* * * In opening this hearing, it is well to make clear to you and others just what the nature of this investigation is.
'From time to time, the committee has investigated Communists and Communist activities within the entertainment, newspaper, and labor fields, and also within the professions and the Government. In no instance has the work of the committee taken on the character of an investigation of entertainment organizations, newspapers, labor unions, the professions, or the Government, as such, and it is not
now the purpose of this committee to investigate education or educational institutions, as such. * * *
'The purpose of the committee in investigating Communists and Communist activities within the field of education is no greater and no less than its purpose in investigating Communists and Communist activities within the field of labor or any other field.
'The committee is charged by the Congress with the responsibility of investigating the extent, character, and objects of un-American propaganda activities in the United States, the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution and all other questions in relation thereto that would aid Congress in any necessary remedial legislation.
'It has been fully established in testimony before congressional committees and before the courts of our land that the Communist Party of the United Stats i § part of an international conspiracy which is being used as a tool or weapon by a foreign power to promote its own foreign policy and which has for its object the overthrow of the governments of all non-Communist countries, resorting to the use of force and violence, if necessary * * *. Communism and Communist activities cannot be investigated in a vacuum. The investigation must, of necessity, relate to individuals and, therefore, this morning the committee is calling you (one, Davis) as a person known by this committee to have been at one time a member of the Communist Party.
'The committee is equally concerned with the opportunities that the Communist Party has to wield its influence upon members of the teaching profession and students through Communists who are members of the teaching profession. Therefore, the objective of this investigation is to ascertain the character, extent and objects of Communist Party activities when such activities are carried on by members of the teaching profession who are subject to the directives and discipline of the Communist Party.' The full statement is printed as the Appendix to the original Court of Appeals opinion, 100 U.S.App.D.C. 22—24, 240 F.2d 884—886.
32
Thus, early in the investigation one of the witnesses, Hicks, testified in response to a question as to 'the general purpose of the Communist Party in endeavoring to organize a cell or unit among the teaching profession' at the various universities that contrary to his original view:
'* * * it is very obvious to me that the popular front (Communist protection of democracy against Facism) was simply a dodge that happened in those particular years to serve the foreign policy of the Soviet Union; so it seems to me that the party, in organizing branches in the colleges, had two purposes. One was to carry out the existing line which they wanted to make a show of advancing, and then, of course, the other was to try to have a corps of disciplined revolutionaries whom they could use for other purposes when the time came.'
33
We agree with the Court of Appeals that the one sentence appearing in the Committee's report for 1954, upon which petitioner largely predicates his exposure argument, bears little significance when read in the context of the full report and in light of the entire record. This sentence reads: 'The 1954 hearings were set up by the committee in order to demonstrate to the people of Michigan the fields of concentration of the Communist Party in the Michigan area, and the identity of those individuals responsible for its success.'
34
See 79 S.Ct. at page 1091 and Note 24, supra.
1
Bills of attainder are among the few measures explicitly forbidden to both State and Federal Governments by the body of the Constitution itself. U.S.Const. Art. I, § 9, cl. 3, states 'No Bill of Attainder or ex post facto Law shall be passed.' U.S.Const. Art. I, § 10, cl. 1, reads in part 'No State shall * * * pass any Bill of Attainder (or) ex post facto Law * * *.'
2
E.g., Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Winters v. People of State of New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840; Jordan v. De George, 341 U.S. 223, 230—231, 71 S.Ct. 703, 707—708, 95 L.Ed. 886.
3
E.g., Watkins v. United States, 354 U.S. 178, 207—208, 77 S.Ct. 1173, 1189—1190, 1 L.Ed.2d 1273; Flaxer v. United States, 358 U.S. 147, 79 S.Ct. 191, 3 L.Ed.2d 183; Scull v. Commonwealth of Virginia, 359 U.S. 344, 79 S.Ct. 838.
4
See, e.g., Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Scull v. Commonwealth of Virginia, 359 U.S. 344, 79 S.Ct. 838.
5
Thornhill v. State of Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093. Cf. Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.
6
Rule XI in relevant part reads, 'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24. See also H.Res. 7, 86th Cong., 1st Sess., Cong.Rec., Jan. 7, 1959, p. 13.
7
See, e.g., Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570; id., 295 U.S. at page 551, 55 S.Ct. at page 852 (concurring opinion); Berra v. United States, 351 U.S. 131, 135, 76 S.Ct. 685, 688, 100 L.Ed. 1013 (dissenting opinion); Watkins v. United States, 354 U.S. 178, 203 205, 77 S.Ct. 1173, 1187—1188, 1 L.Ed.2d 1273; Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311. Cf. United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. These cases show that when this Court considered that the legislative measures involved were of doubtful constitutionality substantively, it required explicit delegations of power.
8
It is of course no answer to Barenblatt's claim that Rule XI is too vague, to say that if it had been too vague it would have been so held in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. It would be a strange rule, indeed, which would imply the invalidity of a broad ground of decision from the fact that this Court decided an earlier case on a narrower basis.
9
The First Amendment reads: 'Congress shall make no law respecting an establishmen of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' There can be no doubt that the same Amendment protects the right to keep silent. See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460—466, 78 S.Ct. 1163, 1170—1174, 2 L.Ed.2d 1488; Sweezy v. State of New Hampshire, 354 U.S. 234, 255, 77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311 (concurring opinion); Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Scull v. Commonwealth of Virginia, 359 U.S. 344, 79 S.Ct. 838. Cf. United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770.
10
I do not understand the Court's opinion in Watkins v. United States, 354 U.S. 178, 198, 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273, to approve the type of balancing process adopted in the Court's opinion here. We did discuss n t hat case 'the weight to be ascribed to * * * the interest of the Congress is demanding disclosures from an unwilling witness.' As I read, and still read, the Court's discussion of this problem in Watkins it was referring to the problems raised by Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, which held that legislative committees could not make roving inquiries into the private business affairs of witnesses. The Court, in Kilbourn, held that the courts must be careful to insure that, on balance, Congress did not unjustifiably encroach on an individual's private business affairs. Needless to say, an individual's right to silence in such matters is quite a different thing from the public's interest in freedom of speech and the test applicable to one has little, if anything, to do with the test applicable to the other.
11
1 Annals of Cong. 439 (1789). (Italics supplied.)
12
'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.' De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.
13
Cf. statement of Sir Richard Nagle presenting a bill of attainder against between two and three thousand persons for political offenses, "Many of the persons here attainted,' said he 'have been proved traitors by such evidence as satisfies us. As to the rest we have followed common fame." Cited in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142, 148, 71 S.Ct. 624, 636, 95 L.Ed. 817 (concurring opinion).
14
See Hearings, Senate Committee on the Judiciary on H.R. 5852, 80th Cong., 2d Sess. 415—420, 420—422.
15
Id., at 422—425. See also Hearings, Subcommittee on Legislation of the House Committee on Un-American Activities on H.R. 4422, H.R. 4581, 80th Cong., 2d Sess. 16—37.
16
Hearings, Subcommittee on Legislation of the Committee on Un-American Activities on H.R. 4422, H.R. 4581, 80th Cong., 2d Sess. 13. This statement was relied on by the Honorable Thomas E. Dewey, then a candidate for the presidency of the United States, in a speech given in Portland, Oregon, in May, 1948. Mr. Dewey went on to say, in opposing outlawry of the Communist Party:
'I am against it because it is a violation of the Constitution of the United States and of the Bill of Rights, and clearly so. I am against it because it is immoral and nothing but totalitarianism itself. I am against it because I know from a great many years' experience in the enforcement of the law that the proposal wouldn't work, and instead it would rapidly advance the cause of communism in the United States and all over the world.
'There is an American way to do this job, a perfectly simple American way * * * outlawing every conceivable act of subversion against the United States.
'Now, times are too grave to try any expedients and fail. This expedient has failed, this expedient of outlawing has failed in Russia. It failed in Europe, it failed in Italy, it failed in Canada. * * *
'Let us not make such a terrific blunder in the United States * * *. Let us go forward as Free Americans. Let us have the courage to be free.' XIV Vital Speeches of the Day, 486—487. (Italics supplied.)
17
Hearings, Subcommittee on Legislation of the Committee on Un-American Activities on H.R. 4422, H.R. 4581, 80th Cong., 2d Sess. 20. Compare statement of John Lilburne, 'what is done unto any one, may be done unto every one.' Note 39, infra.
18
S.Doc. No. 97, 85th Cong., 2d Sess. 149, lists the States with laws relating to the Communist Party and the ballot. See also, Fund For The Republic, Digest of the Public Record of Communism in the United States, 324—343. For a discussion of state laws requiring a minimum percentage of the votes cast to remain on the ballot, see Note, 57 Yale L.J. 1276.
19
See O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592, 593. Signicantly the action of the New York Assembly was strongly condemned by Charles Evans Hughes, then a former Associate Justice of this Court, and later its Chief Justice.
20
See generally, McCarthy, The Antimasonic Party: A Study of Political Antimasonry in the United States, 1827—1840. H.R.Doc. No. 461, 57th Cong., 2d Sess. 365. Nye, William Lloyd Garrison, 88 105; Korngold, Two Friends of Man, 82—104. Cf. St. George Tucker, Appendix, 1 Blackstone (Tucker ed. 1803) 315, discussing English laws 'for suppressing assemblies of free-masons' and pointing out that similar laws cannot be enacted under our Constitution.
21
Ames, Laocoon, printed in Works of Fisher Ames (1809 ed.), 94, 97, 101, 106. See also 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).
22
Cf. Mill, On Liberty (1885 ed.), 30 (criticizing laws restricting the right to advocate tyrannicide).
23
Cf. St. George Tucker, Appendix, 1 Blackstone Commentaries (Tucker ed. 1803) 299. '(T)he judicial courts of the respective states are open to all persons alike, for the redress of injuries of this nature (libel); . . . But the genius of our government will not permit the federal legislature to interfere with the subject; and the federal courts are, I presume, equally restrained by the principles of the constitution, and the amendments which have since been adopted.'
24
The record in this very case indicates how easily such restrictions spread. During the testimony of one witness an organization known as the Americans for Democratic Action was mentioned. Despite testimony that this organization did not admit Communists, one member of the Committee insisted that it was a Communist front because 'it followed a party line, almost identical in many particulars with the Communist Party line.' Presumably if this accusation were repeated frequently and loudly enough that organization, or any other, would also be called a 'criminal gang.' Cf. Feiner v. People of State of New York, 340 U.S. 315, 321, 329, 71 S.Ct. 303, 307, 311, 95 L.Ed. 267 (dissenting opinions).
25
See generally, XII Encyclopediaof the Social Sciences 714; Barnes, The Story of Punishment, 62—64; Lowie, Primitive Society, 398; Andrews, Old-Time Punishments (1890 ed.), 1—145, 164 187; IV Plutarch's Lives (Clough, New Nat. ed. 1914) 43—44.
26
In its very first report it stated, 'The committee has felt that it is its sworn duty and solemn obligation to the people of this country to focus the spotlight of publicity upon every individual and organization engaged in subversive activities regardless of politics or partisanship.' It further claimed that, 'While Congress does not have the power to deny to citizens the right to believe in, teach, or advocate, communism, fascism, and nazism, it does have the right to focus the spotlight of publicity upon their activities.' H.R.Rep. No. 2, 76th Cong., 1st Sess. 9 10, 13. See also the statement of the Committee's first Chairman, 'I am not in a position to say whether we can legislate effectively in reference to this matter, but I do know that exposure in a democracy of subversive activities is the most effective weapon that we have in our possession.' 83 Cong.Rec. 7570 (1938).
27
See, e.g., H.R.Rep. No. 2748, 77th Cong., 2d Sess. 5. 'On September 6, 1941, the chairman of this committee wrote the President a letter, accompanied by 43 exhibits, detailing the Communist affiliation and background of the following officials * * * and suggested that they be dismissed from their positions.' 'On November 28, 1941 * * * the chairman called the attention of the members to the case of (the) principal economist in the Department of Agriculture'; 'On January 15, 1942, the chairman of the committee * * * called attention to * * * one Malcolm Cowley * * *. Several weeks later Mr. Cowley resigned his position with the Federal Government'; 'On March 28, 1942, the chairman wrote a letter to the * * * Chairman of the Board of Economic Welfare, and called attention to * * * eight of its employees and made particular reference to one Maurice Parmelee * * *. The following week, Mr. Parmelee was dismissed * * *.' Id., at 6. 'In the Chairman's speech of September 24 (1942) he also presented to the House the names of 19 officials of the Government * * *. Yet, to the committee's knowledge, no action has been taken in the cases of the 19 officials.' Id., at 8.
28
Section 304 of the Urgent Deficiency Appropriation Act, 1943, 57 Stat. 431, 450. The history of this rider is detailed in United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252.
29
See, e.g., H.R.Rep. No. 448, 78th Cong., 1st Sess. 6, 8. The Un-American Activities Committee did not actually undertake the trials of these government employees. That task fell to a special Subcommittee ofthe Committee on Appropriations which was created in response to a speech by the Chairman of the Un-American Activities Committee. Id., at 3.
30
Virtually every report of the Committee emphazies that its principal function is exposure and that once exposed subversives must be driven out. Space, however, prevents listing more than a random sampling of statements by the Committee. These are given in an Appendix to this opinion, 79 S.Ct. 1112. For other similar statements by the Committee and its members see, e.g., notes 26, 27, supra; 31—37, infra; Watkins v. United Staes, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; United States v. Josephson, 2 Cir., 165 F.2d 82, 93 (dissenting opinion); Barsky v. United States, 83 U.S.App.D.C. 127 138, 167 F.2d 241, 252 (dissenting opinion).
31
This evidence was given before the Committee on May 7, 1959, in Chicago, Ill. It has not yet been published.
Even those the Committee does not wish to injure are often hurt by its tactics, so all-pervasive is the effect of its investigations.
'It has been brought to the attention of the committee that many persons so subpenaed * * * have been subjected to ridicule and discrimination as a result of having received such subpenas'; 'The committee * * * has met with many obstacles and difficulties. Not the least of these has been the reluctance of former Communists to give testimony before the committee which might bring upon them public censure and economic retaliation'; 'To deny to these cooperative witnesses of full opportunity for social, economic, and political rehabilitation * * * will * * * render more difficult the obtaining of authentic * * * information.' H.R.Rep. No. 2431, 82d Cong., 2d Sess. 5. (Italics added.)
'While the American people * * * were fortunate to have this testimony, some of the witnesses themselves were not. Instances have come to the committee's attention where several of these witnesses have been forced from gainful employment after testifying. Some have been released from the employment which they competently held for years prior to their testimony.' H.R.Rep. No. 2516, 82d Cong., 2d Sess. 3.
32
Descriptions of the size and availability of Committee's files as well as the efficiency of its cross-indexing system can be found in most of its reports. ee, e.g., H.R.Rep. No. 2742, 79th Cong., 2d Sess. 16—17; H.R.Rep. No. 1950, 81st Cong., 2d Sess. 18—23; H.R.Rep. No. 2431, 82d Cong., 2d Sess. 24—28.
33
It is impossible even to begin to catalogue people who have been stigmatized by the Committee for criticizing it. In 1942 the Committee reported 'Henry Luce's Time magazine has been drawn sucker-fashion into this movement to alter our form of government * * *.' H.R.Rep. No. 2277, 77th Cong., 2d Sess. 2. In 1946 Harold Laski and socialists generally were attacked for their 'impertinence in suggesting that the United States should trade its system of free economy for some brand of Socialism.' The Committee deemed it 'imperative' that it ascertain the 'methods used to enable Mr. Laski to broadcast to (a) rally.' H.R.Rep. No. 2233, 79th Cong., 2d Sess. 46—47. In 1951 a full report was issued on a 'communist lobby'—a committee formed to urge defeat of a communist control bill before Congress. Among the distinguished sponsors of the group listed by the committee was the late Prof. Zechariah Chafee. The Committee, nevertheless advised 'the American public that individuals who knowingly and actively support such a propaganda outlet * * * are actually aiding and abetting the Communist program in the United States.' H.R.Rep. No. 3248, 81st Cong., 2d Sess. 1, 11—12, 15. See also, Gellhorn, Report on a Report of the House Committee on Un-American Activities, 60 Harv.L.Rev. 1193.
34
H.R.Rep. No. 1950, 81st Cong., 2d Sess. 19.
35
'The 1954 hearings were set up by the committee in order to demonstrate to the people of Michigan the fields of concentration of the Communist Party in the Michigan area, and the identify of those individuals responsible for its success.' H.R.Rep. No. 57, 84th Cong., 1st Sess. 15.
36
Id., at 17.
37
'(T)he Committee on Un-American Activities calls upon the American labor movement * * * to amend its constitutions where necessary in order to deny membership to a member of the Communist Party or any other group which dedicates itself to the destruction of America's way of life.' Ibid.
38
Sincerity and patriotism do not, unfortunately, insure against unconstitutional acts. Indeed, some of the most lamentable and tragic deaths of history were instigated by able, patriotic and sincere men. See generally Mill, On Liberty (1885 ed.), 43—48.
39
'For certainly it cannot be denied, but if he be really an offender, he is such by the breach of some law, made and published before the fact, and ought by due process of law, and verdict of 12 men, to be thereof convict, and found guilty of such crime; unto which the law also hath prescribed such a punihme nt agreeable to that our fundamental liberty; which enjoineth that no freeman of England should be adjudged of life, limb, liberty, or estate, but by Juries; a freedom which parliaments in all ages contended to preserve from violation; as the birthright and chief inheritance of the people, as may appear most remarkably in the Petition of Right, which you have stiled that most excellent law.
'And therefore we trust upon second thoughts, being the parliament of England, you will be so far from bereaving us, who have never forfeited our right, of this our native right, and way of Trials by Juries, (for what is done unto any one, may be done unto every one), that you will preserve them entire to us, and to posterity, from the encroachments of any that would innovate upon them * * *.
'And it is believed, that * * * had (the cause) at any time either at first or last been admitted to a trial at law, and had passed any way by verdict of twelve sworn men: all the trouble and inconveniences arising thereupon and been prevented: the way of determination by major votes of committees, being neither so certain nor so satisfactory in any case as by way of Juries, the benefit of challenges and exceptions, and unanimous consent, being all essential privileges in the latter; whereas committees are tied to no such rules, but are at liberty to be present or absent at pleasure. Besides, Juries being birthright, and the other but new and temporary, men do not, nor, as we humbly conceive, ever will acquiesce in the one as in the other; from whence it is not altogether so much to be wondered at, if upon dissatisfactions, there have been such frequent printing of men's cases, and dealings of Committees, as there have been; and such harsh and inordinate heats and expressions between parties interested, such sudden and importunate appeals to your authority, being indeed all alike out of the true English road, and leading into nothing but trouble and perlexity, breeding hatred and enmities between worthy families, affronts and disgust between persons of the same public affection and interest, and to the rejoicing of none but public adversaries. All which, and many more inconveniences, can only be avoided, by referring all such cases to the usual Trials and final determinations of law.' 5 Howell's State Trials 411—412, Statement of John Lilburne (1953).
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